NLRB Decisions - 2002 July-December

Murphy is a vice president of Hotel & Restaurant Employees Local 274 and has appeared and practiced before the Board as a representative of the Union. The complaint alleged that on April 3, 2001, during a Board-conducted decertification election in Case 4-RD-1901, Murphy, while serving as the observer for the Union, struck the decertification petitioner in the face and engaged in misconduct in violation of Section 102.177(a) and (d) of the Board's Rules and Regulations.

(Full Board participated.)

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American Gardens Management Co. and Bailey Gardens Realty Corp.2-CA-33475, 33605; 338 NLRB No. 76) Bronx, NY Nov. 22, 2002. In agreement with the General Counsel, the Board determined that a Wright Line analysis must be applied in these cases to determine whether the joint employer Respondents discriminatorily discharged three maintenance employees in violation of the Act. Finding that the administrative law judge, in recommending the complaint's dismissal, did not clearly undertake a Wright Line analysis, or address all of the relevant record evidence, the Board remanded the cases to him for further consideration and found it premature to rule on the substance of the General Counsel's exceptions. [HTML] [PDF]

The judge was directed to consider all of the evidence relevant to an analysis under Wright Line, making any additional findings of fact and credibility determinations which might be required; to apply the applicable Wright Line elements and standards to those facts; and to issue a supplemental decision setting forth his findings, analysis, and conclusions. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

The complaint alleges that the Respondent discharged employees Roberts and Resales in violation of Section 8(a)(1), (3), and (4) because they testified at a representation hearing and discharged employee Frias in violation of Section 8(a)(1) and (3) because he assisted Service Employees Local 32E and engaged in concerted activities. The Respondents contended that Roberts and Rosales were discharged for lack of work and that Frias was discharged for his insubordinate and volatile attitude.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Service Employees Local 32E; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at New York City, Dec. 11-13, 2001. Adm. Law Judge Raymond P. Green issued his decision March 6, 2002.

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Lancaster Care Center, L.L.C. (30-RC-6193; 338 NLRB No. 80) Lancaster, WI Nov. 22, 2002. In agreement with the hearing officer's recommendation to sustain the Petitioner's Objection D, Members Liebman and Bartlett set aside the third election held April 26, 2001 and directed a fourth election. Because Objection D warranted setting aside the election, they found no need to pass on the Petitioner's other objections (Objections C, G, H, and I) sustained by the hearing officer. While she agreed that Objection D provided sufficient grounds to set aside the election, Member Liebman would also agree with the hearing officer that the surveillance incidents in Objections G and H constituted objectionable conduct. [HTML] [PDF]

The tally of ballots for the third election resulted in 20 for and 21 against, the Petitioner (Sheet Metal Workers Local 565), with 2 determinative challenged ballots, one of which was sustained, rendering the remaining ballot no longer determinative.

Objection D involved a statement made by LPN Kris Mumm, a supervisor, who was overheard by Cindy Klinkhammer telling a certified nursing assistant (CNA) that if the Union was successful in organizing the CNAs the LPNs would no longer help the CNAs. Klinkhammer disseminated this statement to other unit members. Members Liebman and Bartlett found it significant that the threat of reprisal was made within 2 months of the election and that it would have affected the election, which was decided by one vote.

In dissent, Member Cowen would overrule Objection D. He disagreed with his colleagues that Mumm's statement was a threat of reprisal. He said "Mumm's remark, which was based on what happened at another resident care facility after its CNAs had unionized, amounted to nothing more than an almost certainly truthful statement concerning what the Union would do at Lancaster to protect the work jurisdiction of the CNAs. Such a statement is not a threat of reprisal, but rather an unobjectionable explanation of one of the natural consequences of choosing union representation." Member Cowen would also overrule Petitioner's Objections C, G, H, and I and certify the results of the election.

No exceptions were filed to the hearing officer's recommendation to overrule Petitioner's Objections A, B, and J.

(Members Liebman, Cowen, and Bartlett participated.)

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Offshore Mariners United (Trico Marine Operators, Inc.) (15-CC-832, 833; 338 NLRB No. 88) Houma, LA Nov. 22, 2002. Members Liebman and Bartlett denied a Petition to Revoke Subpoena Ad Testificandum filed by David Eckstein, a former field director for Offshore Mariners United (OMU). The General Counsel served the subpoena on Eckstein because the Region was unsuccessful in gaining his voluntary cooperation during its investigation of charges filed against OMU by Trico. The charges allege, among others, that OMU violated Section 8(b)(4)(i) and (ii)(B) of the Act by inducing or encouraging employees of Trico's customers to refuse to perform any work related to Trico, and by threatening Trico's customers, all with an object of forcing or requiring the customers to cease doing business with Trico. [HTML] [PDF]

The Region's investigation of the charges disclosed that Eckstein had written letters during his tenure as the OMU field director to two of the Employer's largest customers concerning the Employer's alleged antiunion/antiworker activities, and sought to meet with the customers and discuss those issues. In a followup letter to one of the customers, Eckstein stated that the OMU was contacting the customer in an attempt to highlight the inherent problems of doing business with such a company.

Eckstein's arguments for revocation of the subpoena are numerous. The majority, in denying the petition to revoke the General Counsel's investigatory subpoena, wrote:

Section 102.31(b) of the Board's Rules and Regulations provides that the Board shall revoke a subpoena if the evidence sought does not relate to any matter under investigation, if the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. None of these criteria are met here.

Member Cowen, dissenting, would grant the petition because the prehearing discovery sought by the General Counsel is not provided for under the Board's rules. He also believes that it is important for the Board to reexamine the appropriateness of the Board's rules governing prehearing discovery and recommended that his colleagues consider providing full pretrial discovery to all parties involved in Board proceedings.

In response to the dissent, Members Liebman and Cowen said that "[t]he Board's policy is well established and has been sustained by the circuit courts. Further, Congress has long recognized the Board's policy and never changed it."

(Members Liebman, Cowen, and Bartlett participated.)

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Time Auto Transportation, Inc. and Time Auto Transport, L.S. (7-CA-43641-1, -2; 338 NLRB No. 75) Troy, MI Nov. 22, 2002. Members Liebman and Cowen adopted the administrative law judge's finding that the Respondent committed several unfair labor practices against Randy Hill and Ernest Blake because they engaged in union activities, culminating in their unlawful discharge. The judge concluded that Hill and Blake, who haul vehicles for the Respondent using tractor-trailers that they lease from the Respondent, are statutory employees, not independent contractors as the Respondent claimed. [HTML] [PDF]

Member Cowen joined in affirming the judge's finding that Hill and Blake are statutory employees. In his view, the structure of their work relationship with the Respondent, tips the balance in favor of finding independent contractor status. However, noting that the terms of both Hill's and Blake's truck-lease contract give the Respondent the right to terminate the lease at will on 5 days' notice, and that the Respondent used that right to control the manner of Hill's performance of his work, Member Cowen said that the Respondent sought to exercise a degree of control over the manner of work performance that is inconsistent with independent contractor status. Member Liebman, based on all of the factors set forth in the judge decision, including the factors relied on by Member Cowen, also agreed that Hill and Blake are statutory employees.

In dissent, Member Bartlett would find that lease drivers Hill and Blake were independent contractors, not employees, and would therefore dismiss the complaint. He relied on numerous factors: the lease agreements signed by Hill and Blake identified them as independent contractors; the Respondent did not withhold social security taxes, issued 1099 forms to the drivers' companies, and did not provide the drivers with any benefits; the drivers formed their own corporations and paid their own expenses to maintain the vehicles, including repairs, inspections, permits and fees; the Respondent's payments were made to the drivers' corporation, which in turn hired additional drivers and filed federal corporate income tax returns; the lease drivers, such as Hill and Blake, were responsible for paying the additional drivers (whom they could terminate) and for providing with insurance coverage; and, except for deliveries in Canada, the drivers would choose their own routes.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Randy Hill and Ernest L Blake, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, Nov. 13-15, 2001. Adm. Law Judge Eric M. Fine issued his decision April 10, 2002.

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Community Action Commission of Fayette County, Inc. (9-RC-17367; 338 NLRB No. 79) Fayette County, OH Nov. 22, 2002. Members Cowen and Bartlett, contrary to the hearing officer, sustained the challenge to the ballot of Head Start Program employee Debra Tyree. Agreeing with the hearing officer, Members Liebman and Cowen sustained the Petitioner's objection alleging that the Employer threatened employees that they would lose their jobs if the Union won the election and found it unnecessary to pass on his recommendation to sustain the objection alleging that the Employer selectively videotaped employees on days that they were wearing Union tee shirts at work. [HTML] [PDF]

Members Liebman and Cowen set aside the election held May 2, 2000 and directed a second election since the Petitioner (Ohio Association of Public School Employees (OAPSE/AFSCME Local 4) did not receive a majority of the valid ballots cast. The tally showed 20 for and 20 against, the Petitioner, with 2 determinative challenged ballots. In the absence of exceptions, the Board adopted, pro forma, the hearing officer's recommendation that the unresolved challenged ballot of Heather Michael be neither opened nor counted because the parties stipulated that she was not an eligible voter.

Member Liebman, concurring in part and dissenting in part, would adopt the hearing officer's findings that Tyree was employed on both the voting eligibility cutoff date and the date of the election, overrule the challenge to her ballot, and open and count it. Given the majority's sustaining the challenge to Tyree's ballot, she joined Member Cowen in setting aside the election on the basis of the Employer's objectionable threats of job loss if the Union won.

Member Bartlett, dissenting in part, would overrule the Petitioner's objection based on supervisor Jodie Baker's threat of job loss and found it unnecessary to reach the Petitioner's remaining objection based on the alleged videotaping of protected activity, and contrary to the hearing officer, would overrule that objection as well and certify the results of the election.

(Members Liebman, Cowen, and Bartlett participated.)

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Amber Foods, Inc. (32-CA-18139-1, et al.; 338 NLRB No. 84) Dinuba, CA Nov. 22, 2002. This case involves allegations that the Respondent committed numerous violations of the Act in response to the Union's 1999-2000 organizational campaign. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by granting a wage increase effective April 7, 2000 shortly after it learned of the employees' union activities, and by withholding the employees' midyear bonus; and that the Respondent did not violate Section 8(a)(3) and (1) by warning employee Concepcion Sandoval and refusing to permit her to return to work. [HTML] [PDF]

The Board held, contrary to the judge, that the Respondent violated the Act by issuing warnings to Maria Chavez on May 31 and June 20, 2000 and issuing a series of disciplinary warnings and suspensions to Carmen Munoz; and that the Respondent did not violate the Act by suspending and discharging Maria Alvarez and issuing disciplinary warnings to and discharging Genoveva Alvarez because of their union activities.

Member Liebman, concurring in part and dissenting in part, would adopt the judge's findings that the Respondent violated Section 8(a)(3) and (1) by repeatedly warning and ultimately discharging G. Alvarez, and by suspending and discharging M. Alvarez.

Member Cowen, dissenting in part, found that the General Counsel failed to establish that the disciplinary warnings issued to C. Munoz, and the May 31 and June 20, 2000 warnings given to M. Chavez, were unlawful and disagreed with his colleagues' finding of violations in these respects.

No exceptions were filed to the judge's findings, among others, that the Respondent violated Section 8(a)(1) by telling employees not to speak with other employees who were involved in union activities, soliciting grievances, and threatening employees with stricter application of rules, discharge, and plant closure; and violated Section 8(a)(3) and (1) by increasing the number of sick days to which its employees were entitled and by taking disciplinary action against certain employees.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by United Farm Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Visalia on various dates between Dec. 11, 2000 and Jan. 23, 2001. Adm. Law Judge James L. Rose issued his decision April 23, 2001.

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Elevator Constructors Local 10 (Thyssen General Elevator Co.) (5-CB-8986; 338 NLRB No. 83) Wilkes-Barre, PA Nov. 22, 2002. Members Cowen and Bartlett affirmed the administrative law judge's finding that the Respondent violated Section 8(b)(1)(B) of the Act by fining member Horace Stillman Jr., for characterizing another member as "nothing but trouble" and recommending that the member be removed from a jobsite supervised by Stillman. The majority rejected the Respondent's argument that Stillman is not entitled to the judge's award of expenses because he is a third-party witness. It agreed with the judge that an award to Stillman for expenses incurred in defending against the Respondent's disciplinary charge is proper, saying "this award places Stillman in the place he would have been absent the Respondent's 8(b)(1)(B) violation." [HTML] [PDF]

Dissenting Member Liebman wrote: "In my view, while the supervisor's conduct amounted to the exercise of supervisory authority under Section 2(11) of the Act, it fell outside the much narrower scope of Section 8(b)(1)(B). The majority's decision, which finds a violation, represents the sort of expansive application of Section 8(b)(1)(B) that the courts have rightly criticized. See, e.g., NLRB v. Sheet Metal Workers Local 104, 64 F.3d 465, 467-470 (9th Cir. 1995)."

From January to July 1999, Stillman served as the foreman at the Employer's construction site in Wilkes-Barre, Pennsylvania, where Elevator Constructors Local 84 had jurisdiction. Gibson, who transferred from a Connecticut jobsite, arrived at the Wilkes-Barre project in February or March 1999, contending that he had been promised a higher rate than the regular Local 84 contractual rate. Stillman recommended to project superintendent Gough that the Employer pay Gibson the Local 84 wage rate, and his recommendation was followed.

Stillman noticed that Gibson continued to complain about his pay and that his complaints significantly slowed and hampered his work. Stillman spoke to Gibson about his pace of work, but it did not improve. Stillman discussed the matter with Gough, telling him that Gibson was "nothing but trouble" and recommending Gibson's removal from the project. Gough followed this recommendation, and Gibson was laid off after being at the Wilkes-Barre project for 2 weeks. Local 84 brought internal union charges against Stillman, which ultimately were considered by the Respondent.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by National Elevator Industry, Inc.; complaint alleged violation of Section 8(b)(1)(B). Hearing at Washington, D.C. on Aug. 22, 2000. Adm. Law Judge Richard A. Scully issued his decision Nov. 20, 2000.

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Nynex Corp. (34-CA-7953 (formerly 2-CA-30651), 8130; 338 NLRB No. 78) New York and Harrison, NY Nov. 22, 2002. The Board dismissed complaint allegations that the Respondent violated Section 8(a)(1) of the Act by taking action against Communications Workers Local 1105 and its representatives after they attempted to meet and arrange grievance meetings with the staff director of the Respondent's Absence Benefit Center (ABC or the Center), including suspending employees and calling the police regarding the union representatives' refusal to leave. Unlike the administrative law judge who found that the conduct was protected, the Board found no violation, given the 2-hour cessation of work at the Center caused by the union representatives and their persistent refusal of the Respondent's demands that they leave. [HTML] [PDF]

Members Cowen and Bartlett also reversed the judge's findings that the Respondent violated Section 8(a)(5) and (1) by refusing to accept the employees' grievances and to make appointments to discuss grievances, and by unilaterally canceling Union Representative Shannon and DeBiase's magnetic cards for gaining access to the Harrison facility.

In finding the access card violation, the judge held that the breach of past practice was a "material, substantial, and significant" change. Members Cowen and Bartlett disagreed, noting that the Respondent beefed up security at the facility after the disruption at ABC, canceling the magnetic cards held by any person who did not have regular business there at least once a week. After the cancellation, union representatives and others who visited the facility less than once a week were required to stop and present identification to gain access. Members Cowen and Bartlett concluded that the new security procedures "did not limit the Union's movement within its facility or result in the Union's being denied access to any unit employees at the workplace."

Members Cowen, concurring in the dismissal of the complaint, wrote separately "to express the additional reasons why certain allegations of the complaint lack merit."

Member Liebman, dissenting in part, would affirm the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally canceling Shannon and DeBiase's magnetic access cards to the Harrison facility, explaining: "In effect the Respondent's new policy forced the Union to identify those employees involved in union activities or those seeking assistance from the Union with workplace issues. This aspect of the Respondent's policy necessarily impacted the unit employees' ability to meet with or submit complaints to the Union in confidence."

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Communications Workers Local 1105; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on five days between Jan. 27 and Feb. 23, 1999. Adm. Law Judge Eleanor MacDonald issued her decision June 13, 2000.

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Exterior Systems, Inc. (4-CA-29852; 338 NLRB No. 82) Mount Laurel, NJ Nov. 22, 2002. The Board upheld the administrative law judge's finding that the Respondent did not violate Section 8(a)(3) and (1) of the Act by failing to hire or consider for hire James Kilkenny, a union organizer for Operative Plasters and Cement Masons Local 8, after he applied for work on August 16, 2000, and again on October 3, 2000. In a reversal of the judge, the Board found that the Respondent violated Section 8(a)(1) when owner Sun Sanders told Kilkenny on October 3 that she could not hire him because he worked for the Union office. [HTML] [PDF]

The judge found that the General Counsel failed to meet his initial evidentiary burden under FES of proving that union animus was a motivating factor in the Respondent's decision not to consider or to hire Kilkenny. FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). He also credited Manager Mark Sanders' testimony that Kilkenny and the other applicants with him were "disruptive" and "disrespectful." Based on the judge's crediting of the testimony of Mark and Sun Sanders as to their reaction to this conduct, the Board affirmed the judge's finding that the Respondent would not have hired or considered Kilkenny for hire regardless of his union activity.

Members Liebman, Cowen, and Bartlett each wrote a separate concurrence.

Member Liebman noted that her colleagues separately argue that the Board must supplement or modify the FES framework to address "what each apparently believes" should be an element of a refusal-to-hire and a refusal-to-consider violation under Section 8(a)(3). She wrote:

In their view, the General Counsel has the burden of proving that the employee alleged to have been discriminated against also had a genuine interest in employment-however that may be defined and demonstrated (my colleagues do not articulate a clear and common test). Member Cowen would require this showing as part of the General Counsel's initial burden: Member Bartlett would not, but he would still place the burden of persuasion on the General Counsel, once the employer produced evidence on the issue (as opposed to treating the matter as an affirmative defense, on which the employer bears the burden of persuasion).

Needless to say, these arguments would be better addressed in a case where they had some bearing on the outcome and where the Board had the benefit of briefing. But because my colleagues have put their views forward, because those views strike me as seriously flawed, and because I am the sole remaining member of the Board that decided FES, I feel compelled to speak to the issue as well.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Operative Plasterers and Cement Masons Local 8; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, May 15-16, 2001. Adm. Law Judge Paul Bogas issued his decision July 18, 2001.

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Jet Electric Co. (11-CA-18395; 338 NLRB No. 77) Winston-Salem, NC Nov. 22, 2002. Members Liebman and Bartlett declined, contrary to Member Cowen, to reexamine sua sponte the Board's prior summary judgment decision, finding that the Respondent failed to submit a sufficient answer to the complaint and violated Section 8(a)(3) and (1) of the Act by, among others, refusing to consider for hire and failing and refusing to hire eight named employees. 334 NLRB No. 133 (2001). There, the Board held in abeyance a final determination of the appropriate remedy pending a remand of this case for a hearing before an administrative law judge limited to the number of openings that were available to the applicant-discriminatees under FES, 331 NLRB 9 (2000). [HTML] [PDF]

In his supplemental decision on remand, the judge found that the Respondent had eight job openings within the 4 months after the first refusal to hire, and recommended that the Board order reinstatement and backpay, with interest, for the eight named employees. No exceptions were filed to these findings. The majority wrote: "We view our difference with our dissenting colleague as essentially procedural in nature. In the posture of this case, particularly the Respondent's failure to file exceptions, we simply would not revisit this matter."

Member Cowen, dissenting, would not adopt the judge's decision on remand, saying: "The Board cannot remedy its error of granting summary judgment without sufficient allegations or record evidence by ordering a post-decision hearing to fill in the missing facts."

(Members Liebman, Cowen, and Bartlett participated.)

Hearing at Winston-Salem on Feb. 27, 2002. Adm. Law Judge James M. Kennedy issued his decision Aug. 10, 2001.

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Victor's Café 52, Inc. (2-CA-25886; 338 NLRB No. 90) New York, NY Nov. 22, 2002. In this Supplemental Decision and Order, the Board agreed with the administrative law judge's finding that discriminatee Baute's gross backpay should not reflect work as a bus boy. Member Cowen and Bartlett rejected the judge's credibility-based rationale for this conclusion and, instead, found that the denial of backpay at the busboy rate is appropriate as a sanction in view of Baute's offer of $1,000 to witnesses who would testify that he was a busboy, citing Lear-Siegler Management Service Corp., 306 NLRB 393 (1992). In a concurring opinion, Member Liebman said she would rely on some, if not all, aspects of the judge's valid credibility findings in affirming his award of backpay to Baute at the lower expediter rate. [HTML] [PDF]

On another issue, the Board declined to remand the decision to another judge based on this judge's sharp criticisms of counsel for the General Counsel and her trial strategy. However, it did state that the judge's intemperate language in his decision against Baute and the counsel "could raise doubt as to the integrity of the Board's decisionmaking process." In a concurring opinion, Member Cowen would find that the judge's critical comments should be excised from the record. He said "the judge exceeded his authority under the Board's Rules and Regulations, which do not contemplate a judge's use of an administrative decision to deliver a stinging criticism of any attorney or party representative."

(Members Liebman, Cowen, and Bartlett participated.)

Hearing held on June 22-23, 1999. Adm. Law Judge Howard Edelman issued his supplemental decision Nov. 15, 1999.

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Robert Orr-Sysco Food Services (26-RC-8160; 338 NLRB No. 74) Nashville, TN Nov. 22, 2002. In this Decision and Direction of Third Election, the Board majority of Members Cowen and Bartlett set aside an election, sustaining the Employer's Objection 3 alleging that pro-union employees had threatened other employees and made attempts to coerce employee sentiment. The tally of ballots showed 84 for and 80 against the Petitioner (Teamsters Local 480). The hearing officer found that during the 1-to 2-week period immediately preceding the election, threats of physical violence, property damage, and deportation were made to several employees and disseminated among several more. Applying the Board's third-party conduct standard to the evaluation of these threats, the hearing officer concluded that they did not create a general atmosphere of fear and reprisal, and therefore recommended that the Employer's Objection 3 be overruled. [HTML] [PDF]

Dissenting Member Liebman would find that the statements relied on by the majority did not create a general atmosphere of fear and reprisal that made a free election impossible under the Board's standard in Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). She also said the majority applied the standard as if it was no different from the less rigorous standard the Board applies to threats made by agents of the employer or the union. See Cal-West Periodicals, 330 NLRB 599, 600 (2000). She also said the majority erred in its heavy reliance on the closeness of the election in justifying its decision.

In response, the majority stated:

The Board has repeatedly found, however, that voting-related threats of substantial harm directed at a determinative number of voters create an atmosphere of fear and reprisal sufficient to set aside an election. See Steak House Meat Co., 206 NLRB at 29; Buedel Food Products, 300 NLRB at 638; Smithers Tire, 308 NLRB at 73; accord: John M. Horn Lumber Co. v. NLRB, 859 F.2d 1242 (6th Cir. 1988). In this case, aside from the several "picket line" threats, two additional threats remain: Reyes was threatened with deportation, and Becker with physical violence, for voting against the Union. The character of these threats was grave, as they were intended to influence votes and intimated substantial harm; and again, a single changed vote could have altered the outcome of the election. Thus, consistent with the precedent cited above, we disagree with our colleague's view that threats of this character are insufficient to set the election aside.

(Members Liebman, Cowen, and Bartlett participated.)

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Airborne Freight Co. (1-CA-32742, et al.; 338 NLRB No. 72) Cranston, RI Nov. 22, 2002. The Board majority of Members Cowen and Bartlett affirmed the administrative law judge's finding that the Respondent is not a joint employer with the local contractors. Member Liebman, in a concurring opinion, said this case "illustrates the sharp limits of the Board's joint-employer doctrine, which may prevent employees from bargaining with the company that, as a practical matter, determines the terms and conditions of their employment." She said the Board has a duty to adapt its rules and policies to changing circumstances in the workplace and industries. For example, Member Liebman observed: [HTML] [PDF]

Today, increased competition drives businesses to become more flexible, adopting strategies that seek to maintain leaner product inventories and shorter product life-cycles, relying on "just in time" delivery of goods and materials. As a result, national and international "expedited-transportation" carries like Airborne, which move an increasing share of the nation's freight, are required to guarantee deliveries on a much shorter time frame than was formerly acceptable. This requirement impels them to exert control at every stage, including the local pickup and delivery components that are contracted out. They consequently exercise much more control over their local contractors' operations, and more effective control over the contractors' terms of employment, than their trucking predecessors did. They do not always exercise this control through direct "hiring, firing, discipline, supervision and direction" of the local contractor's employees--the focus of the Board's inquiry--but rather through their pervasive domination of the local carrier's operations.

The majority, rejecting Member Liebman's suggestion that the Board should revisit its standard for determining joint employer status, said:

Simply put, the Board's test for determining whether two separate entitles should be considered to be joint employers with respect to a specific group of employees has been a matter of settled law for approximately twenty years. In determining whether a joint employer relationship exists under this test, the Board and analyzes whether putative joint employers share or co-determine those matters governing essential terms and conditions of employment. See e.g., Texas World Service Co. v. NLRB, 928 F.2d 1426, 1432 (5th Cir. 1991); NLRB v. Browning-Ferris Industry, 691 F.2d 1117, 1124 (3d Cir. 1982); TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985). The essential element in this analysis is whether a putative joint employer's control over employment matters is direct and immediate. TLI, Inc., 271 NLRB at 798-799.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Teamsters Locals 251 and 344; complaint alleged violation of Section 8(a)(1),(3), and (5). Hearing at Boston, MA and Milwaukee, WS on various dates Jan., Feb., March, and April 1999. Adm. Law Judge Raymond P. Green issued his decision Sept. 13, 1999.

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Safeway, Inc. (19-RD-3518; 338 NLRB No. 63) Missoula, MT Nov. 20, 2002. Members Cowen and Bartlett certified the results of a decertification election held March 27, 2002, which resulted in four votes for and six against, Food and Commercial Workers Local 4. Contrary to the hearing officer, the majority found that the Employer's maintenance of a confidentiality rule, during the critical period prior to the election, was not objectionable conduct and, accordingly, overruled Union Objections 3 and 8. The majority wrote: [HTML] [PDF]

Of primary significance in our consideration of this issue is that the employees were represented by the Union at all times material to this case. . . . There is no indication that the confidentiality rule has ever been enforced, or that it has placed any impediment on the ability of employees to discuss terms and conditions of employment with the Union, or with other employees. . .

We also stress that the confidentiality rule does not expressly prohibit employees from discussing terms and conditions of employment with each other or with the Union.

Member Liebman, dissenting, sees no basis for deviating from Board precedent that has found objectionable an employer's mere maintenance of confidentiality rules like the one here that a reasonable employee could interpret as prohibiting the sharing of information about working conditions with co-workers or a union. She added: "Sharing such information is protected activities under Section 7 of the Act." See, e.g., Freund Baking Co., 336 NLRB No. 75 (2001); IRIS U.S.A., Inc., 336 NLRB No. 98 (2001). Member Liebman noted that the Employer maintained a confidentiality rule that prohibited, on pain of discharge, disclosure of "business and financial information" including "salary information" and "personnel information," as well as "personnel records" and "payroll data." She agreed with the hearing officer that, consistent with Board precedent, the election must be set aside.

The Board adopted the hearing officer's recommendation that Objections 3 and 8 also be overruled insofar as they allege that the Employer engaged in objectionable conduct by maintaining, in its Code of Business Conduct, rules which allegedly: (1) establish overbroad restrictions on employee communications concerning terms and conditions of employment; and (2) could be read to require employees to participate in investigations of union activity. In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendation that Union Objections 1, 2, 4, 5, 6, and 9 be overruled.

(Members Liebman, Cowen, and Bartlett participated.)

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Mercy Hospital Mercy Southwest Hospital (31-CA-25139, 31-RC-7993; 338 NLRB No. 66) Bakersfield, CA Nov. 20, 2002. The Board concluded that the Respondent's April 18 and May 24, 2001 announcements of wage increases for its nurses violated Section 8(a)(1) of the Act and constituted objectionable conduct that warranted setting aside an election held on May 30-31, 2001 in the event the revised tally of ballots shows that a majority of the ballots were not cast for Petitioner SEIU Nurse Alliance Local 535. [HTML] [PDF]

The tally of ballots for the election held in Case 31-RC-7993 shows 210 valid votes were cast: 103 for the Petitioner, 49 for the Intervenor (California Nurses Association), 55 against either labor organization, and nine challenged ballots. The challenges to six ballots were sustained and three were overruled. The Board remanded Case 31-RC-7993 to the Regional Director for further appropriate action. If the revised tally of ballots shows that the election results are inconclusive and no ballot selection received a majority of the votes, a rerun election shall be conducted.

This case involves the Respondent's implementation of wage increases, or the timing of their announcement or implementation, granted to its registered nurses who were the subject of organizing drives by the Petitioner and Intervenor. The Board agreed with the administrative law judge's finding that the Respondent had been planning, in advance of union activity, to implement a system-wide wage survey and corresponding adjustments to the nurses' salaries as a result of its recruitment and retention problems, and that the wage increase itself did not violate Section 8(a)(3). However, it agreed with the judge that the timing of the Respondent's announcements of nurses' wage increases during the critical period violated Section 8(a)(1) and constituted election misconduct.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by the California Nurses' Association; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles on October 2, 2001. Adm. Law Judge Lana H. Parke issued her decision Nov. 19, 2001.

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Southwestern Bell Telephone Co. (17-CA-21366; 338 NLRB No. 67) Overland Park, KS Nov. 20, 2002. Members Cowen and Bartlett, with Member Liebman dissenting, affirmed the administrative law judge's dismissal of a Weingarten violation based on the conclusion that Roy Paz could not have had a reasonable belief that an August 27, 2002 meeting with management would result in discipline and, accordingly, found that the Respondent's refusal to permit Paz to have a union representative at the meeting did not violate Section 8(a)(1) of the Act. NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). [HTML] [PDF]

Paz had a history of mental instability and had been referred to the Respondent's Employee Assistance Program (EAP) twice, in 1987 and 1998. A disciplinary action accompanied the 1998 referral: Paz had made a threat determined to be in violation of the Respondent's Workplace Violence Policy (WVP). He was warned that another threat in violation of the policy would cause his immediate discharge.

On August 1, 2001, Paz had a monthly production meeting with his supervisor, Samuel Perry, who told Paz that he had 6 weeks to improve his poor productivity. Paz later told another supervisor, Caskey, "the job sucked and he was about to snap." Caskey reported this statement to her immediate supervisor, Melvin Wilson, the Respondent's area manager. Wilson was aware of Paz' mental health problems and decided to meet with Paz to personally evaluate the situation. On August 27, Petty told Paz that Paz would be meeting with Wilson that day. He asked if a union representative could accompany him to the meeting. Petty told Paz that it would not be necessary and denied knowledge of what the meeting was about. During the meeting, which concerned Paz' remark to Caskey and his low productivity, Paz made a separate remark that was perceived as a threat in violation of the WVP and was discharged for it.

Member Liebman concluded that Paz was entitled to a union representative at the August 27 meeting, explaining: "Under the circumstances-Paz' history of mental instability, prior warnings to him involving a threat he had made and his more recent poor productivity, his fresh statement to a supervisor that he was 'about to snap,' and the unusual intervention of a high-level manager-Paz would have been foolish not to think that discipline was possible. Accordingly, I cannot agree with the judge and my colleagues that there was no violation of Section 8(a)(1) here."

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Communications Workers Local 6333; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Overland Park on Feb. 21, 2002. Adm. Law Judge Mary Miller Cracraft issued her decision April 26, 2002.

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Superior of Missouri, Inc. (14-CA-25421; 338 NLRB No. 69) St. Louis, MO Nov. 20, 2002. The Board, in an earlier proceeding, 327 NLRB 1208 (1999), found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate bargaining unit. The Board ordered the Respondent to bargain with the Union and, thereafter, petitioned the U.S. Court of Appeals for the Eighth Circuit for enforcement of its order. The court denied enforcement and on November 7, 2000, remanded this matter for an evidentiary hearing on three objections filed by the Respondent in the underlying representation proceeding, Case 14-RC-11946.

In this supplemental decision and order, the Board agreed with the administrative law judge's findings, as modified, and overruled the objections in their entirety. The Board also affirmed the certification of representative issued on Nov. 30, 1998 and its earlier decision reported at 327 NLRB 1208 (1999). Unlike his colleagues, however, Member Cowen would not reaffirm the Board's original decision finding that the Respondent violated Section 8(a)(5) and (1) at a time when, as subsequently found by the court, the Board had erroneously certified the union as the bargaining representative without affording the Respondent an evidentiary hearing on its election objections.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Teamsters Local 682; complaint alleged violation of Section 8(a)(1) and (5). Hearing at St. Louis on December 12, 2001. Adm. Law Judge Robert A. Pulcini issued his decision May 2, 2002.

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American Golf Corporation, d/b/a Mountain Shadows Golf Resort (20-CA-26942, et al.; 338 NLRB No. 73) Rhonert Park, CA Nov. 20, 2002. The Board, contrary to the administrative law judge, dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Eli Jensen. [HTML] [PDF]

In his earlier decision, the judge concluded that Jensen was unlawfully discharged for contacting a competitor of the Respondent by telephone and for circulating a flyer the following day that disparaged the Respondent's operation of a municipal golf course and openly solicited for the Respondent's competitors to take over the Respondent's contract with the city. The Respondent claimed that both the telephone call and the flyer were disloyal and grounds for discharge under NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). The Board, in a decision reported at 330 NLRB 1238 (2000), held that Jensen's unprotected distribution of the flyer could be a cause for lawful discharge and remanded the case to the judge for further consideration.

The judge in his supplemental decision affirmed his earlier finding that Jensen was unlawfully discharged and concluded Jensen would not have been terminated in the absence of his protected activity. The Board disagreed, finding that Jensen would have been discharged for cause within the meaning of Section 10(c) because of his disloyalty.

(Members Liebman, Cowen, and Bartlett participated.)

Adm. Law Judge William L. Schmidt issued his supplemental decision April 13, 2001.

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PPG Industries, Inc. (10-CA-32813; 338 NLRB No. 68) Huntsville, AL Nov. 20, 2002. Members Liebman and Bartlett determined that the administrative law judge, in making his findings and dismissing the complaint, failed to resolve certain evidentiary issues. In this regard, the majority found that the judge failed to act on the Respondent's petition to revoke the General Counsel's subpoena for documents concerning the administration of the Respondent's attendance policy; or to rule on the General Counsel's request that an adverse inference be drawn from the Respondent's failure to produce two classes of documents in response to the subpoena. Accordingly, they remanded the proceeding to the judge to consider: (1) whether to grant the Respondent's petition to revoke and (2) if the petition to revoke is denied in whole or in part and the Respondent fails to produce the relevant documents, whether an adverse inference should be drawn. [HTML] [PDF]

Member Cowen, dissenting, would adopt the judge's dismissal of the complaint. He does not believe that a remand is appropriate because it was the General Counsel's responsibility to ensure that the judge ruled on the petition to revoke the subpoena at the original hearing. Member Cowen said that an adverse inference should not be drawn unless the General Counsel has sought court enforcement of the subpoena, and because in any event the Respondent has already provided the General Counsel with documents relevant to the disparate treatment issue on which the General Counsel's subpoena is focused.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Randall Martin, an Individual; complaint alleged violation of Section 8(a)(1), (3) and (4). Hearing at Huntsville in Dec. 2001. Adm. Law Judge William N. Cates issued his bench decision Dec. 31, 2001.

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Brylane, L.P. (25-RM-597; 338 NLRB No. 65) Plainfield, IN Nov. 20, 2002. Citing New Otani Hotel & Garden, 331 NLRB 1078 (2000), Members Liebman and Bartlett denied the Employer-Petitioner's request for review of the Regional Director's decision to dismiss the Employer's petition for an election. They agreed with the Regional Director that the Union's request for a neutrality and card check agreement did not constitute a demand for recognition within the meaning of Section 9(c)(1)(B) of the Act. [HTML] [PDF]

In her concurring opinion, Member Liebman said that she joined Member Bartlett in denying review but wrote separately to make certain observations regarding Member Cowen's contentions that were not raised or litigated by the parties.

Dissenting, Member Cowen would grant review and remand the case to the Regional Director to reinstate and process the petition. Member Cowen believes that the Union has clearly made a demand for recognition by requesting that the Employer enter into a neutrality/card check agreement and by making this request, the Union sought to determine the method by which the Employer's employees will express their choice regarding union representation. In his view, a request by a union that seeks to deal with an employer concerning a topic that otherwise would be a topic of mandatory bargaining is, in fact, a demand for recognition within the meaning of Section 9(c)(1)(B) of the Act.

(Members Liebman, Cowen, and Bartlett participated.)

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Golub Corp. (3-CA-22379-4, -6; 338 NLRB No. 62) Voorheesville, Waterford, Colonie, and Rotterdam, NY Nov. 20, 2002. Members Liebman and Bartlett affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening employee Arthur Crandall with discipline if he were to engage in union solicitation on the Respondent's property. [HTML] [PDF]

Dissenting, Member Cowen does not find that Loss Prevention Specialist Gary Beeble violated Section 8(a)(1) by instructing Crandall not to stop cars or trucks on the Respondent's property. Contrary to his colleagues, he found that the Respondent was legitimately concerned that Crandall's union solicitation activities would cause traffic congestion on the Respondent's property, and his purpose in instructing Crandall not to stop cars on its property was not to interfere with Crandall's Section 7 rights, but rather to insure an uninterrupted traffic flow into and out of its parking lot.

In the absence of exceptions, the majority adopted the judge's dismissal of the allegation that the Respondent violated Section 8(a)(1) and (3) when it suspended Crandall and Section 8(a)(1) by interrogating employees about their union activities and threatening to retaliate against employees for engaging in union actions.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Food & Commercial Workers Local One; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albany on Sept. 11 and 12, 2000. Adm. Law Judge Bruce D. Rosenstein issued his decision Jan. 2, 2001.

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MGM Mirage d/b/a The Mirage Casino-Hotel (28-RC-5871; 338 NLRB No. 64) Las Vegas, NV Nov. 20, 2002. Members Liebman and Bartlett found, contrary to the Regional Director, that the combined unit of carpenters and upholsterers petitioned for by Carpenters Southern California-Nevada Regional Council is an appropriate unit for bargaining. The majority relied on longstanding precedent that allows, in certain limited circumstances, the creation of a craft unit from an overall maintenance department. See Burns & Roe, 393 NLRB 1307 (1994); E. I. du Pont & Co.,162 NLRB 413 (1966); Fremont Hotel, 168 NLRB 115 (1967). Members Liebman and Bartlett wrote: [HTML] [PDF]

Given the size of this Employer's engineering department, the journeymen status of the carpenters, the separate supervision, the assignment of work along craft lines, the lack of material overlap and interchange, and the significant area practice, we find that this case presents such limited circumstances. We see no reason why our decision today, limited to these particular facts, will lead to an explosion of small craft units at this or any other hotel, as feared by our dissenting colleague.

The Regional Director dismissed the petition because the Petitioner did not wish to represent the employees in an overall engineering department. The Regional Director determined that the petitioned-for combined unit of carpenters and upholsterers and the alternative separate units of carpenters and upholsterers were inappropriate for bargaining after concluding that the two groups (1) did not constitute functionally distinct groups with commons interest separate and apart from the Employer's other engineering employees and (2) did not represent a traditional craft unit entitled to separate representation.

Members Liebman and Bartlett noted, in finding the petitioned-for unit appropriate, the absence of bargaining history on a more comprehensive basis, the area practice of separate carpenter-upholsterers units, the separate craft identity, the separate functions, skills, and supervision, and the absence of significant overlap in duties of interchange. Accordingly, they remanded the case to the Regional Director for further processing.

In dissent, Member Cowen would affirm the Regional Director's decision finding that the petitioned-for unit and the proposed alternative units, inappropriate for bargaining. Unlike his colleagues, he would find significant evidence of permanent interchange between the carpenters and other crews and held that the record strongly favors an overall engineering department unit, not a separate craft unit. He said "there is interchange with other departments at significant levels, overlapping duties with other departments, and common policies, benefits, and break areas. These facts outweigh any others that tend to support the appropriateness of the petitioned-for unit."

(Members Liebman, Cowen, and Bartlett participated.)

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Operating Engineers Local 542 (Caldwell Tanks, Inc.) (4-CD-1085, 1089; 338 NLRB No. 61) Spinnerstown, PA Nov. 15, 2002. The Board determined that Caldwell's employees represented by the Boilermakers, rather than those represented by Operating Engineers Local 542, are entitled to perform the operation of heavy equipment at the Milford Township Water Authority jobsite in Spinnerstown, PA. In making its award, the Board relied on the factors of collective-bargaining agreements, employer preference, current assignment, past practice, relative skills, and economy and efficiency of operations. [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

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Agar Supply Company, Inc. (1-RC-21417; 338 NLRB No. 59) Taunton, MA Nov. 15, 2002. Members Cowen and Bartlett granted the Employer's Emergency Motion to Stay the Opening of Koch's Ballot, to Reopen the Record, and for Reconsideration of the Board's decision reported at 337 NLRB No. 191 (2002). In the initial decision, a Board majority of Members Liebman and Bartlett, with Member Cowen dissenting, adopted the Regional Director's findings and recommendations, overruled the challenge to Robert Koch's ballot and directed that the ballot be opened and counted. [HTML] [PDF]

In its motion, the Employer asserted that new evidence makes clear that (1) Koch was not in the bargaining unit at the time of the election and (2) he will never be able to work in a bargaining unit position due to his injury; thus, there is no reasonable expectation that he will ever return to the unit.

Member Liebman would deny the Employer's motion. She held that Section 102.48(d)(1) of the Board's Rules and Regulations requires a party to show "extraordinary circumstances" to justify reconsideration of a Board decision, and also requires a party to show that any new evidence it seeks to introduce "would require a different result" in order to justify reopening the record. Contending that her colleagues have identified no "extraordinary circumstances" that would justify reconsideration, Member Liebman found that the only new evidence set forth in the Employer's motion is of Koch's status on August 23, 2002, nearly 10 months after the election. She determined that this evidence is completely irrelevant under any standard and, as such, does not justify reconsideration or reopening of the record.

Member Bartlett does not agree with Member Liebman that the evidence presented in the Employer's motion regarding Koch's status is irrelevant. He believes that the evidence may tend to support the Employer's contention that, in fact, Koch had been removed from, or was no longer employed in, the unit at the time of election. Although he previously voted to adopt the Regional Director's findings, Member Bartlett has reconsidered his position and believes that a hearing should have been held. Member Cowen agreed that a hearing should have been held regarding Koch's status and, therefore, joined Member Bartlett in remanding this case for hearing.

(Members Liebman, Cowen, and Bartlett participated.)

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Phoenix Coca-Cola Bottling Co. (28-CA-16595, 16908; 338 NLRB No. 57) Phoenix, AZ Nov. 5, 2002. Members Liebman and Cowen, with Member Bartlett concurring, denied the Respondent's Motion for Reconsideration of the Board's Decision and Order reported at 337 NLRB No. 157 (2002). The majority agreed with the General Counsel that the Respondent's motion lacked merit, failed to present extraordinary circumstances warranting reconsideration, and did not raise any argument not previously considered. The Respondent argued that: (1) the Board failed to properly analyze its discovery defense; (2) the Board misconstrued its posthearing brief; and (3) Chairman Hurtgen made erroneous conclusions regarding the Respondent's actions. [HTML] [PDF]

Member Bartlett did not participate in the underlying case but joined in denying the Respondent's motion. However, he stated that he wrote separately to express his view that this case should never have been litigated before the Board. Member Bartlett would require "the dispute over whether the information must be provided to be addressed in the first instance under the dispute resolution procedures . . . through arbitration or, in the absence of applicable procedures for arbitrable resolution, Section 301 of the Act. . . . where such contractual procedures are available, the parties should be required to utilize them, rather than invoking the Board's procedures, to resolve their dispute."

In the prior decision, Chairman Hurtgen and Member Liebman adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by delaying or refusing to furnish the necessary and relevant information requested by the Union. Dissenting, Member Cowen argued that the Union did not meet its burden of demonstrating the relevance of the requested information.

(Members Liebman, Cowen, and Bartlett participated.)

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Eagle Transport Corp. (12-CA-21397-3, et al.; 338 NLRB No. 55) Cocoa, FL Nov. 4, 2002. The Board affirmed the administrative law judge's dismissal of the Union's claims that the Respondent unilaterally announced and implemented a schedule change and rescinded a wage increase in violation of Section 8(a)(5) and (1) of the Act. [HTML] [PDF]

On January 1 or 2, 2001, the Respondent's Cocoa Terminal Manager John Fitzgerald discussed a proposed change in work schedules with the employees during a safety meeting and indicated that drivers would be permitted to begin signing up for preferred schedules based on seniority. When the Respondent informed the Union that it intended to modify the drivers' schedules and offered to discuss this plan, the Union responded that such a modification would be an unlawful unilateral change. The Respondent ceased soliciting driver shift preferences and a new schedule was never implemented. The Respondent thereafter announced that employees at all of its terminals except the Cocoa facility would be receiving a wage increase on February 1, 2001. As a result of a computer programming error, the Cocoa drivers received a wage increase but the error was corrected on February 15, returning the employees to their previous wage rates.

The Board agreed with the judge that the Respondent's conduct concerning its planned shift change is distinguishable from the unilateral changes found unlawful in Kurdziel Iron of Wauseon, 327 NLRB 155 (1998), and ABC Automotive Products, 307 NLRB 248 (1992). And, it held that this was not a situation involving the granting and subsequent rescission of a wage increase. Rather, an administrative error resulted in the miscalculation of wages in a single paycheck, and the Respondent promptly corrected the error upon discovering it. The Board found that this correction did not involve a change in the employees' terms and conditions of employment and, therefore, did not require bargaining.

In the absence of exceptions, the Board adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally subcontracting bargaining unit work and her dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by engaging in surveillance of employees' union activities.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Teamsters, Georgia-Florida Conference; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Cocoa on April 11, 2002. Adm. Law Judge Margaret G. Brakebusch issued her decision May 15, 2002.

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Laborers Local 113 (Super Excavators, Inc.) (30-CD-160; 338 NLRB No. 50) Menomonee Falls, WI Oct. 31, 2002. Relying on the factors of employer preference, assignment, past practice, area practice, safety and efficiency of operations, Members Cowen and Bartlett decided that the employees of Super Excavators, Inc., represented by Laborers' Local 113, are entitled to perform the operation of the mini-excavator (backhoe) in below ground shaft and tunnel excavations on the sewer project ongoing at the Becher Street Tunnel Project in Milwaukee, Wisconsin. [HTML] [PDF]

Dissenting, Member Liebman would find that Operating Engineers Local 139 did not make a claim to the disputed work and would therefore grant its motion to quash this Section 10(k) proceeding. In her view, the grievances filed by Local 139 were fundamentally different from those at issue in Super Excavators I, 327 NLRB 113 (1998), and do not constitute an effective claim for the underground excavation work. Member Liebman said that the grievances sought only that the Employer pay the employee(s) who actually performs the work at the (higher) rate specified in the Local 139 collective-bargaining agreement. According to representatives of Local 139, the grievances were designed to ensure that the Employer "paid the proper wages, fringes, and benefits for the individual that was performing these duties."

(Members Liebman, Cowen, and Bartlett participated.)

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Laborers Local 113 (Michels Pipeline Construction, Inc.) (30-CD-161; 338 NLRB No. 51) Brownsville, WI Oct. 31, 2002. Members Cowen and Bartlett, with Member Liebman concurring, concluded that employees of Michels Pipeline Construction, Inc., represented by Laborers Local 113, are entitled to perform the operation of the mini-excavator/backhoe in the underground shafts and tunnels at the North Shore 6 Project for the Milwaukee Metropolitan Sewerage District. They relied on the factors of employer preference, assignment, and past practice, area practice, safety, and efficiency and economy of operations. [HTML] [PDF]

In her concurring opinion, Member Liebman agreed that the evidence in this case is sufficient to support a finding that Operating Engineers Local 139 has claimed the underground backhoe work. She noted that in her view, the case is distinguishable from Super Excavators, Inc. (Super Excavators II), 338 NLRB No. 50 (2002), where she dissented from the majority's conclusion that Local 139 had made a claim to the backhoe work.

(Members Liebman, Cowen, and Bartlett participated.)

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Tradesmen International (17-CA-20952; 338 NLRB No. 49) Kansas City, MO Oct. 31, 2002. Members Cowen and Bartlett adopted the administrative law judge's finding that the Respondent did not violate Section 8(a)(1) of the Act by maintaining its no-solicitation rule but reversed and dismissed the judge's determination that the Respondent violated Section 8(a)(1) by maintaining certain provisions of its "Conflicts of Interest" rule and by maintaining the rule prohibiting "slanderous or detrimental" statements. [HTML] [PDF]

The issues presented in this case involved three rules maintained by the Respondent in an employee manual: (1) a no-solicitation rule prohibiting employees from soliciting "during times they are expected to be working"; (2) a "Conflicts of Interest" rule; and (3) a rule prohibiting "statements which are slanderous or detrimental" to the Company or its employees. The majority applied the standard set forth by a Board majority in Lafayette Park Hotel, 326 NLRB 824, 834 (1998), and said that under that standard, "the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights." They found that the General Counsel did not meet the burden of proof that the rules can reasonably be interpreted in a way that infringes on Section 7 activity.

Dissenting in part, Member Liebman agreed with her colleagues that the "no solicitation" rule did not violate the Act. However, in agreement with the judge, she found that maintaining the "conflicts of interest" rule, the rule prohibiting "disloyal, disruptive, competitive, or damaging" conduct, and the requirement that employees represent the Company in a "positive" manner would tend to chill employees in the exercise of their Section 7 rights. In Member Liebman's view, the rule prohibiting "slanderous or detrimental" statements fails to define the area of permissible conduct in a manner clear to employees, and consequently has a reasonable tendency to cause employees to refrain from engaging in protected activities rather than risk being disciplined or violating the rule.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Electrical Workers (IBEW) Local 545; complaint alleged violation of Section 8(a)(1). Hearing at Overland Park, KS, May 10, 11, and 30, 2001. Adm. Law Judge Albert A. Metz issued his decision Nov. 27, 2001.

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Citywide Corporate Transportation, Inc. (2-CA-30832; 338 NLRB No. 45) Bronx, NY Oct. 22, 2002. Members Cowen and Bartlett, with Member Liebman concurring, adopted the administrative law judge's recommended order dismissing the complaint alleging that the Respondent violated Section 8(a)(1) of the Act through surveillance, interrogation and threats of unspecified reprisals in July and August 1997 and Section 8(a)(1) and (3) by denying Bernard Quashie employment opportunities. [HTML] [PDF]

Quashie is a driver for the Respondent, a limousine service organized as a New York cooperative corporation. The primary question raised in this proceeding was whether Quashie was entitled to the Act's protection when he engaged in union organizing activities. The Respondent argued that as a shareholder of the Respondent with the rights and privileges set forth in the Respondent's governing documents, Quashie was not covered by Section 7 of the Act. Because Respondent is owned by the drivers and has no employee drivers, the Respondent further argued that Quashie, in his capacity as a shareholder, was akin to a managerial employee and excluded from the Act's coverage.

The judge determined that the drivers worked for themselves, not for an employer with conflicting interests and can, as a group, effectively formulate and determine corporate policy, including labor relations policy. Accordingly, he found that the Respondent's class A drivers, such as Quashie, are not employees protected by the Act.

In her concurring opinion Member Liebman said she wrote separately "to suggest that the Board should soon reexamine its approach, which may have evolved inadvertently, without careful consideration of all its current ramifications." She noted this case presents an example of the difficulty of applying statutory coverage doctrines to changing workplace realities, and under the Board's current law this case is arguably straightforward but the law itself is ripe for reconsideration.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Machinists District 15; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, April 20-22, 1999. Adm. Law Judge Michael A. Marcionese issued his decision Aug. 11, 1999.

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Corrections Corporation of America d/b/a Servicios Correccionales de Puerto Rico (24-RC-8187; 338 NLRB No. 53) Guayama, PR Oct. 28, 2002. Members Cowen and Bartlett, concluding that it would be a waste of the Board's resources to determine the merits of the Employer's objection to an election held August 3, 2001, issued the instant Notice to Show Cause why the Employer's motion to dismiss the petition should not be granted on the ground that the Employer no longer employs the employees at issue. The majority said that the issuance of this Notice gives the Petitioner (Asociacion de Miembros de la Policia de Puerto Rico) the opportunity to refute the Employer's assertion regarding the status of the unit employees (guards employed at a prison in Guayama, Puerto Rico). [HTML] [PDF]

The proceeding has been pending before the Board on the Employer's exceptions to the hearing officer's recommendation to overrule the Employer's objection. On June 24, 2002, the Employer filed a motion to dismiss the petition based on the announcement by the Corrections Administration for the Commonwealth of Puerto Rico that, effective August 6, it was cancelling the management services agreement with the Employer covering the prison facility where the unit employees performed guard services.

Dissenting, Member Liebman said that the merits of the Employer's election objection must be decided before ruling on the Employer's motion. She asserted "[i]f the objection lacks merit, then the Board may not dismiss the petition as moot. This is so because, if the Petitioner was properly certified, then its status as the guards' exclusive representative, and the Employer's corresponding bargaining obligation, dates back to August 3, 2001. . . . If, on the other hand, the Employer's objection is meritorious, then the petition arguably may be subject to dismissal. But this just confirms that the Board must assess the merits of the Employer's objection before ruling on its motion to dismiss."

(Members Liebman, Cowen, and Bartlett participated.)

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Bally's Park Place, Inc., d/b/a Bally's Atlantic City(4-RD-1942; 338 NLRB No. 43) Atlantic City, NJ Oct. 21, 2002. Members Liebman and Bartlett, with Member Cowen dissenting, denied the Employer's request for review of the Regional Director's determination not to open and count the ballots impounded following an election held on January 25, 2002. The ballots were impounded pending resolution of the unfair labor practice charge filed by the Union (Teamsters Local 331) in Case 4-CA-31009. The Board's policy is to hold in abeyance the processing of any representation case where an unfair labor practice charge is filed alleging unlawful conduct which, if proven, would have a tendency to interfere with the free choice of employees in an election. See United States Coal Co., 3 NLRB 398 (1937); Big Three Industries, 201 NLRB 197 (1993); NLRB Casehandling Manual (CHM), Section 11731.5. [HTML] [PDF]

Member Cowen, contrary to the Regional Director, would open and count the impounded ballots and issue a tally of ballots. He said "[t]his case demonstrates that the Board's current procedures allow a party to dictate whether or not election ballots will be impounded simply by choosing between two different procedural mechanisms for raising allegations of election misconduct. . . . One option is for the party to file an unfair labor practice charge alleging that a party has engaged in activities that both violate the Act and render a fair election impossible. The filing of such a charge can not only block the holding of the election, it can also cause the election ballots to be impounded should the petitioning union choose to proceed to an election. Alternatively, the party can file a postelection objection that alleges election interference, in which case the ballots are counted and a tally of ballots issued." Member Cowen found no justification for allowing a party to dictate whether a tally of ballots will issue simply by choosing to file an unfair labor practice charge instead of an election objection and asserted that to do so permits a party to manipulate and compromise the election process.

The majority noted that Member Cowen did not contend that the Regional Director misapplied the Board's well-established "blocking charge" procedures. They said Member Cowen advocates a revision of those procedures as they apply to unfair labor practice charges based on conduct which could interfere with employee free choice in an election. Member Bartlett agreed with Member Cowen that the Board should reconsider its "blocking charge" policy in circumstances where the unfair labor practice charge alleges conduct that could properly be alleged in a postelection objection. However, in the absence of a three-member Board majority to do so, he found that the Regional Director properly applied that policy by impounding the election ballots pending resolution of the Union's unfair labor practice charge.

(Members Liebman, Cowen, and Bartlett participated.)

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(Members Liebman, Cowen, and Bartlett participated.)

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Wake Electric Membership Corp. (11-CA-18297, 11-RC-6322; 338 NLRB No. 32) Wake Forest, Zebulon, Oxford, Louisburg, and Youngsville, NC Sept. 30, 2002. Members Cowen and Bartlett concluded that, contrary to the administrative law judge and dissenting Member Liebman, a remedial bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), is not warranted in this case, explaining: [HTML] [PDF]

The judge's unfair labor practice findings that we adopt involve soliciting and promising to remedy grievances, promising benefits if employees ceased their support for the Union, polling employees to determine whether they would ask the Union to withdraw its election petition, telling employees that their union activities would damage their relationships with other electric cooperatives and cause the latter to discontinue helping employees during emergencies, telling employees that it would be futile to select the Union, threatening employees with unspecified reprisals, threatening employees with discharge, creating an impression of surveillance of union activities, and accelerating the resignation dates of four employees and granting them severance pay. Thus, the Respondent's violations do not include discharge or other adverse actions against union supporters, the closing of a plant, or threat of plant closure, which are the more typical 'hallmark' violations found in cases warranting Gissel bargaining orders.

The majority sustained the Union's objections that parallel the unfair labor practices found and set aside the election held in Case 11-RC-6322 on March 31, 1999, which the Union lost 18 to 8. Having found that a Gissel bargaining order is not warranted, the majority reversed the judge's findings that the Respondent violated Section 8(a)(5) by failing and refusing on February 18, 1999 to recognize and bargain with the Union as the representative of the unit employees and by unilaterally changing its policy concerning acceleration of resignation dates and granting severance pay on March 24, 1999 "because at that time the Respondent was not obligated to bargain with the Union." Fiber Glass Systems, 278 NLRB 1255, 1256 (1986).

Member Liebman, dissenting in part, would affirm the judge's recommended bargaining order and his finding that the Respondent violated Section 8(a)(5) by refusing to bargain with the Union and by making unilateral changes in the unit employees' working conditions. She said the Respondent's unfair labor practices, which included three separate threats to discharge employees for engaging in union activities and granting significant benefits to employees shortly before the election, are "considered 'hallmark' violations of Section 8(a)(1), which will normally support the issuance of bargaining order." Member Liebman noted these violations were accompanied by other unlawful actions, some of which were committed by high management officials and were directed at nearly all employees, and that the unlawful conduct did not end with the election.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Electrical Workers IBEW Local 553; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Wake Forest, Sept. 27-29, 1999. Adm. Law Judge Howard I. Grossman issued his decision Feb. 2, 2000.

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Plumbers Local 123 (Florida Maintenance & Construction) (12-CD-322; 338 NLRB No. 41) Tampa, FL Oct. 11, 2002. The Board decided that employees of Florida Maintenance & Construction, who are represented by Iron Workers Local 397 and Carpenters Local 1000, are entitled to perform this work. [HTML] [PDF]

The installation of a testing system for piping process involved in the eventual operation of the new power generating facility under construction at the Payne Creek Power Plant, including installing metal, plastic and copper pipes up to 300' in length, through which water, oils and compressed air will travel; and the installation as part of an ongoing system at Cargill Fertilizer, of replacement pipes and processed piping running from the pumps to various vessels or tanks, including welding metal pipe up to 24" in diameter and up to 300' in length.

The Board limited its award to the controversy at the jobsite that gave rise to this proceeding, rejecting the Employer's request for a broader award assigning the dispute work to employees represented by the Ironworkers and Millwrights. In so doing, the Board noted that the dispute at the Payne Creek site is the first substantiated controversy arising over the disputed work, that a previous 8(b)(4)(D) charge against the Plumbers as to this same site was dismissed, and that the record does not establish that the Plumbers Union is likely to engage in unlawful conduct at future job sites in pursuit of similar work.

(Members Liebman, Cowen, and Bartlett participated.)

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Abell Engineering & Mfg. Inc. (25-CA-25966, 26263; 338 NLRB No. 42) Indianapolis, IN Oct. 18, 2002. The Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act when it discharged employee Richard Gist for attempting to persuade fellow employee David Bautista to quit the Respondent for a position with another employer, at which membership in Sheet Metal Workers Local 20 was contractually required. Based on his finding that the discharge was unlawful, the judge held that the Regional Director's revocation of a settlement agreement resolving allegations of earlier violations was permissible, and that the Respondent had committed a number of the presettlement violations alleged. [HTML] [PDF]

In exceptions, the Respondent argued that Gist's attempt to persuade Bautista to quit the Respondent's employ was disloyal conduct that deprived him of protection, whether or not his other activities were protected, and that the settlement agreement was not properly revoked and should be reinstated. The Board held that Gist's conduct exceeded the protections of the Act and the facts presented are analogous to those in Clinton Corn Processing, 194 NLRB 184 (1971), and distinguishable from those in cases where the Board found that the protection of the Act was not lost. Finding the discharge did not constitute a valid basis for the revocation of the settlement agreement, the Board reinstated the settlement agreement in Case 25-CA-25966 and dismissed the consolidated complaint.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, June 7 and 8, 1999. Adm. Law Judge C. Richard Miserendino issued his decision Sept. 13, 1999.

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Crown Electrical Contracting, Inc. (14-RC-12252; 338 NLRB No. 36) St. Louis, MO Sept. 30, 2002. Affirming the hearing officer's recommendation, Members Cowen and Bartlett overruled the portions of Petitioner's Objection 4 alleging that during a mandatory meeting with employees on June 20, 2001, the Employer promised to increase funding to the employee benefits plan without reducing the employees' wages on nonprevailing wage jobs; and certified the Intervenor (Congress of Independent Unions (CIU)) as the exclusive representative of certain employees working at the Employer's St. Louis, MO facility. The majority explained: [HTML] [PDF]

Contrary to our dissenting colleague, we agree with the hearing officer that the Employer's statement that he would do whatever it took to keep employees' current benefits was nothing more than a lawful promise to maintain the status quo. The hearing officer found, and we agree, that there was no context or history that would cause employees to interpret the statement as a promise to increase benefits.

Dissenting Member Liebman said the majority's view is "based on a misunderstanding of what the status quo here actually was. Because the status quo allowed for benefits to fall-which was precisely the employees' concern-a promise to maintain the current level of benefits offered employees something more than they already had. Nothing in the record suggests a reason for this promise other than a desire to influence the election." She would find the Employer's statement to be objectionable and would order a new election.

The tally of ballots for the election held June 22, 2001 shows 15 for the Petitioner (Electrical Workers IBEW Local 1), and 16 for the Intervenor, with no challenged ballots. In the absence of exceptions, the majority adopted pro forma, the hearing officer's recommendation to overrule the portions of the Petitioner's Objection 4 alleging that the Employer promised the employees a wage rate after benefits on prevailing wage jobs if the CIU was voted in, and that the Employer arranged for the election of a new employee trustee to the employee benefit plan.

(Members Liebman, Cowen, and Bartlett participated.)

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A.T. Electric Construction Corp. (2-CA-32967; 338 NLRB No. 37) New York, NY Sept. 30, 2002. Members Liebman and Bartlett upheld the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to pay contractually required wage rates to unit employees and by failing to remit contractually-required payments to several pension, health and welfare, and other benefit funds on behalf of unit employees. The judge specifically discredited the Respondent's claims that the Union consented to these actions because of the Respondent's poor financial condition. [HTML] [PDF]

Member Cowen, dissenting, would reverse the judge, dismiss the complaint, and leave the matter to the parties to resolve through their own bargained-for procedure or in court.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Electrical Workers IBEW Local 3; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on April 10, 2001. Adm. Law Judge Joel P. Biblowitz issued his decision May 16, 2001.

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Mine Workers (Arch of West Virginia) (9-CB-10626; 338 NLRB No. 40) Fairfax, VA Oct. 8, 2002. Members Liebman and Bartlett affirmed the administrative law judge's conclusion that the Respondent Union violated Section 8(b)(3) of the Act by repudiating the collective-bargaining agreement that it executed with Arch of West Virginia on November 6, 2001. Member Cowen, in dissent, found that the agreement did not occur in the context of a lawful bargaining relationship in an existing unit and is an illegal prehire agreement, noting that the parties negotiated the collective-bargaining agreement for future employees in a future bargaining unit at a new mine. "I will not sign an Order enforcing an agreement that so clearly flouts the fundamental policies of the Act," he said. [HTML] [PDF]

For several years, the Employer has mined coal at the Ruffner mine, a surface mine in Logan County, West Virginia, that is nearing depletion and will close soon. The Employer has rights to the Guyan mine, a surface mine approximately 2 1/2 miles from the Ruffner mine. The Employer and the Union have a bargaining relationship at the Ruffner mine. This case arose from the parties' negotiations of an agreement to cover the Guyan mine when it opened.

Members Liebman and Bartlett observed that Member Cowen's theory has not been alleged in the complaint, raised as a defense, or litigated by the parties and, therefore, they declined to sua sponte find that the Guyan agreement is an unlawful prehire agreement or contrary to public policy. Noting that the dissent is based on the view that when the Union agreed to negotiate a new contract for a new mine, it severed its connection to the Ruffner unit and entered into negotiations as a minority union, the majority said: "However, the record shows that the Employer and the Respondent embarked on negotiations at least in part to preserve job opportunities for members of the Ruffner bargaining unit, once that mine was depleted. . . . Although we need not, and do not, decide the issue, all of this suggests that the Guyan negotiations took place within the context of the Ruffner bargaining relationship, and that the agreement reached vitally affects the Ruffner employees by giving them preference in employment at Guyan and protecting them from the effects of the shutdown at Ruffner."

In adopting the judge's recommendation that the Union be ordered to give full force and effect to the agreement if the Company opens the Guyan mine, the majority modified the Order to reflect that, the Union must give full force and effect to the memorandum of understanding only upon a proper demonstration of majority support among the Guyan employees.

(Members Liebman, Bartlett, and Cowen participated.)

Charge filed by Apogee Coal Co. d/b/a Arch of West Virginia; complaint alleged violation of Section 8(b)(3). Hearing at Charleston on June 6, 2002. Adm. Law Judge George Carson II issued his decision July 23, 2002.

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Norton Audubon Hospital (9-CA-37404, 37933; 338 NLRB No. 34) Louisville, KY Sept. 30, 2002. Members Liebman and Bartlett affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to employ Wilma McCombs in a certified nursing assistant type position; and that the Respondent violated Section 8(a)(1) by coercively interrogating registered nurse Maryann King, an open union supporter, about her union sentiments and those of other employees. Member Cowen, concurring in part and dissenting in part, set forth his rationale for finding that the Respondent unlawfully failed to employ McCombs in a certified nursing assistant type position. He would reverse the judge and dismiss the allegation involving the alleged interrogation of King. [HTML] [PDF]

In adopting the judge's finding that the Respondent unlawfully refused to employ McCombs, Member Bartlett does not rely on the Respondent's general statements expressing its opposition to the Union as evidence of animus or on the unfair labor practices of the Respondent's predecessor as evidence of the Respondent's union animus. On the former point, Member Bartlett said "that Board precedent, which by practice remains controlling absent a three-Member Board majority to overrule it, permits reliance on such statements as evidence of animus." However, in agreement with several circuit courts of appeals, he would find that Sec. 8(c) of the Act prohibits the Board from relying on such lawful statements as evidence of either an unfair labor practice or animus. Member Cowen agrees with Member Bartlett in both respects. Member Liebman, in finding antiunion animus, found it unnecessary to rely on the unfair labor practices of the Respondent's predecessor or on the Respondent's statements opposing the Union, but she observed that, as a general matter, such statements may properly be considered as background of animus.

The Board modified the judge's recommended Order to omit a requirement that the Respondent offer McCombs a 1.0 (full-time) patient support associate position (also referred to as patient care associate (PCA) position) or, if one does not exist, a substantially equivalent position, noting it is undisputed that the Respondent offered McCombs a 1.0 PCA position on Sept. 15, 2000, an issue that was fully litigated at the hearing.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Nurses Professional Organization, a/w United Nurses of America, AFSCME; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Louisville, April 4-5, 2001. Adm. Law Judge Irwin H. Socoloff issued his decision Oct. 31, 2001.

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Aldworth Co., Inc. and Dunkin' Donuts Mid-Atlantic Distribution Center, Inc., Joint Employers (4-CA-27274, et al., 4-RC-19492; 338 NLRB No. 22) Swedesboro, NJ Sept. 30, 2002. The Board held that an order requiring Respondent Aldworth to bargain with Food and Commercial Workers Local 1360 is necessary to remedy the effects of the Respondent's misconduct, which began almost immediately upon learning of the Union's 1998 organizational campaign and extended well beyond the date of the election and which included several "hallmark" violations and numerous other serious and pervasive unfair labor practices that directly involved high-level management representatives. The Board wrote: [HTML] [PDF]

[W]e find the nature and extent of Respondent's antiunion conduct were so pervasive as to have created a corporate culture of lawlessness. The after-effects of this rampant unlawful activity created a legacy of hostility that will pervade the atmosphere for some time to come. And while some employees may have voluntarily departed their jobs, those who remain will doubtless share this history with newcomers. The impact of these events will thus live on in the lore of the shop, where stories, often embellished over time, may grow to legendary proportions. In these circumstances, despite the departure of a significant number of employees who were employed at the time of the unlawful conduct, we conclude that those who remain not only will recall those events, but will continue to be effected by them, and will relate their experience to those newly hired.

Respondent Dunkin' Donuts owns a warehouse in Swedesboro, NJ from which food products are transported to retail outlets in a several-state area. It leases truck drivers, helpers, and warehouse personnel from Respondent Aldworth to carry out these duties. The events of this case began in the spring of 1998 when employees began union organizational effects. Upon learning of employees' activities, Respondent Aldworth reacted with counter-organizational efforts directed at the entire work force.

The Board agreed with the administrative law judge that the Union had secured support from a majority of unit employees as evidenced through signed authorization cards by the time it requested recognition and bargaining, and that the Respondent's unlawful conduct, both before and after the July 28, 1998 election, clearly demonstrates that employees' wishes are better gauged by an old-card majority than by a new election. The Board differed with the judge's Section 10(b) analysis, and found that certain complaint allegations are time-barred while others are timely but related to charges other than those cited by the judge. It addressed the joint-employer issue, finding that Respondent Dunkin' Donuts is properly named as a joint employer in this proceeding with respect to the Section 8(a)(1) and (3) complaint allegations and that it will be jointly and severally liable, with Respondent Aldworth for remedying those violations.

The Board modified the judge's threats of plant closure analysis and revised the rationale as to violations relating to new performance standards for warehouse employees (the Selection Accuracy Program) implemented by the Respondent shortly after the representation election. The Board reversed the judge's recommended order reinstating one unlawfully discharged employee, remanded for further hearing his dismissal of allegations relating to four other alleged discriminatees, and limited the bargaining order to Respondent Aldworth and explained why a bargaining order is appropriate.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Food and Commercial Workers Local 1360; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Philadelphia in June, July, and Aug. 1999. Adm. Law Judge William G. Kocol issued his decision April 20, 2000.

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Alamo Rent-A-Car, Inc. (12-CA-16972, et al.; 338 NLRB No. 31) Orlando, FL Sept. 30, 2002. The Board found that the administrative law judge reasonably denied the Respondent's motion to defer to the parties' non-Board settlement agreement in lieu of further proceedings, citing Independent Stave, 287 NLRB 740 (1987). Although there is no fraud or duress alleged and no evidence of previous misconduct by the Respondent, the Board noted that only one of the four individual discriminatees approved the agreement and the General Counsel strongly opposes it and that the settlement fails to address substantial portions of the case, fails to remedy any of the alleged 8(a)(1) violations, and only partially remedies two of the alleged 8(a)(3) and (1) violations. [HTML] [PDF]

Turning to the alleged violations, Members Cowen and Bartlett found merit in the Respondent's exceptions and dismissed two 8(a)(1) findings and one 8(a)(3) finding by the judge. Member Liebman would affirm the judge's findings. Specifically, the judge found that the Respondent's Manager Soyk threatened the futulity of bargaining when she indicated to employees at a January 1995 meeting that the Union would negotiate the same benefits package that employees already had and that the Respondent engaged in surveillance of the election activities when a policy deputy, employed by the Respondent as a guard, entered the polling area in violation of Section 8(a)(1); and discriminatorily disciplined employees Altimirano and Edwards for taking an extended dinner break on May 15, 1996 in violation of Section 8(a)(3).

Contrary to Member Cowen, Members Liebman and Bartlett found, in agreement with the judge, that the Respondent's supervisor, Lovejoy-Flairty, unlawfully warned Edwards on July 13, 1996, about 2 months after the Union had lost the second of three elections. Members Liebman and Bartlett found that the alleged customer complaint underlying the warning was a mere pretext for retaliation against Edwards for supporting the Union. Member Cowen would find that the General Counsel failed to establish the requisite elements of a prima facie case that Edwards' warning violated Section 8(a)(3) and would dismiss the allegation.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Teamsters Local 385; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Orlando, March 8-10, 1999. Adm. Law Judge Lawrence W. Cullen issued his decision Sept. 14, 1999.

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Saylor's, Inc. (7-RC-22037; 338 NLRB No. 35) Ottawa Lake, MI, Sept. 30, 2002. The Board majority of Members Liebman and Bartlett denied the Petitioner's (Plasterers Local 67) request for review of the Regional Director's decision that (1) a 9(a) relationship was established by the contractual language in the collective-bargaining agreement between the Employer and the Intervenor (Bricklayers Local 9), and (2) the Petitioner's challenge to the Intervenor's 9(a) status, occurring more than 6 months after the Employer's grant of 9(a) status to the Intervenor, was untimely. The majority concluded the Regional Director's findings were correct under existing Board precedent, citing Central Illinois Construction, 335 NLRB No. 59 (2001). [HTML] [PDF]

In a footnote, Member Bartlett said in the absence of a three-Member Board majority to reverse that precedent, he joined in denying review inasmuch as the petition was not filed within 6 months after 9(a) recognition was granted and thus any claim that the Intervenor lacked majority status at the time of recognition would be untimely. He further noted that the Petitioner would have the opportunity to file a new petition during the upcoming 30-day window period between 60 to 90 days prior to expiration of the current agreement on August 1, 2003.

Member Cowen, dissenting, concluded that existing precedent in Central Illinois Construction does not support dismissal of the instant petition. Accordingly, he would reverse the Regional Director and process this petition.

Contrary to the Regional Director's analysis under Central Illinois, Member Cowen concluded that there are only two valid means for creating 9(a) status in the construction industry and they are identical to the requirements for unions to attain that status outside the construction industry. He stated: "In order for unions to become 9(a) bargaining representatives, I would require that they demonstrate their majority status either (1) through certification following a Board-conducted election or (2) through voluntary recognition based on the employer's card check showing that the union holds majority status in the bargaining unit."

(Members Liebman, Cowen, and Bartlett participated.)

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King Soopers, Inc. (27-CA-16818-1; 338 NLRB No. 30) Denver, CO Sept. 30, 2002. The Board majority of Members Cowen and Bartlett, affirming the administrative law judge, found that the Respondent did not violate Section 8(a)(5) of the Act by refusing to deal with Union business agent George Gonzales, who it had discharged 4 years earlier over an incident in which "Gonzales engaged in volatile and disruptive workplace misconduct." The Union hired Gonzales as a business agent in 2000. He was assigned to service several stores. [HTML] [PDF]

During a 1996 confrontation with his supervisor, as described in the majority opinion:

Gonzales confronted his supervisor about the Respondent's decision to assign him to work on a Saturday. During this confrontation, Gonzales angrily threw his meat hook over his shoulder, narrowly missing an employee. He also threw a 40 pound piece of meat into a saw (breaking its blade); threw his knife into a box; threatened his supervisor; and refused to follow to the store manager's order to leave the store.

The majority stated further:

In short, Gonzales' propensity to react violently during a confrontation would cast a lingering and threatening shadow over collective bargaining, which must, of course, occur in an atmosphere devoid of violence and threats if it is to succeed. Based on these circumstances, then, we agree with the judge that the Respondent should not be required to deal with Gonzales as a union business agent because his presence would create ill will and would make good-faith bargaining impossible.

In dissent, Member Liebman would reverse the judge's dismissal of the complaint, asserting she could see no basis for the Respondent's refusal to deal with Gonzales:

The incident relied on by the Respondent occurred some 4 years earlier, involved no actual or intended physical contact, and was purely personal in nature. The supervisor whose actions triggered Gonzales' misconduct is now working at a store not included within Gonzales' jurisdiction as business representative, so there is no prospect of any lingering personal ill will between the two affecting the bargaining process. As demonstrated, Gonzales' most recent visits to the Respondent's facilities in his role as business agent were professional and productive. The objective evidence here, then, falls far short of the strict standard established by the Board.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by United Food and Commercial Workers Local 7; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Denver on Oct. 5, 2000. Adm. Law Judge James L. Rose issued his decision Dec. 7, 2000.

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Triangle Bldg. Products Corp. (29-RC-9662; 338 NLRB No. 29) Medford, NY Sept. 30, 2002. The Board majority of Members Liebman and Bartlett, reversing the Regional Director, found that the Employer's voluntary recognition of the Intervenor (Carpenters Local 2682) as the collective-bargaining representative of the employees in a wall-to-wall unit is a bar to the petition filed by Teamsters Local 1205. [HTML] [PDF]

On March 21, 2001, the Employer executed a recognition agreement with the Intervenor. In this agreement, the Employer recognized the Intervenor as the majority bargaining representative of employees in a wall-to-wall unit including all production and maintenance employees, carpenters, material handlers, warehousemen, assemblers, forklift operators, truck drivers, and checkers. On March 26, an independent arbitrator conducted an election in this unit; of the approximately 55 eligible voters, 36 voted to have the Intervenor represent them for purposes of collective bargaining. On April 26, the Petitioner filed a petition seeking to represent a portion of the recognized unit. In its petition, the Petitioner also stated that it was prepared to represent an alternative unit found appropriate by the Board.

Applying Smith's Food & Drug Centers, 320 NLRB No. 844 (1996) and American National Can, Inc., 321 NLRB 1164 (1996), the Regional Director found that the recognition agreement between the Intervenor and the Employer did not bar the Petitioner's petition because the Petitioner had obtained the support of, inter alia, 30 percent of the drivers at the time the Intervenor and the Employer entered into the recognition agreement.

The majority disagreed with the Regional Director's analysis, offering the following rationale:

The Board in Rollins, as modified by Smith's Food, created a narrow exception to the recognition bar rule. Thus, voluntary recognition bars all petitions except those filed by a petitioner that can demonstrate that it had support of 30 percent of the employees in the petitioned-for unit at the time of recognition. While the Board in American National Can applied this exception in a situation where the petitioned-for unit was smaller than the recognized unit, critical to the Board's analysis was the finding that the petitioned-for unit was an appropriate unit.

Contrary to the Regional Director, we are unwilling to extend this narrow exception of the recognition bar rule to permit petitions for units that are not appropriate. To do so would create instability and uncertainty regarding voluntarily recognized units. This is particularly true in the present case where the recognized unit is a presumptively appropriate overall unit, a neutral arbitrator conducted an election in this unit, and the Petitioner waited 30 days after the recognition to file its petition. In sum, we find that if a rival union fails to petition for an appropriate unit, the employer's voluntary recognition of the other union constitutes a bar to the petition.

Dissenting Member Cowen contended the majority failed to explain "why they have created this 'exception' to the recognition bar exception beyond their vague and speculative assertion that it will prevent instability and uncertainty regarding voluntarily recognized units." He added:

"My colleagues also ignore the fact that the Regional Director, consistent with well-established Board law and policy, considered an alternative unit (derived from the petitioned-for unit), and found such a unit to be appropriate. See Overnite Transportation Co., 331 NLRB at 663."

Member Cowen would adopt the Regional Director's Decision, process the Petitioner's petition, and direct and election.

(Members Liebman, Cowen, and Bartlett participated.)

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Tejas Electrical Services (16-CA-20937; 338 NLRB No. 39) Houston, TX Oct. 11, 2002. Members Cowen and Bartlett affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire applicants Jack Smith and Jack Bornsheuser, who identified themselves as union organizers on applications submitted to the Respondent's receptionist. Two other applicants, Gordon Casey and Ray Rath, concealed their union affiliation and were hired after being interviewed by the Respondent's field superintendent, Keith Carter. The judge found that the General Counsel failed to establish the required element of union animus in the decision not to hire Smith and Bornsheuer. [HTML] [PDF]

Member Liebman, dissenting in part, concluded that the judge's finding that the General Counsel had not met his burden of showing antiunion animus tainted the hiring process, is premised on these errors and related matters that require a remand. 1) The judge's failure to infer animus from the timing and sequence of events although he found it suspicious that the two covert union applicants were hired instead of Smith and Bornsheuer; 2) the judge's refusal to rely on the statements made by alleged agent Robinson to establish animus because in his view (a) the record fails to establish Robinson's supervisory or agency status, and (b) the statements themselves are insufficient to establish animus; and 3) the judge's denial of the Respondent's requests for production of affidavits given by the General Counsel's witnesses during the investigation of other unrelated cases in which the witnesses acted as union salts.

The majority explained why a remand is not necessary:

Even assuming, arguendo, that Smith and Bornsheuer applied for jobs before Casey and Rath did, we find that there is an insufficient basis for inferring union animus merely from the chronological order of applications, in the absence of evidence that the Respondent had a practice of hiring on a first-come, first-hired basis. Moreover, there is no basis for finding that the job credentials of Smith and Bornsheuer were so superior to those of applicants hired after them that they should have been hired absent a discriminatory motive. We also agree with the judge that even assuming, without deciding, that Robinson acted as an agent of the Respondent when speaking to Smith and Bornsheuer, his statements did not constitute sufficient evidence to meet the General Counsel's initial burden of proving that union animus tainted the hiring process. We recognize, as our dissenting colleague points out, that statements like this permit the inference of union animus. But the Board is not required to make that inference, and we decline to do so here.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Electrical Workers IBEW Local 716; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge Keltner W. Locke issued his decision Nov. 21, 2001.

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Baptist Medical Center/Health Midwest, et al. (17-CA-20415-3, et al.; 338 NLRB No. 38) Kansas City, MO et al. Sept. 30, 2002. The Board reversed the administrative law judge's finding that the distribution of letters on April 7, 2000 and April 20, 2000 to employees advising them of their rights and obligations related to government investigations, violated Section 8(a)(1) of the Act by impeding employees' access to the Board and obstructing Board processes. Among the rights identified in the April 7 letter was the right to talk to or to decline to talk to a government investigator and the right to "seek the advice of a lawyer before doing so." [HTML] [PDF]

When the Respondents distributed the April 7 memorandum, both a Board complaint against the Respondents and union objections to an election conducted a week earlier at Respondent Health Midwest and Visiting Nurse Association/Visiting Nurse Services of Health Midwest (VNA/VNS) were pending. The Union filed an unfair labor practice charge alleging that the April 7 memorandum violated employees' Section 7 rights to file charges or to give testimony to the Board. Seeking to refute this charge, the Respondents distributed a second memorandum to employees on April 20. This memorandum specifically referred to the Union's charge, denied that the April 7 memorandum had the alleged unlawful effect, and "clarif[ied] the record" regarding NLRB investigations.

The Board noted that no mention is made in the April 7 memorandum of the Board or its proceedings in connection with the Respondents' offer of legal counsel and its request for notification in the event that employees were contacted by government investigators. It added: The April 7 memorandum made explicit reference to investigations by the Justice Department and was clearly directed at investigations that had nothing to do with the Board, unfair labor practices, or obligations."

The Board also rejected the judge's finding that Respondent Research violated Section 8(a)(1) by ejecting two non-employee union organizers from the outside entrances of its facility and by threatening to have them arrested. In finding this violation, the judge stated that the allegation was included in the complaint. In fact, however, as the Board pointed out, "the General Counsel concedes in his answering brief to Respondent Research's exceptions that the complaint alleged only the unlawful threat to arrest employees."

The Board affirmed the judge's finding that Respondent Overland Park violated Section 8(a)(3) by disciplining employees Carr and Johnson for soliciting union support and distributing union literature during their off-duty hours at various nurses stations pursuant to a no-solicitation/no-distribution policy that was unlawful under the access rules applicable to off-duty employees set forth in Tri County Medical Center, 222 NLRB 1089 (1976).

In a footnote, Member Cowen indicated he would dismiss the 8(a)(3) allegations regarding the discipline of Carr and Johnson. Contrary to his colleagues, he would find that "the record establishes that the Overland Park nurses stations at issue were patient care areas, and that Respondent Overland Park excepted to the judge's findings to the contrary." Accordingly, because Carr and Johnson were disciplined for soliciting in those areas, Member Cowen found that the discipline imposed was lawful, regardless of the overbreadth of the on-solicitation rule relied on. Member Bartlett added that he agreed with former Chairman Hurtgen's view on this issue that a disciplinary action that is imposed pursuant to an overbroad no-solicitation rule is not unlawful if the application of the rule in the circumstances presented was lawful (e.g., if the employer made clear that the discipline was being imposed because the employee was soliciting during working time or in patient care areas). However, here Respondent Overland Park did not except to the judge's finding that the discipline violated the Act because it was imposed pursuant to an over-board no-solicitation rule. Thus, in the absence of exceptions, Member Bartlett adopts the judge's finding.

The Board sustained the Respondents' exception to the cease-and-desist provision of the judge's recommended Orders and notices that direct them to refrain from prohibiting employees' nonworktime distribution of union literature in nonpatient care areas. It asserted:

As in any other industry, health care industry employers may lawfully prohibit distribution of union literature in working areas, even if they are non-patient care areas. See Brockton Hospital, 333 NLRB No. 165, slip op. at 2 (2001); Hale Nani Rehabilitation & Nursing Center, 326 NLRB 335 (1998). Accordingly, we shall modify the relevant cease-and-desist paragraphs to preclude the Respondents from applying their no-distribution rules only in nonworking, non-patient care areas during employees' nonworktime.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Nurses United for Improved Patient Care; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing held on various dates between May 23 and July 20, 2000. Adm. Law Judge George Aleman issued his decision July 25, 2001.

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Iron Workers Local 416 (Pacific Reinforcing Steel, Inc. and J.L. Davidson Co.) (31-CE-00216 (formerly 21-CE-00364), 31-CE-00217 (formerly 21-CE-00365); 338 NLRB No. 15) Santee, CA Sept. 30, 2002. The Board affirmed the administrative law judge's decision that the Union violated Section 8(e) of the Act by entering into, maintaining, and giving effect to agreements with Pacific Reinforcing Steel, Inc. and J.L. Davidson Co. containing picket line clauses which permit employees to refuse to cross any picket line established by any union, and thereby have the effect of causing the employees to agree not to handle or otherwise deal in the products of, or do business with, another employer or person. [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Pacific Reinforcing Steel, Inc. and J.L. Davidson Co.; complaint alleged violation of Section 8(e). Adm. Law Judge Gerald A. Wacknov issued his decision March 26, 2002.

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Pratt Towers, Inc. (29-CA-22657, et al.; 338 NLRB No. 8) Brooklyn, NY Sept. 30, 2002. The administrative law judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate six striking employees unless they abandoned their support of Service Employees Local 32B-32J. Although Members Cowen and Bartlett agreed with the Respondent that the strikers forfeited the special Laidlaw reinstatement rights of strikers because they engaged in an unprotected strike, they found that the Respondent violated Section 8(a)(3) and (1) by indicating its willingness to hire these employees on conclusion of the strike and then unlawfully conditioning that employment on the former strikers' abandonment of the Union as their collective-bargaining representative. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Member Liebman, concurring, agreed with her colleagues in affirming the judge's unfair labor practice findings, but she wrote separately to explain her rationale. [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, July 15-Aug. 31, 1999. Adm. Law Judge Jesse Kleiman issued his decision Sept. 27, 2000.

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Dattco, Inc. (34-CA-8596, 8658; 338 NLRB No. 7) Hartford, CT Sept. 27, 2002. Reversing the administrative law judge, the Board held that the Respondent is not a successor employer to Laidlaw, Inc. with respect to its Hartford, CT operations and that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union because the unit in which bargaining was requested was not an appropriate unit. [HTML] [PDF]

The Respondent operates nine terminals in eight cities and towns in Connecticut-one each in New Britain, Westport, Middletown, Hartford, Plainville, Avon, and Cheshire, and two in New Haven. Drivers are dispatched from the terminals to drive school, commuter, and charter routes in many adjacent towns. Civil Service Employees affiliates Local 760M demanded recognition as the representative of the Respondent's drivers and monitors and an attendant working at its Hartford terminal. The Board found that the Respondent rebutted the single-facility presumption and demonstrated that the Hartford terminal is not an appropriate unit standing alone.

For a number of years, Laidlaw provided general school bus transportation services for the city of Hartford. During the 1997-1998 school year, Laidlaw also provided school bus transportation for children in Hartford. On February 2, 1998, the Board certified the Union as the exclusive bargaining representative of the school bus drivers and monitors at Laidlaw's Hartford facility. The Respondent acquired a facility in Hartford to use as a bus terminal in January 1998 and in May 1998 it was awarded the contract to provide school bus transportation for the upcoming 1998-1999 school year for children in Hartford. In August 1998, the Respondent began hiring school bus drivers and monitors, many of whom previously worked for Laidlaw. By late October, it had hired a representative complement of employees at the Hartford terminal, i.e., approximately 59 drivers and monitors. On October 23, 1998, the Union faxed its demand to the Respondent for recognition as the representative of the Hartford terminal. The Respondent refused, asserting that its Hartford terminal is a functionally integrated part of its statewide operations and is not an appropriate unit for bargaining.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Civil Service Employees affiliates Local 760M, SEIU; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Hartford, Sept. 28-30, 1999. Adm. Law Judge Raymond P. Green issued his decision Jan. 14, 2000.

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Baptist Hospital of East Tennessee (10-CA-33684; 338 NLRB No. 26) Knoxville, TN Sept. 30, 2002. The Board denied the Respondent's motion for summary judgment on the ground that it raises genuine issues of material fact, which would better be resolved after a hearing before an administrative law judge. Member Cowen, dissenting, would grant the Respondent's motion on the ground that the issues presented in this case are merely matters of contract interpretation and enforcement that are best left to the parties' dispute resolution procedures. The complaint alleges that the Respondent unilaterally changed its earned time policy as applied to the inpatient radiology unit by assigning employees to holiday work schedules without regard to employee preference or seniority and that the unilateral change was contrary to the terms of the parties' collective-bargaining agreement in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act. [HTML] [PDF]

In a separate concurring opinion, Member Bartlett noted that in denying the Respondent's motion, he agreed that the pleadings raise genuine issues of material fact that warrant a hearing. He wrote: "However, I agree with my dissenting colleague that 8(a)(5) allegations of the type raised in this case present issues of contract interpretation that Congress and the Supreme Court have indicated are meant primarily for resolution through the parties' own agreed-upon dispute resolution procedures, i.e., contractual grievance and arbitration systems, or in the absence of applicable procedures for arbitrable resolution, Section 301 of the Act. Thus, in my view, the Board should sua sponte stay its hand and defer further processing of such allegations until after the parties have exhausted the possibility of resolving their contractual dispute through these alternative dispute resolution procedures."

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Office and Professional Employees Local 179; complaint alleged violation of Section 8(a)(1) and (5). Respondent filed motion for summary judgment August 30, 2002.

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Denver Newspaper and Graphic Communications Local 22 (Rocky Mountain News) (27-CB-4053-1, et al.; 338 NLRB No. 21) Denver, CO Sept. 30, 2002. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing the denial of overtime opportunities to Charging Party Wayne Jerome Scott because he was delinquent in paying union imposed fines. Finding merit in the General Counsel's exceptions, the Board modified the dates in judge's decision when Scott was unlawfully denied overtime opportunities to include the week of April 29, 2000; and it held, unlike the judge, that the Respondent violated Section 8(b)(1)(A) by filing an internal union charge against Scott in retaliation for his filing of a charge against the Respondent. In addition to the judge's remedy, the Board ordered the Respondent to remove from its records any reference to the internal union charge, filed on October 17, 1999, against Scott, for filing unfair labor practices charges with the Board against the Union and to notify Scott in writing that it has done so and that the Respondent will not use the charge against him in any way. [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Wayne Jerome Scott, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Denver. Adm. Law Judge James L. Rose issued his decision Jan. 22, 2002.

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JCR Hotel, Inc. (17-CA-20622; 338 NLRB No. 27) Jefferson County, MO Sept. 30, 2002. The Board agreed with the administrative law judge that the Respondent discharged Patsy M. Wilson in violation of Section 8(a)(1) of the Act because it believed that she had concertedly encouraged employees to walk out of work in protest of working conditions. The Board noted that despite the Respondent's contentions to the contrary, the judge credited the testimony of all the Respondent's witnesses regarding the problems they had working with Wilson, saying: "Specifically, the judge indicated that several former and present employees credibly testified concerning Wilson's abrasive manner when dealing with her coworkers. The judge found, however, that Wilson was discharged at least in part for engaging in concerted activity, and that she would not have been discharged in the absence of that activity." [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Patsy M. Wilson, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Columbia on Nov. 30, 2000. Adm. Law Judge Albert A. Metz issued his decision Feb. 9, 2001.

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Roman, Inc. (4-CA-30461; 338 NLRB No. 24) Berlin, NJ Sept. 30, 2002. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(1) of the Act by interrogating employee-applicant Bernard Griggs concerning his union activities and telling him that it had changed its decision to hire him because of those activities; and violated Section 8(a)(3) by failing to hire Griggs. [HTML] [PDF]

The Respondent did not specifically except to the judge's legal reasoning or conclusions, but it did except to some of his credibility determinations and evidentiary rulings and, accordingly, implicitly contested the factual basis for the judge's conclusions. The Board rejected the Respondent's arguments, including its contention that the judge improperly admitted into evidence a statement made by the Respondent's counsel in a letter to the Regional Director dated July 18, 2001 that was part of settlement negotiations. The Board noted that the letter was a position statement made during the course of the investigation, not part of settlement negotiations, and therefore was admissible. Members Cowen and Bartlett believe the Board should reexamine, with the assistance of amici briefing, current Board precedent that a party's position statement that it provides during the course of the Region's investigation is admissible as evidence.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Allied Craftworkers Local 1 of Pennsylvania and Delaware; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on Dec. 17, 2001. Adm. Law Judge William G. Kocol issued his decision Feb. 7, 2002.

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Calyer Architectural Woodworking Corp. (29-CA-24762; 338 NLRB No. 33) Brooklyn, NY Sept. 30, 2002. Members Liebman and Bartlett held that the administrative law judge properly granted the General Counsel's motion for summary judgment and concluded that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees because they engaged in union or other concerted activities and coercively interrogating employees about union support or union activities. Member Cowen, dissenting, would reverse the judge's ruling and remand the case for hearing because the General Counsel never filed a motion for default summary judgment with the Board as contemplated by Section 102.24(a) and (b) of the Board's Rules and Regulations. [HTML] [PDF]

The Respondent argued that summary judgment was improper, despite its failure to answer the complaint because it ultimately appeared pro se at the hearing and was prepared at that time to defend against the allegations of the complaint.

Members Liebman and Bartlett said that while proceeding pro se, the Respondent failed to file any document, timely or untimely, that could reasonably be construed as denying the complaint's allegations and that the Respondent failed to show good cause for failing to do so. They held that merely being unrepresented by counsel does not constitute good cause for the failure to file a timely answer, and the other explanations proffered by the Respondent are also insufficient.

Contrary to the dissent's view, Members Liebman and Bartlett noted that the Board's Rules and Regulations permit the judge to entertain and rule on Motion for Summary Judgment, default or otherwise. Section 102.35(a)(8), states an administrative law judge has the authority, without qualification, to "dispose of procedural requests, motions, or similar matters, including . . . motions for summary judgment . . . ." Section 102.24(a) states that motions made at the hearing are to be made to the administrative law judge either in writing or orally on the record.

Member Bartlett believes that although neither the Act nor the Board's Rules and Regulations require it, the best practice for regional offices to follow in future cases, when dealing with pro se respondents that have failed to timely answer the complaint, would be both (1) to send a "warning letter" to the respondent notifying it that summary judgment will be sought if an answer is not filed, and (2) to attempt to contact the respondent by telephone in order to repeat the obligation to file answer and to clarify any possible misunderstanding about what will satisfy this obligation.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by the Carpenters New York District Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn on May 13, 2002. Adm. Law Judge Raymond P. Green issued his decision June 3, 2002.

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United International Investigative Services, Inc. (21-CA-35019; 338 NLRB No. 28) Anaheim, CA Sept. 30, 2002. The Board majority of Members Liebman and Bartlett agreed that the Respondent's June 17, 2002 pro se letter raises genuine issues of material fact that warrant denial of the General Counsel's Motion for Summary Judgment and accordingly remanded the case for a hearing before an administrative law judge. The General Counsel's complaint, issued on May 29, 2002, alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing employee terms and conditions of employment and by failing to give the Union notice and an opportunity to bargain over the effects of its decision to cease operations. [HTML] [PDF]

Member Bartlett, in a concurring opinion, noted his position in Baptist Hospital of East Tennessee, 338 NLRB No. 26 (2002), where he stated that "the Board should sua sponte defer processing 8(a)(5) contract-breach allegations until after the parties have exhausted the possibility of resolving their contractual dispute through their own agreed-upon dispute resolution procedures, i.e., contractual grievance and arbitration systems, or, in the absence of applicable procedures for arbitrable resolution, Section 301 of the Act."

In dissent, Member Cowen, while agreeing that the Respondent's pro se letter was an acceptable answer to the complaint and that the General Counsel's motion should be denied, would find that the complaint fails to allege any cognizable violation of the Act and would resolve this case by dismissing the complaint.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by National Union of Security Officers and Guards; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed Motion for Summary Judgment July 1, 2002.

* * *

United Operations, Inc. (18-RC-16744; 338 NLRB No. 18) Plymouth, MN Sept. 30, 2002. In this Decision on Review and Order, the Board majority of Members Liebman and Cowen reversed the Regional Director's Dec. 12, 2000 decision that the smallest appropriate unit sought by the Petitioner must include all field service employees and dismissing the petition. Instead, the majority found that the HVAC (heating, ventilation, and air conditioning technicians) constitute a readily identifiable and functionally distinct group of highly skilled and licensed employees, with common interests distinguishable from the Employer's other field service employees. It concluded the HVAC technicians are a readily identifiable group with common interests, distinct skills and training, distinct job functions, and perform distinct work with little overlap. [HTML] [PDF]

Dissenting Member Bartlett would agree with the Regional Director that the petitioned-for unit of the Employer's HVAC technicians is not an appropriate unit. He said the only appropriate unit is one that includes all of the Employer's field service employees, i.e., the building services employees, the policers, and the HVAC techs," adding:

The field service employees all go on service calls and are commonly dispatched by the Employer. They all report to the Employer's office to pick up work orders and supplies, and to complete any necessary paperwork. They have the same work rules and fringe benefits.

(Members Liebman, Cowen, and Bartlett participated.)

* * *

IHS at West Broward, et al. (12-CA-20937, et al.; 338 NLRB No. 25) Plantation, FL Sept. 30, 2002. This case involves the sale of four skilled nursing facilities, each of which was operated by one of the four Respondents. The complaint alleged that each Respondent failed and refused to bargain over the effects of the sale of its facility. The General Counsel sought summary judgment because the Respondents have admitted all allegations in the complaint. [HTML] [PDF]

The Board found that West Broward, Pinecrest, and North Miami violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with 1115, Florida Division of 1199, SEIU concerning the effects on unit employees of the sale of their facilities, and that Fountainhead violated Section 8(a)(5) and (1) by failing and refusing to bargain with Charging Party UNITE Local 2000 concerning the effects on unit employees of the sale of Fountainhead's facility.

The Board ordered the Respondents to bargain with the respective Unions over the effects of selling their facilities on their employees, and to pay backpay to the employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB No. 389 (1968). It stated:

Thus, each Respondent shall pay its employees backpay at the rate of their normal wages when last in that Respondent's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the sale of its facility on its employees; (2) a bona fide impasse in bargaining; (3) the Union's failure to request bargaining within 5 business days after receipt of this Decision and Order, or to commence negotiations within 5 business days after receipt of the Respondent's notice of its desire to bargain with the Union, or (4) the Union's subsequent failure to bargain in good faith, but in no event shall the sum paid to these employees exceed the amount they would have earned as wages from the date of the sale of the Respondent's facility to the time the employees secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain in good faith, whichever occurs sooner; provided, however, that in no event shall this sum be less than the employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ.

In a concurring opinion, Member Bartlett said he had "doubts as to whether the Transmarine remedy represents a permissible exercise of the Board's remedial authority under Section 10(c) of the Act." He stated:

I agree with the objectives and desirability of a meaningful remedy in the circumstances addressed by Transmarine. It may well be that, absent some economic compulsion, a wrongdoing employer will have little reason to engage in bargaining about the effects of a sale, closing, or relocation of operations that took place years ago. Nevertheless, the Board remains constrained to fashion an appropriate remedy within the defined limits of its statutory authority. The need for a more effective remedy may require action by Congress.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by 1115, Florida Division of 1199, SEIU and UNITE Local 200; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment February 19, 2002.

* * *

Sheet Metal Workers Local 33 (Daimler-Chrysler Corp. and Ford Motor Co.) (8-CB-8858, 9003; 338 NLRB No. 17) Perrysburg, OH Sept. 30, 2002. The majority of Members Cowen and Bartlett, affirming the administrative law judge, ordered the Respondent union to rescind unlawful fines imposed on Ronald Apple, Brain Thomas, Thomas Whitcomb, and Robert Wilhite. The judge had found that the Respondent violated Section 8(b)(1)(A) of the Act by fining them for their conduct in working for nonsignatory employers -- because the formula that the Respondent utilized to calculate the fines included periods of time after they had resigned their union memberships. [HTML] [PDF]

In dissent, Member Liebman, citing Newspaper Guild Local 3 (New York Times), 272 NLRB 338 (1984), would permit the Respondent, at the compliance stage of this proceeding, "to demonstrate a reasonable method of apportioning the fines imposed on Apple, Thomas, Whitcomb, and Wilhite between preresignation conduct (a lawful basis for the fines) and postresignation conduct (an unlawful basis)."

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Brian J. Thomas, and Bradford D. Zelasko, individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Cleveland on June 30, 2000. Adm. Law Judge William G. Kocol issued his decision Aug. 30, 2000.

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Aluminum Co. of America (26-CA-19014; 338 NLRB No. 3) Bauxite, AR Sept. 23, 2002. The Board found, contrary to the administrative law judge, that the Respondent lawfully discharged Craig Elliott on December 16, 1998, and dismissed the complaint. The judge found that the Respondent discharged Elliott in violation of Section 8(a)(3) and (1) of the Act because he engaged in the protected concerted activity of raising issues under a collective-bargaining agreement. The Board reasoned: "Even assuming that Elliott was engaged in protected concerted activity during each of the incidents that precipitated his discharge, we find that the profane nature of his outbursts on each occasion removed the Act's protection." [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Craig Elliott, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Little Rock on Nov. 3, 1999. Adm. Law Judge William N. Cates issued his decision Nov. 3, 1999.

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Peck/Jones Construction Corp. (31-CA-24883; 338 NLRB No. 4) Los Angeles, CA Sept. 20, 2002. The Board affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent violated Section 8(a)(1) of the Act when it denied two union business agents access to its construction site at the Los Angeles International Airport (LAX) on October 26, 2000. [HTML] [PDF]

Members Liebman and Bartlett agreed with the judge that the business agents failed to follow the Respondent's reasonable and nondiscriminatory sign-in rule that required visitors to sign in before entering the secured area and, therefore, the agents are not entitled to enforce their contractual right to access that might otherwise provide a basis for their claim. They found it unnecessary to pass on whether the Respondent's requirement that the union agents be escorted onto the jobsite is a reasonable access rule. Members Liebman and Bartlett concluded that, unlike the cases cited by the General Counsel, the Respondent's sign-in rule was not inconsistent with the access provisions of the Union's collective-bargaining agreement with the subcontractor, Washington Ironworks.

Member Cowen, concurring, found that the union agents were improperly on the premises because they failed to sign in, as the Respondent required, and because the union agents' conduct is not covered by the access provision of the Union's agreement with Washington Ironworks. He disagreed, however, with any implication that a general contractor's maintenance and/or enforcement of any rule that is inconsistent with the access provisions of a subcontractor's union contract is unlawful, and with prior cases to the extent that they can be read as supporting such a broad proposition. Member Cowen found it unnecessary to pass on these issues because this case does not concern the lawfulness of a rule that conflicts with a collective-bargaining agreement. He added that nothing in this decision, which involves unauthorized access to secure areas of LAX prior to the events of September 11, 2001, "should not be read as expressing any view about how the Board will evaluate union access questions arising under the Federally mandated heightened security restrictions now in place at airports throughout the nation."

(Members Liebman, Cowen, and Bartlett, participated.)

Charge filed by Iron Workers Local 433; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles, Aug. 6-7, 2001. Adm. Law Judge James L. Rose issued his decision Oct. 9, 2001.

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Food and Commercial Workers Local 204 (11-CA-18090; 338 NLRB No. 6) Winston-Salem, NC Sept. 25, 2002. The Board dismissed the complaint, affirming the administrative law judge's conclusion that the Respondent did not lay off and fail to recall Belinda Shepard in violation of Section 8(a)(4), (3), and (1) of the Act because of her activities for the General Organizing Association and because of her cooperation with the NLRB during the investigation of an unrelated case. [HTML] [PDF]

The Board did not pass on the judge's finding that the General Counsel failed to satisfy his initial Wright Line burden of showing that animus against Shepherd's protected activities was a motivating factor in the Respondent's employment decision. Even assuming arguendo that the General Counsel established that animus against Shepherd's protected activities contributed to the Respondent's decision to lay her off, the Respondent demonstrated that the layoff was economically motivated and that it selected Shepherd for layoff based on seniority, the Board held. And, the Respondent met its burden under Wright Line to establish that it would have taken the same action against Shepherd even the absence of her protected activities. Member Cowen, in agreeing with his colleagues, noted that the evidence taken as a whole does not support even a prima facie case of unlawful motivation.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Belinda Shepherd, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Winston-Salem, Nov. 13-14, 2001. Adm. Law Judge George Carson II issued his decision Jan. 2, 2002.

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Iron Workers Local 1 (Advance Cast Stone Co.) (13-CD-610; 338 NLRB No. 13) Deerfield, IL Sept. 26, 2002. Relying on the Employer's collective-bargaining agreement with the Bricklayers, Employer preference and past practice, and economy and efficiency of operations, Members Cowen and Bartlett awarded the disputed work (assembling and dismantling of erection cranes and the erection of precast architectural materials within the territorial jurisdiction of Iron Workers Local 1) to employees of Advance Cast Stone Co., represented by Bricklayers Local 20. Members Cowen and Bartlett found a broad award appropriate, explaining "that work of the kind in dispute has been a continuous source of controversy involving the Employer in the Chicago area, that the controversy is likely to recur, and that the Iron Workers has a proclivity to engage in unlawful conduct as a means of obtaining the work." Member Liebman did not participate in the decision on the merits. [HTML] [PDF]

(Members Cowen and Bartlett participated.)

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Steelworkers Local 7912 (U.S. Tsubaki, Inc., Automotive Div.) (1-CB-9680; 338 NLRB No. 5) Chicopee, MA Sept. 25, 2002. Members Cowen and Bartlett, with Member Liebman dissenting, affirmed the administrative law judge's finding that the Respondent violated Section 8(b)(3) of the Act when it refused the Employer's request, on and after June 20, 2000, to negotiate a collective-bargaining agreement for a unit of automotive division employees at the Employer's Chicopee, MA facility. The Employer had relocated the employees in 1996 from its Holyoke, MA facility, where they had been represented by the Union as part of a larger bargaining unit. The Board found in an underlying decision pursuant to a unit clarification petition filed by the Employer, that the relocated employees constituted a separate appropriate unit in which the Union retained its representative status. U.S. Tsubaki, Inc., 331 NLRB 327 (2000). [HTML] [PDF]

The Employer filed the unit clarification petition in February 1997 after the Union rejected its initial request to bargain for a separate contract. The Regional Director dismissed the petition in May 1997 and, while the Employer's request for review of the Regional Director's decision was pending before the Board, the parties executed a new collective-bargaining agreement, effective from October 1, 1997 to September 30, 2001, covering the original Holyoke unit, including the relocated Chicopee employees. During the contract negotiations and after the Board issued its decision on review reversing the Regional Director and clarifying the original unit by finding a separate Chicopee unit appropriate, the Respondent refused the Employer's requests to bargain for separate units. The Union asserts that it had no obligation to bargain for a separate contract covering the newly clarified Chicopee unit until the 1997-2001 contract expired.

Members Cowen and Bartlett wrote in finding no merit to the Respondent's exceptions to the judge's decision: "We hold that when the Board finds a group of relocated employees to be a separate appropriate unit, an existing collective-bargaining agreement covering those employees in their original bargaining unit does not apply, absent explicit agreement by the employer and union that it should continue to apply. There was no such agreement here." The majority explained that, in deciding this issue of first impression, it relied on "precedent establishing and applying unit clarification principles in the context of a group of employees relocated to another facility from an existing bargaining unit."

Member Liebman would hold the Employer to its agreement and find that the Union did not unlawfully refuse to bargain separately in the Chicopee unit. She said the object of the National Labor Relations Act "is best promoted by giving effect to the parties' agreement. My colleagues apparently would agree, but only if the agreement is clear and unequivocal in stating that it will continue to apply, notwithstanding the Board's subsequent unit clarification. I see no basis, either in the Board's earlier decisions or in the policies of the Act for imposing this requirement."

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by U. S. Tsubaki Inc.; complaint alleged violation of Section 8(b)(3). Hearing at Boston on April 16, 2001. Adm. Law Judge Raymond P. Green issued his decision May 9, 2001.

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Miron & Sons Laundry (2-CA-33596, 33783; 338 NLRB No. 2) Bronx, NY Sept. 16, 2002. The Board adopted, in the absence of exceptions, the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to sign the 2001-2003 contract between the Union and the Laundry Industry Multi-Employer Bargaining Group, by failing to apply the terms of the contract to the unit employees, and failing to provide the Union with the information it requested. It also adopted the judge's finding that the Respondent violated Section 8(a)(1) by threatening a Union representative with physical violence if she did not leave the Respondent's premises. [HTML] [PDF]

The General Counsel excepted only to the judge's failure to include in the recommended Order a provision providing that the notice to employees be posted in both English and Spanish. Finding merit in the General Counsel's exceptions, the Board ordered that the notice be posted in both languages. The Board noted that the judge inadvertently failed to include an affirmative remedy for the Respondent's failure to provide information and, therefore, substituted a new notice to conform to current standard Board language.

(Members Liebman, Cowen, and Bartlett participated.)

Charges filed by Amalgamated Service & Allied Industries Joint Board, UNITE; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on Feb. 27, 2002. Adm. Law Judge Steven Davis issued his decision June 20, 2002.

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Electrical Workers (IBEW) Local 126 (Henkels & McCoy, Inc.) (4-CD-1062; 338 NLRB No. 1) Blue Bell, PA Sept. 16, 2002. The Board determined that the employees of Henkels & McCoy represented by Electrical Workers Local 126 instead of employees represented by Laborers Local 413 and Operating Engineers Local 542 are entitled to perform the installation of teledata facilities including fiber optic equipment on the Columbia Gas Pipeline right-of-way in Chester County, Pennsylvania. In making the award, the Board relied on the factors of collective-bargaining agreements, employer preference and past practice, relative skills and training, and economy and efficiency of operations. [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

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The Post-Tribune Co., A Div. of the Sun Times Co., a Subsidiary of Hollinger International Publishing, Inc. (13-CA-39228-1; 337 NLRB No. 192) Merrillville, IN Sept. 12, 2002. The Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act in January 2001 by unilaterally increasing the amount deducted from employees' paychecks for health insurance coverage, in order to pass on to employees a portion of a premium increase imposed by the Respondent's insurance carrier, without giving the Union notice and an opportunity to bargain. The Board concluded that the Respondent followed an established past practice and did not alter the status quo and, accordingly, dismissed the complaint. [HTML] [PDF]

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Gary Newspaper Guild, TWG-CWA Local 34014; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago on Oct. 5, 2001. Adm. Law Judge William N. Cates issued his decision Oct. 26, 2001.

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Agar Supply Co., Inc. (1-RC-21417; 337 NLRB No. 191) Taunton, MA Sept. 6, 2002. Members Liebman and Bartlett adopted the Regional Director's recommendation that the challenge to the ballot of Robert Koch be overruled and that the ballot be opened and counted. Member Cowen dissented. The tally of ballots for the election held October 25, 2001 showed 59 for and 59 against the Petitioner (Teamsters Local 25), with 3 determinative challenged ballots. No exceptions were filed to the Regional Director's recommendation to sustain the challenges to two ballots. [HTML] [PDF]

The Petitioner maintained that Koch was a unit employee on workers' compensation at the time of the election and, therefore, was eligible to vote. Before his on-the-job injury on September 8, 2000, Koch was employed in the position of order selector in the warehouse. As a result of his injury, he was assigned to a nonunit position as a warehouse clerical. On about March 1, 2001, he ceased working and received workers' compensation benefits and remained in that status as of and after the date of the election.

The Employer argued that since Koch was not "qualified" to do unit work on the payroll eligibility date and since, based on the medical information then available, it was not "reasonably foreseeable" that he could ever perform unit work again, he was properly excluded from the Excelsior list. The Employer also argued that if Koch is to be considered an active employee, than he should still be deemed to be ineligible because his last period of work was in a nonunit position.

Contrary to Member Cowen, the majority agreed with the Regional Director that the Employer did not show that Koch was transferred to a nonunit position when he was temporarily assigned to light duty work as a warehouse clerical employee. Member Bartlett agrees with former Chairman Hurtgen's dissent in Supervalu, Inc., 328 NLRB 52 (1999), that the appropriate test for determining the eligibility of an employee on sick leave is the "reasonable expectancy of return" test, the same test that is applied to employees laid off for economic reasons. Thus, he disagrees with the prevailing test set forth in Red Arrow Freight Lines, 278 NLRB 965 (1986), which presumes that an employee on sick leave is eligible to vote unless it is affirmatively shown that the employee has resigned or been discharged. In the absence of a three-Member Board majority to overrule Red Arrow, Member Bartlett joined in adopting the Regional Director's finding that, under the Red Arrow test, employee Koch was eligible to vote in the election.

In dissent, Member Cowen contended that as Koch most recently was employed in a nonunit position, he was ineligible to vote in the election. He would, therefore, sustain the challenge to Koch's ballot. In Member Cowen's view, Red Arrow is inapplicable to this situation and found it unnecessary to pass on its validity.

(Members Liebman, Cowen, and Bartlett participated.)

* * *

Coinmach Laundry Corp. (29-RC-9876; 337 NLRB No. 193) Syosset, NY Sept. 12, 2002. Members Liebman and Cowen denied the Intervenor's (Teamsters Local 966) request for review of the Regional Director's Decision and Direction of Election as raising no substantial issues warranting review. [HTML] [PDF]

The issues presented for review were: (1) whether the Board wished to reconsider its holding in Alto Plastics Mfg. Corp., 136 NLRB 850 (1962), and find that the hearing officer erred in ruling that certain subpoenaed documents allegedly necessary to show that Petitioner's (Local 729, Coalition of Democratic Employees) officers have criminal records are relevant, and (2) whether the Regional Director correctly found that the Intervenor was not prejudiced by the hearing officer's refusal to permit the Intervenor to inquire about possible fronting by the Petitioner, and by the hearing officer's leading of a witness.

The Intervenor argued that its case was unfairly prejudiced when the hearing officer ruled that certain subpoenaed items were irrelevant and when the Regional denied the Intervenor's special appeal with regard to this ruling. Additionally, the Intervenor contended that the hearing officer wrongfully precluded it from pursuing certain lines of questioning. The Intervenor said that the subpoenaed documents were necessary (1) because "documents showing any records of criminal convictions of the officers of Local 729 . . . [are] relevant," and (2) "to show that Local 729 is an organization which is fronting for a labor organization which is not qualified to represent the employees of the Employer." The Regional Director determined that the instant case is similar to Alto Plastics, above, in which the Board was faced with rival claims by petitioning and intervening unions.

The Petitioner sought to represent a unit of all employees, excluding all guards, supervisors, office employees, foremen, salesmen, executives, dispatchers, laundry room attendants, security employees, coin counters, and porters while Local 966 intervened on the basis of its collective-bargaining agreement with the Employer encompassing the petitioned-for unit. The parties stipulated that the unit sought by the Petitioner is appropriate but the Intervenor disagreed on the issue of whether the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. The Regional Director concluded that the Petitioner is a labor organization and directed an election.

Member Bartlett concurred with his colleagues' denying the Intervenor's request for review. However, he disagreed with Alto Plastics to the extent it holds that the criminal records of, or judicial determinations of fraudulent conduct by, union officers and representatives cannot be considered relevant either to whether an organization is a labor organization within the meaning of the Act or to whether such organization may be appropriately certified by the Board. See Harrah's Marina Hotel, 267 NLRB 1007 (1983). He found that the Intervenor failed to make a sufficient threshold showing that this was a relevant and necessary inquiry in this case. Accordingly, Member Bartlett held that the hearing officer and the Regional Director properly refused to permit the Intervenor to inquire into the issue.

(Members Liebman, Cowen, and Bartlett participated.)

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Electrical Workers (IBEW) Local 98 (Swartley Brothers Engineers, Inc.) (4-CD-1079; 337 NLRB No. 187) Lansdale, PA Sept. 12, 2002. The Board determined that the employees of Swartley Brothers Engineers who are unrepresented by any labor organization are entitled to perform the installation of 200 amp single phase services, conduits, and the wires therein, for power, telephones, and ground conductors within Philadelphia, Bucks, Chester, Delaware, and Montgomery Counties, Pennslyvania. It granted Swartley Brothers' request for a broad, areawide award that encompasses the five counties. [HTML] [PDF]

Electrical Workers Local 98 opposed a broad award and asserted that any award should be limited to the work at the 23rd Street project that gave rise to the instant dispute. In granting a broad award in a jurisdictional determination, the Board requires evidence that (1) the disputed work has been a source of controversy in the relevant geographic area and that disputes may recur; and (2) the charged party has the proclivity to engage in wrongful conduct in order to obtain work similar to that in dispute. Bricklayers (Sesco, Inc.), 303 NLRB 401 (1991).

Citing other recent cases before the Board involving Local 98, the Board noted that the record in this case supports the conclusion that Local 98 has a proclivity to engage in wrongful conduct in order to obtain disputed work and that this case met the test for the issuance of a broad areawide award. It further noted that in 2001, the U.S. Court of Appeals for the Third Circuit issued a consent order which prohibits Local 98 from violating Section 8(b)(4)(i) and (ii)(B) of the Act. On July 1, 2002, the Board decided to pursue civil contempt proceedings against both Local 98 and Della Vella as a result of the conduct underlying the dispute in the instant case. The Board has now determined that Local 98's conduct in the instant case is in direct contempt of the Third Circuit's 2001 consent order, and will pursue civil contempt proceedings accordingly.

(Members Liebman, Cowen, and Bartlett participated.)

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Electrical Workers (IBEW) Local 98 (Total Cabling Specialists, Inc.) (4-CD-1071-1; 337 NLRB No. 188) Exton, PA Sept. 12, 2002. The Board determined that the employees of Total Cabling Specialists, Inc. represented by Communications Workers Local 13000 rather than those represented by Electrical Workers Local 98 are entitled to perform voice and data cable work at the Public Ledger Building in Philadelphia, PA, and wherever the jurisdictions of Local 13000 and Local 98 coincide. In making its award, the Board relied on the existing collective-bargaining contract between Local 13000 and the Employer, and the Employer's preference and past practice of assigning the work. [HTML] [PDF]

Local 13000 requested a broad work award covering all telecommunications work and data cabling work, assigned by any employer wherever the geographic jurisdictions of Local 98 and Local 13000 coincide. In order for a broad award to be appropriate, the Board requires (1) that there be evidence that the disputed work has been a continuous source of controversy in the relevant geographic area and that similar disputes may recur, and (2) that the charged party has a proclivity to engage in unlawful conduct in order to obtain work similar to the work in dispute. Foley Construction Co., 316 NLRB 360, 363 (1995).

Local 13000 cited two cases decided by the Board where Local 98's activities were directed at an employer in Philadelphia that had a collective-bargaining agreement with CWA District 13. In both cases, the Board awarded a broad work award in favor of employees represented by District 13 because the evidence indicated an ongoing dispute regarding telecommunications work and Local 98's proclivity to take unlawful action in order to obtain the work in dispute. As the evidence indicates an ongoing dispute regarding the voice and data cabling work in the Philadelphia region and a likelihood that the dispute may recur in the future, the Board found a broad award to be appropriate.

(Members Liebman, Cowen, and Bartlett participated.)

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Goodless Electric Co., Inc. (1-CA-31249, et al.; 337 NLRB No. 190) West Springfield, MA Aug. 30, 2002. The Board, in this second supplemental decision, vacated its prior orders reported at 321 NLRB 64 (1996) and 332 NLRB No. 96 (2000), and dismissed the complaint against the Respondent in its entirety. Members Cowen and Bartlett did not participate in the Board's prior decisions and expressed no view as to those decisions. [HTML] [PDF]

On October 31, 2000, the Board, on remand from the U.S. Court of Appeals for the First Circuit, issued a supplemental decision reaffirming its original decision that the Respondent violated Section 8(a)(5), (3), and (1) of the Act. Subsequently, the Board filed a petition for enforcement, and on March 28, 2002, the court denied enforcement of the supplemental order. The court held that the Board erred in concluding that the court's opinion permitted the Board to reaffirm, rather than to reverse, its earlier order based on a clarification of precedent. The court, therefore, reversed with "an explicit instruction that the Board dismiss the charges against Goodless." NLRB v. Goodless Brothers Electric Co., 285 F.3d 102, 111.

(Members Liebman, Cowen, and Bartlett participated.)

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St. Edmund's Catholic Church, Brooklyn, the Dennis Maloney Institute, d/b/a St. Edmund's High School, and St. Edmund's Roman Catholic Church, Brooklyn, d/b/a St. Edmund's Elementary School, a single employer (29-RC-9666; 337 NLRB No. 189) Brooklyn, NY Sept. 6, 2002. The Board determined that assertion of jurisdiction in this proceeding is unwarranted and, therefore, reversed the Regional Director's decision directing an election in a unit of the Employer's custodial/maintenance employees and dismissed the petition filed by SEIU Local 74. [HTML] [PDF]

The Employer is a Roman Catholic Church and school located in Brooklyn, NY. Its complex consists of three main parts: the Church and its associated buildings, including a rectory and a convent; the elementary school; and the high school, located on the same city block as the Church/elementary school and connected to the other buildings by a paved path. The Church employs all of the custodial employees. It is undisputed that the Church and its related schools are one, single employer and that the custodial employees have performed work in the Church and its associated buildings.

The Regional Director, in directing an election, found that the Board's jurisdiction was not precluded by NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), because the custodial employees do not "directly participate in the furtherance of the Employer's religious mission." Relying on Ecclesiastical Maintenance Services, 325 NLRB 629 (1998), and Hanna Boys Center, 284 NLRB 1080, enfd. 940 F.2d 1295 (9th Cir. 1991), the Regional Director concluded that the jurisdictional question did not rest on whether the employer was a religious institution, but rather, the role the specific employees attempting to organize played in effectuating the Employer's religious mission. Because the custodial employees did not play a direct role in the furtherance of the Employer's religious mission, he held that jurisdiction was proper.

The Board disagreed, stating that it generally will not assert jurisdiction over nonprofit, religious organizations. Motherhouse of the Sisters of Charity, 232 NLRB 318 (1977); Board of Jewish Education of Greater Washington, D.C., 210 NLRB 1037 (1974). It said that in Riverside Church, 309 NLRB 806 (1992), and Faith Center-WHCT Channel 18, 261 NLRB 106 (1982), the Board reaffirmed that it will not assert jurisdiction over religious institutions which operate "in a conventional sense using conventional means" and declined to assert jurisdiction over secular employees of religious institutions, without whom the employers could not accomplish their religious missions. The Board found that the cases relied on by the Regional Director are inapposite, noting that unlike this case, neither Hanna Boys Center nor Ecclesiastical Maintenance Services concerned an employer which was itself a religious institution.

Turning to the instant case, the Board found that the assertion of jurisdiction is unwarranted given the close integration between the Church and the schools, the undisputed testimony that the schools are part of the Church's religious mission, the Regional Director's single employer finding, and the fact that the Church directly employs all of the employees seeking representation.

(Members Liebman, Cowen, and Bartlett participated.)

* * *

Beta Steel Corp. (25-CA-25139; 337 NLRB No. 184) Portage, IN Aug. 23, 2002. The Board adopted the administrative law judge's recommendations and ordered that the Respondent pay Charging Party Dennis Holland backpay totaling $81,726.33. [HTML] [PDF]

Holland was discriminatorily discharged on September 13, 1996. In a decision reported at 326 NLRB 1267 (1998), enforced by the U.S. Court of Appeals for the Seventh Circuit on March 14, 2000, the Board ordered the Respondent to make Holland whole for any loss of earnings and other benefits resulting from his unlawful discharge. A compliance specification issued on July 27, 2000, alleging the amounts due. In an unpublished decision dated June 6, 2001 (334 NLRB No. 32), the Board granted summary judgment in the General Counsel's favor on two matters: that the backpay period ran from Sept. 13, 1996 to April 14, 2000; and that the gross backpay figure was $64,136. The case was remanded to the Regional Director to schedule a hearing limited to the issues of interim earnings and expenses, vacation benefits, medical benefits, 401(k) benefits, and the Respondent's affirmative defenses.

In his supplemental decision, the judge rejected the Respondent's asserted reasons for reducing Holland's gross backpay figure, including that Holland should have found higher paying jobs than the three he worked from the spring of 1997 to the end of the backpay period in April 2000. The judge held that the Respondent, in its answer, denied several allegations regarding Holland's expenses, vacation benefits, medical reimbursement, and 401(k) tax liability, but at trial, however, offered no evidence on these maters, nor did it address any of these matters in its brief. Due to Respondent's failure of proof, the judge determined the amount due Holland through the end of 2001.

(Members Liebman, Cowen, and Bartlett participated.)

Hearing at Valparaiso on November 8, 2001. Adm. Law Judge Jerry M. Hermele issued his supplemental decision Jan. 18, 2002.

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John W. Hancock, Jr., Inc. (11-CA-18716; 337 NLRB No. 183) Salem, VA Aug. 1, 2002. Chairman Hurtgen and Member Cowen affirmed the administrative law judge's finding that the Respondent (a) violated Section 8(a)(1) when it threatened to close part of its facility; (b) violated Section 8(a)(1) when it threatened to discharge employee Ray Preston Connor for engaging in union activity; and (c) violated Section 8(a)(3) and (1) when it discharged employees Larry Pugh and Paul Akers because it believed they were engaging in union activity. They reversed the judge's finding that Supervisor David Kelly's interrogation of Connor violated Section 8(a)(1). Member Liebman dissented to her colleagues' reversal of this finding. [HTML] [PDF]

The judge, in finding Kelly's questioning of Connor unlawful, observed that Kelly was asking about the union activity of employees other than Connor, and then stated that "[a]n inquiry regarding the union sympathies of employees other than employees who have made their sympathies known is coercive and constitutes unlawful interrogation in violation of Section 8(a)(1) of the Act." The majority held the judge's statement announces what amounts to a per se rule making it unlawful to question an employee about the union views of other employees who have not disclosed their views. Therefore, they rejected the judge's statement as inconsistent with the totality-of-the-circumstances test set forth in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).

Member Liebman would find that Kelly's interrogation of Connor violated Section 8(a)(1), considering the totality of the circumstances, consistent with Rossmore House. She said "the majority's analysis glosses over the question of Connor's own status with respect to support for the Union. That Connor was not an open supporter of the Union's 2000 organizational drive, a fact the majority acknowledges, is significant." In her view, the circumstances here are sufficient to establish an unlawful interrogation.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Roanoke, Oct. 10, 11, and 12, 2000. Adm. Law Judge George Carson II issued his decision Dec. 8, 2000.

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PPG Industries, Inc. (25-CA-25475; 337 NLRB No. 176) Evansville, IN Aug. 13, 2002. Members Cowen and Bartlett affirmed the administrative law judge's recommendations and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by issuing written discipline to and suspending employee John Sharber because of his union or other protected concerted activities and to discourage employees from engaging in these activities. They agreed with the judge's conclusions that the Respondent lawfully disciplined Sharber after employee Julie Meeks complained that Sharber had made vulgar, sexually explicit remarks to her on June 27, 1997. The Board majority found that both the analysis in Felix Industries, 331 NLRB 144 (2000), remanded 251 F.3d 1051 (D.C. Cir. 2001), and the analysis in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), support this conclusion. [HTML] [PDF]

In response to Farber's remark shouted to an allegedly underpaid female coworker, Member Liebman wrote: "[t]he remark can fairly be described as vulgar. But no reasonable person-no person of ordinary sensitivity, familiar with colloquial speech-would hear in the remark a sexual connotation, much less a connotation so strong as to constitute incipient sexual harassment." Unlike her colleagues, Member Liebman stated that she cannot conclude either that the male employee lost the protection of the Act (under the test of Felix) or that the Employer has established that its antiharassment policy supports the discipline imposed (under Wright Line). Accordingly, she dissented from the dismissal of the complaint.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Auto Workers (UAW); complaint alleged violation of Section 8(a)(1) and (3). Hearing at Evansville on Sept. 10, 1998. Adm. Law Judge Richard H. Beddow Jr. issued his decision Sept. 30, 1998 and supplemental decision Aug. 24, 1999.

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Robert E. Evans d/b/a Evans Sheet Metal, et al. (4-CA-27272; 337 NLRB No. 182) Scranton and Throop, PA Aug. 1, 2002. Chairman Hurtgen and Member Liebman affirmed the administrative law judge's conclusion that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to adhere, since June 1998, to the terms and conditions of a collective-bargaining agreement with Sheet Metal Workers Local 44 (CBA) by failing to employ union members, failing to pay union wages, and failing to make payments into union benefit funds. Member Cowen, dissenting, would dismiss the complaint. [HTML] [PDF]

Evans & Evans, Inc. (E&E, Inc.) was the only respondent represented at the Board hearing and that has filed exceptions. The term "Respondent" in the singular will designate E&E, Inc. The judge rejected the Respondent's assertion that the CBA terminated in 1993, finding that the Respondent was collaterally estopped from relitigating the continuing existence of the CBA by a prior court judgment and, reaching the merits, that the CBA continued in existence. The majority affirmed the judge's finding, on the merits, that Respondent was bound to the contract and therefore found it unnecessary to pass on the issue of collateral estoppel.

Member Cowen noted that under current Board law, court judgments are not given collateral-estoppel effect in Board proceedings. See Field Bridge Associates, 306 NLRB 322 (1992), enfd. 982 F.2d 845 (2d Cir. 1993). He pointed out that the judge ignored Field Bridge and gave collateral-estoppel effect to a court judgment. The Board should address this error, either by reversing the judge or overruling Field Bridge, Member Cowen said, adding: "Furthermore, contrary to my colleagues, it is necessary to pass on collateral estoppel. We cannot sidestep the issue and proceed to the merits because to reach the merits is to permit relitigation, and to permit relitigation is to reject collateral estoppel."

Member Cowen would overrule Field Bridge and establish the following framework for Board proceedings where a party asserts collateral estoppel based on a prior court judgment. First, the Board must determine whether the issue previously decided by the court falls within the Board's primary jurisdiction. If it does, the Board is entitled to redecide that issue. If it does not, the Board should then determine whether collateral estoppel applies under settled issue preclusion doctrine. Applying that framework to this case, Member Cowen would affirm the judge's finding that Respondent E&E, Inc. is collaterally estopped from relitigating the existence of the CBA. Since his colleagues will not join his approach, he also found on the merits that the CBA terminated on April 30, 1993 and accordingly would dismiss the complaint.

The majority wrote, in explaining its reasoning for not passing on the issue of collateral estoppel: "[E]ven if Respondent is not collaterally estopped from raising the merits, it does not prevail on the merits. Further, by expressly saying that we do not reach the issue of collateral estoppel, we obviously are not, by implication or otherwise, resolving that issue."

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Sheet Metal Workers Local 44; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia on Sept. 1, 1999. Adm. Law Judge C. Richard Miserendino issued his decision Jan. 7, 2000.

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Phoenix Coca-Cola Bottling Co. (28-CA-16595, 16908; 337 NLRB No. 157) Tempe and Prescott, AZ Aug. 1, 2002. Chairman Hurtgen and Member Liebman, with Member Cowen dissenting, agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by delaying or refusing to furnish the Union with information it requested in May and November 2000, including that pertaining to part-time and seasonal employees, but excluding the social security numbers sought on May 22, 2000. [HTML] [PDF]

The majority, unlike Member Cowen, agreed with the judge that the Union demonstrated that it had a logical foundation and factual basis for requesting the alleged nonunit information. It noted that the employees whose unit status was not agreed upon (seasonal employees and part-timer merchandisers) were performing unit work; the Union filed grievances concerning, among other things, their rates of pay and performance of unit work; and accordingly, the information sought was relevant to those grievances.

The majority said Member Cowen's argument-that the Union did not satisfy its relevance burden because the parties stipulated that the unit status of the seasonal employees and part-time merchandisers would not be resolved in this proceeding-missed the mark, explaining: "The relevant inquiry . . . is whether these employees were performing unit work, not whether they are ultimately determined to be in the bargaining unit. As noted above, the employees were performing unit work; the grievances concerned that fact; and the information was relevant to those grievances."

The majority rejected the Respondent's argument in its exceptions that it was not required to provide the Union with information it requested on November 21, 2000 because the Union sought to use the information as a discovery tool for pending unfair labor practice charges. It pointed out that the charges were withdrawn prior to the hearing and the Respondent stated in its posthearing brief to the judge that based on the withdrawal it "can now reveal information requested by the Union . . . without fear that the Union is using its request as a means for discovery."

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charges filed by Industrial Service, Transportation, Professional and Government Workers, Seafarers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Phoenix on Feb. 1, 2001. Adm. Law Judge William L. Schmidt issued his decision Sept. 28, 2001.

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CHS Community Health Systems, Inc., d/b/a Mimbres Memorial Hospital and Nursing Home (28-CA-15948, 16291; 337 NLRB No. 159) Deming, NM Aug. 1, 2002. Chairman Hurtgen and Member Cowen affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by making unilateral changes in unit employees' terms and conditions of employment and failing to provide the Union with requested information necessary and relevant to its duties as the employees' bargaining representative. They found that the judge correctly dismissed complaint allegations that the Respondent unlawfully changed its overtime policy from voluntary to mandatory and unlawfully issued a new policy manual. Agreeing with the judge that the Respondent did not withdraw recognition of the Union as its employees' bargaining representative, Chairman Hurtgen and Member Cowen decided that the judge's recommended general affirmative bargaining order is not necessary to remedy the violations found and modified his Order accordingly. [HTML] [PDF]

Member Liebman, dissenting in part, would find the Respondent violated Section 8(a)(5) and (1) when it unilaterally changed its overtime policy in March and April 1999, and when it issued a new policy manual in March 2000.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charges filed by Steelworkers District 12, Subdistrict 2; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Deming, May 2-3, 2000. Adm. Law Judge James L. Rose issued his decision Aug. 2, 2000.

Brookville Health Care Center (22-CA-23007; 337 NLRB No. 167) Irvington, NJ Aug. 1, 2002. The Board upheld the administrative law judge's conclusion that the Respondent, a successor employer who purchased Brookville Health Care Center in November 1997, violated Section 8(a)(5) and (1) of the Act by refusing to execute the predecessor's contract with Health Care Employees District 1199J, which the Respondent had adopted by its conduct. [HTML] [PDF]

Relying on these factors, the Board found the evidence sufficient to meet the clear and convincing evidence standard that the Board has repeatedly held appropriate in adoption by conduct cases: (1) the Respondent's failure to expressly reject the contract or any of its terms; (2) the Respondent's compliance with all of the contract terms, including contractually required mid-term changes, and the union-security and dues-checkoff provisions; and (3) the Respondent's participation in several arbitration proceedings without asserting as a defense the absence of a binding contract between the parties.

The Board reasoned that a successor employer has the freedom to reject the predecessor's contract, but if it exercises that right it is obligated to bargain with the union over a new agreement. The Respondent here did nothing to indicate that it was exercising that right, and its conduct was completely inconsistent with doing so.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Hospital and Health Care District 1199J, AFSCME; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on Oct. 6, 1999. Adm. Law Judge D. Barry Morris issued his decision March 2, 2000.

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Aramark School Services, Inc. (7-RC-22114; 337 NLRB No. 166) Benton Harbor, MI Aug. 1, 2002. The Board reinstated the instant petition dismissed by the Regional Director pursuant to the successor bar doctrine enunciated in St. Elizabeth Manor, 329 NLRB 341 (1999), and remanded the proceeding to the Regional Director for further appropriate action consistent with MV Transportation, 337 NLRB No. 129, which overruled St. Elizabeth Manor. The Petitioner (Michigan Council 25, AFSCME) seeks to represent approximately 85 food service employees employed by the Employer in the Benton Harbor, Michigan school district. [HTML] [PDF]

Since about 1980, the Employer has contracted with the Benton Harbor school district for management of the food service operations at school cafeterias. In June 2001, the school board voted to privatize the entire food service operation effective August 6, 2001. At the time, there were approximately 215 service and maintenance employees, including approximately 85 who were food service employees, employed by the Benton Harbor school district and represented by the Benton Harbor Custodial/Maintenance, Bus Drivers, Food Services, Security Officers and Hall Monitors Service Employees Association, MEA/NEA. The employees were covered by a collective-bargaining agreement effective from October 1, 1998 to September 30, 2001.

On June 28, 2001, the Benton Harbor school district awarded a contract to the Employer to provide food services at school cafeterias. By letter dated August 3, 2001, the Employer informed the Intervenor (Michigan Education Association/National Education Association) that it would recognize it as the exclusive collective-bargaining representative of the food service employees but would not assume the existing collective-bargaining agreement and instead intended to negotiate a new collective-bargaining agreement covering food service employees.

The Regional Director dismissed the instant petition after finding that a reasonable period of time for bargaining had not occurred, and that the petition is barred. The Board, in reversing the Regional Director, denied the Intervenor's contention that MV Transportation should not be applied retroactivity to this case, noting that the Board's usual practice is to apply new policies and standards to all pending cases. It also denied the Intervenor's motion to reopen the record and dismissed the Petitioner's request for review of the Regional Director's decision. The Board noted that when a petition is timely filed, the subsequent execution of a collective-bargaining agreement will not serve to bar the petition. The critical inquiry is whether the petition was timely and proper at the time of filing.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

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Harding Glass Co., Inc. (1-CA-31148, 31158; 337 NLRB No. 175) Worcester, MA Aug. 1, 2002. The Board granted the General Counsel's motion for partial summary judgment with respect to the amended compliance specification paragraphs 1 through 10, and 12 through 21, relating to the backpay period and the backpay calculations for all the employees except as to the amount of interim earnings and expenses of each of the employees, granted the motion to strike the Respondent's affirmative defenses, and denied summary judgment as to the status of James Tritone. In Member Liebman's view, Tritone's job classification was within the Respondent's knowledge and she found no basis to allow the Respondent to seek to prove that Tritone was physically unable to perform glazier work. She would therefore grant summary judgment as to the status of Tritone. [HTML] [PDF]

The Board in an earlier decision, 316 NLRB 985 (1995), ordered the Respondent, among other things, to restore all terms and conditions of employment to the status quo as they existed on October 23, 1993, and make whole any employees for any losses they suffered as a result of the unilateral changes in terms and conditions of employment. On March 27, 1996, the U.S. Court of Appeals for the First Circuit enforced the Board's order in part, and denied enforcement of that portion of the order that required the Respondent to offer immediate and full reinstatement to all those employees who went on strike on October 18, 1993, and were not permanently replaced prior to October 25, 1993.

The amended compliance specification sets forth backpay formulae and calculations for glassworkers Robert Mosley, David Elworthy, Mark Zaltberg, Christopher Pelletier, Kenneth Bullock, and Christopher Carle, and glaziers James Tritone, James Gabrielle, Richard Poirer, and Richard Von Merta. The Respondent, in its first amended answer, generally denied the General Counsel's formulae for computing backpay and the application of those formulae to the claimants. The Respondent failed to provide any explanation to support its claim that Robert Mosely was properly paid, denied without elaboration that the alleged hourly rates of pay were applicable to the employees, and denied that Elworthy and Pelletier were glassworkers. Chairman Hurtgen would deny summary judgment as to the status of Elworthy and Pelletier, saying that it is sufficient to assert that they were not glassworkers.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

General Counsel filed motion to strike portions of Respondent's first amended answer to the amended compliance specification and for partial summary judgment May 19, 2000.

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Kaiser Foundation Hospitals, et al. (32-UC-385; 337 NLRB No. 165) Oakland, CA Aug. 1, 2002. In denying the Petitioner's request for review of the Acting Regional Director's dismissal of the petition, the Board held that this petition was properly dismissed under the Board's unit clarification principles governing historically excluded classifications. It said the Board will not entertain a unit clarification petition seeking to accrete a historically excluded classification into the unit, unless the classification has undergone recent, substantial changes. Bethlehem Steel Corp., 329 NLRB 243, 244 (1999). [HTML] [PDF]

The unit clarification petition sought to include temporary agency employees who had been employed at the Employer for over 60 days. The Petitioner (Office & Professional Employees Local 29) contended that the Board's recent decision in M.B. Sturgis, Inc., 331 NLRB 1298 (2000), justified processing the petition.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

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KSM Industries Inc. (30-CA-13762, et al.; 337 NLRB No. 156) Germantown, WI Aug. 1, 2002. Chairman Hurtgen and Member Bartlett, with Member Liebman concurring, granted the Respondent's motion for reconsideration of the Board's decision reported at 336 NLRB No. 7 (2001). Member Cowen dissented. In its decision, the Board found, inter alia, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing its health insurance proposal, after impasse. It relied on McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997) in reaching this conclusion. [HTML] [PDF]

The Respondent's motion asserted that, with respect to the unilateral implementation of the medical and dental insurance proposal, the Board made "de novo findings and/or conclusions with regard to material facts" that are "erroneous as either unsupported by any record evidence or contrary thereto." The majority granted the motion only insofar as to delete the last two sentences of the decision's penultimate paragraph and denied the motion in all other respects. They said that there are no "extraordinary circumstances" to warrant reversal of the conclusions of law or adoption of the argument of the dissent.

In her concurrence, Member Liebman stated: "I write separately (1) to emphasize my own view that the sentences deleted from the Board's decision are not necessary to its rationale, and (2) to disagree with Member Cowen's view that there was no violation of Section 8(a)(5) here." Chairman Hurtgen and Member Bartlett did not participate in the underlying case and they expressed no views regarding the Board's decision.

Member Cowen, dissenting, would grant the Respondent's motion and reverse the Board's finding that the Respondent's unilateral implementation of its medical/dental proposal ("health insurance proposal") violated Section 8(a)(5) of the Act. Unlike his colleagues, he believed that the Respondent's motion can reasonably be read as giving the Board grounds for reconsidering the merits of the finding that the Respondent violated Section 8(a)(5) by unilaterally implementing its health insurance proposal. In his view, the removed language cannot be separated from the violation itself.

(Chairman Hurtgen and Members Liebman, Cowen, and Bartlett participated.)

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Nevada Security Innovations, Ltd. (31-RC-8025; 337 NLRB No. 173) Las Vegas, NV Aug. 1, 2002. A Board majority of Chairman Hurtgen and Member Bartlett overruled the Employer's objection and certified the Intervenor, Federation of Police, Security & Corrections Officers-AFSPA as the employees' collective-bargaining representative. The mail ballot election held Aug. 24 through Sept. 13, 2001, showed that 28 ballots were cast for the Petitioner, Safety Officers Union, 139 were for the Intervenor, and 25 against the participating labor organizations, with no challenged ballots and 1 void ballot. [HTML] [PDF]

The hearing officer, relying on Midland National Life Insurance, 263 NLRB 127 (1982), recommended overruling the Employer's Objection 1 which alleged, in substance, that a letter sent to employees by an affiliate of the Intervenor misrepresented that the affiliate would be appearing on the ballot. Although the majority agreed that the Employer's objection should be overruled, they did not rely on Midland, where the Board held that it generally will not set aside elections on the basis of campaign misrepresentations. Instead, they applied the standard set forth in Pacific Southwest Container, 283 NLRB 79 (1987). Chairman Hurtgen and Member Bartlett concluded that the employees knew for which union they were voting, and that their right to select their bargaining representative was not compromised.

Member Cowen, dissenting, would remand the case to the hearing officer to reopen the record and make findings resolving whether at the time of the election the Intervenor intended to represent the employees once it was certified or intended to transfer bargaining rights to some other labor organization or affiliate.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

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Scapino Steel Erectors, Inc. (7-CA-43137; 337 NLRB No. 158) Edwardsburg, MI Aug. 1, 2002. The Board majority of Chairman Hurtgen and Member Liebman affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to post a bond with the Union's trusts and by failing to respond to the Union's request for certain information. In agreement with the General Counsel, but contrary to the judge, they found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to pay the wage rates set forth in the Union's collective-bargaining agreement and by refusing to make the contractually-mandated fringe benefit contributions. The judge declined to rule on this allegation, deciding that the matter was best left to future compliance proceeding, because the agreement was "ambiguous as to whether the Respondent was required to pay union scale wages and/or utilize the Union's hiring hall."[HTML] [PDF]

The Respondent signed a collective-bargaining agreement under Section 8(f) with the Union on December 10, 1999, which was binding through May 31, 2002. Disagreeing that the contract is ambiguous, the majority said a review of the contract revealed that a signatory employer, such as the Respondent, must pay specified wage rates for certain job classifications, i.e., apprentice, journeyman, and foreman, and the contract reveals no specific reference to a hiring hall.

In dissent, Member Cowen would not find that the Respondent violated Section 8(a)(5) of the Act by failing to adhere to certain provisions of its Section 8(f) contract with the Union. He wrote: "the judge stated that the only issue in this case is whether the parties' agreement is enforceable and, if so, what remedial action is warranted for the Respondent's refusal to honor its terms. Thus, the issue in this case is merely a question of contract interpretation and enforcement." Member Cowen would dismiss the complaint and, in his view, the Board should not be involved in such questions, and the parties should be left to resolve their dispute through traditional contract enforcement mechanisms. See United Telephone Co. of the West, 112 NLRB 779, 782 (1955).

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Iron Workers Local 292; complaint alleged violation of Section 8(a)(5) and (1). Hearing in Niles on Feb. 6, 2001. Adm. Law Judge Jerry M. Hermele issued his decision April 10, 2001.

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Sumo Container Station, Inc. d/b/a Sumo Airlines and Sumo Trucking and Cargo, Personnel & Equipment Leasing Inc. and Sumo Cargo Services, Inc. and Sumo Air Cargo, Inc. (1-CA-29985, 30236; 337 NLRB No. 171) Jamaica, Queens, and Inwood, NY Aug. 1, 2002. The Board granted the General Counsel's motion to strike portions of the Respondents' answer and for partial summary judgment, except to the extent that the issues of the Respondents' alter ego, single employer, and/or successor employer status, tolling of backpay after October 20, 1993, interim earnings, and interim expenses, which issues were remanded for hearing before an administrative law judge. [HTML] [PDF]

In the proceeding decided on May 10, 1995, 317 NLRB 383, the Board ordered the original Respondent, Sumo Container Station, Inc. d/b/a Sumo Airlines, among others, to offer full and immediate reinstatement to the discriminatees and to make them whole for any loss of pay or benefits resulting from the discrimination against them; to reestablish its entire business operations at its East Boston, MA terminal; and to restore the work formerly performed at that location before bargaining unit employees were terminated.

A controversy having arisen over the amount of backpay due the discriminatees and the identity of the entities responsible for payment, the Acting Regional Director on Sept. 30, 1999, issued a compliance specification and notice of hearing alleging the amounts due under the Board's order. The specification also alleged that four additional Respondents are derivatively liable for the backpay because they are each alter egos of, single employers with, and successor employers to the original Respondent.

The General Counsel's motion moved to strike portions of the Respondents' first amended answers which fail to meet the specificity requirements of the Board's Rules and Regulations. Summary judgment was granted with respect to paragraphs 13 through 15 and was denied with respect to paragraphs 19 through 25, subsections (a) and (b) of the compliance specification insofar as they allege that backpay has not been tolled.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

General Counsel filed motion to strike portions of Respondents' answer to the compliance specification and for partial summary judgment March 28, 2000.

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TVI, Inc. d/b/a Savers (28-CA-16019-2; 337 NLRB No. 163) Las Vegas, NV Aug. 1, 2002. A Board majority of Chairman Hurtgen and Members Cowen and Bartlett affirmed the administrative law judge's dismissal of the complaint, agreeing that Supervisor Terri Foster's statement to employees at the Respondent's Rancho store did not violate Section 8(a)(1) of the Act, but rather was a lawful prediction of potential consequences of unionization under the standard set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Member Liebman dissented in part. [HTML] [PDF]

The majority noted under Gissel, when an employer makes a prediction as to what effects unionization may have on its company, such a prediction is lawful where it is "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization." They found that Foster's statement was both "carefully phrased" and based upon "objective fact." In response to employee questions, Foster, who knew that the store was losing money at the time, stated that "if the union ever did come in, the store wasn't making enough money to . . . pay off higher wages, and it would be a possibility that everybody would lose their job."

Unlike her colleagues, Member Liebman would reverse the judge and find that Foster threatened job loss in violation of Section 8(a)(1). She asserted there is no evidence that Foster, a low-level supervisor who had been working at the Rancho store for only a month, had any firsthand knowledge of the store's finances. Member Liebman takes issue with the judge's suggestion that a "single incident . . . by a minor supervisor" cannot be the basis for finding a violation under Gissel. By dismissing a threat of job loss on the basis that it was merely a "single incident," she said the majority ignored Gissel's admonition that employees are "particularly sensitive" to such hints of plant closing.

(Chairman Hurtgen and Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Teamsters Local 14; complaint alleged violation of Section 8(a)(1). Hearing in Las Vegas on June 13, 2000. Adm. Law Judge Albert A. Metz issued his decision Sept. 18, 2000.

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Desert Palace, Inc., d/b/a Caesars Tahoe (32-RC-4878; 337 NLRB No. 170) Stateline, NV Aug. 1, 2002. Chairman Hurtgen and Member Liebman overruled the challenge to the ballot of Kimbrough Maier, and directed that the Regional Director open and count Maier's ballot and issue a revised tally of ballots and the appropriate certification. Member Cowen concurred in the result. [HTML] [PDF]

The Petitioner (Operating Engineers, Stationary Local 39) is seeking to represent certain employees employed in the Employer's engineering department. The election of June 1, 2001 resulted in 19 for and 18 against, the Petitioner, with one determinative challenged ballot, that of Maier, who is the engineering coordinator. The Petitioner challenged Maier's ballot, alleging that he should be excluded from the unit because: the engineering coordinator position is not included in the bargaining unit; Maier performs clerical work, not engineering work, and does not share a community of interest with other bargaining unit employees; and Maier is a supervisor.

The hearing officer recommended that the challenge to Maier's ballot be sustained and that a certification of representation be issued. The Employer excepted to the hearing officer's findings, arguing that: Maier was hired to perform facility maintenance work; upon transferring to the engineering coordinator position, he was assigned clerical responsibilities which comprise about 2 hours of his average workday; and he is available to perform, and does perform, facility maintenance work the remainder of the time.

Finding merit in the Employer's exceptions, the Board noted that when resolving determinative challenged ballots in cases involving stipulated bargaining units, its function is to ascertain the parties' intent and then to determine whether that intent is contrary to any statutory provision or established Board policy. Northwest Community Hospital, 331 NLRB 307 (2000). The Board noted that the D.C. Circuit has recently followed this governing principle in applying a three-prong approach to resolving stipulated unit cases in Associated Milk Producers, Inc. v. NLRB, 193 F.3d 539 (D.C. Cir. 1999), which essentially embodied the approach generally taken, but that the Board did not always expressly articulate in prior cases. It wrote:

Under the D.C.Circuit's three-prong test, the Board must first determine whether the stipulation is ambiguous. If the objective intent of the parties is expressed in clear and unambiguous terms in the stipulation, the Board simply enforces the agreement. If, however, the stipulation is ambiguous, the Board must seek to determine the parties' intent through normal methods of contract interpretation, including the examination of extrinsic evidence. If the parties' intent still cannot be discerned, then the Board determines the bargaining unit by employing its normal community-of-interest test.

Applying the D.C. Circuit's analysis to this case, and expressly adopting the three-prong test as a clear statement of the analytical approach to be followed prospectively in stipulated unit cases, the Board concluded that the stipulation is facially ambiguous; that there is insufficient extrinsic evidence from which to discern the parties' intent; and that, applying community-of-interest principles, the engineering coordinator position should be included in the bargaining unit. Thus, Maier is eligible to vote.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

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Flambeau Airmold Corp. (11-CA-17172, et al.; 337 NLRB No. 161) Roanoke Rapids, NC Aug. 1, 2002. Granting the General Counsel's motion to modify order to include a make whole remedy, the Board modified the underlying order at 334 NLRB No. 16 (2001) to provide a make-whole provision for the Respondent's violation of Section 8(a)(5) and (1) of the Act by making unilateral changes in employees' terms and conditions of employment. The Board denied the Respondent's request, saying it will not permit the Respondent to relitigate in compliance the issue of whether unit employees, in fact, had worked in the job classifications so that the Respondent's elimination of them constituted an unlawful unilateral change. The Respondent may challenge the identities of the employees who held the jobs because the Board has made no finding on that issue. [HTML] [PDF]

The Board found in the earlier decision that the Respondent also violated Section 8(a)(5) and (1) by unilaterally increasing the amount of employee contributions for health insurance premiums effective February 2, 1997. In its motion to clarify and modify decision, the Union (UNITE) asserted that the Respondent had again unilaterally increased employee health insurance payments in 1998 and 1999 and requested the Board to amend the earlier decision to permit litigation of the alleged 1998 and 1999 increases during the compliance stage. The Union filed the motion with the Board after the compliance officer denied its request to include the 1998 and 1999 increases in the backpay calculations to remedy the Respondent's unfair labor practices.

Chairman Hurtgen and Member Cowen denied the Union's motion, finding no reason to make an exception to the Board's established policy that "[o]nce the Board has found a violation of the Act, it usually does not permit subsequent unfair labor practice allegations to be litigated in compliance proceedings." Burgess Construction, 227 NLRB 765, 766 (1977), enfd. 596 F.2d 378 (9th Cir. 1979), cert. denied 444 U.S. 940 (1979).

Member Liebman, dissenting on this issue, found that it is not necessary for the Board to clarify its original decision because the Order implicitly permits litigation in the compliance stage, as sought by the Union. She wrote: "The Board's original remedy cannot be fully effectuated without permitting the litigation of the 1998 and 1999 increases in the compliance phase. That is because the pre-February 1997 status quo ante cannot be restored without determining the legality of the intervening increases. This necessarily must be done in the compliance phase." Contrary to the Respondent's argument, Member Liebman held that the Union's allegations of posthearing increases are not time-barred under Section 10(b). She explained that the alleged posthearing violations are not merely closely related to the violations found by the Board; they are essentially identical. 11

(Chairman Hurtgen and Members Liebman and Cowen participated.)

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Ready Mix, Inc. (28-CA-14984; 337 NLRB No. 181) North Las Vegas, NV Aug. 1, 2002. Chairman Hurtgen and Member Liebman adopted the administrative law judge's dismissal of four Section 8(a)(1) allegations. In dismissing these allegations, the judge relied solely on the ground that the General Counsel failed to establish that Dave Hampton was a supervisor under Section 2(11) of the Act. The majority reversed the judge and held that the Respondent violated Section 8(a)(1) by interrogating an employee and creating the impression of surveillance, finding that in August 1997, the Respondent, through Operations Manager Michael Ramsey, coercively interrogated employee Richard Edwards about his union organizational activity. [HTML] [PDF]

Concurring in part and dissenting in part, Member Bartlett would affirm the judge's dismissal of allegations that the Respondent, through Ramsey, violated Section 8(a)(1). Member Bartlett stated Ramsey had initiated a conversation with employee Edwards and went on to say he'd heard that Edwards had been passing out union cards. Member Bartlett held that Ramsey made clear that his sole reason for raising the subject of card solicitation was to make sure that Edwards did not solicit cards on worktime. He also agreed with the judge that Ramsey did not make threats of retaliation against legitimate or protected card solicitation activities and his conversation with Edwards was noncoercive.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Teamsters Local 631; complaint alleged violation of Section 8(a)(1), (3) and (4). Hearing in Las Vegas, Nov. 3-4, 1998 and Feb. 18, 1999. Adm. Law Judge Frederick C. Herzog issued his decision Sept. 27, 1999.

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Made 4 Film, Inc. (12-CA-21148; 337 NLRB No. 179) North Miami, FL Aug. 1, 2002. The administrative law judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to make benefit fund contributions as required in its collective-bargaining agreement with Stage Employees Local 477 and by delaying the furnishing of certain information requested by the Union. The Respondent filed no exceptions to these findings. [HTML] [PDF]

The judge, in her remedial order, directed the Respondent to make the benefit fund contributions owed under the contract up to April 14, 2001, the contract expiration date. The General Counsel excepted, arguing that the Respondent's obligation to pay benefit fund contributions continues beyond the expiration date of the contract until a successor agreement or lawful impasse is reached. Chairman Hurtgen and Member Liebman, with Member Cowen dissenting, agreed and modified the judge's Order accordingly. See R.E.C. Corp., 296 NLRB 1293 (1989).

The judge found a unilateral modification of the contract and ordered Respondent to adhere to the contract for its term. Chairman Hurtgen and Member Liebman found however that the General Counsel's complaint alleged, and the evidence established, that the Respondent's action was also a unilateral change in terms and conditions of employment and that the remedy should also include a provision that, after expiration of the contract, Respondent must continue the status quo unless and until an impasse or agreement is reached.

Chairman Hurtgen and Member Liebman noted that Member Cowen raised an issue not raised by the Respondent. They wrote: "[h]e argued that the Respondent cannot be required to make payments beyond the expiration of the contract because such payments would be prohibited by Sec. 302(c)(5), which requires that employer payments into union trust funds be detailed in a 'written agreement.' In Hinson v. NLRB, 428 F.2d 133, 138-139 (8th Cir. 1970), however, the court held that the terms of an expired contract, together with the underlying trust agreements, are sufficient to satisfy the requirements of Sec. 302(c)(5)." The Chairman and Member Liebman concluded, although they did not need to reach the issue, that the "written agreement" requirement of Section 302(c)(5) is met.

Member Cowen pointed out that no trust agreement was made a part of this record. He said that in the absence of such, the latitude allowed by Section 302(c)(5)(B) cannot come into play, and based on the state of the present record, would not grant the remedy that the General Counsel sought.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Stage Employees Local 477; complaint alleged violation of Section 8(a)(1) and (5). Hearing in Miami on Nov. 29, 2001. Adm. Law Judge Margaret G. Brakebusch issued her decision Jan. 31, 2002.

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McClatchy Newspapers, Inc. d/b/a The Fresno Bee (32-CA-17791-1, 17986-1; 337 NLRB No. 180) Fresno, CA Aug. 1, 2002. The Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by suspending and discharging David Otero. It found merit in the Respondent's exceptions and agreed that Otero would have been suspended and discharged even absent his union activity. However, the Board affirmed the judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(5), (3) and (1) by suspending and discharging employees Robert Barrientez and Allan Washington, and by issuing a final warning to and discharging Glenn Evans. The Board also agreed that the Respondent affirmatively showed that Evans, Washington, and Aguirre would have been discharged for misconduct even if they had not been associated with the Union and that union animus was not shown to be involved in the suspension and discharge of Barrientez. [HTML] [PDF]

In adopting the judge's dismissal of the complaint allegations, Member Cowen would find that the General Counsel failed to establish a prima facie case that union animus played a role in the Respondent's suspensions and discharges of Evans, Otero, Washington, and Aguirre.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charges filed by Graphic Communications Workers Local 404; complaint alleged violation of Section 8(a)(5), (3), and (1). Hearing at Fresno on various dates in October and November 2000 and January through April 2001. Adm. Law Judge Lana H. Parke issued her decision Aug. 27, 2001.

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Newspaper and Mail Deliverers' Union of New York and Vicinity (Jalt Corp. d/b/a U.N.D.S.) (3-CB-7687; 337 NLRB No. 172) Long Island City, NY Aug. 1, 2002. The administrative law judge held, with Board approval, that the Respondent violated Section 8(b)(1)(A) of the Act by threatening employees with discharge if they refused to join or support the Union and demanding and obtaining recognition from the Employer at a time when it did not represent a majority of the Albany, NY facility employees; and Section 8(b)(1)(A) and (2) by demanding and receiving agency fees and dues deducted from the wages of the Albany facility employees. [HTML] [PDF]

The judge applied a presumption that a single-facility unit is appropriate in finding that the Employer's Albany facility was a separate appropriate unit and that its employees were not an accretion to the preexisting bargaining unit. The Board found it unnecessary to pass on the applicability of the presumption because: (1) the Respondent does not contest the judge's use of the presumption in this case; and (2) even without the benefit of the presumption, it found that the Albany employees constitute a separate appropriate unit based on the traditional community of interest factors. The Albany employees also do not satisfy the Board's test for accretion because they do not share a sufficient community of interest with the preexisting unit.

The judge recommended ordering that the Respondent reimburse the Albany employees "jointly and severally with U.N.D.S." The Board said it lacked jurisdiction over the Employer to do so because in settling a separate unfair labor practice charge arising out of the same events at issue here, the Employer agreed to reimburse the Albany employees "jointly and severally" with the Respondent for fees and dues paid by or withheld from them and the complaint thus does not allege any violations by the Employer. Instead, it ordered the Respondent to make whole the Albany employees with interest "for all initiation fees, dues, and other moneys, if any, paid by or withheld from them." The Board left to the compliance stage the determinations of (1) the amounts of any payments made by U.N.D.S. pursuant to the settlement, (2) the drivers to whom those payments were made, and (3) the effects of any amounts received from the settlement on the drivers' remedial awards in this case.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

Charge filed Leslie Kilian, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Albany, Jan. 10-11, 2001. Adm. Law Judge Bruce D. Rosenstein issued his decision April 27, 2001.

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National Propane Partners, L.P. (14-CA-25471; 337 NLRB No. 160) Moro, IL Aug. 1, 2002. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge and plant closure if they selected the Union as their bargaining representative, and advising employees that other employees who supported a union in the past were discharged; that the Respondent violated Section 8(a)(3) and (1) by discharging Michael Beckham for his union activity; and that an order requiring the Respondent to bargain with Teamsters Local 525 is warranted pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Member Bartlett would find that a Gissel bargaining order is unwarranted and that traditional remedies would suffice to erase the effects of the Respondent's unfair labor practices. [HTML] [PDF]

Members Liebman and Bartlett found, contrary to the judge, that Beckham is entitled to reinstatement and full backpay. There were no exceptions to the judge's conclusion that the Respondent violated Section 8(a)(1) when its manager threatened Beckham with discharge and plant closure. The judge found, and Chairman Hurtgen agreed, that Beckham attempted to suborn perjury by asking employee Jack Stice to falsely state in a Board affidavit that Beckham had never brought a gun onto the Respondent's property. Like the judge, the Chairman would toll Beckham's backpay as of the date of the attempted subornation (leaving the precise date to be determined in the compliance proceeding). Agreeing with the General Counsel's cross-exceptions, Members Liebman and Bartlett decided that the evidence is too ambiguous to show that Beckham's intent to induce Stice to lie, rather than truthfully to deny that Beckham had threatened Stice with a gun and that Beckham thus is entitled to full reinstatement and backpay.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Teamsters Local 525; complaint alleged violation of Section 8(a)(1) and (3). Hearing at St. Louis on June 22, 1999. Adm. Law Judge John H. West issued his decision Sept. 30, 1999.

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Carpenters Central Pennsylvania Regional Council (Novinger's, Inc.) (4-CE-118; 337 NLRB No. 162) Harrisburg, PA Aug. 1, 2002. The Board affirmed the administrative law judge's finding that the Respondent Union violated Section 8(e) of the Act by its maintenance of an antidual-shop clause with a secondary objective, i.e., article V, section 6 of its collective-bargaining agreement with Charging Party Novinger's, Inc. [HTML] [PDF]

The Board found that the judge properly relied on several instances within the 10(b) period where the Respondent took steps to pursue its grievance alleging a violation of the 15 contract provision in finding that the complaint was not barred by Section 10(b). It reasoned that the grievance was filed before the 10(b) period, but these instances constitute "reaffirmation," "maintenance," and "giving effect" to the disputed provision, and thus "entering into" an 8(e) agreement, within the 10(b) period. Dan McKinney Co., 137 NLRB 649, 653-657 (1962). See, e.g., Iron Workers (Southwestern Materials), 328 NLRB 934, 935 (1999). The Board did not rely on the judge's discussion of the Respondent's single-employer defense.

The Board granted the General Counsel's request in his cross-exceptions that the Board modify the "cease and desist" paragraph in the judge's recommended order by broadening its language, consistent with the corresponding paragraph in his recommended notice, and with the Board's remedy and Order in Southwestern Materials, supra, at 937. It modified the Order accordingly. The cease and desist remedy also prohibits the Respondent from relying on the unlawful contract provision in its pursuit of the grievances. The Board denied the Charging Party's cross-exception requesting that the Board order the Respondent to withdraw its grievances and the Charging Party's cross-exception seeking the addition of a "narrow order" paragraph-i.e., language requiring the Respondent to cease violating Section 8(e) in any like or related manner.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Novinger's, Inc.; complaint alleged violation of Section 8(e). Parties waived their right to a hearing before an administrative law judge. Adm. Law Judge Earl E. Shamwell Jr. issued his decision March 15, 2001.

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Kathleen's Bakeshop, LLC (29-CA-22254, et al.; 337 NLRB No. 169) Southampton, NY Aug. 1, 2002. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by: threatening to kill its employees because they supported Workers & Grain Millers Local 3l; discharging Maria Campero because she complained to management about wages, hours, and working conditions; constructively discharging George Panagiotopoulos because he supported the Union; unilaterally increasing the hours of employment of its salaried unit employees without giving the Union notice and an opportunity to bargain; and failing to supply relevant information requested by the Union relating to unit employees' working conditions and relating to the effects of the Respondent's decisions to relocate production to Richmond, VA and subcontract delivery operations. [HTML] [PDF]

Chairman Hurtgen and Member Bartlett, with Member Liebman dissenting, reversed the judge's findings that the Respondent violated Section 8(a)(1) by creating the impression that Panagiotopoulos' union activities were under surveillance, and violated Section 8(a)(5) by failing to provide information requested by the Union concerning the Respondent's last date of operation in Southampton, NY.

To remedy the Respondent's unlawful refusal to bargain over the effects of its decision to relocate production and subcontract delivery operations, the Board adopted the judge's recommended bargaining order and recommended Order of limited backpay to the affected employees pursuant to Transmarine Corp., 170 NLRB 389 (1968), and conformed the Transmarine remedial language to the requirements of Melody Toyota, 325 NLRB 846 (1998). It granted the General Counsel's exception to the judge's failure to include this violation in her conclusions of law and to include a backpay provision in the notice to employees.

In adopting the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally increasing the hours of employment of salaried unit employee Karl Stork and, thereby, effectively reducing Stork's hourly rate of pay, the Board ordered the Respondent to bargain over the change in Stork's hours. The Board conditionally remedied the judge's inadvertent failure to provide a make whole remedy for Stork because it is not clear whether Stork did, in fact, lose pay as a result of the increase in his hours and left the issue of backpay to compliance.

In a separate concurring opinion, Chairman Hurtgen set forth his view as to the 8(a)(5) violation concerning the unilateral increase in Stork's hours.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charges filed by Workers & Grain Millers Local 3; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York, Oct. 15 and Dec. 9-10, 1999. Adm. Law Judge Eleanor MacDonald issued her decision Aug. 9, 2000.

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Joseph Stallone Electrical Contractors, Inc. (4-CA-30370; 337 NLRB No. 178) Bristol, PA ug. 1, 2002. The Board majority of Chairman Hurtgen and Member Liebman agreed with the administrative law judge's finding that Respondent owner Joseph Stallone violated Section 8(a)(1) of the Act when he made statements indicating that employee Andrew McIlvaine's layoff and recall were connected to the union activity of other employees. The majority also agreed that the Respondent violated Section 8(a)(3) by laying off McIlvaine on May 15, 2001. As a remedy, the majority agreed with the judge that a Gissel bargaining order is appropriate. [HTML] [PDF]

Dissenting Member Cowen, while agreeing with other unfair labor practices the judge had found, would reverse his finding that the Respondent told McIlvaine that his layoff and recall were connected to the union activity of other employees and that McIlvaine's May 15, 2001 layoff violated the Act. Member Cowen pointed out that Stallone was unaware of any union activity by McIlvaine on May 15, 2001, when he called him into his office and, in essence, told him that he was having some financial problems and that there were some things going on that he had to get taken care of with the Union and when things straightened out that maybe he could hire McIlvaine back. Member Cowen thought Stallone's statement was "too slender a reed on which to hang an 8(a)(1) violation." On this point, the majority stated in a footnote that "Stallone's angry reaction to McIlvaine's union activity is relevant to the issue of whether Stallone laid off McIlvaine because of the union activity of other employees." Member Cowen also would not issue a Gissel bargaining order because the General Counsel did not demonstrate why traditional remedies are inadequate in this case.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Electrical Workers Local IBEW 269; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Oct. 2 and 4, 2001. Adm. Law Judge William G. Kocol issued his decision Nov. 26, 2001.

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The American Coal Co. (14-CA-25400; 337 NLRB No. 164) Galatia, IL Aug. 1, 2002. The Board majority of Chairman Hurtgen and Member Bartlett affirmed the administrative law judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) and (3) of the Act in June 1998 by selecting 33 employees for inclusion in a June 1998 layoff of 88 hourly employees because they supported the union during the organizing campaign conducted a few months earlier when the mine was owned by another employer. The majority agreed with the judge's finding that the complaint should be dismissed, because the Respondent proved that it "applied neutral objective criteria in selecting employees for lay off." [HTML] [PDF]

Dissenting Member Liebman would find the layoff to be discriminatorily motivated. "Entirely apart from the troubling destruction and disappearance of some documents, the documentary record contains ample evidence of antiunion animus on the part of the Respondent's supervisory personnel," she stated, adding: "The judge himself found that CEO Murray had made statements consistent with a strong desire to avoid unionization of the Respondent's work force."

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Bill Bishop, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at West Frankfort, Aug. 31 - Sept. 3, 1999 and at Harrisburg, Nov. 1-5, 1999. Adm. Law Judge Martin J. Linsky issued his decision July 26, 2000.

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Odyssey Capitol Group, L.P., III (6-CA-30010; 337 NLRB No. 174) Pittsburgh, PA Aug. 1, 2002. The Board agreed with the administrative law judge that the refusal of three non-union maintenance employees to enter and perform work at an apartment because of their respective and collective concern about an unsafe working condition (exposure to airborne asbestos in the unit) was protected concerted activity. Thus, the Board held that the Respondent violated Section 8(a)(1) of the Act for discharging the employees, noting their refusal to perform the work was based upon an "honest and reasonable belief" that the work presented a safety hazard. [HTML] [PDF]

In a concurring opinion, Member Cowen stated his view that "the Board should examine the reasonableness of a claimed belief that an unsafe working condition exists in determining whether the employees in fact were motivated by such alleged conditions in taking the actions at issue in a particular case."

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by Phillip D. Demas, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Pittsburgh on Nov. 6, 1999. Adm. Law Judge Jerry M. Hermele issued his decision Feb. 8, 2000.

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La Gloria Oil and Gas Co. (16-CA-20461, 20585, 16-RC-10269; 337 NLRB No. 177) Tyler, TX Aug. 1, 2002. In this decision and direction, the Board majority of Chairman Hurtgen and Member Liebman agreed with the administrative law judge's finding that the Respondent discriminatorily discharged employees Saylor and Lampe in violation of Section 8(a)(3) of the Act. Accordingly, the majority adopted the judge's recommendation that the Respondent's challenges to Saylor and Lampe's ballots be overruled and that their ballots be opened and counted. [HTML] [PDF]

The majority also concluded that the Respondent interrogated its employees regarding their union activities and threatened the employees with job loss in violation of Section 8(a)(1).

In dissent, Member Cowen would find that the Respondent has shown that it would have discharged these two employees because of their serious driving misconduct, regardless of their union activity.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charges filed by PACE Local 4-202; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tyler on June 13-15, 2001. Adm. Law Judge Margaret Brakebusch issued her decision Sept. 19, 2001.

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American Commercial Barge Line Co. and Hines American Line (26-CA-18659, 18664; 337 NLRB No. 168) Jeffersonville, IN Aug. 1, 2002. The Board, affirming the administrative law judge's supplemental decision, found that five river boat pilots were supervisors at the time of their discharge in 1998 for participating in a strike. Accordingly, the Board concluded their strike activity was not protected by the Act and the Respondent did not violate Section 8(a)(1) and (3) by discharging them. [HTML] [PDF]

In determining that the pilots were supervisors, as consistent with the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Board stated:

We find, consistent with the judge's supplemental decision, that the pilots have authority to responsibly direct the towboat crew in their work and to assign work. They use independent judgment in exercising that authority, and they do so in the interest of the employer.

The Board further noted that the pilots were paid by salary whereas the deck crew were paid by the day; the pilots also had better benefits, such as paid vacation, and occupied better quarters.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

Charges filed by Pilots Agree Association, Masters, Mates & Pilots,ILA; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Memphis, TN, Sept. 1-3, 1999. Adm. Law Judge Lawrence W. Cullen issued his decision Sept. 27, 1999.

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Shamrock Foods Co. (28-CA-15477-2; 337 NLRB No. 138) Phoenix, AZ July 30, 2002. The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by, among other things, suspending and discharging employee Vincent D'Anella for engaging in misconduct during the course of his union solicitation and organizational activity. It decided that the judge, who based his finding on the absence of credible evidence that D'Anella had engaged in such misconduct, correctly cited NLRB v. Burnup & Sims, 379 U.S. 21 (1964), and found that a Wright Line analysis is not applicable in this case since the Respondent's motive is not at issue: it is undisputed that the Respondent discharged D'Anella because of his conduct in the course of protected activity. [HTML] [PDF]

The Board found it unnecessary to pass on, and disavowed, the judge's additional discussion of Respondent's motivation or good faith in responding to the reports of D'Anella's misconduct. Having found that D'Anella's suspension and discharge violated Section 8(a)(1), the Board agreed with the judge that it was unnecessary to pass on whether the suspension and discharge also violated Section 8(a)(3), as alleged by the General Counsel.

While adopting the judge's findings that the Respondent (through night-shift Manager Shalley) violated Section 8(a)(1) by interrogating employee David Trujillo about whether D'Anella had asked Trujillo to sign a union card and by telling Trujillo to inform him if D'Anella asked Trujillo to sign a card in the future, Chairman Hurtgen and Member Bartlett did not agree that the Respondent created an impression, in the mind of Trujillo, that D'Anella's union activities were under surveillance. Member Liebman agreed with the judge that the Respondent, through Shalley's statements to Trujillo, created the impression that D'Anella's union activities were under surveillance. She stated: "[t]his finding is not cumulative, as the majority implies, because no other violation we have found involves the creation of an impression of surveillance, . . . . Moreover, although the remedial order adopted by the majority prohibits actual surveillance by the Respondent, it does not prohibit all actions which could reasonably create an impression of surveillance."

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed Teamsters Local 104; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Phoenix, July 15 and 16, 1999. Adm. Law Judge William L. Schmidt issued his decision May 23, 2000.

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Washoe Medical Center, Inc. (32-CA-17934-1, 18179-1; 337 NLRB No. 149) San Diego, CA July 31, 2002. Chairman Hurtgen and Member Liebman found that the Respondent failed to present extraordinary circumstances warranting review of the Board's prior decision reported at 337 NLRB No. 32 (2001) (Washoe I), and denied the Respondent's motion for reconsideration. Member Cowen, dissenting, would grant the Respondent's motion, overrule the underlying decision, and dismiss the complaint.[HTML] [PDF]

In Washoe I, the Board found that the Respondent, an incumbent employer (i.e., a continuing employer, not a successor), 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's certification, without providing Operating Engineers Local 3 with advance notice and an opportunity to bargain.

In its motion, the Respondent raised for the first time the applicability of Monterey Newspapers, 334 NLRB No. 128 (2001), to this case and the contention that the Board's failure to apply that case here was a substantial and prejudicial error warranting reconsideration. The dispositive issue in Monterey Newspapers was the employer's right, as a successor employer pursuant to NLRB v. Burns Security Services, 406 U.S. 272 (1972), to establish initial working conditions, including wage rates for new hires. In support of its motion, the Respondent also relied on Oneita Knitting Mills, 205 NLRB 500 (1973), and alleged that the Board failed to address the Respondent's argument that the Union waived its bargaining rights with regard to starting rates of pay for new employees. The Board rejected the latter two arguments in Washoe I.

Member Cowen found that Washoe I is based upon an erroneous interpretation of Oneita to the extent that it makes it an unfair labor practice for an employer unilaterally to continue to follow an established policy and procedure, even one involving the exercise of some employer discretion, without changing the policy or procedure in any material way, after a union becomes the bargaining representative of the employer's employees. He added: "Moreover, to the extent that the panel majority in Washoe I suggests that no 'change' is necessary to prove that a respondent violated Sec. 8(a)(5) of the Act by unilaterally changing terms and conditions of employment, Washoe I constitutes an unwarranted departure from long-standing Board precedent without reasoning or explanation. In my view, this unexplained departure from precedent is itself an extraordinary circumstance justifying reconsideration."

The majority noted that Member Cowen would grant the Respondent's motion because he disagreed with the result previously reached and simply set forth his analysis of the facts and interpretation of applicable law, but that he did not contend that the Respondent has presented extraordinary circumstances warranting review of the original decision which is contrary to the Board's rules and why it did not address his discussion of the merits of this case.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

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California Pacific Medical Center (20-CA-28916; 337 NLRB No. 146) San Francisco, CA July 29, 2002. Affirming the administrative law judge's recommendation, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally laying off unit employees and shifting work within the unit without prior notification to and bargaining with the Union over its decisions. The judge, citing Allison Corp., 330 NLRB 1363, 1365 (2000), found that art. V, sec. 17 of the parties' collective-bargaining agreement was a "clear and unmistakable waiver" by the Union of its statutory right to bargain over the Respondent's decisions to lay off unit employees and to shift work within the unit. Therefore, the judge concluded that the Respondent did not violate Section 8(a)(5) by taking the unilateral actions at issue. [HTML] [PDF]

Chairman Hurtgen concurred in the result in Allison Corp. on the basis of his "contract coverage" analysis, and he adhered to that position here. 330 NLRB at 1365 fn. 13. Members Cowen and Bartlett did not participate in Allison Corp. and expressed no view regarding the correctness of that decision or the continued validity of the Board's "clear and unmistakable waiver" analysis in cases such as the instant matter. Nevertheless, they agreed with the judge's conclusion that the General Counsel failed to prove that the Respondent violated the Act as alleged. Because the same result is reached under both current Board law applying the "clear and unmistakable waiver" analysis and the Chairman's "contract coverage" analysis, Members Cowen and Bartlett found it unncessary to decide in this case which approach is legally correct.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

Charge filed by Healthcare Workers Local 250, SEIU; complaint alleged violation of Section 8(a)(1) and (5). Hearing in San Francisco on Feb. 20, 2001. Adm. Law Judge Gerald A. Wacknov issued his decision May 15, 2001.

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STAR, Inc. Lighting the Way (34-RC-1820; 337 NLRB No. 151) Norwalk, CT July 31, 2002. Affirming the hearing officer's recommendation, the Board sustained the Union's Objection 4, set aside the election held between July 13 and 21, 2000, and directed a second election. The hearing officer found, with Board approval, that the Employer interfered with the election by announcing and distributing a fiscal year-end, cash bonus to unit employees approximately 2 weeks before the election. The Board also agreed that the Employer failed to establish that it had a past practice of paying such bonuses and, found that the bonus reasonably tended to interfere with the employees' free choice in the election. [HTML] [PDF]

The Employer contracts with the State of Connecticut to provide residential, employment, and other services to the mentally handicapped. The Employer asserted its past practice was to pay bonuses when it experienced a surplus at the end of the fiscal year. However, the Board determined that when the Employer did grant bonuses in prior years, it did so in a significantly different manner with respect to amount, scope or eligibility, and timing. Assuming that cost-settling (having to return funds to the State) was a factor in the decision to pay bonuses in every year that surpluses existed, the Board found that it is not an exigency that would justify the different manner and timing of the payment of the 2000 bonus. It said ". . . the Employer was not required to pay the bonus before the end of the fiscal year on June 30. Thus the Employer could have waited until after the election period to announce and pay the bonus and still avoided returning funds to the State."

In absence of exceptions, the Board adopted the hearing officer's recommendation to overrule Objection 2 concerning conversations between or among supervisory House Managers, Executive Director Kate Benzhaf, and the Employer's attorney.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

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Summit Logistics, Inc. (32-CA-17642; 337 NLRB No. 145) Tracy, CA July 30, 2002. A Board majority of Chairman Hurtgen and Member Bartlett affirmed the administrative law judge's dismissal of the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Gilbert Noriega on or about July 21, 1999, because he joined or assisted Teamsters Local 439 or because he attempted to obtain for himself and other employees, benefits under the collective-bargaining agreement between the Union and the Respondent. Member Liebman dissented. [HTML] [PDF]

The judge found that the General Counsel met his initial burden of persuasion that Noriega's protected concerted activity was a substantial and motivating factor in the Respondent's decision to terminate him. However, he also concluded, and the majority agreed, that the Respondent sustained its affirmative defense that it would have discharged Noriega at that time because of his inadequate performance even in the absence of his protected, concerted activity. In so concluding, the judge found it unnecessary to credit either Noriega's or department manager Tim Gomes' version of the conversation leading to Noreiga's discharge.

On July 21, Noriega discussed employee complaints about excessive work hours with someone from the California State Labor Commission and, thereafter, repeated what was told to him to Shop Steward Scott Donaldson. Donaldson subsequently approached Gomes and discussed Noriega's telephone call. About an hour after Donaldson's conversation with Gomes, Gomes called Noriega into his office to talk about Noriega's poor performance level. The judge held that, under either version of Gomes' and Noreiga's conversation: "Noriega in answering Gomes' request for an explanation of his low numbers told Gomes that he would not meet the performance standards because of the heavy work load within the Meat Department." He found that there was "a clear statement by Noriega that, in effect, so long as the work load was heavy, Noriega's performance would remain at the current level."

Contrary to her colleagues, Member Liebman found that the judge's failure to resolve a credibility dispute between Noriega and Gomes precludes solving the instant proceeding at this time. She would remand the case to the judge "to resolve the conflicting testimony and how it bears on Gomes' atypical interaction with Noriega following his learning of Noriega's protected, concerted activities." Member Liebman asserted that Noriega's testimony clearly suggests that Gomes may have suddenly decided to discharge Noriega because he anticipated that Noriega would make further complaints to the "Labor Board."

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Gilbert Noriega, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Stockton on March 24, 2000. Adm. Law Judge Clifford H. Anderson issued his decision July 7, 2000.

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E Center, Yuba Sutter Head Start (20-RC-17750; 337 NLRB No. 154) Maryville, CA July 31, 2002. The Board denied the Employer's request for review and/or motion for reconsideration of the Acting Regional Director's approval of the Petitioner's request for withdrawal of its petition, with prejudice. An election held on May 31, 2002 showed that of approximately 104 eligible voters, 42 were for, and 48 were against, the Petitioner, with 8 determinative challenges. No objections to the election were filed, nor has any party otherwise claimed that the election is invalid. The amended report on challenged ballots and notice of hearing that issued on June 12, 2002 was withdrawn. [HTML] [PDF]

The Employer contended that approval of the Petitioner's withdrawal request is inconsistent with the purpose of the Act, allows the unlawful circumvention of Section 9(c)(3) of the Act, prejudicially affects the rights of the Employer, and disregards the agreement between the parties that the Union would concede the election to the Employer. The Employer requested, in pertinent part, that the Regional Director be ordered to open all of the challenged ballots, resolve the challenges, or approve the existing agreement between the parties to certify the election against the Union.

In denying the request for review and/or motion for reconsideration, the Board said:

The Act, however, does not permit circumvention of the election bar rule contained in Section 9(c)(3). Regardless of when the Petitioner, or any other labor organization, may file a subsequent election petition, Section 9(c)(3) mandates that "no election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall be been held."

(Members Liebman, Cowen, and Bartlett participated.)

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MFP Fire Protection, Inc. (27-CA-13246; 337 NLRB No. 155) Colorado Springs, CO July 31, 2002. The Board denied the General Counsel's motion to strike Respondent's answer and for summary judgment and remanded the proceeding to the Regional Director for hearing. The General Counsel sought summary judgment on the entire amended compliance specification, asserting that the Respondent's answer provided only general denials and failed to reveal the basis on which the Respondent disagreed with the amended specification's allegations. [HTML] [PDF]

The Board reasoned that while the Respondent's answer to the amended specification, considered in isolation, was deficient, the Respondent's amended answer to the original compliance specification was attached to its response to the Board's Notice to Show Cause why the General Counsel's motion should not be granted and must be considered. On further examination of the two documents, the Board concluded that the allegations of the amended specification are substantially the same as the allegations of the original compliance specification. It construed the Respondent's response to the Notice to Show Cause, with the attached amended answer to the original compliance specification, as an amended answer to the amended compliance specification. Given that the Respondent has filed a valid answer to the original compliance specification, and that the allegations of the original compliance specification are substantially the same as the allegations of the amended compliance specification, the Board found that it would be inappropriate to grant the General Counsel's motion for summary judgment.

The Board's decision and order in the underlying unfair labor practice proceeding is reported at 318 NLRB 840 (1995). The U.S. Court of Appeals for the Tenth Circuit enforced the Board's order on December 3, 1996.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

General Counsel filed motion to strike Respondent's answer and for summary judgment on February 15, 2001.

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Research Foundation of the City University of New York (26-RC-8187 (formerly 2-RC-21706); 337 NLRB No. 152) New York, NY July 31, 2002. Reversing the Regional Director, the Board found that the Employer, a not-for-profit educational corporation, is an employer, not a political subdivision under Section 2(2) of the Act; and reinstated the representation petition filed by UAW Local 2110. It affirmed the Regional Director's finding that a unit of the Employer's employees in all outreach programs limited to the Bronx Community College (BCC) campus of the City University of New York (CUNY) is an appropriate unit. [HTML] [PDF]

The Employer is responsible for the postaward fiscal administration of grants and contracts (sponsored programs) awarded by public and private entities to units of CUNY, a large, multicampus public university located throughout the City of New York. The parties stipulated that CUNY is exempt from the Board's jurisdiction under Section 2(2). The petitioned-for program employees provide education, training, counseling, and other outreach services to welfare recipients and underprivileged individuals in the community. The Employer contended that either a multicampus unit limited to three outreach programs, or a unit of all the Employer's employees on the BCC campus of CUNY, is appropriate. The Professional Staff Congress of the City University of New York was permitted to intervene because it has a contractual relationship with the Employer (representing clericals at the Employer's central office) and with CUNY (representing instructional employees).

The Board applied the test set forth in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600, 604-605 (1971), under which a finding of political subdivision status requires proof that an employer is either created directly by the state, so as to constitute departments or administrative arms of the government, or is administered by individuals who are responsible to public officials or to the general electorate. It held, contrary to the Regional Director, that the evidence failed to support a finding that the Employer is an exempt political subdivision under either prong of the test. After examining the four criteria of single employer status, the Board also found, contrary to the Regional Director, that the Employer and CUNY do not constitute a single employer.

The Board agreed with the Regional Director that the single-facility presumption has not been rebutted and that a unit of all outreach programs on the BCC campus, excluding all other programs employees, is an appropriate unit.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

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McKesson Drug Company (26-CA-18721; 337 NLRB No. 139) Memphis, TN July 31, 2002. The Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(a)(1) and (4) of the Act by its suspension and discharge of employee Walter Hammond because he filed an unfair labor practice charge, and that the Respondent's discharge of Hammond on June 16, 1998, was "intertwined" with his prior suspension on June 9. It clarified that Hammond's suspension and discharge each constituted a separate, independent violation of Section 8(a)(1) and (4) and that the Respondent's insistence that Hammond sign a Disciplinary Action and Last Chance Agreement in order to avoid discharge constituted an independent violation of Section 8(a)(1). [HTML] [PDF]

The Respondent argued that it would have suspended Hammond even if he had not filed the unfair labor practice charge, as he was suspended solely because of alleged drug use. The Board noted, in rejecting this contention, that the Respondent initiated its action against Hammond fully 3 months after the initial accusation by former employee Jackson that Hammond, as well as other employees, used drugs. Even when the Respondent decided to take action, it still delayed another 17 days before interviewing any of the accused employees. Second, there is no evidence in the record to support the Respondent's contention that Hammond violated its drug policy. Further, the Board noted that Hammond denied having used drugs at all and that the Respondent suspended him without waiting for the results of his drug test (which were negative).

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Teamsters Local 667; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing in Memphis, April 5 and July 24, 2000. Adm. Law Judge Pargen Robertson issued his decision Sept. 29, 2000.

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Central Plumbing Specialties, Inc. (34-CA-8296; 337 NLRB No. 153) Manhattan and Yonkers, NY July 31, 2002. Chairman Hurtgen and Member Bartlett found, contrary to the administrative law judge and dissenting Member Liebman, that the General Counsel failed to establish a prima facie case that the Respondent's discharge of employee Celso Rodriguez violated Section 8(a)(3) of the Act and dismissed the complaint, stating: "Admittedly, Rodriguez engaged in union activity and was discharged. However, we find insufficient evidence to support any finding or inference that the Respondent either had knowledge of Rodriguez' union activities, harbored antiunion animus toward him, or that any such animus played a role in his discharge." In defense, the Respondent claimed that it discharged Rodriguez based on his bad attendance, the Respondent's suspicions that he was involved in office thefts, the fact that he was not a good employee because he fooled around, and because he was illiterate. [HTML] [PDF]

Dissenting Member Liebman agreed with the judge that the General Counsel has shown that union activity was a motivating factor in the Respondent's action against Rodriguez. She noted these factors, among others. Rodriguez, who was fired shortly after engaging in union activity, had never been disciplined before; indeed, he had received bonuses and pay raises. The Respondent told Rodriguez that he was being fired for missing work on a day that he was particularly needed, but Bobby Flores, the colleague who assigned Rodriguez work, told Rodriguez that he was being fired for going to a union meeting. The Respondent's co-owner, Warren Frankel, denied to Rodriguez and another employee that union activity played any part in the discharge, but Frankel also asked the co-worker, rhetorically, if he thought it was fair for someone else to seek to run the Respondent's business. Member Liebman agreed with the judge, particularly in light of the Respondent's numerous asserted pretextual reasons for discharging Rodriguez, that the Respondent failed to show that it would have fired him for reasons other than his union activity.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Teamsters Local 456; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, July 7-9, 1999. Adm. Law Judge Raymond P. Green issued his decision Oct. 18, 1999.

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Oil Capital Electric (17-CA-17290, 17418; 337 NLRB No. 150) Tulsa, OK July 31, 2002. The Board reversed the administrative law judge's findings that the Respondent violated the Act and dismissed the complaint in its entirety. The judge found that the Respondent violated Section 8(a)(3) when it refused to hire 21 union applicants who appeared en masse at the Respondent's office to apply for jobs and when it refused to hire seven union applicants who individually sought to apply for jobs at various times, and Section 8(a)(1) when it interrogated union applicant Gary Stottlemyre II about his and others' union activities. Member Liebman, dissenting in part, would adopt the judge's finding that the Respondent unlawfully interrogated Stottlemyre, given the nature of the questions asked and the setting in which they were posed. [HTML] [PDF]

On June 7, 2000, the Board remanded this case to the judge for further consideration in light of its decision in FES (A Division of Thermo Power), 331 NLRB 9 (2000), setting forth the framework for analysis of refusal-to-hire and refusal-to-consider allegations. In reversing the judge's finding that the Respondent unlawfully refused to hire the 21 applicants who applied en masse, the Board found that the General Counsel failed to show that 20 applicants had relevant experience or training, one of the three critical elements of a discriminatory refusal-to-hire violation, and failed to establish with respect to the 21st applicant a separate critical element, i.e., that antiunion animus contributed to the adverse employment action. The Board concluded that the record did not support the judge's conclusion that the Respondent's decisions not to hire six other applicants was unlawfully motivated and that the General Counsel failed to establish the critical element of an available opening for the seventh applicant, Stottlemyre.

The alleged unlawful interrogation occurred when Stottlemyre went to the Respondent's facility to seek employment and spoke to company president James Lewis. Lewis said that Stottlemyre's name sounded familiar to him and asked if Stottlemyre's father was a union member. Later in the conversation, Lewis asked Stottlemyre why the Union was not helping him. Chairman Hurtgen and Member Bartlett found, under all the circumstances, that the Respondent's questioning of Stottlemyre was not coercive. They pointed out that there is no background of discrimination given the reversal of the judge's 8(a)(3) findings, including his finding that the Respondent unlawfully refused to hire Stottlemyre. Further, there is no showing of employer hostility to union activity. Chairman Hurtgen and Member Bartlett said the first question "represented little more than idle curiosity prompted by Lewis' recognition of the name." They found the second question was "aimed only at ascertaining why the Union was not helping Stottlemyre secure work."

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Adm. Law Judge John H. West issued his supplemental decision Feb. 21, 2001.

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BP Exploration (Alaska), Inc. (19-CA-26791; 337 NLRB No. 141) Anchorage, AK July 29, 2002. The Board adopted the administrative law judge's finding that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to provide copies of certain "confidential" reports requested by the Union that were subject to the attorney-client privilege. It stated: [HTML] [PDF]

Applying the balancing-of-interests test set forth in Detroit Edison, we find (1) that the Respondent has established a strong confidentiality interest with respect to the reports; (2) that this interest clearly outweighs the Union's asserted need for the reports themselves (as distinct from the information contained in them); and (3) that, given the Union's insistence on disclosure of the reports, the Respondent discharged its obligations under the Act by offering to provide the Union with certain information contained in the reports, an accommodation the Union categorically rejected.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by PACE Local 8-369; complaint alleged violation of Section 8(a)(1) and (5). Hearing in Anchorage on April 17, 2001. Adm. Law Judge James M. Kennedy issued his decision June 26, 2001.

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Pactiv Corp. d/b/a Tenneco Packaging, Inc. (11-CA-18425, 18442; 337 NLRB No. 142) Beech Island, SC July 29, 2002. The Board affirmed the administrative law judge's finding that the Respondent did not violate Section 8(a)(3) and (1) of the Act by contacting the local sheriff on July 29, 1999, about employee Gary McClain, who reportedly had been engaging in threatening behavior. The judge found that the General Counsel failed to show that McClain's union activity was a motivating factor in the Respondent's decision to take that action. The judge further found that the Respondent established that it would have taken the same action even in the absence of McClain's union activity. He also found that the Respondent did not violate Section 8(a)(3) and (1) by conditioning McClain's reinstatement upon his submitting to an exam by a company-designated psychiatrist. The judge found that this condition was consistent with its preexisting short-term disability policy and past practice. [HTML] [PDF]

Member Liebman joined Chairman Hurtgen and Member Cowen in dismissing the complaint, but in a concurring opinion expressed her view that workplace violence cases need to be analyzed carefully and on a case-by-case basis. She stated:

Workplace violence is a serious problem. But as a justification for employer actions that may infringe employees' rights under the Act, the need to protect employees from the threat of violence is not fundamentally different from other, recognized managerial interests. As in this case, it may be a legitimate rationale. In other cases, it may simply offer a plausible pretext for antiunion measures.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charges filed by Operating Engineers Local 470; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Aiken, March 27-30, 2000. Adm. Law Judge George Carson II issued his decision June 9, 2000.

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Pinnacle Metal Products Co. f/k/a The Wilkie Co. (7-CA-42013, et al.; 337 NLRB No. 128) Muskegon, MI July 19, 2002. Chairman Hurtgen and Member Liebman agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging, delaying reinstatement, and failing to make a valid offer of immediate reinstatement to bargaining unit employees who joined in an unfair labor practice strike that commenced on February 2, 1998, after the Union made an unconditional offer on April 30, 1999, to return to work; and Section 8(a)(5), (3), and (1) by unilaterally and discriminatorily conditioning reinstatement consideration of the strikers upon the successful passing of a drug and alcohol abuse test without prior notice to or bargaining with Machinists Local Lodge 670, District Lodge 97. Member Cowen concurring and dissenting in part. [HTML] [PDF]

Chairman Hurtgen and Member Liebman found no ambiguity in the Union's April 30 offer of "an unconditional return to work" and that the Union made the offer on behalf of all striking employees. The majority agreed with the judge that the Respondent was not privileged to apply its drug testing policy to returning strikers because they did not fit within either class of employees covered by the drug testing policy, i.e., "employees returning from a leave of absence or layoff in excess of two (2) weeks." The majority, in agreement with Member Cowen, concluded that the Respondent discriminatorily applied to strikers a drug testing requirement that differed significantly from the terms of its final offer and, accordingly, violated the Act.

Member Cowen found that the Respondent was privileged to apply its drug testing policy to returning strikers, concluding that employees who have been on strike for over 12 months are reasonably encompassed within that policy. In agreeing with the judge that the Respondent did not actually apply the policy to returning strikers, he found that the Respondent instead imposed more onerous conditions on returning strikers. Member Cowen concluded, as did his colleagues, that the Respondent did not fulfill its obligation to reinstate striking employees who made an unconditional offer to return to work. But, he found that the Respondent reasonably interpreted the Union's offer as indicating that the employees who wished to return to work would show up on May 3 and he would limit the remedy to the 21 of 35 who actually showed up on that date.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charges filed by Machinists Local Lodge 670, District Lodge 97; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Grand Rapids, Nov. 3-5, 1999 and April 10-11, 2000. Adm. Law Judge Thomas R. Wilks issued his decision Oct. 6, 2000.

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Control Building Services, Inc. (29-CA-23217-1; 337 NLRB No. 137) Long Island, NY July 25, 2002. The Board affirmed the administrative law judge's finding that the Respondent discriminatorily discharged employee Eddie McDonald on October 28, 1999 in violation of Section 8(a)(1) and (3) of the Act. [HTML] [PDF]

The Respondent, in exceptions, contended that the judge erred in finding the violation because, inter alia, there is no evidence of antiunion animus against McDonald. Because the judge failed to expressly make a finding of antiunion animus, the Board explicitly made this finding, clarified the basis for adopting the judge's conclusion, and noted the following strong evidence for finding animus: (1) the pretextual nature of the ostensible reasons for McDonald's discharge; (2) the timing of McDonald's discharge; and (3) Respondent's unlawful surveillance of employees.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by SEIU Local 32B-32J; complaint alleged violation of Section 8(a)(1) and (3). Hearing in New York City, May 23-25, 2001. Adm. Law Judge D. Barry Morris issued his decision Sept. 10, 2001.

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AAR Hermetic, a Division of AAR Allen Services, Inc. (29-CA-23951; 337 NLRB No. 127) Holtsville, NY July 18, 2002. Affirming the administrative law judge's recommendation, the Board dismissed the complaint allegation that the Respondent violated Section 8(a)(3) of the Act by refusing to offer employment to James Novotny, who worked as an electronic technician for the Respondent's predecessor, Honeywell Hermetic. The Board agreed with the judge's finding that there was no credible evidence that the Respondent harbored anti-Union animus and that it failed to hire Novotny because of his activities in support of Machinists Local 24. The judge found that Novotny was not hired because he told manager Colleen Quinn that he did not want to work for Respondent and that even in the absence of any union activity by Novotny, the Respondent would not have offered him a job. [HTML] [PDF]

(Chairman Hurtgen and Members Liebman and Cowen participated.)

Charge filed by James Novotny, an individual; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Brooklyn on May 22, 2001. Adm. Law Judge Eleanor MacDonald issued her decision Sept. 26, 2001.

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Budget Rent A Car Systems, Inc. (7-RC-22199, 22207; 337 NLRB No. 147) Southfield and Warren, MI July 26, 2002. The Board reversed the Regional Director's finding that the petitioned-for single-facility units at the Employer's Warren and Southfield stores in the Detroit, Michigan area are appropriate, and held that the petitioned-for stores have been merged into a larger unit. It remanded the proceeding to the Regional Director for further appropriate action. [HTML] [PDF]

The Employer operates five Detroit-area local market stores where it rents cars and trucks to the public. Teamsters Local 283 sought to represent all customer service coordinators, service agents, and mechanics at the Employer's Southfield store and a separate unit of all customer service coordinators and service agents at the Warren store. The five market stores are locally managed by three branch managers and each of the petitioned-for stores shares a branch manager with another of the five local market stores. The branch managers, having no authority to make decisions concerning hiring, merit wage increases, temporary or permanent transfers, authorization of overtime, terminations, or serious discipline, report to District Manager Elisa Bannon, who oversees operations at all five local market stores.

The Board determined that job functions, required skills, starting wages, benefits, the incentive bonus program, uniforms, and all other terms and conditions of employment are identical from store to store and job training of employees from all five stores is centralized at one location. Citing Waste Management Northwest, 331 NLRB 309 (2000) and New Britain Transportation Co., 330 NLRB 397 (1999), the Board wrote: "[t]o determine whether the single-facility presumption has been rebutted, the Board looks at such factors as the similarity of employee skills, functions and training, the distance between the facilities, the functional coordination in operations of the facilities, common supervision, centralized control of operations and labor, contact between employees at different facilities, employee interchange (particularly temporary transfers) between facilities, common wages, benefits, and terms and conditions of employment, and bargaining history, if any."

Here, the Board found that the evidence established that the Southfield and Warren stores have been so effectively merged into the other Detroit area local market stores, and are so functionally integrated with these stores, that they have lost their separate identities. Accordingly, contrary to the Regional Director, it held that the Employer has rebutted the single-facility presumption.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

* * *

Demco New York Corp. (3-CA-22798; 337 NLRB No. 135) East Syracuse, NY July 26, 2002. Agreeing with the administrative law judge, the Board held that the Respondent, by foreman William Grant, interrogated employee Paul Castor about his union membership, activities, and sympathies in violation of Section 8(a)(1) of the Act. The Board found that the totality of the circumstances established that Grant's questioning of Castor about Castor's union sentiment reasonably tended to interfere with, coerce, and restrain the exercise of Castor's Section 7 rights. [HTML] [PDF]

No exceptions were filed to the judge's findings that Grant is a statutory supervisor and agent of the Respondent within the meaning of Section 2(11) and 2(13), respectively.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

Charge filed by Electrical Workers IBEW Local 910; complaint alleged violation of Section 8(a)(1). Hearing at Syracuse on July 17, 2001. Adm. Law Judge Jesse Kleiman issued his decision Sept. 10, 2001.

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Hanson Aggregates Central, Inc. (16-CA-20885-1, et al., 16-RC-10286; 337 NLRB No. 143) Houston, TX July 26, 2002. Members Liebman and Bartlett agreed with an administrative law judge's conclusions that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing disciplinary warnings to Jimmy Carriere and Frank Davault because of their union activities; and engaged in objectionable conduct, such as unlawful threats, solicitation of grievances, instructing Davault to remove a union button, and prohibiting others from wearing prounion insignia, that was sufficient to warrant setting aside an election held in Case 16-RC-10286. The case was remanded to the Regional Director to conduct a second election. [HTML] [PDF]

Chairman Hurtgen, concurring in part, affirmed the judge's unfair labor practice findings. He agreed with his colleagues that Production Manager Lee Surface unlawfully instructed Davault to remove a union button and issued him two disciplinary warnings, and that the conduct was not effectively repudiated, but he did not rely on the "stringent" standard of Passavant Memorial Area Hospital, 237 NLRB 138 (1987). See his partial dissent in Webco Industries, 327 NLRB 172, 174 (1998), enfd. 217 F.3d 1306 (10th Cir. 2000). In Webco, the Chairman held that although the Respondent unlawfully suspended an employee, it promptly revoked the suspension and gave her full backpay, which obviated the necessity for a remedial provision. Here, in contrast, he noted that less than 1 month after the incident, Sales Supervisor Mike Leathers committed virtually the same unfair labor practice by directing employee Chris Harris to remove union insignia from his hardhat. Thus, notwithstanding the Respondent's purported retraction of the unlawful instruction to Devault, the Respondent continued to maintain an unlawful prohibition against wearing union insignia.

Member Bartlett found no need in this case to decide whether the Board should adhere to the standard for effective repudiation of misconduct set forth in Passavant since he agreed with his concurring colleague that the Respondent's recidivist misconduct precludes finding effective repudiation in any event.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charges filed by Teamsters Local 988; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Houston, July 9-12 and Aug. 22, 2001. Adm. Law Judge George Carson III issued his decision Nov. 30, 2001.

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Michael's Painting, Inc., and Painting L.A., Inc. (31-CA-23358; 337 NLRB No. 140) Van Nuys, CA July 26, 2002. The Board affirmed the administrative law judge's finding that the Respondents violated Section 8(a)(1) and (3) of the Act by interrogating employees, interfering with lawful picketing activity, and threatening to close its business, and by discharging and conditioning the release of the paychecks of employees Jose Lainez, Alejandro Duenas, Carlos Vega, Martin Vega, and Saul Romero upon the presentation of immigration related documents, because of their activities on behalf of Painters District 36. The Board also affirmed the judge's finding that Michael's Painting (MP) and Painting L.A. (PLA) constitute alter egos, and that the Respondents had a twofold purpose in establishing PLA-to continue operating their painting business without the substantially higher insurance premiums that would have been charged MP and to rid themselves of those employees who had picketed MP in support of claims for higher wages and Union recognition. [HTML] [PDF]

In March 1998, a union organizing campaign involving the Respondents' employees became common knowledge. The Respondents retaliated by committing unfair labor practices in an effort to thwart the organizing drive. Following the commencement of the Respondents' unlawful course of conduct, on March 31, the Union gained the support of a majority of the employees based on a showing of authorization cards.

The Board noted that the Respondents' multiple violations of Section 8(a)(1) and the discharge of five employees in violation of Section 8(a)(3) constituted an unlawful scheme to defeat the Union and deprive the employees of their statutory rights. It held that a bargaining order is necessary and appropriate and, in addition to the usual remedies for the violations found, ordered the Respondent to bargain with the Union, consistent with the principles of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Concluding that the conduct of a fair election in the future would be unlikely, the Board wrote: "employees' wishes are better gauged by an old card majority than by a new election." Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078 (D.C. Cir. 1996).

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charge filed by Painters District 36; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing in Los Angeles, May 5-7 and 12-14, 1999. Adm. Law Judge Jay R. Pollack issued his decision July 10, 2000.

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MV Transportation (33-RD-788; 337 NLRB No. 129) Peoria, IL July 17, 2002. The Board overruled its prior decision in St. Elizabeth Manor, Inc., 329 NLRB 341 (1999), and repudiated the successor bar doctrine articulated therein. [HTML] [PDF]

In connection with the assumption of its predecessor's operations, the Employer hired the predecessors employees and recognized the incumbent union (Amalgamated Transit Union, Local 416) as the bargaining representative of the employees. Thereafter, the Employer and the Union met for bargaining on two occasions, at which time an employee filed a decertification petition.

The Regional Director dismissed the petition in reliance on St. Elizabeth Manor, in which the Board held that, once a successor employer's obligation to recognize an incumbent union attaches, the union is entitled to a reasonable period of time for bargaining without challenge to its majority status. The Board granted review of the Regional Director's dismissal and ultimately overruled St. Elizabeth Manor. Stating that its decision merely represented a return to longstanding precedent-from which the Board imprudently deviated in St. Elizabeth Manor-the Board held that an incumbent union in a successorship situation is entitled to only a rebuttable presumption of continuing majority status, which will not serve to bar an otherwise valid decertification, rival union, or employer petition, or other valid challenge to the union's majority status.

The Board concluded that the well-established principle to which it was returning (as initially articulated in Southern Moldings, 219 NLRB 119 (1975)), represented the most appropriate balance of the Act's competing purposes of protecting employee freedom of choice and maintaining the stability of bargaining relationships, whereas the successor bar doctrine "promote[d] the stability of bargaining relationships to the exclusion of the employees' Section 7 rights to choose their bargaining representative." The Board noted that the successor employer situation is distinguishable from other contexts in which the Board has granted the union an insulated period during which its majority status is immune from challenge. For example, in a voluntary recognition situation, the union needs the opportunity to demonstrate its effectiveness to the employees without the threat of removal; in a successor employer situation, however, the employees have already had the opportunity to assess the union's effectiveness, by virtue of their longstanding relationship with the union. The Board also noted that although a change in employers may cause instability and, consequently, engender stress or anxiety among the employees, the impact of such instability is uncertain (i.e., it could cause employee disaffection with the union, or it could cause the employees to become stronger adherents of the union). Accordingly, the choice to retain or remove the bargaining representative should be left to the employees, who "are presumably mature individuals who are capable of making rational decisions."

Member Liebman, dissenting, asserted that "the Board's newly-constituted majority reverse[d] course needlessly and without institutional experience under the previous rule" set forth in St. Elizabeth Manor. "St. Elizabeth Manor was sound policy, consistent with the Act, and fairly adapted to 'needs in a volatile, changing economy'" replete with corporate mergers and acquisitions. "By providing a limited period of repose during which a question of representation may not be raised, St. Elizabeth Manor provides a framework that best accommodates the economic realities of the 21st Century."

(Chairman Hurtgen and Members Liebman, Cowen, and Bartlett participated.)

* * *

Medlar Electric, Inc. and Bohrer Reagan Co. Joint Employers (4-RC-20249; 337 NLRB No. 133) Reading, PA July 18, 2002. The Board granted the Joint Employers' request for review of the Regional Director's supplemental decision and certification of representative and, reversing the Regional Director, overruled the challenge to the ballot cast by heavy equipment operator Bruce Brooks. The Board found that Brooks is a dual function employee who regularly performs unit work for a sufficient period of time to demonstrate that he has a substantial interest in the unit's wages, hours, and conditions of employment. The case was remanded to the Regional Director to open and count Brooks' ballot and to issue a revised tally of ballots and the appropriate certification. [HTML] [PDF]

In August 2001, the Acting Regional Director issued a decision and direction of election in which he found the petitioned-for unit of the Joint-Employer's full-time and part-time truckdrivers to be an appropriate unit for collective bargaining. The Acting Regional Director included Gary Adams, a warehouse employee who spends approximately 30 to 40 percent of his time driving a pick-up truck to transport supplies or equipment. He excluded three others: Brooks and warehouse employees Eric Saunders and Thomas Luckenbill, whose driving duties constitute only 10 to 5 percent of their worktime. On September 9, 2001, the Board denied the Joint Employers' request for review alleging that the Acting Regional Director erred in excluding Brooks, Sanders, and Luckenbill, but it amended the decision to permit Brooks to vote under challenge.

The tally of ballots for the election held September 20, 2001 shows three for and two against, Teamsters Local 429 (the Petitioner), with three determinative challenged ballots cast by Brooks, Sanders, and Luckenbill. On October 11, 2001, the Regional Director issued the supplemental decision on challenged ballots and certification of representative in which she sustained the challenges to all three ballots, affirming the earlier decision to exclude Brooks and noting that the Board denied review of the finding that Sanders and Luckenbill were ineligible voters.

In its decision on review, the Board held that Brooks, like the unit truckdrivers who transport equipment and materials between the Joint Employers' warehouse and various jobsites, performs similar unit work when he tows or hauls tools and equipment to jobsites to be used both in his construction excavation work and by the Joint Employers' other employees in their electrical and mechanical construction work. The Board said Brooks performs unit work at least 25 to 30 percent of his time and that he, like dual-function driver Adams, has a substantial interest in the unit's working conditions to be included in the unit.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

* * *

Lafayette Grinding Corp. (29-CA-23593, 23895; 337 NLRB No. 134) Brooklyn, NY July 19, 2002. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally stopped making payments to the Union's health and welfare fund, dealt directly with employees over their health insurance, and granted and rescinded a wage increase without giving Electrical Workers IUE Local 485 an opportunity to bargain; and violated Section 8(a)(1) by informing employees that the wage increase was being rescinded because of the possibility that the Union would file an unfair labor practice charge. [HTML] [PDF]

In exceptions, the Respondent contended that because it had not signed the 1997-2000 collective-bargaining agreement, it did not violate the Act, when, upon expiration of the agreement, it stopped making payments to the Union's health and welfare fund; and that it did not unlawfully make changes in employee working conditions in October 2000 because the parties had reached a valid impasse. In rejecting these arguments, the Board explained:

The Respondent admits that its practice of making monthly fund payments continued virtually uninterrupted during the 1997-1999 period. As an established practice, the fund contributions became an implied term and condition of employment based on the mutual agreement of the parties. . . . Having established a 3-year practice of making monthly fund payments, the Respondent changed an implied term and condition of employment when it unilaterally stopped making payments to the Union's health and welfare fund. It is immaterial that the Respondent had not signed the 1997-2000 draft contract, because the Respondent's obligation to maintain the status quo is not based on the draft contract but on the Respondent's own past practice.

The Board found that the parties did not reach a good-faith impasse in October 2000 because the unremedied unfair labor practice the Respondent committed in January 2000 of unilaterally ceasing to make any health and welfare fund payments contributed to the parties' inability to reach agreement.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charges filed by Electrical Workers IUE Local 485; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn, March 28, April 6, and May 1, 2001. Adm. Law Judge Eleanor MacDonald issued her decision July 30, 2001.

* * *

Paul Mueller Co. (17-CA-20003, 20266; 337 NLRB No. 124) Springfield, MO July 16, 2002. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by reducing employee James Hulse from master craftsman and lowering his pay. It reversed the judge's dismissal of the Section 8(a)(5) allegation that the Respondent unilaterally subcontracted certain fabrication work to T and C Stainless. The judge held that the Section 8(a)(5) allegation was barred by Section 10(b) because in his view, the subcontracting began in November 1996, and that the Union knew of it sometime prior to 1998, more than 6 months before the filing of the charge on August 6, 1999. [HTML] [PDF]

In reversing the judge's dismissal of the 8(a)(5) allegation on 10(b) grounds, the Board relied on both the insufficiency of the evidence as to the Union's earlier knowledge of the subcontracting, as well as the Respondent's waiver of its 10(b) defense. The Board wrote: "Section 10(b) is a statute of limitations and is not jurisdictional in nature. Rather, it is an affirmative defense which is waived if not timely raised. . . . Specifically, the 10(b) limitations period must be raised either in the pleadings or at hearing." Applying these standards, the Board noted that the Respondent did not raise the 10(b) defense either in its answer or at the hearing. Instead, the Respondent first raised the 10(b) defense in its post-hearing brief to the judge. The Board decided that the Respondent waived the 10(b) defense, explaining: "The Respondent's failure to plead or specifically litigate this defense at the hearing clearly handicapped the General Counsel in responding to the judge's dismissal, since he had no occasion to bring out the fact on this issue."

The Board considered the merits of the subcontracting allegation and found that the Respondent violated Section 8(a)(5), as alleged. It noted that the Respondent stipulated at the hearing that subcontracting fabrication work was a mandatory subject of bargaining and that it had neither given prior notice to the Union nor afforded it an opportunity to bargain. The Respondent thus has essentially admitted that it violated Section 8(a)(5) by its unilateral action.

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

Charges filed by Sheet Metal Workers Local 208; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing in Springfield on Nov. 2, 1999. Adm. Law Judge Pargen Robertson issued his decision Jan. 12, 2000.

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Electrical Workers IBEW Local 98 (The Farfield Co., Inc.) (4-CD-1070; 337 NLRB No. 131) Lititz, PA July 18, 2002. The Board, finding no competing claims to the disputed work, concluded that no jurisdictional dispute existed and, accordingly, quashed the notice of hearing. The charge filed by The Farfield Co. alleged that the Respondent violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing Farfield and/or Bruce Industrial Company (Bruce), to assign certain work to employees represented Iron Workers Local 161 rather than to unrepresented employees of Bruce. [HTML] [PDF]

Farfield's contract with Southeastern Pennsylvania Transportation Authority (SEPTA) was to remove and replace switchgear equipment at three substations providing electrical power for the operation of SEPTA trains located in Philadephia. Farfield subcontracted Hake, Inc. whose employees were represented by Iron Workers Local 161, to do the type of work performed by riggers at the Mr. Vernon substation. When agents of the IBEW started picketing the worksite, Hake's employees stopped working and the left the site. Farfield then entered into a new subcontracting agreement with Bruce, whose employees are not represented by a labor organization, to do the work abandoned by Hake's employees. On September 19, 2001, members of the Iron Workers came to the site and physically prevented the Bruce employees from installing the switchgear equipment because they were nonunion employees. No claim was made by the IBEW for work on the jobsite.

The IBEW argued that the Board lacked jurisdiction on this matter because there is no evidence that it ever claimed the riggers' work for employees it represented or employees represented by Iron Workers. In agreement, the Board held that IBEW engaged in area standards picketing and sought to represent Farfield's current employees. It found neither objective constitutes a claim for the assignment of work to one group of employees rather than another within the meaning of Section 8(b)(4)(D).

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

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United States Postal Service (19-CA-25636(P); 337 NLRB No. 130) Spokane and Tacoma, WA July 19, 2002. On a stipulated record, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the National Association of Letters Carriers, Branch No. 442 with requested information relevant to the processing of a grievance the Union had filed over the Respondent's denial of unit employee Debra Dixon's transfer request from its Spokane facility to its Tacoma facility. [HTML] [PDF]

The Board found without merit the Respondent's affirmative defenses that: (1) the issue is moot because either some or all of the information requested has been provided or has been provided in an alternative form; (2) the complaint fails to state a claim for which relief could be granted "because the information requested is neither relevant nor necessary to the Union's bargaining responsibilities"; (3) the allegation respecting NALC are mooted "by the election of that organization to pursue the underlying grievance the underlying grievance without the requested information"; and (4) the unfair labor practice proceeding should be deferred to arbitration.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by National Association of Letter Carriers, Branch No. 442; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing before an administrative law judge.

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Franklin Hospital Medical Center d/b/a Franklin Home Health Agency (29-RC-9819; 337 NLRB No. 132) Valley Stream, NY July 19, 2002. Members Liebman and Cowen ruled that the Employer's request for review of the Regional Director's Decision and Direction of Election raised no issues warranting review and denied the Employer's request to stay the election as moot. Member Bartlett concurred in the result. [HTML] [PDF]

The Employer provides home health care to individuals at their residences. The petitioning union is the New York State Nurses Association. The Employer contracts with 16 outside agencies to supply all but seven of the 170 to 226 personal care aides and home health care aides who assist in providing patient care.

The Employer contended that its staff nurses (RNs) are not statutory employees because they supervise all of the aides. Alternatively, it claimed the RNs supervise the seven in-house aides. The Regional Director noted that it is well established that an individual must exercise supervisory authority over employees of the employer at issue, and not employees of another employer, to qualify as a supervisor under Section 2(11). He found no evidence that the field nurses are authorized to transfer, suspend, lay off, recall, promote, discharge or reward employees, or to adjust their grievances, or to effectively recommend any of these personnel actions. Thus, the Regional Director held that the Employer failed to establish that its staff RNs are statutory supervisors. Having found that the RNs are employees within the meaning of the Act, and since the parties stipulated that the petitioned-for unit is otherwise appropriate, the Regional Director found the following unit is appropriate for collective bargaining:

All full-time, regular part-time, and per diem registered nurses in the classifications of Regional Nurse ("RN")-Field, RN-Case Manager, RN-Managed Care Coordinator, and RN-Performance Improvement, employed by the Employer in its Home Care Division at and out of its 14 Brooklyn Avenue, Valley Stream, New York, location, but excluding all other employees, guards, confidential employees and supervisors defined in the Act.

The parties stipulated that those per diem RNs meeting the following formula shall be eligible to vote: all per diem nurses who perform an average of at least four patient visits per week in the 13 week period immediately preceding the Direction of Election. The Employer submitted that this eligibility formula should be specifically set forth in any certification of the Union.

In the absence of a request for review regarding the unit description, Member Bartlett adopted, pro forma, the Regional Director's denial of the Employer's request to amend the unit description to reflect that only those per diem nurses who meet the eligibility formula have a sufficient community of interest to the included in the unit. He agreed that the formula itself should not be in the unit description, and noted that the adjective "regular" is frequently used to describe those employees in a particular category who are to be included in the unit.

(Members Liebman, Cowen, and Bartlett participated.)

* * *

South Coast Refuse Corp. (21-CA-32555, et al.; 337 NLRB No. 136) Irvine, CA July 19, 2002. The Board granted the General Counsel's motion for partial summary judgment on compliance specification with respect to: 1) paragraphs 1, 3, 5, and 7 concerning the identity of the discriminatees, the starting date of the backpay period for all 32 discriminatees, the invalidity of the Respondent's previous reinstatement offers, and the continuation of the backpay period until the Respondent tenders a valid reinstatement offer; 2) paragraphs 56, 92, 98, 122, and 134 concerning the dates of reinstatement for five discriminatees; 3) all paragraphs setting forth the hours that all of the discriminatees would have worked, except as may be affected by litigation of issues concerning backpay periods; and 4) all paragraphs setting forth the gross backpay formulas for the discrminatees. [HTML] [PDF]

The Board granted the General Counsel's motion to strike the Respondent's first affirmative defense contending that the Regional Director has no basis to obtain the relief it seeks, and denied the Charging Party's request for expenses and attorneys' fees. The proceeding was remanded to the Regional Director for a hearing limited to the determination of the backpay periods for 27 of the discriminatees, interim earnings for all of the discriminatees, and the Respondent's net backpay liability.

A controversy having arisen over the amount of backpay due the discriminatees under the terms of the Board's July 21, 2000 order, and enforced by the Ninth Circuit on January 31, 2001, the Regional Director issued a compliance specification alleging the amounts due. The Respondent's answer to the allegations consisted of one word: "Denied." The Board agreed with the General Counsel that a general denial is not sufficient to refute the allegations pertaining to the gross backpay calculations and the duration of the five discriminatees' backpay periods. It decided that the Respondent, by denying the allegations in paragraphs 1, 3, 5, and 7, is seeking to relitigate matters already decided in the underlying unfair labor practice proceeding. The Board also noted that the Respondent subsequently agreed that these issues are not subject to litigation in the compliance proceeding.

(Chairman Hurtgen and Members Liebman and Cowen participated.)

General Counsel filed motion for partial summary judgment and to strike affirmative defenses May 11, 2001.

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The Boeing Co. (21-CA-33549; 337 NLRB No. 125) Long Beach and Huntington Beach, CA July 10, 2002. The Board affirmed the administrative law judge's recommended dismissal of the complaint alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Southern California Professional Engineering Association (SCPEA/Union) regarding compensation and benefit plans for engineers transferring into the bargaining unit following the Respondent's 1997 merger with McDonnell Corporation (MDC), whose 5,000 engineers were represented by the Union. [HTML] [PDF]

The approximately 1400 engineers working at Respondent's subsidiary called Boeing North America (BNA) were not represented by a union. In 1998, the Respondent transferred the BNA employees from Seal Beach and Downey, California to the former MDC facilities in Huntington Beach and Long Beach, California. It voluntarily recognized the Union as the representative of the affected engineers and assumed the obligations of the collective-bargaining agreement in effect May 1, 1996 through March 4, 2001 between the Union and MDC.

Computer system constraints prevented immediate transfer of the BNA employees into the compensation and benefit plan set forth in the SCPEA agreement. The parties agreed orally that the affected employees would retain their current benefit plans until programmers removed the constraints and thereafter would receive the SCPEA contractual benefits. On January 22, 1999, the parties signed a letter of understanding (LOU), which embodied the terms of their agreement.

The judge concluded that the Respondent had no obligation to bargain with the Union over the terms of a compensation and benefit plan different from that in the SCPEA agreement. She found that the Respondent proposed a midterm modification of the SCPEA agreement, to which it was legally bound, when it asked the Union to permit affected employees to remain in their existing plans until system constraints could be removed. The Union agreed and sought an additional midterm modification of the SCPEA agreement by requesting that the Respondent apply a different compensation and benefit plan to the affected employees. The judge found the Respondent was not legally obligated to consider the Union's proposal and did not incur a bargaining obligation by doing so.

Even assuming, as the General Counsel argued, that the LOU constituted an agreement by the Respondent to bargain over the terms of a different compensation and benefit plan, the judge noted that the parties already had an existing agreement and there is no evidence that it contained a valid reopener clause. She also noted that the Union had advance notice that the Respondent rejected its proposal and that it failed to request that Respondent bargain and refused to meet and bargain with Respondent.

In its exceptions, the Union argued that that judge erred in finding that the LOU did not create a bargaining obligation. Even assuming arguendo that the LOU imposed such a bargaining obligation on the Respondent, the Board agreed with the judge that the Respondent offered to bargain and that the Union effectively waived bargaining by declining to discuss the issue based on its filing of the instant unfair labor practice charge.

(Members Liebman, Cowen, and Bartlett participated.)

Charge filed by Southern California Professional Engineering Association; complaint alleged violation of Section 8(a)(1) and (5). Hearing in Los Angeles, July 9 and 10, 2001. Adm. Law Judge Lana H. Parke issued her decision Sept. 5, 2001.

* * *

Anheuser-Busch, Inc. (3-CA-21796, et al.; 337 NLRB No. 121) Baldwinsville, NY July 5, 2002. The Board granted in part and denied in part the Respondent's motion for reconsideration of its underlying decision and order (337 NLRB No. 2 (2001)), which adopted the administrative law judge's decision that the Respondent violated Section 8(a)(1) of the Act and included a cease-and-desist order and an attached notice to employees for posting. Specifically, the judge found, with Board approval, that the Respondent unlawfully refused to permit employee Patrick Lamirande his choice of steward at two disciplinary meetings, threatened to discharge employee Brian Meany for engaging in protected speech at one of the Respondent's corporate communications meetings, and threatened employee Joseph Rimulado with reprisal for filing charges with the Board. [HTML] [PDF]

The Board denied as raising nothing not previously considered and as lacking in merit, that portion of the Respondent's motion contending that the Board erred in adopting the judge's unfair labor practice findings. The Board granted that portion of the motion seeking correction of two inadvertent errors by the Board and the judge, and made these modifications.

(1) In reproducing the judge's decision, present references to Kidde Inc., in the paragraph beginning at the bottom of the right column on page 5, were incorrectly substituted for GHR Energy Corp., 294 NLRB 1011 (1989), in the original judge's decision. The Board corrected the published judge's decision so that it reads as it appears as written when he issued the decision. See 337 NLRB No. 23, slip op. at 5.

(2) The language of the Board's and the judge's notice failed to conform to the language of his recommended Order, which was adopted by the Board. The Board substituted an attached corrected notice, which has also been modified with its decision in Ishikawa Gasket America, Inc., 337 NLRB No. 29 (2001), for the notice attached to the earlier decision.

(3) The Respondent also argued that the Order and notice provisions regarding Meany are overbroad and could be interpreted as encompassing unprotected activity at corporate communications meetings. The Board modified its prior Order and substituted the following as paragraph 1(b): "(b) Threaten to discharge an employee if he or she engages in concerted protected activity, including engaging in such activity when speaking at corporate communications meetings."

The General Counsel argued that the Respondent waived its right to present the third argument because it did not file exceptions to the notice and order as they appeared in the judge's decision. Citing Indian Hills Care Center, 321 NLRB 144 fn. 3 (1996), the Board disagreed, stating: "It is well established that the Board has full authority over the remedial aspects of its decisions, even in the absence of exceptions."

(Chairman Hurtgen and Members Liebman and Bartlett participated.)

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Consumers Energy Co. (7-RC-22022; 337 NLRB No. 120) Alma, Saginaw, Grand Rapids, Royal Oak, and Lansing, MI July 5, 2002. Members Liebman and Bartlett overruled the Employer's objection, agreeing with the hearing officer that the Board Agent properly denied Brian K. Vandenberg an opportunity to vote because he arrived after the scheduled 3 p.m. closing of the polls. See Laidlaw Transit, Inc., 327 NLRB 315 (1999), and Monte Vista Disposal Co., 307 NLRB 531 (1992). The majority certified the Utility Workers (winner of the August 15, 2001 election by a 137-136 vote) as the exclusive representative of the Employer's employees in the appropriate unit. Member Cowen, dissenting, would set aside the election and remand this case to the Regional Director to conduct a second election. [HTML] [PDF]

In its objection, the Employer contended that Vandenberg was precluded from casting a ballot even though he claimed that he arrived prior to the vote closing time in the voting area. The parties' observers all testified that the Board Agent closed the polls at 3 p.m., according to his watch, and that Vandenberg arrived in the polling area shortly after this closing time. Vandenberg testified that he "scanned in" at 2:59 p.m. at a clock located 30 feet from the closed door to the polling area but did not protest to the Board Agent that he had arrived before the proper closing time. Member Cowen disagreed with his colleagues that this close election, in a relatively large unit with a one-vote margin victory for the Union, should be certified since there is a significant possibility that Vandenberg, a potentially determinative voter, has been disenfranchised by the Board Agent's actions. Member Cowen noted there is insufficient evidence to establish that the Board Agent's personal watch reflected the correct time. He noted also that the Board Agent deviated from appropriate casehandling procedures by failing to designate an official timepiece prior to the balloting. Member Cowen wrote: "As I see this case, we can either conduct a new election now, or risk being directed to do so by the U.S. Court of Appeals for the Sixth Circuit following a subsequent unfair labor practice proceeding. Simply stated, an early election is preferable to one directed several years from today."

Members Liebman and Bartlett agreed with the hearing officer that the Board's Agent's watch was the recognized official timepiece, even if he failed formally to designate it as such. They found Vandenberg's testimony does not prove that the watch was inaccurate or that Vandenberg, who had two young children with him, must have gone from the clock's location to the polling area before the clock struck 3 p.m. Members Liebman and Bartlett reasoned even if they agreed with Member Cowen that the evidence is insufficient to show whether Vandenberg actually arrived late, they would adopt the hearing officer's recommendation to overrule the Employer's objection, explaining: "It is the Employer's burden, as the objecting party, to prove that there has been misconduct that warrants setting aside the election. . . . If the evidence is insufficient then the Employer has failed to meet its burden."

(Members Liebman, Cowen, and Bartlett participated.)

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Stage Employees IATSE, Greater New Orleans Stage, Motion Picture, Television and Exhibition Employees Local 39 (Shepard Exposition Services, Inc.) (15-CD-304; 337 NLRB No. 119) New Orleans, LA July 2, 2002. Relying on the factors of Employer preference and current assignment, Employer past practice, and area practice, the Board decided that Shepard's employees represented by the Stage Employees, rather than those represented by the Carpenters and its Local 1846, are entitled to perform the work in dispute. [HTML] [PDF]

The work in dispute concerns the assignment of: In the Greater New Orleans area, including the parishes of Orleans, Jefferson, St. Bernard, St. Tammany, St. Charles and Plaquemines, the uncrating, erection, dismantling and recreating of all built-up fabricated displays at exhibit sites, rigging, and carpet installation and removal; the handling and erection of all hard wall booths, pegboards, sheetrock and/or specially built booths on exhibit sites where any material is attached together to form a display; the building and/or installation of all platforms, walls, turntables, counters and/or any item fabricated or built on exhibit sites, the laying out and marking of all lines needed to perform the above-described work; and the loading, unloading, and movement of the Employer's equipment and material, operation of all fork and pallet lifts and related equipment. Also included are the installation, dismantling and operation of scenery, curtains, properties, electrical effects, and the operation of spotlights; installation and dismantling of exhibits, displays, booths, decorations; and the installation, dismantling and operation of sound accessories, motion, T.V. and video tape productions.

(Chairman Hurtgen and Members Cowen and Bartlett participated.)

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Whirlpool Corp. (8-CA-28612; 337 NLRB No. 117) Findlay, OH July 5, 2002. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) of the Act by disciplining employees David Hamilton and Jerry Pore. Members Liebman and Bartlett agreed with the judge that a violation was established under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), and did not pass on Chairman Hurtgen's contention that the discipline should be analyzed pursuant to the standard set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Members Liebman and Bartlett noted that no party contended that Wright Line is not the appropriate analysis. Assuming that Burnup & Sims is applicable, they agreed with the Chairman that a violation would be established under that standard as well. [HTML] [PDF]

Members Liebman and Bartlett also affirmed the judge's finding that Shift Supervisor Dick Kretz violated Section 8(a)(1) by informing employees that they were not allowed to distribute union literature on company property and, accordingly entered a remedial order in this respect. Chairman Hurtgen found that the Respondent's conduct does not warrant a remedial order and would dismiss the allegation, citing American Federation of Musicians Local 176 (Jimmy Wakely), 202 NLRB 620 (1973).

(Chairman Hurtgen and Members Liebman and Bartlett participated.

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Findlay on Feb. 15, 2000. Adm. Law Judge Earl E. Shamwell, Jr. issued his decision Aug. 9, 2000.

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Bouille Clark Plumbing, Heating, and Electric, Inc. (3-CA-22761; 337 NLRB No. 118) Elmira, NY July 5, 2002. Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating collective-bargaining agreements in effect between the Southern Tier Chapter of the National Electrical Contractors Association NECA) and Electrical Workers (IBEW) Local 139. [HTML] [PDF]

The NECA and their bargaining partner, the IBEW, have two types of agreements relevant to this case: 1) inside construction agreements govern all electrical construction work inside the property line of a worksite, except work performed by linemen and 2) residential wiring agreements govern electrical work performed on residential construction not exceeding four stories in height. The residential wiring agreements provide that all signatory contractors must also sign and abide by the provisions of the more comprehensive inside construction agreements.

The judge found that the Respondent assented to become a member of NECA on January 2, 1996 and that it effectively withdrew its consent for NECA to bargain on its behalf on Feburary 8, 2000. Thus, he concluded that the Respondent was bound by the residential wiring agreements in effect between NECA and Local 139 from January 1996 through May 31, 2000, but not thereafter; and that the Respondent was bound by the terms of the inside construction agreements from January 1996 until the current inside agreement terminates on May 31, 2002. He recommended that the Respondent be ordered to make whole employees, hiring hall applicants who should have been employed, and the Union for any losses they may have suffered as a result of the Respondent's failure to adhere to these agreements since January 2, 1996. The Board modified the judge's recommended Order to reflect the manner in which backpay due to unit employees and benefits funds and any interest shall be computed.

In exceptions, the General Counsel requested that the Respondent "reimburse employees who are entitled to backpay for any additional federal and/or state tax liability resulting from the lump sum payment of their backpay awards." The Board declined to consider such a proposed remedy at this time as it would involve a change in Board law, which should be resolved after a full briefing by all affected parties. There has not been such briefing in this case.

(Chairman Hurtgen and Members Liebman and Bartlett participated)

Charge filed by Electrical Workers (IBEW) Local 139; complaint alleged violation of Section 8(a)(1) and (5). Hearing in Elmira, June 27-28, 2001. Adm. Law Judge Paul Buxbaum issued his decision Oct. 4, 2001.