NLRB Decisions - 2002 July-December

U.S. Postal Service (16-CA-21217, et al.; 339 NLRB No. 53) Amarillo, TX June 30, 2003. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to timely provide Letter Carriers Branch 1037 with requested information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. In the absence of exceptions, the Board adopted the judge's findings that the Respondent violated Section 8(a)(5) and (1) by failing to deal with designated Union Representative James Lantham and failing to bargain over overtime by failing to follow through with its equitable overtime grievance settlement with the Union. [HTML] [PDF]

The Board denied the General Counsel's motion to strike the Respondent's cross-exceptions. It modified the judge's recommended Order, among others, to reflect its agreement with the General Counsel that backpay due employees as a result of the Respondent's illegal failure to bargain should be calculated according to the standard in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than computed on a quarterly basis according to the standard in F.W. Woolworth Co., 90 NLRB 289 (1950), as recommended by the judge.

(Chairman Battista and Members Walsh and Acosta participated.)

Charges filed by Letter Carriers Branch 1037; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Amarillo on May 15, 2002. Adm. Law Judge Lawrence W. Cullen issued his decision July 25, 2002.

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Guess?, Inc. (21-CA-33132; 339 NLRB No. 61) Los Angeles, CA June 30, 2003. Members Liebman and Walsh, with Chairman Battista dissenting, reversed the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by asking employee Maria Perez, during a deposition in a workers' compensation case, for the names of other employees who attended union meetings. [HTML] [PDF]

Perez filed a workers' compensation claim against the Respondent relating to injuries to her hand and shoulder. Dennis Hershewe, Respondent's insurance counsel, contended that he questioned Perez about her activities at the union hall in order to discover whether she sustained the injuries while performing union activities and whether she engaged in any physical activities that were inconsistent with her alleged injuries. He asserted that he needed the names of other employees in attendance at the union hall to identify potential witnesses.

The majority held that the proper analysis has three parts: 1) the questioning must be relevant; 2) if the questioning is relevant, it must not have an illegal objective; and 3) if the questioning is relevant and does not have an illegal objective, the employer's interest in obtaining the information must outweigh the employees' confidentiality interests under Section 7. The judge considered the first two questions only, which he answered in the Respondent's favor.

The majority found it unnecessary to address the questions, saying: "Assuming arguendo that the questioning was relevant and lacked an illegal objective, we find that the questioning violates Section 8(a)(1) because, under the third part of the analysis, the employees' confidentiality interests under Section 7 outweigh the Respondent's need for this information." In this regard, the majority found that the relevance was only marginal and the questioning was so broad in scope that the employees' Section 7 rights outweigh the Respondent's discovery rights under California State law and thus discovery is preempted by the Act.

Chairman Battista agreed with the judge that the Respondent's questioning was relevant to its defense in the workers' compensation case, it did not have an illegal objective under the Act, and the Respondent's need for the information outweighed the employee's confidentiality interest. He noted that the California statute "does not distinguish between degrees of relevance. To the contrary, California's discovery rules are to be applied liberally in favor of discovery. What matters is whether the inquiry is 'reasonably calculated to lead to discovery of admissible evidence.' As shown, the information sought clearly meets this standard."

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by UNITE; complaint alleged violation of Section 8(a)(1). Parties filed a Motion to Submit Case on Stipulation and Stipulation of Facts with the judge on May 10, 2000. Adm. Law Judge Michael A. Marcionese issued his decision July 6, 2000.

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Diamond Detective Agency (9-CA-38569; 339 NLRB No. 62) Jeffersonville, IN June 30, 2003. Reversing the administrative law judge, the Board dismissed the complaint allegation that the Respondent violated Section 8(a)(3) of the Act by refusing to hire Eddie Dunn, the president of the local union, who had been unlawfully discharged by the Respondent's predecessor. In defense, the Respondent submitted that it did not hire Dunn because he was not on the predecessor's payroll at the time the Respondent assumed operations and because Dunn applied for a position for which it had no opening. The Board agreed with the Respondent that the judge erred in rejecting its defense. Even assuming that the General Counsel established that Dunn's status as union president was a motivating factor in the Respondent's decision not to hire him, the Board found that the Respondent showed that it would not have hired Dunn even in the absence of his union status. [HTML] [PDF]

The Board affirmed the judge's rulings, findings, and conclusions concerning the Respondent's refusal to bargain with the Union in violation of Section 8(a) (5).

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by the International Guards Union of America; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Louisville, KY on Dec. 11, 2001. Adm. Law Judge Martin J. Linsky issued his decision March 5, 2002.

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Morgan Services, Inc. (13-RD-2390; 339 NLRB No. 66) Chicago, IL June 30, 2003. Members Liebman and Acosta held in abeyance a decision on the Union's objections to a decertification election, pending an arbitrator's decision on whether the Employer violated the parties' collective-bargaining agreement by restricting the Union's access to its facility, and the General Counsel's decision on the deferred unfair labor practice charge in Case 13-CA-39599, alleging that the restrictions violated Section 8(a)(5). Chairman Battista dissented. [HTML] [PDF]

The hearing officer recommended overruling the Union's objections and certifying the results of the Union's (UNITE Local 969) 33 to 29 loss. The Union claimed that the hearing officer erred in failing to consider whether, as alleged in Case 13-CA-39599, the Employer unlawfully altered past practice concerning implementation of a contractual provision that granted Union access to the Employer's facility to police the collective-bargaining agreement. The Union claimed that the unlawful change and its resulting denial of access throughout the critical period, created an impression in the minds of employees that selection of the Union as bargaining representative was meaningless. The parties stipulated at the hearing that an arbitrator had taken testimony on the alleged breach of contract and was then considering the grievance. The Regional Director deferred the charge in Case 13-CA-39599 alleging that the change violated Section 8(a)(5) pending its arbitration.

The majority held that "[c]onsidering the arbitrator's decision along with the Union's election objections may avoid inconsistent outcomes and would respect the parties' decision to resolve disputes through the arbitration machinery." It ordered that the Union and the Employer file a report as to (1) the current status of the arbitration and (2) the Union's deferred unfair labor practice charge. If the arbitrator has not yet issued a decision, the Union and the Employer shall file such status reports with the Board every 90 days until the arbitrator does so. When the arbitrator issues a decision, the parties shall forward to the Board a copy of that decision and a copy of any action the General Counsel has taken on the Union's deferred unfair labor practice charge. If the arbitrator fails to issue a decision after a reasonable period, the parties may apply to the Board for further review of this proceeding.

Chairman Battista would not hold the Union's objections in abeyance. He said that even if the arbitrator were to hold that the restrictions were in breach of contract, and even if that holding supported a finding of an 8(a)(5) unilateral change violation, it would not result in the setting aside of the election since the change in access occurred before the critical period and simply continued into the critical period. "Under settled law, that conduct within the critical period is not subject to attack," the Chairman held.

(Chairman Battista and Members Liebman and Acosta participated.)

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Jon Bohnenkemper, d/b/a South State Builders and its alter ego/successor South State Builders, Inc. (25-CA-27989-1; 339 NLRB No. 67) Jasper, IN June 30, 2003. The Board adopted, in the absence of exceptions, the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off Vernon Stonestreet and Jeffrey Bullington on October 9, 2001, and that the Respondent violated Section 8(a)(1) by making remarks that interfered with, restrained, and coerced Stonestreet and Bullington in the exercise of their rights guaranteed in Section 7 of the Act. [HTML] [PDF]

The General Counsel excepted to: the judge's failure to list each of the 8(a) (1) violations in the Conclusions of Law, and to include a remedy for the violations in the Order and notice; and the judge's failure to order the Respondent to post the notice in addition to mailing it to the employees. The Respondent did not oppose these exceptions. The Board modified the Conclusions of Law, Order, and notice to correct the omissions.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Jasper, Aug. 12-13, 2002. Adm. Law Judge Arthur J. Amchan issued his decision Oct. 2, 2002.

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Mid-South Drywall Co. (26-CA-19287, et al., 26-RC-8099; 339 NLRB No. 70) Little Rock, AR June 30, 2003. Members Liebman and Walsh agreed with the administrative law judge that the interrogation of employees Tony Draper and Clifford Loy by Owner Charles Butler, and leadman Steve Campbell's statement to employees Draper and Loy, during a lunchtime conversation, violated Section 8(a) (1) of the Act and constituted objectionable conduct that interfered with the election held in Case 26-RC-8099. Campbell, while expressing his opposition to the Union, told the employees that if it were his business, he would close it. The majority agreed with the judge that Campbell is an agent of the Respondent and that his statement is coercive. It set aside the election held on August 19, 1999 (Carpenters Arkansas Regional Council lost 16-9) and directed a new election. [HTML] [PDF]

Chairman Battista, dissenting, would not find Campbell's statement was unlawful or objectionable. He assumed that Campbell was an agent for the purposes of communicating management directives to employees, but he disagreed with the majority's conclusion that employees would reasonably consider his comments here to reflect the views of management. He found instead that Campbell's statement reflected his own opinion and not that of management. Although the Chairman agreed with his colleagues that Butler's questioning of Draper and Loy violated Section 8(a)(1), he found that Butler's interrogation would not, by itself, warrant setting aside the election.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Carpenters Arkansas Regional Council; complaint alleged violation of Section 8(a)(1). Hearing at Little Rock on Dec. 13, 1999. Adm. Law Judge Keltner W. Locke issued his decision Feb. 2, 2000.

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Pep Boys--Manny, Moe and Jack (10-RC-15342; 339 NLRB No. 58) Chattanooga, TN June 30, 2003. The Board reversed the hearing officer's recommendation to sustain the challenge to the ballot of Aaron Dishman and directed that the Regional Director open and count his ballot and issue a revised tally of ballots and the appropriate certification. The tally of ballots showed 5 for and 4 against the Petitioner (Machinists International), with 1 challenged ballot. [HTML] [PDF]

The hearing officer characterized Dishman's bargaining unit work during the eligibility period as "orientation and preliminaries" in preparation for the installer job which began the following week and determined he was ineligible to vote. Citing Dyncorp/Dynair Services, 320 NLRB 120 (1995), the Board held that in order to be eligible to vote an individual must be "employed and working" in the bargaining unit on the established eligibility date, unless absent for certain specified reasons. It determined that the credited evidence established that during the eligibility period Dishman performed actual unit work in his on- the-job training, finding that Dishman was not engaged in mere "orientation and preliminaries," but was "employed and working" in the unit during the eligibility period.

(Chairman Battista and Members Schaumber and Walsh participated.)

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Turner Construction Co. (19-CA-27478-1, -2; 339 NLRB No. 63) Seattle, WA June 30, 2003. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegation that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Nicholas Fabrizio and Robert Faria on March 14, 2001, for refusing to submit to a drug test. The issue is whether the Respondent violated the employees' statutory rights, including their alleged right to a union representative during an investigatory interview in which the Respondent allegedly demanded that they submit to drug testing. [HTML] [PDF]

Under the criteria and burden of proof set forth in Olin Corp., 268 NLRB 544 (1984), the Board agreed with the judge's conclusion that deferral to the arbitration award is warranted. The Board held that the General Counsel failed to show that the contract issue is not factually parallel to the unfair labor practice issue, or that the arbitration panel was not presented with the facts relevant to resolving the unfair labor practice issue. The contract issue was whether the Respondent's treatment of Fabrizio and Faria violated contractual provisions, including Appendix 6 (Substance Abuse Policy), relating to drug testing under certain circumstances. The Board decided that the issues can both be resolved by the same set of facts, i.e., the actions of the Respondent's supervisors, Fabrizio, and Faria on the morning of March 14, when the Respondent began investigating a report that the two employees had been smoking marijuana in a car near one of the Respondent's projects.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Nicholas Fabrizio and Robert Faria, Individuals; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Seattle, Dec. 20-21, 2001. Adm. Law Judge Thomas M. Patton issued his decision Sept. 13, 2002.

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Convergence Communications, Inc. (13-CA-40308-1, 40481-1; 339 NLRB No. 56) Cleveland, OH June 30, 2003. In the absence of exceptions to the administrative law judge's findings, the Board held that the Respondent violated Section 8(a) (5), (3), and (1) of the Act by failing to recognize and bargain in good faith with Electrical Workers IBEW Local 21 regarding a successor collective- bargaining agreement, failing to continue in effect all the terms of its then- existing collective-bargaining agreement with the Union, unilaterally changing unit employees' working conditions without first notifying the Union and affording it an opportunity to bargain about the changes, and constructively discharging employee Greg Miller because of his union activity and support. [HTML] [PDF]

In response to the General Counsel's exception to the judge's failure to provide the standard remedies for the violations he found, the Board modified the judge's recommended Order and notice accordingly.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Electrical Workers IBEW Local 21; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Chicago on Feb. 6, 2003. Adm. Law Judge Joseph Gontram issued his decision March 24, 2003.

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Landmark Installations, Inc. (12-CA-21376, 21441; 339 NLRB No. 59) Pompano Beach, FL June 30, 2003. The Board upheld the administrative law judge's findings, to which no exceptions were filed, that the Respondent violated Section 8(a)(1) of the Act by interrogating employees, informing them that it would be futile for them to select the Union as their collective- bargaining representative, and threatening employees with plant closure, layoffs, discharge, and unspecified reprisals if they selected the Union as their collective-bargaining representative or engaged in union activities; and Section 8(a)(3) and (1) by discharging employee Adolfo Gonzalez and laying off five employees and refusing to consider them for recall and/or to recall them. [HTML] [PDF]

The General Counsel, in its exceptions, argued that the judge inadvertently failed to direct the Respondent to mail the notice to employees to all of its employees and requested that the notices be mailed because the employees work at different construction jobsites outside the office and employees who were employed at the time of Respondent's unlawful conduct may not be currently employed. The Board modified the Order and directed the Respondent to mail a copy of the notice to all current and former employees employed by the Respondent at any time since March 2001.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Iron Workers Local 272; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, Oct. 9 and 11, 2001. Adm. Law Judge Lawrence W. Cullen issued his decision Jan. 22, 2002.

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Stevens Graphics, Inc. (10-CA-33719; 339 NLRB No. 64) Birmingham, AL June 30, 2003. Adopting the administrative law judge's recommendations, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by prohibiting Graphic Communications Local 121C from posting material on the union-designated bulletin board located in the Respondent's pressroom. [HTML] [PDF]

The Respondent contended that there is no statutory Section 7 right to post union-related notices on the bulletin board and that any such right must be negotiated by the parties or established by their past practice. The Respondent contended that when it established bulletin boards for the Union's and Company's use in 1988, it updated operating instructions relative to bulletin boards and retained the right to monitor postings in order to limit controversial material or material that degrades the Company.

The judge found that the Respondent lawfully restricted the Union's posting of documents that clearly are controversial and inflammatory and that the General Counsel failed to establish that there was a past practice of permitting the Union to post whatever it desires without the Respondent's scrutiny.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Graphic Communications Workers Local 121C; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Birmingham on Sept. 25, 2002. Adm. Law Judge Lawrence W. Cullen issued his decision Dec. 11, 2002.

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Brawley Beef, L.L.C. (21-CA-35031-1, -2; 339 NLRB No. 69) El Centro, CA June 30, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by discharging Martha Marquez and Lorena Rivas because they concertedly complained about the heaviness of the product they were required to lift. The Respondent asserted that it discharged the employees because they refused to do their assigned work. The Board affirmed the judge's related credibility findings in favor of Marquez and Rivas and found that the evidence established that the employees did not refuse to do work. [HTML] [PDF]

(Chairman Battista and Members Liebman and Acosta participated.)

Charges filed by Martha Marquez and Lorena Rivas, individuals; complaint alleged violation of Section 8(a)(1). Hearing at El Centro on Jan. 22, 2003. Adm. Law Judge James L. Rose issued his decision March 18, 2003.

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TMC Contractors, Inc. (13-CA-40398; 339 NLRB No. 60) Chicago, IL June 30, 2003. The Board found that the Respondent's January 6, 2003 fax, submitted in response to the Region's request to file an answer, constituted a sufficient answer to the complaint's 8(a)(3) allegation that the Respondent discharged Tim Timmons for his union activity. Because the Respondent has sufficiently answered the 8(a)(3) allegation, the Board denied the General Counsel's motion for summary judgment as to complaint paragraphs 6 and 8 and remanded this proceeding to the Regional Director to schedule a hearing limited to those allegations. [HTML] [PDF]

The complaint also alleges that the Respondent violated Section 8(a)(1) by interrogating employees about their protected activity and by threatening employees with loss of employment because they signed union cards. The Respondent's January 6 fax did not refer to either allegation and the Respondent did not submit any other document referring to them. Accordingly, the Board granted the motion for summary judgment as to complaint paragraphs 5 and 7 because these allegations have not been answered.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Cement Masons' Rock Asphalt and Composition Floor Finishers' Local 502; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment March 5, 2003.

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Electrical Workers IBEW Local 98 (4-CD-1071-1; 339 NLRB No. 68) Philadelphia, PA June 30, 2003. The Board affirmed the administrative law judge's findings, in the absence of exceptions, that the Respondent violated Section 8(b)(4)(ii) (D) of the Act by engaging in coercive conduct with an object of forcing General Dynamics Government Systems Corp. and/or Total Cabling Specialists, Inc. to reassign voice and data cable work to employees represented by the Respondent. The Board agreed that a broad cease-and-desist order against the Respondent is warranted based on its violations and conduct in the prior Section 10(k) cases relied on by the judge. It did not rely on the judge's discussion of the judge's decision in Electrical Workers Local 98 (MCF Services, Inc.), JD-52-00 (2000), which is pending before the Board. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Communications Workers Local 13000; complaint alleged violation of Section 8(b)(4)(i) and (ii)(D). Hearing at Philadelphia on Jan. 27, 2003. Adm. Law Judge Joel P. Biblowitz issued his decision March 6, 2003.

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Pacific Design Center (31-CA-25082; 339 NLRB No. 57) Los Angeles, CA June 30, 2003. The Board adopted the administrative law judge's recommendations and found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Lorenzo J. Sauno because of his activities for Service Employees Local 1877 and/or concerted protected activity and to discourage employees from engaging in such activities and by threatening Sauno with retaliation for engaging in union and/or other concerted protected activity. [HTML] [PDF]

Member Schaumber does not rely on certain reasons provided by the judge in support of her finding of pretext which are: 1) her finding of pretext because Sauno's termination was "unexpected and abrupt" and 2) the Respondent's failure to recall Sauno as evidence of pretext because there is no evidence that Respondent had a policy of recalling employees who are laid off.

As to the first reason, the judge observed that even though the remodeling of the building in which Sauno worked had been taking place for several months prior to his discharge, Respondent never informed employees that the construction could result in an employee cutback. Member Schaumber noted that while it is a "fair practice" to do so, the judge found the Respondent was under no obligation to notify employees of impending personnel actions and Respondent does not have a policy or follow a procedure regarding such employee notifications. Moreover, he found the judge's finding is not supported by the record. As to the second reason, Member Schaumber pointed out there is no evidence that Respondent had a policy of recalling employees who are laid off. He held that while the judge is correct that the Respondent hired other janitorial employees after Sauno's discharge, two of these three employees were hired at least 6 months following his termination, and the third employee was hired on an unspecified date.

Writing that they believe each of the reasons cited by the judge supported her finding of pretext, Members Liebman and Walsh would adopt the judge's finding even if they were to rely only on the reasons endorsed by Member Schaumber.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Lorenzo J. Sauno, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles on Nov. 13, 2001. Adm. Law Judge Lana H. Parke issued her decision Jan. 4, 2002.

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LBT, Inc. (17-CA-20235, 20300; 339 NLRB No. 72) Omaha, NE June 30, 2003. The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the Union with an unredacted list of the 1997 employee rankings used by the Respondent in selecting employees for layoff, and that the Respondent did not violate Section 8(a)(5) and (1) by failing to pay striking employees vacation/shutdown pay for the summer of 1999. The administrative law judge recommended dismissal of both allegations. [HTML] [PDF]

The Respondent and Union have been parties to a series of collective- bargaining agreements since February 1994. There was no agreement in effect from June 12 through August 8, 1999, and the unit employees were on strike. The parties entered into a new contract on August 9, 1999, ending the strike. During a bargaining session on July 13, 1999, the Respondent's employee relations manager informed the Union that, because of business lost during the strike, a layoff of unit employees might be imminent. The Union requested information regarding the Respondent's layoff selection criteria and their application. The Respondent provided documentation about its procedures, which were similar to those used in a 1997 layoff, including a redacted version of employee evaluations it had compiled and used in selecting employees for the 1997 layoff. The Union requested an unredacted copy, explaining it needed to (1) test check the validity of the 1999 evaluations; (2) formulate a layoff proposal for the new contract; and (3) determine the validity of the methodology of assigning points.

The Board found that the 1997 employee evaluations requested by the Union were presumptively relevant, even in 1999. It wrote: "Assuming in the alternative that the 1997 evaluations were no longer presumptively relevant in 1999 because of the passage of time or intervening changes in the employees' skills, we would conclude that the information's continuing relevance was demonstrated. Contrary to the judge, we find that the Union offered at least two reasons for requesting the information that established its relevance: to determine the

validity of the Company's methodology of assigning points, and to formulate a layoff proposal for the new contract." Member Acosta agreed that the General Counsel has demonstrated the relevance of the information that the Union sought and therefore he found it unnecessary to decide whether the 1997 evaluations were presumptively relevant when sought in 1999.

In the absence of exceptions, the Board adopted the judge's finding that vacation pay was not an established term or condition of employment, and his conclusion that the Respondent did not violate Section 8(a)(5) by failing to pay vacation pay to the strikers. Even if the Union or the General Counsel had properly excepted to the judge's dismissal of this allegation, the Board said it would affirm, on the merits, the judge's conclusion that the employees were not entitled to vacation pay. Member Liebman agreed that the issue has not been raised in exceptions. She found it unnecessary to decide on the merits whether vacation pay was an established term or condition of employment in 1999 or whether the Respondent's failure to pay vacation pay to the striking employees constituted a unilateral change in violation of Section 8(a)(5).

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Paper, Allied-Industrial, Chemical and Energy Workers Local 5-0699; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Omaha on Jan. 9, 2001. Adm. Law Judge George Carson II issued his decision Feb. 23, 2001.

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Gem Management Co. (7-CA-44509; 339 NLRB No. 71) Clare, MI June 30, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to apply the 2000 Architectural Contractors Trade Association (ACT) agreement since on about May 1, 2001, to its jobsites; and Section 8(a)(2) and (1) by paying fringe benefits to Bricklayers Local 9's benefit funds and soliciting Bricklayers Local 9 to sign up employees for work at the Extended Stay America Hotel jobsite, a location covered by the Plasterers Local 67's agreement. There were no exceptions to the judge's unfair labor practice findings and conclusions. [HTML] [PDF]

The General Counsel excepted to the judge's findings that the Respondent was not bound by the June 1999 and November 2000 amendments to, respectively, the 1997 and 2000 collective-bargaining agreements between ACT and Plasterers Local 67. The Board found it unnecessary to pass on whether the Respondent was bound by the June 1999 amendment to the ACT agreement because resolution of that question would not affect the remedy.

Chairman Battista and Member Schaumber agreed with the judge that the Respondent was not bound by the November 2000 amendment to the 2000 ACT agreement and found that the judge correctly interpreted the language in the Respondent's October 1999 "Agreement for Non-Association Members" (the "me-too" agreement) as not encompassing the November 2000 amendment. They noted by its letter agreement of October 1999, the Respondent became bound to the then-extant 1997-2000 contract and that a reading of the language is that it binds the 12

Respondent to changes to the 1997-2000 contract, and to the 2000 contract, but not to changes to the 2000 contract.

Contrary to Member Walsh, Chairman Battista and Member Schaumber found that the proper inquiry is whether the language of the me-too agreement clearly established that non-member signatories were bound to amendments to or modifications of succeeding ACT agreements and agreed with the judge that it did not. They do not agree with Member Walsh's views that the test if whether a "reasonable inference" can be drawn that the Respondent bound itself to modifications of later contracts or that the contractual language in the 2000 ACT agreement compels a different result.

Member Walsh, asserting that the Respondent was bound by the November 2000 amendment to the 2000 ACT agreement, held that the language in the October 1999 "me-too" agreement encompasses any future agreements negotiated by ACT and Plasterers Local 67 in the collective-bargaining context¾specifically here, the negotiated and agreed-upon November 2000 amendment to the 2000 ACT agreement. Member Walsh noted that the 2000 ACT agreement contains a provision, in Article VI, which expressly contemplates that such amendments could be negotiated by the parties: "This Agreement may only be modified, in writing, by the mutual consent of the parties.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Plasterers Local 67; complaint alleged violation of Section 8(a) (1), (2), and (5). Hearing at Detroit on June 5, 2002. Adm. Law Judge Eric M. Fine issued his decision Nov. 1, 2002.

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Aesthetic Designs, LLC (30-RC-6380; 339 NLRB No. 55) Slinger, WI June 27, 2003. The Board affirmed the hearing officer's findings that Bryant Lanting was an ineligible voter because he is a statutory supervisor and lacks a community of interest with other unit employees since he enjoys special working conditions and his interests are aligned with management. Member Schaumber agreed that Lanting is a statutory supervisor and did not pass on the hearing officer's other findings; Member Acosta did not pass on Lanting's alleged supervisory status. In the absence of exceptions, the Board adopted the hearing officer's recommendation sustaining the challenge to the ballot of Brandon Frakes. [HTML] [PDF]

The tally of ballots for the mail ballot election held on April 29, 2002 showed 5 for and 5 against the Petitioner, with 2 challenged ballots and 1 void ballot.

Members Liebman and Acosta, with Member Schaumber dissenting, agreed with the hearing officer that a "yes" vote cast on the sample ballot provided in the official election kit rather than on an official ballot, should be counted and included in the tally. Accordingly, they certified Plasterers Local 599 as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit. Relying on Daimler-Chrysler, 338 NLRB No. 148 (2003), where the Board outlined the principles guiding the Board's treatment of irregularly marked ballots, Members Liebman and Acosta held that the voter clearly evinced an intention to participate in the election by casting a vote and registering a preference and that the Board need not engage in any speculation regarding the voter's intent. They found no persuasive reason not to count the sample ballot.

In his dissenting opinion, Member Schaumber wrote that his colleagues' reliance on Daimler-Chrysler is misplaced because in Daimler-Chrysler the issue was whether the voter's intent expressed on an official ballot was clear or ambiguous. Citing numerous cases, Member Schaumber held that election rules require the voter to use the official ballot and that the sample ballot used in this case, while part of a larger Board form, was not an official ballot and should not be counted. He further found that the Board's longstanding policy, as set forth in its Casehandling Manual, does not regard the sample ballot from the notice of election as an acceptable substitute for the official ballot.

(Members Liebman, Schaumber, and Acosta participated.)

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Alle-Kiski Medical Center (6-CA-32356(1)(2); 339 NLRB No. 44) Natrona Heights, PA June 23, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing an overly broad no-solicitation/no-distribution rule, discriminatorily issuing written warnings to employees for violating the rule, confiscating union literature from employees, and monitoring, photographing, videotaping, and engaging in surveillance of employees engaged in union activity. There were no exceptions to the judge's findings on the merits. [HTML] [PDF]

Noting that the language in certain paragraphs of the judge's recommended Order were not part of the standard remedy for the violations found, the Board deleted paragraphs 1(e), 2(b), 2(d), and 2(e). See The Cooper Health System, 327 NLRB 1159, 1165 (1999) (confiscation of union literature); St. Joseph Hospital, 337 NLRB No. 12, slip op. at 2 (Dec. 20, 2001) (written warning). It revised the judge's recommended Order and notice to include the Board's standard language requiring the Respondent to rescind the unlawful written warning and modified the Order in accordance with the decision in Excel Container, 325 NLRB 17 (1997).

Relying on The Cooper Health System, the Board denied the General Counsel's request to include in the notice a paragraph stating that the Respondent will allow lawful solicitations and distribution on its property, finding that it is not a standard remedy for maintaining and enforcing an overly-broad no-solicitation/no-distribution rule.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Food & Commercial Workers Local 23; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Pittsburgh on March 13, 2002. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Sept. 24, 2002.

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Armored Transport, Inc. (31-CA-23889, et al.; 339 NLRB No. 50) Sacramento, Oakland, and Ventura, CA June 26, 2003. On a stipulated record, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by soliciting union decertification and interference with the Plant Guard Workers Local 100's established internal processes for ratification and execution of collective-bargaining agreements. [HTML] [PDF]

At issue is whether the Respondent, by letters to its unit employees, unlawfully dealt directly with its employees, solicited decertification, and interfered with internal union processes. On March 3, 1999, the Respondent sent to all its unit employees letters stating that the Respondent "is extremely frustrated over the circumstances that we have gone over 17 months now without a new signed collective bargaining agreement" and suggested five courses of action the employees could take. On April 27, May 10, and June 10, the Respondent distributed followup letters restating the five points and stressing that the Union still had not signed the contract despite the increased wages it provided.

The Respondent contended that it had presented an essentially identical proposal, "exclusive of compensation" to the Union three months prior to March 3; and had afforded the Union an opportunity to bargain about the substance of the agreement. The Respondent further stated that the letters are protected speech, contain no promise of benefit or threats of reprisal, and cannot be the basis for any finding that it unlawfully solicited union decertification or interfered with internal union processes.

The Board held that the Respondent, through its letters, sought to disparage the Union and to drive a wedge between the Union and the employees. Members Liebman and Walsh found that the Respondent sought to undermine the Union by urging that the employees insist that the Union sign the contract and that employees be permitted to vote on the matter, thereby interjecting itself into an internal union matter. Chairman Battista would not find a separate violation based on the alleged intrusion into the Union's internal affairs and believes that this conduct is adequately addressed by the other violations found and remedied. Phrased differently, he does not believe that, apart from those violations, an employer is forbidden from expressing an opinion about the internal affairs of a union.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Plant Guard Workers and its Amalgamated Local 100; 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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St. Mary Medical Center (31-CA-25739; 339 NLRB No. 51) Apple Valley, CA June 27, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by, among others, suspending and discharging Betty Melendez and Paul Rodriguez and giving written warnings to Carlos David. The Board reversed the judge's finding that the Respondent, through relief supervisor Flora Lee, attempted to engage in surveillance of employees' activity at a union meeting. Deeming that the conduct attributed to Lee was not unlawful, it found it unnecessary to pass on Lee's status as a supervisor. [HTML] [PDF]

In agreeing with his colleagues' affirmation of the judge's finding that by promulgating an overly-broad no-solicitation rule the Respondent violated Section 8(a)(1), Member Walsh noted that, in addition to the judge's reasoning about the written warning, Food Services Director Paces' oral admonition to David was overly broad because it was not even limited to any particular time, and instead on its face unlawfully prohibited solicitation at any time on the Respondent's grounds.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by CNA/USWA Health Care Workers Alliance; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Oct. 1-2, 2002. Adm. Law Judge James L. Rose issued his decision Jan. 21, 2003.

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USF Red Star, Inc. (5-CA-28985; 339 NLRB No. 54) Richmond, VA June 27, 2003. The Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(a)(1) of the Act when it told employees Daniel Turner and Bruce Richard to remove a Teamsters button that read Overnite Contract in '99 Shut Overnite Management Down or 100,000 Teamsters will; and when it issued a written warning to Turner for refusing to do so. [HTML] [PDF]

In a reversal of judge, the Board found that the Respondent also violated Section 8(a)(3), as alleged, by issuing the written warning to Turner for refusing to remove the Overnite button. The judge found that the Respondent disciplined Turner to prevent him from wearing the button at customer locations away from the Respondent's Richmond, VA, and that special circumstances justified an away-from-the terminal prohibition, but not an at-the-terminal ban. The Board held that the 8(a)(1) conduct was directed against the wearing of the Overnite button at the Richmond terminal and it agreed with the judge that there is no evidence of special circumstances justifying a ban on wearing union insignia at the terminal. Accordingly, without passing on whether special circumstances might have existed that justified a ban on wearing union insignia away from the terminal, it found that the Respondent violated Section 8(a)(1) and (3) as alleged.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Teamsters Local 592; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Richmond on Dec. 4, 2000. Adm. Law Judge Marion C. Ladwig issued his decision Aug. 1, 2001.

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Buckeye Electric Co. (9-CA-39021; 339 NLRB No. 42) Dayton, OH June 18, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by threatening employees with more onerous working conditions because of their support of the Union and Section 8(a)(3) and (1) by discriminatorily discharging Tim McCoy because of his support of and membership in the Electrical Workers IBEW Local 1105. [HTML] [PDF]

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Electrical Workers IBEW Local 1105; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Dayton on May 30, 2002. Adm. Law Judge Earl E. Shamwell Jr. issued his decision July 31, 2002.

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Chemical Workers Local 6-0682 (7-CB-13325; 339 NLRB No. 37) Kalamazoo, MI June 16, 2003. The Board agreed with the administrative law judge that the Respondent Union violated Section 8(b)(3) of the Act by failing and refusing to bargain in good faith with the Charging Party Employer. It found it unnecessary to pass on the judge's alternative holding that the Union worded its March 18, 2002 notice to amend the collective-bargaining agreement so broadly that it actually constituted a notice to terminate the contract. [HTML] [PDF]

The Union sought to have all complaint allegations resolved pursuant to the grievance-arbitration procedure of its collective-bargaining agreement with the Employer. The judge rejected the Union's contention that the Board's decision in Tri-Pak Machinery, Inc., 325 NLRB 671 (1998), compels a finding of deferral in this case. The Board noted that in Tri-Pak, unlike here, the charging party union had a right to invoke the parties' broad arbitration procedure, thereby ensuring that a mutually agreed-upon dispute resolution procedure existed to arbitrate the contract dispute. By contrast, as noted by the judge, deferral here was inappropriate because the Employer had no ability to invoke the grievance procedure to resolve the contract dispute.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Checker Motors Corp.; complaint alleged violation of Section 8(b)(3). Hearing at Kalamazoo on Oct. 3, 2002. Adm. Law Judge William N. Cates issued his decision Dec. 12, 2002.

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Townley Sweeping Service, Inc. (22-AO-00001; 339 NLRB No. 41) Elizabeth, NJ June 16, 2003. The Board denied Petitioners Abdul Saquar and Tony "Jamal" McRiney's petition for advisory opinion as to jurisdiction over the subject matter of a complaint filed with the Superior Court of New Jersey alleging wrongful termination and defamation by the Employer. In denying the petition for advisory opinion, the Board said: [HTML] [PDF]

Sections 102.98 and 102.99 of the Board's Rules and Regulations permit a state or territorial agency or court, but not parties to state proceedings, to file a petition for an advisory opinion with the Board on the limited question whether the Board would decline to assert jurisdiction based either on its commerce standards or because the employer is not within the jurisdiction of the Act. Those sections do not provide for advisory opinions on: one, whether particular conduct is protected or prohibited by the Act; or two, whether a State court lacks jurisdiction over a dispute under the principles of Garmon [San Diego Bldg. Trades Council v. Gamon, 359 U.S. 236 (1959)] preemption.

Under the aforementioned Rules, the individual petitioners cannot petition on their own behalf for an advisory opinion. To the extent the individual petitioners here are acting at the behest of the Superior Court of New Jersey, we need not reach the issue as to whether such a petition is cognizable under our Rules as the petition must be denied in any event. The jurisdictional commerce facts set forth in the petition raise an issue repeatedly addressed in numerous prior Board opinions and decisions, so no advisory opinion is necessary. To the extent the Superior Court, through the parties, seeks an opinion on whether their dispute is cognizable under the Act, and/or whether the court lacks jurisdiction over the dispute under the principles of Garmon preemption, we adhere to the position that such issues are not properly addressed by the Board in an advisory opinion.

The Employer filed an answer to the complaint and motion for summary judgment in the state court proceeding, contending, among others, that the Petitioners' State court action was preempted by the NLRA under the principles set forth in Garmon. On September 18, 2002, the court issued an order dismissing the complaint in its entirety without prejudice and provided that the Petitioners would have 45 days to file a request for advisory opinion with the Board.

The Petitioners contended that the wrongful discharge and common law defamation claims are not preempted by Federal labor law. In its response, the Employer requested that the Board issue an opinion that jurisdiction would lie with the NLRB based on the facts.

(Members Liebman, Schaumber, and Walsh participated.)

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Double D Construction Group, Inc. (12-CA-21951, 12-RC-8709; 339 NLRB No. 48) Miami, FL June 17, 2003. In the absence of exceptions, the Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Dean Martindill and Section 8(a)(1) by engaging in various threatening and coercive conduct and statements. It set aside the results of the second election in Case 12-RC-8709, severed the representation case from the unfair labor practice proceeding, and remanded Case 12-RC-8709 to the Regional Director for further appropriate action. [HTML] [PDF]

The General Counsel excepted to the judge's failure to find that the Respondent violated Section 8(a)(1) by virtue of a statement made to employee Tomas Sanchez (Respondent's thrice-repeated statement "Remember your bills delivered with finger-pointed emphasis) and the judge's dismissal of the 8(a)(3) allegation that the Respondent unlawfully discharged Sanchez.

Members Liebman and Acosta, with Member Acosta writing a separate concurring opinion, reversed the judge and held that the statement made to employee Tomas Sanchez violated Section 8(a)(1). With respect to Sanchez' discharge, they said the judge erred in discrediting Sanchez on the basis of his use of a false Social Security number alone and failed to take into account Sanchez' later acquisition of a valid number. The majority did not adopt the judge's finding that the Respondent lacked knowledge of Sanchez' participation in protected union activity and ordered that he reconsider his alternative basis for dismissing the 8(a)(3) allegation: his finding that Sanchez suffered no adverse employment action. They remanded to the judge the matters of credibility as they relate to the 8(a)(3) allegation involving Sanchez and directed that he issue a supplemental decision on the merits of that allegation. The majority ordered that the final disposition of all other issues be held in abeyance pending receipt of a supplemental decision from the judge.

In his concurring opinion, Member Acosta said he wrote separately to express his disagreement with the judge's reasoning to discredit Sanchez' testimony and to emphasize the consequences that could result were the judge's holding permitted to stand. Citing Sure-Tan, Inc v. NLRB, 467 U.S. 883, 892 (1984), he said undocumented workers are statutory employees entitled to the rights guaranteed by Section 7 of the Act. He found the judge's reasoning would deny undocumented workers their Section 8 protections and effectively discredit the testimony of any once-undocumented worker, who to obtain work provided a false Social Security number.

Dissenting in part, Member Schaumber disagreed with his colleagues that a judge errs if he discredits the testimony of an employee, "solely" because the employee provided fictitious numbers as a social security number to obtain a job. He said that a judge has the discretion pursuant to the Federal Rules of Evidence which govern our procedures and consistent with extant Board law, to disregard the testimony of witness for a prior act of falsification.

Member Schaumber believes the rule the majority adopted, while well intentioned, threatens to lower the bar on the degree of truth and honesty to be expected in Board proceedings. He deemed: (I) the majority's decision inconsistent with the longstanding principle of judicial restraint; (II) the remand order is unnecessary because the General Counsel failed to satisfy his burden of proof under Wright Line without regard to Sanchez' discredited testimony; (III) the judge did not rely solely on Sanchez' providing a false Social Security number to discredit his testimony as the majority claims; and (IV) the credibility determination the majority reverses constituted a proper exercise of judicial discretion by the judge. Accordingly, Member Schaumber dissented from the majority's decision reversing the judge's credibility determination and remanding the 8(a)(3) allegation involving Sanchez for him to consider.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Ironworkers Local 272; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami on July 29, 2002. Adm. Law Judge Keltner W. Locke issued his decision Sept. 10, 2002.

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Metaldyne Corp. (8-RC-16460; 339 NLRB No. 43) Twinsburg, OH June 20, 2003. The Board, agreeing with the hearing officer, set aside an election held on October 31, 2002 on the basis of the portion of Petitioner's Objection 11 alleging that, during the critical period, the Employer solicited grievances and promised to remedy them. Teamsters Local 507 lost the election by a 110-54 vote. [HTML] [PDF]

Objection 11 also alleged that the Employer engaged in objectionable conduct by promulgating and enforcing an overly broad solicitation/distribution rule. The hearing officer did not find the rule overly broad, but she found that the Employer engaged in objectionable conduct by discriminatorily enforcing an "otherwise lawful" solicitation/distribution rule. No exceptions were filed to the hearing officer's finding that the rule was "otherwise lawful." The Board agreed with the hearing officer that the discriminatory enforcement of the policy was objectionable. In rejecting the Employer's argument that its discriminatory enforcement of the solicitation/distribution rule was de minimis and did not warrant setting aside the election, the Board relied on the standard set forth in Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995), and found that the Employer's misconduct, taken as a whole, warranted a new election because it had "the tendency to interfere with the employees' freedom of choice" and "could well have affected the outcome of the election."

The Board found it unnecessary to pass on the hearing officer's findings and recommendations regarding that portion of Objection 1 relating to alleged promises of 401(k) benefit improvements. In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule the portion of Objection 1 relating to an alleged threat of plant closure.

(Chairman Battista and Members Schaumber and Walsh participated.)

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Guard Publishing Co. d/b/a The Register-Guard (36-CA-8919-1; 339 NLRB No. 47) Eugene, OR June 20, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing new sales commissions for employees selling two types of newspaper advertisements during negotiations for a new collective-bargaining agreement in the absence of overall impasse on the entire agreement. The Board held that the new commissions represented a change in employee wages, and therefore were a mandatory subject of bargaining and that the Respondent's unilateral change was unlawful because it was material, substantial, and significant. It wrote: [HTML] [PDF]

Where, as here, parties are engaged in negotiations for a collective-bargaining agreement, an employer's obligation to refrain from unilateral changes in terms and conditions of employment "extends beyond the mere duty to provide notice and an opportunity to bargain about a particular subject matter; rather it encompasses a duty to refrain from implementation at all, absent overall impasse in bargaining for the agreement as a whole." RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995), see also Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994).

The Board has recognized two limited exceptions to this rule: "when economic exigencies compel prompt action," and when a union, "in response to an employer's diligent and earnest efforts to engage in bargaining, insists on continually avoiding or delaying bargaining." Bottom Line, supra at 374 (quoting M&M Contractors, 262 NLRB 1472 (1982), review denied 707 F.2d 516 (9th Cir. 1983)); see also RBE supra at 81. The Respondent does not argue that economic exigencies required it to implement the new commissions, and the evidence does not show that the Union engaged in delay tactics.

The Board rejected the Respondent's defenses that the new commissions were a continuance of past practice and therefore did not change the status quo, that the dispute is solely a matter of contract interpretation, and that the allegations are time-barred by Section 10(b).

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Eugene Newspaper Guild, CWA Local 37194; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Eugene on April 30, 2002. Adm. Law Judge Jay R. Pollack issued his June 27, 2002.

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Teamsters Locals 391 and 71 (11-CB-3101, 3102; 339 NLRB No. 46) Concord, NC June 19, 2003. The Board adopted the administrative law judge's recommendation and dismissed the complaint allegations that the Respondents violated Section 8(b)(1)(A) and 8(b)(2) of the Act by refusing to refer three individuals to jobs pursuant to an exclusive hiring hall arrangement, operating its exclusive hiring hall in an arbitrary and discriminatory manner, and failing fairly to represent the individuals. [HTML] [PDF]

In exceptions, the General Counsel argued that the Respondent unlawfully refused to refer Jim Seitz, Raymond Andel, and Hazel Maddocks to work on the Employer's Concord, N.C. pipeline project and, alternatively, even if the Respondents operated a non-exclusive hiring hall on that project, the Respondents unlawfully refused to refer the alleged discriminatees because Seitz had engaged in protected activity. The Board found that the evidence failed to establish that the Respondents operated an exclusive hiring hall on the Employer's project or that the parties agreed that the Respondents would be the sole source of any specific percentage of referrals. It noted there was no exception filed to the judge's finding that there was no collective-bargaining agreement between the parties that provided for an exclusive hiring hall.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Jim Seitz, an Individual; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Hearing at Concord, Oct. 24 and 25, 2002. Adm. Law Judge Jane Vandeventer issued her decision Feb. 26, 2003.

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E. C. Waste, Inc. d/b/a Waste Management de Puerto Rico (24-CA-8786, 24-RC-8138; 339 NLRB No. 39) Caguas, PR June 13, 2003. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union activities, threatening them with various economic sanctions if they voted for the Union, soliciting employee complaints and grievances during a union organizing campaign, creating the impression that the employees' union activities were under surveillance, requesting an employee to spy on the activities of fellow workers; and violated Section 8(a)(3) and (1) by discharging Blanca Santana on October 26, 2000. The judge recommended, with Board approval, that the challenges to the ballots of Blanca Santana, Keila Ramos, and Marilyn Diaz be overruled, that the ballots be opened and counted, and that a revised tally of ballots and the appropriate certification be issued in Case 24-RC-8138. [HTML] [PDF]

The Respondent excepted only to the judge's findings that Santana was unlawfully discharged and that Diaz is not a confidential employee. In his concurring opinion, Member Acosta agreed with his colleagues that Santana's discharge violated the Act and that Diaz was not a confidential employee. He noted, in assessing Santana's discharge, the significant union animus displayed by the Respondent at the time contemporaneous with the discharge. Member Acosta agreed with the judge that Respondent's offered reason for terminating Santana, i.e., that she had "demonstrated a pattern of absenteeism" was a pretext for unlawful antiunion motivation.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Union de Tronquistas de Puerto Rico Teamsters Local 901; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Juan, June 11-12, 2001. Adm. Law Judge William N. Cates issued his decision Sept. 10, 2001.

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Jano Graphics, Inc. (31-CA-24241, et al.; 339 NLRB No. 38) Ventura, CA June 12, 2003. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union; conditioning bargaining upon a ratification vote; unilaterally implementing its final contract proposal on January 26, 2000; withdrawing recognition from the Union after February 2000; and failing to provide the Union with information concerning health insurance, job classifications, and wages. [HTML] [PDF]

While agreeing with the judge that the Respondent violated the Act by making unilateral changes in its employees' terms and conditions of employment, the Board said it need not decide whether there was in fact an impasse on July 29, 1999, when the Respondent presented its "Best and Final Offer" and requested that the Union submit the offer to the unit employees for a ratification vote. Even if there had been an impasse at that time, it noted there was no legally cognizable impasse on January 26, 2000, the date of the Respondent's unilateral implementation. The Board relied on two reasons for its opinion. First, any impasse on July 29 was broken on August 4, when the Union informed the Respondent that it had new proposals and was seeking further bargaining (Member Acosta found it unnecessary to pass on this basis), and second, the Respondent's continued insistence on a nonpermissive subject of bargaining¾the ratification vote by unit employees¾and its refusal to bargain on and after August 4, 1999 tainted any subsequent impasse.

(Chairman Battista and Members Liebman and Acosta participated.)

Charges filed by Communications Workers Local 14904; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, June 25-29, 2001. Adm. Law Judge Jay R. Pollack issued his decision Sept. 28, 2001.

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Bloomington-Normal Seating Co. (33-CA-13769; 339 NLRB No. 30) Normal, IL June 3, 2003. Affirming the administrative law judge's findings, as modified, the Board held that the Respondent, by threatening an employee with discharge because of his union activities and by telling employees to inform the Respondent if any employees were harassed about signing a union card, violated Section 8(a)(1) of the Act. [HTML] [PDF]

The Respondent excepted to the judge's "unsupported finding" that it violated Section 8(a)(1) "by requesting employees to report attempts by other employees to solicit union authorization cards on behalf of the Union." The Board agreed that the evidence showed only that the Respondent's production manager, in the course of an antiunion speech, asked the employees to "let [the Respondent] know about it" if they were "threatened or harassed about signing a union card." It also agreed with the judge however that the Respondent thereby invited employees to inform it of protected, although unwanted, authorization card solicitations by other employees. Because of the potential for chilling legitimate union activity, the Board found such conduct unlawful and modified the language of the Order and the notice to conform to the precise allegation of the complaint.

Member Schaumber would add that the request was unlawfully overbroad because it failed to distinguish between solicitation activity that is protected¾even though persistent and subjectively disliked by a targeted employee¾and solicitation activity that is unprotected because it interferes with work or contravenes a legitimate nondiscriminatory rule against workplace harassment.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Laborers Local 362; complaint alleged violation of Section 8(a)(1). Hearing at Peoria on June 11, 2002. Adm. Law Judge David L. Evans issued his decision Aug. 27, 2002.

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Denver Stage Employees IATSE Local 7 (27-CB-4028; 339 NLRB No. 33) Denver, CO June 6, 2003. The Board held, on the recommendation of the administrative law judge, that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by operating an exclusive hiring hall by making referrals without reference to objective criteria, and by failing and refusing to refer Carole Miron without reference to objective criteria. It agreed with the judge's conclusion that the Respondent's hiring hall rules are arbitrary and that Miron was unlawfully denied employment based on discredited reasons. [HTML] [PDF]

Members Schaumber and Walsh denied the General Counsel's request that Respondent be ordered to put newly promulgated, objective hiring hall criteria in writing. Instead, they allowed the Respondent an opportunity to establish referral criteria and standards that conform to the requirements of the Act, without, however, requiring that they also be in writing. See Stage Employees IATSE Local 646 (Parker Playhouse), 270 NLRB 1425 (1984).

Member Acosta disagreed only with his colleagues' decision not to grant the General Counsel's request that Respondent be ordered to promulgate and maintain written objective criteria for the operation of its exclusive hiring hall. He said:

Although the absence of written standards is a factor to be considered when determining whether a hiring hall is operated objectively, I note that the absence is not itself an unfair labor practice. Stage Employees IATSE Local 646 (Parker Playhouse), 270 NLRB 1425 (1984). Nevertheless, in the circumstances of this case, I agree with the General Counsel that requiring the Respondent, for a period of years, to establish and maintain written objective criteria for the operation of its hiring hall would be a reasonable exercise of the Board's remedial authority. See Federated Department Stores, 287 NLRB 951 (1987).

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Carole A. Miron, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Denver, Feb. 20-21, 2001. Adm. Law Judge Albert A. Metz issued his decision July 6, 2001.

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Felix Industries, Inc. (2-CA-29785; 339 NLRB No. 32) Lincolndale, NY June 3, 2003. Members Liebman and Walsh, pursuant to a remand from the U.S. Court of Appeals for the District of Columbia Circuit, found that employee Salvatore Yonta did not lose the protection of the Act by his profane outburst at Supervisor Felix Petrillo during their conversation about Yonta's alleged right to night differential pay under the collective-bargaining agreement, and that Yonta's discharge violated Section 8(a)(1) of the Act. Chairman Battista dissented. [HTML] [PDF]

The Board, in the original decision (331 NLRB 144 (2000)), applied the factors set forth in Atlantic Steel Co., 245 NLRB 814 (1979), for determining whether an employee who is otherwise engaged in protected activity loses the protection of the Act by opprobrious conduct. The four factors are: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employers unfair labor practice. The Board found that none of the factors weighed in favor of Yonta losing the protection of the Act. The court, however, reversed the Board's finding with respect to the third factor, finding that Yonta denounced his supervisor in "obscene, personally-denigrating, [and] insubordinate terms," and remanded the case to determine whether the nature of the outburst sufficiently outweighed the other factors so as to tip the balance in favor of Yonta losing the protection of the Act.

The majority found that Yonta was provoked by Petrillo's overt hostility, which included a threat of termination for engaging in protected activity, and held that substantial weight must be given to the circumstances that provoked Yonta's outburst. Prior to this outburst, there was no basis to find that Yonta engaged in any inappropriate conduct in discussing the merits of his wage claim. Accordingly, they found that Yonta did not lose the protection of the Act during his conversation with Petrillo, and reaffirmed the Board's original finding that his discharge violated Section 8(a)(1).

In his dissenting opinion, Chairman Battista stated that Yonta's outburst constitutes outrageous conduct, and outweighs the other factors. He said "an analysis of the Atlantic Steel factors shows that Yonta engaged in outrageous misconduct and that the nature of his outburst weighs heavily towards Yonta losing the protection of the Act. Although two Atlantic Steel factors--have subject matter of the discussion and the provocation by unfair labor practices--have been found to weigh in favor of the Act's protection, they are insufficient to overcome the substantial weight given to Yonta's outburst." Accordingly, he found that the Respondent's discharge of Yonta did not violate Section 8(a)(1).

(Chairman Battista and Members Liebman and Walsh participated.)

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Property Markets Group, Inc. (2-CA-34269; 339 NLRB No. 31) New York, NY June 6, 2003. In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) of the Act by threatening Nadya Gervitz with discharge because of her activities on behalf of SEIU Local 32B-32J; and Section 8(a)(3) and (1) by refusing to allow Gervitz to cover for absent employees, to the extent previously allowed, issuing Gervitz and Kazimierz Jagielo warning letters, compelling Jagielo to work a double shift, and refusing to grant Gervitz and Jagielo Christmas bonuses, all because of their union membership and activities in support of the Union. [HTML] [PDF]

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Kazimierz Jagielo, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, July 15-16, 2002. Adm. Law Judge Jesse Kleiman issued his decision Nov. 13, 2002.

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Terracon, Inc. (13-CA-39181, et al.; 339 NLRB No. 35) Naperville, IL June 6, 2003. The Board concluded that the Respondent did not voluntarily recognize Operating Engineers Local 150 as the bargaining representative of its employees and, therefore, reversed the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from the Union and unilaterally changing the work hours of the employees without bargaining with the Union. [HTML] [PDF]

The principal issue in this case is whether the Respondent, through the words and conduct of two alleged supervisors (office manager Maroun Mousallem and Illinois regional manager Keith Jefferis) voluntarily recognized the Union as the bargaining representative of its drillers and helpers.

Relying on Richmond Toyota, 287 NLRB 130 (1987), the judge found that Mousallem, in reviewing materials proffered by the Union and his remarks that Jefferis would meet with them, demonstrated a "commitment to bargain" with the Union. He found that Jefferis' subsequent discussions with the Union reaffirmed the Respondent's commitment to bargain and constituted actual bargaining with the Union. The Board disagreed, noting that it is undisputed that neither Mousallem nor Jefferis conceded the Union's majority status or made any express remarks connoting an intent to recognize the Union. It found that the Respondent's actions simply represented its efforts to educate itself about the Union's purported purpose and to assess whether or not it should grant recognition to the Union.

The judge dismissed, with Board approval, that portion of the complaint alleging that the Respondent violated Section 8(a)(1) by denying employee Eliezer Rodriquez' request for the presence of another employee, Hector Caballero, at an interview, that according to the General Counsel had the potential to result in discipline. The judge relied on the Respondent's witnesses' credited testimony that Rodriquez in fact had not requested the presence of Caballero at the interview. Finding no basis to reverse the judge, the Board affirmed his finding and dismissal of the 8(a)(1) allegation.

No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by interrogating employees about their membership in, or activities on behalf of the Union, warning employees that their union activities would be futile, and threatening them that the Respondent would close its Naperville, Illinois facility, because of their union activities.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, Jan. 28-Feb 1, 2002. Adm. Law Judge David L. Evans issued his decision on May 21, 2002.

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Wild Oats Markets, Inc. (34-CA-9243, 9278; 339 NLRB No. 15) Norwalk, CT May 29, 2003. The Board adopted the administrative law judge's recommendations and found that the Respondent violated Section 8(a)(1) of the Act by promising employees improved wages and benefits if they rejected union representation, harassing employees because of their support for the Union, interrogating employees regarding the union activities and sympathies of other employees, creating the impression among employees that their protected activities were under surveillance, and threatening employees with reduced hours or the sale and closure of the store. [HTML] [PDF]

The Board agreed with the judge's conclusion that the Respondent did not violate Section 8(a)(5) by failing to pay any profit-sharing bonuses after a majority of the employees had voted for the Union. Profit-sharing bonuses were paid when stores met specific numerical targets set out for each store in advance. The Board found that the record supported the Respondent's argument that it did not meet the nondiscriminatory criteria for payment of a profit-sharing bonus, and that the failure to pay the bonuses was consistent with its past practice and did not constitute an unlawful change in the terms and conditions of employment.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Food & Commercial Workers Local 371; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hartford, Feb. 14, 15, and 22, 2001. Adm. Law Judge Michael A. Marcionese issued his decision Nov. 20, 2001.

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BCI Coca-Cola Bottling Co. of Los Angeles d/b/a Yuma Coca-Cola Bottling Co. (28-RC-6066; 339 NLRB No. 14) Yuma, AZ May 23, 2003. Members Liebman and Walsh set aside the election held on May 15, 2002 and directed a second election. In so doing, they agreed with the hearing officer's recommendation to sustain the Petitioner's Objection 4, which alleged that the Employer threatened employees with the loss of 401(k) benefits if the Union won the election, but explained their rationale. Contrary to his colleagues, Chairman Battista found no merit in the Petitioner's Objection 4 and would overrule the objection and certify the results of the election. [HTML] [PDF]

The tally of ballots showed 10 for and 11 against the Petitioner (Industrial, Service, Transportation, Professional & Government Employees), with no challenged ballots. Before the petition was filed, Branch Manager Jon Pitts told employee Tom Cook that "with the Union, there is no 401(k)." During the organizing campaign the statement was widely disseminated among employees and triggered concerns which were voiced at management meetings.

Members Liebman and Walsh noted that "[o]nce the critical period began, the Employer made statements that employees reasonably could construe-in light of the original threat-as effectively reaffirming the original threat." They found that although in a letter to employees and at a mandatory meeting, the Employer stated its intent to bargain with the Union over the 401(k) benefits, these general statements about the bargaining process were insufficient to cure the earlier threat and reassure employees that selection of the Union would not result in the immediate loss of benefits.

Chairman Battista, dissenting, held that the Employer's conduct does not warrant setting aside the election. In his view, the Employer's prepetition statement ("with the Union, there is no 401(k)") could be construed as a threat to take away benefits immediately upon unionization, or as a prediction that the union would not be able to obtain a 401(k) bargaining plan. He found that the statement, being outside the critical period, cannot form the basis for objectionable conduct. See Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961).

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Tri-State Health Service, Inc. d/b/a Eden Gardens Nursing Home (15-CA-15903; 339 NLRB No. 12) Shreveport, LA May 27, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish Service Employees Local 100 with requested information and refusing to recognize and bargain with the Union; and that, for the reasons set forth in Caterair International, 322 NLRB 64 (1996), an affirmative bargaining order is warranted to remedy the Respondent's unlawful refusal to bargain with the Union. [HTML] [PDF]

Member Schaumber does not agree with the view expressed in Caterair International that an affirmative bargaining order is "the traditional, appropriate remedy for an 8(a)(5) violation." He believes the Board should revisit and reconsider its policy of imposing affirmative bargaining orders in all cases involving 8(a)(5) refusal-to-bargain violations. However, he agreed that a bargaining order is warranted on the facts of this case.

The Respondent admitted that it was a successor employer pursuant to Burns Security Services, 406 U.S. 272 (1972). The judge found that the Respondent withdrew recognition from the Union on February 29, 2000 and refused to recognize the Union beginning on about July 31, 2000. The Board found however that the Respondent refused to recognize and bargain with the Union as of August 2, 2000, the date the Union first delivered its bargaining demands to the Respondent, which were ignored. It pointed out that a successor employer's bargaining obligation attaches on the date it receives the bargaining demand and the evidence did not establish that the Union had previously demanded, or that the Respondent had previously granted, recognition to the Union as the bargaining representative.

The Board noted that while this case was pending, Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001) issued, overruling Celanese Corp., 95 NLRB 664 (1951), and its progeny insofar as they permitted an employer to withdraw recognition from an incumbent union on the basis of a good-faith reasonable uncertainty of the union's continued majority status. In Levitz, the Board held that "an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees." The Board also held that its analysis and conclusions would only be applied prospectively, and that all pending cases would be decided under existing law as explicated by the Supreme Court in Allentown Mack Sales and Service v. NLRB, 522 U.S. 359 (1998). In this matter, the Board said that the judge had correctly cited and applied the Allentown Mack standard. Member Schaumber did not participate in Levitz and expressed no view as to whether it was correctly decided.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Service Employees Local 100; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Shreveport on April 2, 2001. Adm. Law Judge Keltner W. Locke issued his decision May 4, 2001.

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Pratt Towers, Inc. (29-CA-23012, 23137; 339 NLRB No. 27) Brooklyn, NY May 30, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from Service Employees Local 32B-32J and violated Section 8(a)(1) by coercively interrogating temporary replacement employees about their desire for continued union representation. [HTML] [PDF]

The Respondent operates a cooperative apartment building in Brooklyn, NY. This case involves events occurring while the Respondent was operating the apartment building with five workers hired as temporary replacements for striking employees. The Respondent argued that a decertification petition signed by the replacement employees constituted actual evidence of the Union's loss of majority status and that the judge erred in finding that it was tainted. It is undisputed that the five replacement employees were temporary and not permanent replacements.

The Board found that at the time the Respondent withdrew recognition from the Union, the unit would have included six former strikers but for the Respondent's intervening unlawful refusal to hire them unless they abandoned their support for the Union. The Union retained its majority status because the six former strikers had reinstatement rights to the positions for which they applied, which were their former jobs, the Board explained. It wrote:

If the Respondent had fulfilled this legal obligation, the concededly temporary replacement employees would no longer have been employed. As a result, when the Respondent thereafter withdrew recognition from the Union, the unit would have consisted of only the six former employees, whose support for the Union was unquestionable. They had, after all, refused the Respondent's unlawful offer to hire them only if they abandoned the Union. Under these circumstances, the Union would have continued to enjoy the support of all the unit employees, and there would have been no basis whatsoever for withdrawing recognition from the Union.

The Board observed, however, that even if the Respondent would have retained the five replacement employees upon the reinstatement of the six former employees, the Respondent still would not have been legally entitled to withdraw recognition from the Union, noting that the unit would have consisted of eleven employees-the six reinstated employees and the five replacement employees. The Board assumed arguendo that the five replacement employees' antiunion sentiments were untainted by the Respondent's conduct. The Union would still have enjoyed the support of the six former employees, a majority of the bargaining unit. Chairman Battista agreed only with this latter rationale. He noted that although the Respondent was under an obligation to reinstate the six discriminatees, it was under no obligation to discharge the five working employees. The Chairman assumed arguendo that the five would have been retained. The Union would nonetheless have had a majority among the eleven employees, he reasoned. Member Walsh found it unnecessary to rely on this alternative rationale, which assumes that the Respondent would have retained the temporary replacements after reinstating the six former strikers.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn, April 10, 13, 14, 2000. Adm. Law Judge Jesse Kleiman issued his decision Jan. 25, 2001.

* * *

Catholic Heathcare West Southern California d/b/a Marian Medical Center (31-RC-8045; 339 NLRB No. 23) Santa Maria, CA May 30, 2003. The Board overruled Employer Objections 21 and 22, Intervenor (SEIU Local 399) Objections 1, 2, 3, 4, 5, and 6, and the challenges to six ballots; sustained the challenges to 18 ballots; and directed the Regional Director to open and count the six ballots to which the challenges were overruled and to issue a revised tally of ballots and the appropriate certification. [HTML] [PDF]

The tally of ballots for the election held November 13 and 14, 2001 showed 172 for Petitioner Caregivers and Healthcare Employees Union (CHEU), 10 for the Intervenor, 150 against the participating labor organizations, with 36 challenged ballots.

The Board did not adopt the hearing officer's recommended disposition of Ruby Sagisi's challenged ballot and a related election objection concerning Sagisi's failure to place her ballot in a challenge envelope before depositing it in the ballot box; and his finding that maintenance engineer Florencio Montoya was an eligible voter and that the challenge to his ballot be overruled.

The Board found that only 10 of the 36 challenged ballots are valid and that the valid ballots cannot affect the results of the election when added to the revised tally of ballots, regardless of Sagisi's vote. Accordingly, it did not further address the status of Sagisi's ballot or the Employer's objection to its having been commingled with the other ballots. Turning to Montoya, the Board held that his assignment to work at the Employer's main facility was at all times a temporary assignment, the duration and end of which was tied to specific conditions and events and, thus, was sufficiently ascertainable to render him ineligible to vote in the election.

In the absence of exceptions, the Board adopted pro forma the hearing officer's recommended disposition of certain challenges and objections. It affirmed these recommendations by the hearing officer, finding no merit in the exceptions: (1) The recommendation to overrule the challenge to Lafaive's ballot based on her employment location. Chairman Battista concurred in the result but he expressed concern as to whether the standard set forth in Davison-Paxon Co., 185 NLRB 21 (1970), should be applied to employees who are also employed by the same employer in nonbargaining unit positions or locations. (2) The recommendation to sustain challenges to the ballots of 11 transcriptionists, a classification not expressly addressed in the unit description, on the basis that the transcriptionists have a community of interest with the business office clerical employees, who are expressly excluded from the unit.

(Chairman Battista and Members Liebman and Acosta participated.)

* * *

Schrock Cabinet Co., a wholly owned subsidiary of Masterbrand Cabinets, Inc. (25-CA-27296-1, 27378-1; 339 NLRB No. 29) Richmond, IN May 30, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by Supervisor Gary Gifford's threats to employees on December 4, 8 or 13, and 22, 2000; violated Section 8(a)(3) and (1) by the disciplinary action taken by Gifford against employee Denise Stephenson on January 3, 2001; and violated Section 8(a)(5) by failing to provide Steelworkers Local 5163 with certain information it requested regarding outside contracts for saw work, cleaning of restrooms and breakrooms, and painting of restrooms. [HTML] [PDF]

Member Acosta found it unnecessary to pass on the December 4 incident involving Supervisor Gifford and Union Representative Bill Throop because the finding of an additional threat violation would be cumulative and would not affect the remedy.

(Members Schaumber, Walsh, and Acosta participated.)

Charges filed by Steelworkers Local 5163; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Indianapolis, June 4-5, 2001. Adm. Law Judge Benjamin Schlesinger issued his decision Aug. 14, 2001.

* * *

Electrical Workers IBEW Local 134 (Pepper Construction Co.) (13-CD-662-1, 663-1; 339 NLRB No. 22) Calumet City, IL May 30, 2003. The Board determined that the employees of Alarm Systems Network represented by Communications Workers District 4 instead of employees represented by Electrical Workers Local 134 are entitled to perform the installation of fire and burglar alarm systems at the jobsite located at 171 East West Road, Calumet City, Illinois. In making the award, the Board relied on the collective-bargaining agreements, employer preference, and economy and efficiency of operations. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Auto Workers Local 2333 (B.F. Goodrich Co.) (8-CB-9023; 339 NLRB No. 20) Cleveland, OH May 30, 2003. Affirming the administrative law judge, the Board dismissed the complaint, which alleged that the Respondent Union violated Section 8(b)(1)(A) of the Act by failing and refusing to accept and process a grievance of David Smith because he refrained from engaging in union activities. The judge found that the Union conditionally accepted and investigated Smith's grievance; and he credited denials by union agents Joe Cantale, Ed Gohr, and Gregory Tokar that they made derogatory statements about Smith that indicated that the Union would not investigate or process Smith's grievance. [HTML] [PDF]

The General Counsel excepted to the judge's statement that "credibility, in my view, was not of much moment in my assessment of the merits of each party's claim" and that "this case does not rest on credibility." The Board concluded that the judge made credibility findings necessary for the resolution of the legal issue of whether the Union violated Section 8(b)(1)(A) by refusing to process Smith's grievance. Chairman Battista noted his inability to say that one set of witnesses preponderates over the other. Thus, he found the General Counsel failed to establish, by a preponderance of the credible evidence, facts necessary to establish the violation. The Chairman did not reach the issue of whether a violation would have been shown if the General Counsel's witnesses had been believed and Respondent's witnesses disbelieved.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by David Smith, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Cleveland, Feb. 13-14, 2001. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Aug. 28, 2001.

* * *

Food & Commercial Workers Local 342-50 (Pathmark Stores) (29-CB-11732, 11732-2; 339 NLRB No. 26) Brooklyn, NY May 30, 2003. The Board affirmed the administrative law judge's finding that the Respondent Union violated Section 8(b)(1)(B) of the Act by declaring to the Employer on October 10 and 15, 2001, that the Union would not meet with the Employer's human resources director unless the meeting, including specifically "Step Two" grievance meetings, was tape-recorded. It reversed the judge's finding that the Union violated Section 8(b)(3) on November 5, 2001, by insisting on tape recording Employer-employee meetings held to explain a lawsuit the Employer had filed against the Union. [HTML] [PDF]

In reversing the judge, the Board concluded that the Union did not "refuse to bargain collectively" by insisting on tape-recording the meetings. It held that the November 5 meetings were held only to inform the employees of the Employer's lawsuit against the Union, not to bargain with the Union over the lawsuit.

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Pathmark Stores, complaint alleged violation of Section 8(b)(1)(B) and 8(b)(3). Hearing at Brooklyn on May 15, 2002. Adm. Law Judge Howard Edelman issued his decision Nov. 1, 2002.

* * *

Kamtech, Inc. (25-CA-25047-1, -2; 339 NLRB No. 18) Owensboro, KY May 30, 2003. The Board, in this supplemental decision, adopted the administrative law judge's recommended order and held that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire job applicants Mitch Dotson and Robert Young because of their union affiliation. The judge found that the Respondent, before becoming aware of Dotson's and Young's union membership, "had decided to hire them, provided that they passed the welding test." Based on specific credibility resolutions, he found that the Respondent pretextually applied the welding test to deny the applicants employment after learning about their union affiliation. He therefore reaffirmed his conclusions from the original decision that the Respondent violated Section 8(a)(3) by refusing to hire Dotson and Young. [HTML] [PDF]

In its initial decision reported at 333 NLRB 242 (2001), the Board remanded in part the findings of the judge that the Respondent unlawfully refused to hire Dotson and Young for further consideration in light of FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).

(Members Liebman, Schaumber, and Acosta participated.)

Adm. Law Judge Karl H. Buschmann issued his supplemental decision Oct. 23, 2001.

* * *

Mail Handlers Local 307 (7-CB-13106(P); 339 NLRB No. 17) Allen Park, MI May 30, 2003. The Board, in agreement with the administrative law judge, dismissed the complaint allegations that the Respondent Union violated Section 8(b)(1)(A) of the Act by refusing to provide employee James Yax copies of witness statements in his grievance file. [HTML] [PDF]

Yax filed a grievance after he and employee Craig Coffman were placed in off-duty status following an altercation. The Union took statements from employees regarding the altercation and, with Yax's consent, the Union and the Postal Service entered into a settlement allowing Yax to work without compensation for the time in off-duty status. When Yax learned that Coffman had been compensated for off-duty time, he told Union Representative John Barynas that he also wanted backpay and wanted to know what two specified witnesses had said in the statement that they had provided regarding the altercation. Barynas told Yax that the settlement of the grievance was final and explained that it was against union policy to release the statements.

The Board noted that when Yax requested the witness statements he indicated that he wanted backpay for the time he had been suspended. It found that Yax was seeking information only as to what the witnesses had said in their statements, as there had already been a final and binding settlement, with Yax's consent, and Yax could not receive backpay. The Board stated: "[A]lthough Yax had a legitimate general interest in obtaining the statements pertaining to a grievance he had filed, the particular interest, obtaining backpay, that Yax communicated to the Union was not legitimate. Further the Union had a countervailing confidentiality policy regarding witnesses' statements. In addition, the record indicates . . . that the Union had reason to believe that Yax could resort to physical confrontation if angry."

Member Liebman found no need to reach the question of whether the Union had a countervailing interest in refusing to provide Yax the statements because Yax failed to communicate a legitimate interest in the statements to the Union.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by James J. Yax, an Individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit on June 20, 2002. Adm. Law Judge Arthur J. Amchan issued his decision Aug. 28, 2002.

* * *

B&G Building Maintenance, Inc. (5-CA-29225; 339 NLRB No. 21) Silver Spring, MD May 30, 2003. The Board, in the absence of a timely response to an Order Transferring Proceeding to the Board and Notice to Show Cause, granted the General Counsel's motion to vacate decision (336 NLRB No. 17 (2001)) and motion for summary judgment. It found that the Respondent violated Section 8(a)(1) and (3) of the Act by discriminating in regard to the hire or tenure, or terms or conditions of employment of its employees, thereby discouraging membership in the Union, and by terminating and, prior to their return to work upon reinstatement, laying off nine employees. [HTML] [PDF]

In the prior decision, the Board granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(1) and (3) of the Act in various respects. In his instant motion filed on March 5, 2003, the General Counsel stated that the Respondent's agent was not served with a copy of the July 25, 2001 Order and Notice to Show Cause and in order to correct any prior problems with service, requested that the initial decision be vacated and a new decision issue. The certificate of service contained an incorrect address for the agent and as a result, the Order and Notice to be served on the Respondent was returned to the Board.

(Chairman Battista and Members Liebman and Walsh participated.)

General Counsel filed motion for summary judgment March 5, 2003.

* * *

Teamsters Locals 3, 28, 37 and 42 and including but not limited to its Affiliated Locals 81, 206, 670, 962, 690, 741, 222, 483, 533, 961, 631, 839, 986, and 983 (Lanier Brugh Corp.) (27-CB-4092; 339 NLRB No. 24) Portland, OR May 30, 2003. The Board adopted the administrative law judge's finding that all of the Respondents violated Section 8(b)(1)(A) of the Act by refusing to represent Employer's Pocatello, Idaho drivers because they were not dues-paying union members even though all of the drivers had been jointly represented in a systemwide unit by various local unions and Joint Councils of Teamsters (Joint Representative), and by inducing the Western Conference of Teamsters Pension Trust to refuse to accept contributions on the Pocatello drivers' behalf by informing it that they were not covered by the parties' collective-bargaining agreement. The Board also found that the Respondents, except Local 983, violated Section 8(b)(3) by wrongly taking the position that the Pocatello drivers were no longer bargaining unit employees, and failing and refusing to bargain with the Employer over the terms and conditions of employment of all of its unit employees. [HTML] [PDF]

Contrary to the judge, the Board held that because Local 983 timely withdrew from the Joint Representative with the consent of all parties, it had no statutory duty to bargain with the Employer during the relevant period of time and therefore, found no violation of Section 8(b)(3) with respect to it.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Lanier Brugh Corp.; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(3). Hearing at Salt Lake City, UT on Nov. 28, 2000. Adm. Law Judge Gerald A. Wacknov issued his decision April 10, 2001.

* * *

Precision Floors, Inc. and its alter egos Millennium Floors, Inc. (1-CA-40141; 339 NLRB No. 16) Winchester, MA May 30, 2003. The Board, finding that that all material factual allegations in the complaint are true, granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain collectively with Millennium Floorcraft and Floorcoverers Local 2168, a/w New England Regional Council of Carpenters, the limited exclusive representative. The Respondent, in its answer, admitted all of the factual allegations in the complaint and did not respond to the Board's notice to show cause why the General Counsel's motion should not be granted. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Millennium Floorcraft and Floorcoverers Local 2168, a/w New England Regional Council of Carpenters; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment March 25, 2003.

* * *

Solutia, Inc. (15-CA-16604; 339 NLRB No. 9) Cantonment, FL May 19, 2003. The Board, in agreeing with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by barring off-duty employees from distributing union literature in the employees' parking lot, rejected the Respondent's argument that its misconduct, which occurred on May 11, 2002, was de minimis because the effect of the violation was limited to that date. [HTML] [PDF]

The Board pointed out that the Respondent never effectively repudiated its misconduct and that it was reasonable to infer that the misconduct had a continuing chilling effect on employees' exercise of their Section 7 rights. It noted that the parking lot distributions were not attempted again until the following week when there was a single instance of distributions by unidentified individuals on May 19, 2002 and the Respondent and Union did not reach agreement on the conditions for further parking lot distributions until May 28, 2002.

The Board agreed that the Respondent failed to establish a business justification for prohibiting the handbilling and disavowed any suggestion that the business-justification defense under Tri-County Medical Center, 222 NLRB 1089 (1976), is unavailable if the employer lacks a specific no-solicitation rule. See Nashville Plastic Products, 313 NLRB 462 (1993) (rule nonexistent prior to handbilling). Chairman Battista and Member Acosta did not pass on the Respondent's argument that the Board should return to the standard in GTE Lenkurt, Inc., 204 NLRB 921 (1973), but they noted that even under that standard, the Respondent's conduct in permitting spouses and outside vendors access to the parking lot, while excluding the off-duty employees involved here violated Section 8(a)(1).

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Electrical Workers IBEW Local 676; complaint alleged violation of Section 8(a)(1). Hearing at Pensacola on Nov. 12, 2002. Adm. Law Judge George Carson II issued his decision Dec. 4, 2002.

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Jack in the Box Distribution Center Systems (19-CA-27597; 339 NLRB No. 5) Algona, WA May 19, 2003. Affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Scott Miller and Douglas Carnahan because they engaged in union or other protected concerted activity, and Section 8(a)(1) by maintaining a provision in its employee handbook that prohibits employees from providing information or giving testimony to governmental agencies without the Respondent's approval. [HTML] [PDF]

Having found merit in the General Counsel's cross-exceptions to the judge's failure to extend the remedy for the unlawful manual provision to the six additional distribution sites where the same provision was maintained, the Board required that the rescission of the provision and the posting of the notice be coextensive with the Respondent's application of its handbook at all its distribution centers. Specifically, it ordered the Respondent to rescind the provision entitled "Inquiries by Government Representative" in its employee handbook that prohibits employees form providing information or testimony to governmental agencies without approval from the Respondent, to modify the handbook by deleting the unlawful provision, and to post an appropriate Board notice to employees at all its centers where the handbook has been or is in effect.

The Board found no merit to the General Counsel's exception to the judge's failure to find that the statement by Respondent's manager, Greg Martinez, that the Respondent would close the company and deliver out of California if there was a threat of union organizing, violated Section 8(a)(1). The Board noted that counsel for the General Counsel specifically stated at the hearing that this evidence was being offered as background evidence of animus. It added that the statement was neither alleged as a violation of Section 8(a)(1) in the complaint nor was there an amendment to the complaint at the hearing and, accordingly, the Respondent was not put on notice that the conduct was being attacked as unlawful.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Douglas Carnahan, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Seattle, Jan. 28-31, 2002. Adm. Law Judge Lana H. Parke issued her decision April 5, 2002.

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Wal-Mart Stores, Inc. (28-CA-16831, et al.; 339 NLRB No. 10) Las Vegas, NV May 19, 2003. The Board agreed with counsel for the General Counsel that the administrative law judge did not have the discretion to allow Respondent's counsel to retain pretrial statements taken from various Government witnesses, provided pursuant to Section 102.118(b) of the Board's Rules and Regulations or so-called Jencks statements, beyond the close of the hearing. Jencks Act, 18 U.S.C. 3500 (1957). See also Jencks v. U.S., 353 U.S. 657 (1957). The Board ordered the Respondent's counsel to return to counsel for the General Counsel all copies of the statements and attachments thereto within 14 days of service of its decision. Counsel must certify that all copies have been returned and must certify the names of those with whom he/she has shared the statements. [HTML] [PDF]

Subsection 102.118(b)(1) of the Board's Rules and Regulations states in relevant part:

. . . after a witness called by the General Counsel or by the charging party has testified in a hearing . . . the administrative law judge shall, upon motion of the respondent, order the production of any statement (as hereinafter defined) of such witness in the possession of the General Counsel which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the administrative law judge shall order it to be delivered directly to the respondent for his examination and use for the purpose of cross-examination.

At the conclusion of the hearing, counsel for the General Counsel requested the judge to order the Respondent's counsel to return all pretrial statements provided to him pursuant to Section 102.118(b). Respondent's counsel claimed it needed the statements for any appeals. The judge closed the hearing, suggested the parties resolve the issue among themselves, and indicated he would entertain a posthearing motion if there were no resolution. The parties did not reach agreement and counsel for the General Counsel filed a motion with the judge seeking the return of the statements.

In his decision, the judge noted that the purpose of producing statements is their use in cross-examination, but he said he did not read Section 102.118(b) "to limit respondent's use of statements to cross-examination." Concluding that he had discretion to allow retention, the judge found on balance that the Respondent's need for continued access to preserve and prosecute its case outweighed the General Counsel's concern for potential misuse if counsel retained the statements. Counsel for the General Counsel filed exceptions to the judge's decision on this issue and a separate motion requesting the immediate return of the statements. The Respondent filed an opposition.

The Board held in granting the General Counsel's motion:

Section 102.118 of the Board's Rules and Regulations is a prohibition on the release of Board and General Counsel files without permission. Subsection 102.118(b)(1) is a specific exception to that prohibition. It provides for the release of a witness statement, after that witness has testified, for use in cross-examination of that witness. The Rule, thus, embraces the Jencks requirement. After that limited purpose is served, the exception no longer applies and the prohibition of the Rule is restored.

In our view, the plain meaning of Section 102.118(b) . . . limits the purpose of disclosure to cross-examination. No other purpose is stated, nor is there any hint that disclosure may be for other uses. Had the Board intended for additional uses, it would have stated those uses in the Rule or provided for them through its decision. Further, allowing respondents to retain statements until the close of the hearing should not be construed to expand the stated purpose of disclosure. It merely facilitates the hearing in the event the affiant is recalled.

The Board declined to expand the stated purpose of disclosure provided in Section 102.118(b), finding the Respondent's reasons for retention of the statements were unpersuasive.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Southwest Regional Council of Carpenters (28-CD-257; 339 NLRB No. 8) Las Vegas, NV May 19, 2003. The Board decided that employees of Benly, Inc. represented by the Southwest Regional Council of Carpenters, and not Painters Local 159, are entitled to the work at the Mandalay Bay Convention Center, Las Vegas, NV, of the touch up and preparation of glass-reinforced gypsum (GRG) and wood product work. [HTML] [PDF]

The Board based its award on the factors of employer preference, employer past practice, area practice, and economy and efficiency of operation. Regarding the latter factor, the Employer's project manager testified that employees represented by the Carpenters can be cross-utilized to perform all the tasks which must be performed in installing the products. In contrast, the witness testified employees represented by the Painters have historically been used for only one task-faux finishing (or, if light touch up and preparation is included, at most two tasks). The Employer contended that, if the disputed work was assigned only to Painters-represented employees, not only would the painters frequently be idle, when not performing the faux finish work, but also the Employer would frequently need to hire additional employees represented by the Carpenters to perform various tasks that Painters-represented employees are unable or unauthorized to perform.

(Chairman Battista and Members Liebman and Acosta participated.)

* * *

Reliant Energy aka Etiwanda, LLC (31-CA-25155, 31-RC-8023; 339 NLRB No. 13) Etiwanda, CA May 22, 2003. The Board denied the Respondent's motion seeking to file a supplemental brief in a pending case, based on a recent decision by a United States court of appeals and clarified its current practice on this issue, explaining: [HTML] [PDF]

[W]e will permit parties in unfair labor practice cases and in representation cases to call to the Board's attention pertinent and significant authorities that come to a party's attention after the party's brief has been filed. A party may promptly advise the Executive Secretary by letter, with a copy to all other parties. The letter should set forth the case citations and state the reasons for them, and refer to the pages, paragraphs, and lines of the brief to which the citations apply. The body of the letter must not exceed 350 words. The other parties may file a similarly limited response. That response must be filed in unfair labor practice cases no later than 14 days, and in representation cases no later than 7 days, after service of the letter, and no extensions will be granted to file the response.

By adopting this procedure, we do not suggest that, in appropriate situations, the Board no longer will grant special leave for supplemental briefs. Nor does it in any way affect the Board's discretion to solicit the filing of supplemental briefs, sua sponte, for any reason it deems appropriate.

The Board modeled this procedure after Rule 28(j): Citation of Supplemental Authorities of the Federal Rules of Appellate Procedure, which states:

If pertinent and significant authorities come to a party's attention after the party's brief has been filed-or after oral argument but before decision-a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

The Board invited the Respondent to resubmit its citation of additional authority in conformity with its clarified procedure. In denying the Respondent's motion to file a supplemental brief, it saw no circumstances to warrant "special leave" to file such a brief. See Section 102.46 of the Board's Rules and Regulations.

(Chairman Battista and Members Liebman and Schaumber participated.)

* * *

Trade West Construction, Inc. (28-CA-17087; 339 NLRB No. 7) Mesquite, NV May 14, 2003. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(1) of the Act by: interrogating and threatening employees, creating the impression that their protected concerted activities were under surveillance, and discharging Daniel Santos and Louis Brito because of their protected concerted activities in discussing their pay with Juan Gonzalez, a representative of Charging Party Carpenters Contractors Cooperation Committee (Quad C). Quad C is an organization that is funded by construction contractors and monitors nonunion contractors to insure that they pay prevailing wages. [HTML] [PDF]

Chairman Battista did not pass on the judge's finding that Santos was engaged in "concerted" protected activity when he discussed wages one-on-one with Gonzalez (a nonemployee) on the jobsite on September 25, 2001. Even if the conversation between Gonzalez and Santos was not itself concerted, the Respondent believed that it was, the Chairman reasoned, noting that Respondent, through crew chief Linge, saw Gonzalez talking to other employees. Thus, the Respondent believed that the conversation between Gonzalez and Santos was part and parcel of conversations between Gonzalez and other employees' concerted activity and the Respondent's subsequent interrogation and threats to Santos were violations of Section 8(a)(1), Chairman Battista held.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Carpenters Contractors Cooperation Committee; complaint alleged violation of Section 8(a)(1). Hearing at Las Vegas, Oct. 4-5, 2001. Adm. Law Judge Albert A. Metz issued his decision Dec. 7, 2001.

* * *

Preferred Transportation, Inc., d/b/a Supershuttle of Orange County, Inc. (21-CA-33407; 339 NLRB No. 2) Anaheim, CA May 14, 2003. Members Liebman and Walsh affirmed the administrative law judge's findings-as to which there were no exceptions-that the Respondent did not violate the Act by giving driver John Petrichella a verbal warning in June 1999. They also affirmed the judge's finding that the Respondent unlawfully suspended Petrichella in July 1999 and found, contrary to the judge, that the Respondent unlawfully discharged Petrichella in August 1999 because of his protected union activities and/or because he filed charges with the Board and testified at a representation hearing. [HTML] [PDF]

Members Liebman and Walsh disagreed with the judge's finding that the Respondent rebutted the prima facie case by establishing that it would have discharged Petrichella even in the absence of his protected activities because he filed two incident reports containing false statements. They relied on the fact that Petrichella's false statements were elicited by the Respondent as a result of its antiunion animus toward him, saying that "animus led to the investigation and, in turn, to the incident reports. Petrichella's false statements in those reports constituted misconduct only in the context of Respondent's investigation. Such bad faith by an employer cannot create good cause for the discharge of an employee."

Chairman Battista, concurring in part and dissenting in part, would affirm the judge's finding that the Respondent lawfully discharged Petrichella. In this regard, he agreed that animus has been shown and that Petrichella's suspensions were unlawful, relying on the judge's finding of disparate treatment, rather than on the evidence cited in the first paragraph of the "Analysis" section of the judge's decision. He also relied on the unlawful suspension to establish animus. However, Chairman Battista said in concluding that the prima case as to the discharge was rebutted: "I assume arguendo that the investigation was discriminatorily motivated. However, that assumed fact does not give a license to an employee to lie to his employer. Nor does it mean that the lie is immune from discipline."

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 952; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Los Angeles, June 12-14, 2000. Adm. Law Judge Karl H. Buschmann issued his decision Feb. 20, 2001.

* * *

Verizon New York, Inc. (3-CA-22987, 23257; 339 NLRB No. 6) New York, NY May 16, 2003. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally rescinding its longstanding practice of allowing employees to participate in blood drives during paid worktime. The judge found, with Board approval, that the change involved a mandatory subject of bargaining and therefore that the Respondent unlawfully failed to bargain with Communications Workers Local 1103 regarding the change. The Board found it unnecessary to pass on the judge's finding that the Respondent presented the change to the Union as a fait accompli because it found that the Union made an appropriate bargaining request. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Communications Workers Local 1103; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albany, Jan. 16-17, 2002. Adm. Law Judge Joel P. Biblowitz issued his decision March 19, 2002.

* * *

American Medical Response (28-RC-6057; 339 NLRB No. 1) Las Vegas, NV May 16, 2003. The Board certified Service Employees Local 1107, winner of an election held on May 22, 2002 by a 77-52 vote, as the exclusive representative of all paramedics, EMT-I's and EMT's employed by the Employer at its Las Vegas, Nevada facility. [HTML] [PDF]

In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule Objection 1, alleging that the mailing of a postcard of support for the Union from the Las Vegas Police Protective Association to employees at their homes interfered with the election.

The Board agreed with the hearing officer that (1) the affixing of the prounion poster on election day to a tree on the Employer's property approximately 100 feet away from the polling area, not visible from the polling room, was not improper electioneering under Peerless Plywood Co., 107 NLRB 427 (1953); and (2) the election day distribution of prounion flyers to employees 50 to 80 feet from the polling area was not improper electioneering under Milchem, Inc., 170 NLRB 362 (1968). The Board pointed out that neither of the activities constituted improper electioneering under the test of Boston Insulated Wire & Cable Co., 259 NLRB 1118, 1119 (1982), enfd. 703 F.2d 876 (5th Cir. 1983) (to determine impermissible electioneering, Board considers: (1) whether the conduct occurred within or near the polling place; (2) the nature and extent of the alleged electioneering; (3) whether it is conducted by a party to the election or by employees; and (4) whether the electioneering is conducted within a designated "no electioneering" area or contrary to the instructions of the Board agent).

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Earthgrains Baking Companies, Inc., a wholly owned subsidiary of Sara Lee Baking Group, Inc., d/b/a Redding French Bakery (20-CA-30575; 339 NLRB No. 4) Redding, CA May 16, 2003. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by informing its employees that an anticipated wage increase had been delayed because of Charging Party Bakery Workers Local 85. No exceptions were filed to the judge's dismissal of the allegation that the Respondent violated the Act by promising to implement wage increases the next day if employees voted against the Union. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Bakery Workers Local 85; complaint alleged violation of Section 8(a)(1). Hearing at Redding, Aug. 13 and Oct. 2, 2002. Adm. Law Judge Burton Litvack issued his decision Feb. 24, 2003.

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J.K Pulley Co. (14-RC-12367; 338 NLRB No. 178) St. Louis, MO May 5, 2003. The Board concluded that Robert Soehngen was ineligible to vote in the election held on July 26, 2002 among the Employer's maintenance and production employees, sustained the challenge to Soehngen's ballot, and certified the Petitioner Machinists International as the exclusive collective-bargaining representative. The tally of ballots shows 14 for and 12 against, the Petitioner, with 2 challenged ballots. In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule the challenge to the ballot of Randy Sneed and that it is not necessary to count Sneed's ballot as it is not determinative. [HTML] [PDF]

The Board agreed with the hearing officer that Soehngen, a high school student who began working for the Employer 4 days before the petition was filed, was ineligible to vote because he was a temporary employee who was not included in the unit on the eligibility date. There was no evidence that, at the time he was hired, Soehngen's employment was to continue into the next school year, or even that this prospect was considered or discussed.

The hearing officer also recommended sustaining the challenge to Soehngen's ballot because his status as the nephew of J.K. Pulley President Brian Koch precluded him from sharing a community of interest with other employees. The Board found that this issue was not properly before the hearing officer and that he erred by considering Soehngen's eligibility on this basis.

(Members Liebman, Schaumber, and Acosta participated.)

* * *

Mail Handlers Local 30, a Div. of Laborers (7-CB-12192(P); 338 NLRB No. 179) Detroit, MI May 7, 2003. Members Walsh and Acosta affirmed the administrative law judge's finding that the Respondent violated Section 8(b)(1)(A) of the Act when it failed to inform Vicky Lynn Kaseta of the time of her grievance hearing, and reversed his finding that the Respondent also violated Section 8(b)(1)(A) by charging Kaseta for photocopies of her union files. They wrote: "Contrary to the judge, we find that the Union's action of charging Kaseta for what it believed were duplicative copies of her union files, and imposing the copying charge without first establishing a formal policy for imposing such charges did not breach its duty of fair representation." [HTML] [PDF]

Chairman Battista, concurring, agreed that the Respondent breached its duty of fair representation (DFR) by failing to notify Kaseta of the grievance hearing. The Union argued that, in Section 301 hybrid cases (alleging breach of DFR by union and breach of contract by employer), the plaintiff must show that the grievance outcome was affected by the breach of the DFR. The Chairman noted that Kaseta asked to be notified of the grievance meeting (which resulted in her discipline being upheld albeit reduced from 14 to 8 days) and that the Union failed to explain the lack of notification. After Kaseta complained about exclusion, another meeting was held that Kaseta attended, but the 8-day discipline was still imposed. Chairman Battista wrote in finding the violation:

I believe there is wisdom in harmonizing the law of DFR in Board cases with the law of DFR in hybrid Section 301 cases. However, even accepting that principle, I note that the Union, having breached its DFR in regard to the first meeting was the wrongdoer. It therefore had the duty to disentangle the consequences of its unlawful conduct. The Union has not shown that the result that was reached at the second meeting was not affected by the result reached at the first meeting.

(Chairman Battista and Members Walsh and Acosta participated.)

Charge filed by Vicky Lynn Kaseta; complaint alleged violation of Section 8(b)(1)(A). Hearing at Detroit, April 25-26, 2000. Adm. Law Judge C. Richard Miserendino issued his decision Dec. 26, 2000.

* * *

ATC/Vancom of California, L.P. (31-CA-24875, 25022, 31-RD-1434; 338 NLRB No. 180) Santa Clara, CA May 7, 2003. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act and interfered with the decertification election held in Case 31-RD-1434 by barring Teamsters Local 572 from posting notices on its bulletin board that was established for the Union's use by the parties' collective-bargaining agreement. The judge found that the Employer undermined the Union as the employee bargaining representative, repudiated a contractual clause designed to provide an information system from the Union to the employees, and unilaterally changed its employees' terms and conditions of employment. [HTML] [PDF]

The Board set aside the election held on January 3, 2001 that resulted in 76 votes for the Intervenor (United Transportation Union), and 10 for Local 572; and remanded Case 31-RD-1434 to the Regional Director to conduct a second election.

The Board agreed with the judge in finding no merit to the Respondent's argument that it was bound by California Government Code Sec. 16645 and thus was required to remove the Union's notices to maintain strict neutrality. It noted that the Respondent's unlawful conduct occurred before the statute went into effect and, in light of this finding, found it unnecessary to pass on the judge's others reasons to reject the Respondent's affirmative defense.

The Respondent would be required to restore the Union's access to the bulletin board in order to comply with the Board's standard cease-and-desist order and in connection with the second election. The Board explained that if, in the future, the Respondent is sued under the cited California statute, based on its actions in compliance with the Board's Order, it may seek reconsideration of the Order and, at that time, amicus briefs would be appropriate. Accordingly, the Board denied the Attorney General of California's motion for leave to file memorandum as amicus curiae, and the General Counsel's motion for leave to file a supplemental memorandum.

(Chairman Battista and Members Liebman and Acosta participated.)

Charges filed by Teamsters Local 572; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on Oct. 22, 2001. Adm. Law Judge James M. Kennedy issued his decision Dec. 14, 2001.

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Virginia Concrete Corp. (5-RD-1253; 338 NLRB No. 183) Springfield, VA May 9, 2003. Chairman Battista and Member Schaumber overruled Ellicott Machine Corp., 54 NLRB 732 (1944), and held that the withdrawal of an unfair labor practice charge does not operate as a waiver of a party's right to file objections based on the same conduct, stating: [HTML] [PDF]

[W]e find Ellicott is inconsistent with current Board law and practice. In Great Atlantic & Pacific Tea Co., 101 NLRB 1118, 1119-1120 (1952), the Board overruled an entire line of cases applying the type of waiver analysis used in Ellicott. Specifically, the Board stated that it had 'reconsidered the question whether and when a party should be permitted to object to an election on the basis of conduct of which it had knowledge before the election, if it neither filed charges nor otherwise protested such conduct to the Board until after the election was over.' The Board announced that it would no longer apply a 'rule of estoppel.' Instead, in determining whether to set aside the election, the Board would consider any substantial interference during the critical preelection period, whether or not unfair labor practice charges were filed. The Board plainly stated that the absence of unfair labor practice charges regarding preelection conduct would not operate as a waiver of a party's right to object to that conduct. Id. at 1120-1121. The Board explicitly overruled several cases that had found such a waiver, and stated that it was also overruling 'other cases to the same effect.' Id. at fn. 6. Although Ellicott was not one of the cases listed as being overruled, we consider it a case 'to the same effect.' We now explicitly overrule Ellicott . . . .

Turning to the facts of this case, Chairman Battista and Member Schaumber overruled the Union's objections and certified the results of a second decertification election held on August 15, 2001, which Teamsters Local 639 lost 97-81. Member Walsh, dissenting in part, joined his colleagues in overruling Ellicott, but he disagreed with their overruling of Objection 1, which alleges that the Employer interfered with the election by unilaterally granting a 50-cent wage increase. He would sustain this objection, order a third election, and find it unnecessary to pass on the Union's other objections.

The Union lost the first decertification election and filed objections. While the objections were pending, the Employer unilaterally announced and implemented a 50-cent wage increase. The Union filed and later withdrew an unfair labor practice charge, alleging that the wage increase violated Section 8(a)(1). The Employer sent a letter to employees notifying them of the Union's charge. The Board sustained two of the Union's objections to the first election and ordered a second election. 334 NLRB No. 105 (2001). The Employer distributed a memorandum notifying employees of the Board's decision and urging them to vote no in the second election. The Union filed an unfair labor practice charge alleging that the Employer violated Section 8(a)(1) by telling employees that the Union had filed charges to take away the pay increase, but it withdrew this charge shortly before the second election.

In his original report, the administrative law judge recommended sustaining four of the Union's objections to the second election, overruling two others, and ordering a third election. The Board remanded the case the judge to consider the Employer's posthearing brief, which was timely filed but never received by the judge. In a supplemental report, the judge affirmed his original findings, including that the Employer interfered with the election by bypassing the Union in granting the 50-cent wage increase, failing to recognize the Union as the exclusive bargaining representative (Objection 5), telling employees that the Union had filed charges to take away their wage increase (Objection 2), and sending an electronic "Vote No" message to employees' trucks within 24 hours before the election (Objection 4).

The Employer filed exceptions arguing, among others, that conduct, which is the subject of a withdrawn unfair labor practice charge, cannot be the basis for an objection, relying on Ellicott, in which the Board stated: "[W]here charges are withdrawn without prejudice to facilitate the determination of a representation proceeding, we shall treat the withdrawal of the charges without prejudice as an automatic waiver by the petitioning union of the right to use the subject matter of those charges as a basis for objections to the election." Id. at 735.

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Somerville Construction Co., a sole proprietorship, and its alter ego HI-TK, LLC, et al. (25-CA-25276; 338 NLRB No. 182) Indianapolis, IN May 9, 2003. The Board held that Respondent Somerville Construction Co., a sole proprietorship, and Respondent HI-TK, LLC, are alter egos and a single employer within the meaning of the Act and that they constitute a single integrated business enterprise that is jointly and severally liable to remedy the unfair labor practices that Respondent Somerville committed as found at 327 NLRB 514 (1999)). It ordered that Respondents Somerville and HI-TK, LLC pay to the individuals set forth in Appendix A of the administrative law judge's decision a total of $2,852,389 ($1,499,941 in backpay and $1,352,448 in fringe benefits). [HTML] [PDF]

The judge, in his supplemental decision, set forth findings of fact and a recommended Order based on the parties' joint stipulation resolving all issues in the compliance specification. The Board modified the judge's findings of fact and recommended Order to provide, in accordance with the parties' agreement (1) that Somerville and HI-TK are alter egos and a single employer within the meaning of the Act and that, as a single-integrated business enterprise, they are jointly and severally liable for Somerville's unfair labor practices; and (2) that, in the event any of the individual discriminatees cannot be located within 1 year from the date of the judge's decision, the money due such individuals, will be distributed to the other discriminatees named in Appendix A consistent with the Board's standard practice and procedure.

(Members Schaumber, Walsh, and Acosta participated.)

Hearing at Indianapolis on Nov. 12, 2002. Adm. Law Judge Robert A. Pulcini issued his supplemental decision Jan. 15, 2003.

* * *

Folsom Ready Mix, Inc. (32-CA-19801; 338 NLRB No. 181) Rancho Cordova, CA May 9, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by engaging in a number of coercive and threatening activities, including an attempt by vice president and operations manager Randy Barnes to hit two union organizers with his pick-up truck when they were leafleting on the sidewalk near the driveway entrance to the Respondent's plant. The Respondent also terminated truck driver Robert Lahn for union activities and engaged in unlawful surveillance of union activities. [HTML] [PDF]

(Chairman Battista and Members Walsh and Acosta participated.)

Charge filed by Teamsters Local 150; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Sacramento on Dec. 17, 2002. Adm. Law Judge John J. McCarrick issued his decision Feb. 10, 2003.

* * *

Teddi of California (21-CA-34494; 338 NLRB No. 157) Rancho Dominguez, CA April 28, 2003. The Board modified the administrative law judge's recommended order to include a finding that the Respondent violated Section 8(a)(1) of the Act by telling employees who were engaged in union activities to look for jobs elsewhere if they were dissatisfied with their current jobs. The judge explicitly found the violation in the body of his decision, but did not include the finding in his Conclusions of Law section. The General Counsel excepted to the judge's omission and the Respondent, in its answering brief, belatedly contested the substance of the finding. In the absence of a timely exception, the Board modified the judge's recommended Order to include the violation. [HTML] [PDF]

Chairman Battista, concurring in the result, would reach the merits, rather than decide the issue on procedural grounds. He found that the statement was made, and that it was unlawful.

The Board in January 1993 severed and remanded to the Regional Director an alleged violation of Section 8(a)(3) by the Respondent. The remaining issues are the Respondent's alleged violations of Section 8(a)(1). There were no exceptions to the judge's findings that the Respondent unlawfully interrogated employees concerning their own or others' union activities; impliedly promised employees unspecified benefits to discourage their support for the Union; created the impression among its employees that their union activities were under surveillance; threatened employees with discharge, deportation, or other adverse action to discourage them from supporting the Union; and, told employees that if they were dissatisfied with their jobs they should look for work elsewhere.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Industrial Workers Local 24; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Dec. 3-4, 2001. Adm. Law Judge Gregory Z. Meyerson issued his decision Feb. 8, 2002.

* * *

Cardinal Home Products, Inc. (6-CA-31665, et al., 6-RC-11868; 338 NLRB No. 154) Linesville, PA April 28, 2003. The Board affirmed in part and reversed in part the administrative law judge's unfair labor practice findings and held, contrary to the judge, that a Gissel bargaining order is not warranted and instead directed a second election. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Having found that a Gissel bargaining order is not necessary, the Board reversed the judge's finding that the Respondent violated Section 8(a)(5) by refusing to bargain with the Steelworkers. The Board wrote: [HTML] [PDF]

Although the Respondent's unfair labor practices in this case were serious, the record shows that they did not impact a significant portion of the bargaining unit, and thus, they are not likely to have so lasting an effect that traditional remedies would not be inadequate to ensure a fair rerun election. With the exception of the Respondent's maintenance of no-solicitation/no-distribution rules, none of the Respondent's unfair labor practices occurred on a unit-wide basis, nor in a setting where a significant portion of the employee complement was gathered. Rather, virtually all of the unfair labor practices committed by the Respondent occurred in one-on-one situations between an employee and supervisor. The record shows that the Respondent's unfair labor practices, other than the Respondent's unlawful rules, directly affected approximately nine employees out of a bargaining unit of approximately sixty eligible voters. This is not a case where the Respondent's serious unfair labor practices directly affected all or a significant portion of the bargaining unit.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), (4). and (5). Hearing at Meadville and Linesville, July 30-Aug. 1 and Aug. 21-23, 2001. Adm. Law Judge Benjamin Schlesinger issued his decision Feb. 5, 2002.

* * *

Dean & Deluca of New York, Inc. (2-RC-22427; 338 NLRB No. 159) New York, NY April 28, 2003. The Board overruled the challenges to the ballots of Michael Scibilia and Mustafizer Kahn and directed that the Regional Director open and count their ballots along with 17 other ballots and issue a revised tally. In the event the Intervenor received a majority of the valid ballots cast, the Regional Director shall certify the Intervenor as exclusive representative of the unit employees. If the Intervenor does not receive a majority of the valid votes, the Regional Director shall take further appropriate action. [HTML] [PDF]

The tally of ballots for the election held September 7, 2001 shows 1 for the Petitioner (IUISTHE District 6), 57 for the Intervenor (Food and Commercial Workers Locals 1500 & 342-50), 53 against the participating labor organizations, and 32 challenged ballots, a sufficient number to affect the results. The Region is holding the Intervenor's objections in abeyance pending resolution of the challenges at issue here.

The Board found merit in the Employer's exceptions to the administrative law judge's findings that Scibilia and Kahn are statutory supervisors and that the Intervenor's challenges to their ballots should be sustained. It found that the judge incorrectly applied a burden-shifting evidentiary standard, noting the burden of proving supervisory status rests on the party asserting that such status exists. Applying the correct evidentiary standard, the Board concluded that the Intervenor failed to establish that Scibilia and Kahn are statutory supervisors and overruled the challenges to their ballots.

The Board rejected the Employer's exceptions to the judge's recommendations to sustain the challenges to the ballots of the individuals who work in the sushi and flower departments located on the Employer's premises. The judge found, and the Board agreed, that the companies which operate the sushi and flower departments are solely the employers of the individuals who work in those departments.

(Members Schaumber, Walsh, and Acosta participated.)

* * *

U.S. Postal Service (28-CA-16082(P), 16325(P); 338 NLRB No. 160) Phoenix, AZ April 28, 2003. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(3) and (4) of the Act by placing Patricia Williamson on unpaid administrative leave and reassigning her work duties because of her union or other protected activity or because she filed charges with the Board. It also agreed that the Respondent lawfully suspended Williamson for 2 weeks in April 2000 for pushing another employee, given its policy of zero tolerance on workplace threats and violence. [HTML] [PDF]

No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(1) by threatening Wiliamson with unspecified reprisals if she refused to relinquish her position as shop steward.

(Chairman Battista and Members Walsh and Acosta participated.)

Charges filed by Patricia A. Williamson, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Phoenix on various dates between Oct. 10-18, 2000. Adm. Law Judge James L. Rose issued his decision Jan. 23, 2001.

* * *

JHP & Associates, LLC d/b/a Metta Electric (14-CA-25885; 338 NLRB No. 161) St. Charles, MO April 30, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by making unilateral changes in unit employees' terms and conditions of employment without prior notice to and affording Electrical Workers IBEW Local 1 an opportunity to bargain, failing to provide requested information to the Union, discharging employee Michael P. Thompson, and interrogating and threatening employees. [HTML] [PDF]

The General Counsel requested that the Board reject the Respondent's exceptions and brief because they do not comply with Section 102.46 of the Board's Rules and Regulations. The Respondent did not oppose the request.

Members Liebman and Acosta explained that they would be justified in rejecting the Respondent's documents for noncompliance, but "in the interest of judicial economy, to the extent that the brief has made discernible arguments that cite the record and the law, we have considered those arguments and find no merit in them." Chairman Battista would grant the General Counsel's request, noting that the Respondent did not oppose it. However, he does not disagree with his colleague's disposition of the merits, except that in agreeing that the Respondent violated Section 8(a)(1) by asking employees who supported the Union, "why don't you quit," he would not characterize the statement as a threat of discharge.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Electrical Workers IBEW Local 1; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at St. Louis on Nov. 27, 2001. Adm. Law Judge John T. Clark issued his decision July 10, 2002.

* * *

Boddy Construction Co. (7-CA-44065, 44215; 338 NLRB No. 165) Marysville, MI April 30, 2003. The Board, in agreeing with the administrative law judge that the General Counsel proved by the preponderance of the relevant evidence that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off Karl Ernest and discharging Gerald Bowie for their union support and activities, discussed three aspects of the judge's decision as it pertained to Bowie's discharge. [HTML] [PDF]

First, the Board noted that the judge found that the Respondent's president, Dave Boddy, referred to Bowie as an "instigator" during a discussion about the Respondent's attempt to pack the bargaining unit with truckdrivers who would vote against the Union in a decertification election. It wrote: "Given the context in which this characterization was made and other record evidence, including Bowie's role in the successful 1997 union election, we believe that the judge reasonably inferred that the Respondent considered Bowie to be a disruptive influence because of his union support and activities and that the term 'instigator' was a euphemism for Bowie's prounion sentiments." See James Julian Inc. of Delaware, 325 NLRB 1109 (1998). Member Acosta found it unnecessary to rely on the citation to James Julian.

Second, the Board did not rely on the judge's rationale in finding to be pretextual the Respondent's argument that it discharged Bowie because, immediately before the decertification election, he threatened employees Keith Glover and Samuel Wilcox with adverse financial consequences if they did not vote in favor of the Union. Although the judge speculated that Glover probably did not fear Bowie's threat to turn Glover in for collecting ill-gotten unemployment benefits, the Board did not find Glover's fear, or lack thereof, of Bowie was material.

Third, the Board concluded that the judge failed to properly address the seriousness of Bowie's threats to Glover and Wilcox. In so doing, the Board found merit in the Respondent's exception claiming that Bowie engaged in coercive, unprotected conduct, but it agreed with the judge that the Respondent failed to prove that it relied on this conduct in discharging Bowie. Member Walsh found it unnecessary to assess the character of Bowie's threats because he found, in agreement with his colleagues, that the Respondent did not discharge Bowie because of his threats.

(Members Schaumber, Walsh, and Acosta participated.)

Charges filed by Gerald R. Bowie and Karl W. Ernest, individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Port Huron on Nov. 8, 2001. Adm. Law Judge John T. Clark issued his decision March 6, 2002.

* * *

The Iowa Packing Co. (18-CA-16289-1; 338 NLRB No. 176) Des Moines, IA April 30, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule banning work stoppages protected by Section 7 of the Act, threatening employees with discharge by telling them that they would be considered as having voluntarily quit if they engaged in a work stoppage and that bad things will happen to them if they engaged in a protected concerted work stoppage, and discharging ten employees because they engaged in protected concerted activity. [HTML] [PDF]

Chairman Battista agreed with the judge's conclusion that the Respondent unlawfully threatened employees with discharge by telling them that they would be considered as having voluntarily quit if they engaged in a work stoppage. He found it unnecessary to pass on whether the Respondent additionally threatened employees with discharge by telling them that "it might be bad for them" if they engaged in a work stoppage because this additional finding is cumulative and does not affect the remedy.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Joseph L. Walsh, an attorney with Hedberg, Owens & Hedberg; complaint alleged violation of Section 8(a)(1). Hearing at Des Moines on Aug. 13, 2002. Adm. Law Judge William L. Schmidt issued his decision Dec. 19, 2002.

* * *

Chicago and Northeast Illinois District Council of Carpenters (13-CD-653; 338 NLRB No. 170) Bensenville, IL April 30, 2003. Relying on collective-bargaining agreements, Employer preference, current assignment, past practice, and economy and efficiency of operations, the Board decided that employees of Prime Scaffold, Inc., represented by Construction and General Laborers' District Council of Chicago, rather than those represented by Chicago and Northeast Illinois District Council of Carpenters, are entitled to erect and dismantle platforms and scaffolding at the SkyBridge located at 1 North Halsted, Chicago, Illinois. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Bricklayers Local 20 (Altounian Builders, Inc.) (13-CD-637-1; 338 NLRB No. 169) Lake Villa, IL April 30, 2003. Members Liebman and Walsh quashed the notice of hearing after finding that Bricklayers Local 20's actions do not establish reasonable cause to believe that Section 8(b)(4)(D) has been violated and, accordingly, the Board does not have authority to determine the merits of the 10(k) dispute. [HTML] [PDF]

Chairman Battista, dissenting, would not quash the notice of hearing and would reach the merits of the dispute. On the merits, he would award the work to employees represented by the Carpenters based on the factors of employer preference and assignment, employer past practice, and economy and efficiency of operations.

The disputed work involves the installation of precast, aerated autoclave concrete (PAAC) on the Employer's Allendale School project site in Lake Villa, Illinois.

Members Liebman and Walsh concluded that the Bricklayers' stated intentions to file a grievance over the disputed work under its collective-bargaining agreement with the Employer and its filing and pursuit of that grievance, are not unlawful coercion under Section 8(b)(4)(D). They also found insufficient to establish reasonable cause the only other record evidence cited by the Carpenters-the testimony of Employer vice president, Todd Altounian, that Bricklayers' Business Manager Gagliardo answered in the affirmative when Altounian asked if the Bricklayers intended that its grievance close down the Allendale School project.

Chairman Battista agreed with his colleagues that Section 8(b)(4)(D) does not proscribe the filing of a grievance, or the threat to do so. He wrote: "However, where, as here, success on the grievance will result in a shut down of the job, and the union confirms that this is so, there is at least an arguable basis for finding a Section 8(b)(4)(D) threat and at this juncture of the proceeding that is our only mandate. Finally, I am not basing my view on Altounian's subjective understanding of Gagliardo's affirmative response to Altounian's question. Rather, I am evaluating the reasonable understanding of the two conversations between the two men."

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Electrical Workers IBEW Local 98 (Lucent Technologies) (4-CD-1032; 338 NLRB No. 173) Philadelphia, PA April 30, 2003. The Board decided that employees of Lucent Technologies, Inc., represented by the Communications Workers of America, and not Electrical Workers IBEW Local 98, are entitled to install PCS CDMA minicell equipment and related wiring by Lucent, wherever the geographical jurisdiction of Local 98 and CWA coincide. [HTML] [PDF]

The Employer has a contract with Sprint Communications to install PCS CDMA minicell equipment for Sprint's customers. Sprint purchases the minicell equipment from the Employer. During the summer of 2000, the Employer was scheduled to install minicell equipment at a Sprint project at the First Union Center, a large convention hall in Philadelphia, Pennsylvania. The Employer assigned the minicell installation work to its communication equipment installers who are represented by CWA.

The Board found that there is reasonable cause to believe that Local 98 violated Section 8(b)(4)(D) of the Act, after concluding that CWA representative Davis' testimony provides reasonable cause to believe that Local 98 Business Agent Larry DelSpechio threatened that Local 98 would put up a picket line if its members were not given the minicell installation work. It also found reasonable cause to believe that First Union Center Building Manager Chu heard DelSpechio's threat.

In issuing an award broad enough to encompass the geographical area in which the Employer does business and in which the jurisdictions of the two unions coincide, the Board noted that there is a continuing controversy between CWA and Local 98 regarding the Employer's installation of various forms of telecommunications equipment and that Local 98 has demonstrated a proclivity to engage in unlawful conduct in order to obtain work in dispute performed by the Employer. See Electrical Workers Local 98 (Lucent Technologies), 324 NLRB 226 (1997), and Electrical Workers Local 98 (Lucent Technologies), 324 NLRB 230 (1997), where the Board found reasonable cause to believe that Local 98 violated Section 8(b)(4)(D) with regard to disputes between Local 98 and CWA concerning, respectively, the Employer's installation of telecommunications wiring and its installation of telephone switching systems. In both cases, Local 98 claimed the work in dispute and picketed to prevent the Employer's CWA-represented employees from performing that work.

(Members Schaumber, Walsh, and Acosta participated.)

* * *

Postal Workers Madison Area Local (U.S. Postal Service) (30-CB-4355(P); 338 NLRB No.164) Madison, WI April 30, 2003. Members Walsh and Acosta affirmed the administrative law judge's conclusion that the Respondent did not unlawfully select or encourage certain employees to file grievances to the exclusion of other employees who were similarly situated to the grievants, and dismissed complaint allegations that the Respondent violated Section 8(b)(1)(A) of the Act. They found that "the Respondent proffered a reasonable explanation for filing individual grievances rather than an all-inclusive blanket grievance-the reasonably anticipated persuasive impact that numerous individual grievances would have on management." [HTML] [PDF]

Chairman Battista, concurring in the result, believes the Respondent offered a reasonable explanation as to why it chose to have many individual grievances, rather than one blanket grievance. He said it was arguably unlawful for the Union to affirmatively ask members, rather than nonmembers, to file grievances, but he agreed that there is no violation. "There is no evidence that nonmembers were precluded from filing individual grievances, and no evidence that the Union would refuse to process any such grievances," the Chairman explained.

Members Walsh and Acosta disagreed with the Chairman's implication that the Respondent encouraged its members, but not nonmembers, to file individual grievances. They noted that while none of the approximately 76 employees who filed grievances were nonunion members, unit employees were overwhelmingly union members and only 5 percent were not, and that of the approximately 80 affected employees who did not file grievances, only a small portion were nonunion members. Members Walsh and Acosta wrote: "It is not reasonable to believe that the Respondent would somehow intentionally subvert or circumvent the opportunity of many of its members to file grievances just to make certain that a few nonmembers also did not get such an opportunity, particularly were, as here, there was at the time in question no certainty that any of the grievances would be resolved favorably to the grievants."

(Chairman Battista and Members Walsh and Acosta participated.)

Charge filed by Patrick T. Wall, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Madison, April 30 and May 1, 2001. Adm. Law Judge William N. Cates issued his decision May 25, 2001.

* * *

F.H.E. Services, Inc., a wholly owned subsidiary of KONE, Inc. (29-CA-23753; 338 NLRB No. 168) Brooklyn, NY April 30, 2003. The Board upheld the administrative law judge's dismissal of a complaint based on unfair labor practice charges filed by Electrical Workers IBEW Local 3 alleging that the Respondent's recognition of Elevator Constructors Local 1 as the exclusive bargaining representative violated Section 8(a)(2) and (3) of the Act. It found that the Respondent is primarily engaged in the building and construction industry within the meaning of Section 8(f), and therefore is entitled to recognize any labor organization, even absent a showing of majority status. [HTML] [PDF]

The charges were precipitated by Respondent KONE's plans to consolidate previously separate operations, creating a single KONE enterprise in New York. As stated by the Board:

We also find that, when Respondent KONE merged the previously separate bargaining units, the result was the formation of a new operation and the creation of a new bargaining unit. The old bargaining units no longer survived, nor did Local 3's role as bargaining representative of one of those units. Thus, notwithstanding that Local 3 was at one time the 9(a) representative of certain employees of F.H.E., because the September 1, 2000 merger created a new entity primarily engaged in the building and construction industry, the Respondent was entitled, pursuant to Section 8(f), to recognize any labor organization, even absent a showing of majority status. Central Illinois Construction, 335 NLRB No. 59 (2001).

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Electrical Workers IBEW Local 3; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at Brooklyn, April 24-25, 2001. Adm. Law Judge Howard Edelman issued his decision July 20, 2001.

* * *

SCA Tissue North America, LLC (28-CA-17548; 338 NLRB No. 175) Bellemont, AZ April 30, 2003. The Board upheld the administrative law judge's finding that the Respondent discharged employee Frederick Sanoval on September 24, 2001, because of his activities on behalf of the Union, PACE. The Respondent had contended that the employee was discharged for cause - leaving work early without permission on September 19-20, 2001. The Board relied on the following evidence of animus: [HTML] [PDF]

(1) Plant Manager Graverson's warning to all employees that they could not talk about the Union on the shop floor, when no such restriction existed for other topics; (2) Supervisor Stievo's order to Sandoval to remove his union button because it violated the Respondent's 'no jewelry' policy, which had never been enforced; (3) Stievo's direction to Sandoval to cover up his union t-shirt with his jacket while he was walking across the shop floor; and (4) Stievo's parting comment to Sandoval about his 'attitude.'

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by PACE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Flagstaff, April 4-5 and May 22-24, 2002. Adm. Law Judge Gregory Z. Meyerson issued his decision Aug. 22, 2002.

* * *

Comcast Cablevision-Taylor (7-CA-42054, 7-RC-21365; 338 NLRB No. 166) Taylor, MI April 30, 2003. In a supplemental decision, the Board ordered a second election in the underlying representation proceeding, Case 7-RC-21365, and vacated the decision and order in Case 7-CA-42054 (328 NLRB No. 160 (1999)). The instant case is in response to a decision by the U. S. Court of Appeals for the Sixth Circuit, Comcast Cablevision-Taylor v. NLRB, 232 F.3d 490 (6th Cir. 2000), which granted the Respondent's petition for review and denied enforcement of the Board's prior order. The court agreed with the Respondent's contention and found that the Union impermissibly interfered with the election by offering to employees, during the critical period, a free weekend trip to Chicago (which cost the Union approximately $50 for each of the employees who attended) on the weekend following the election. Accordingly, the court concluded that the Board erred in not setting aside the election held on August 27, 1998, which was won by the Union. The decision is by Members Liebman, Walsh, and Acosta. [HTML] [PDF]

In a concurring opinion, Member Acosta stated in part:

Our Supplemental Decision...is based on law of the case, and does not consider whether precedent inconsistent with Owens-Illinois remains good law, or, for that matter, whether Owens-Illinois remains good law. (Broward County Health Corp., 320 NLRB 212, 213 fn. 7 (1995) ("Chairman Gould would not rely [on Owens-Illinois] because he believes that the opinion in that case does not withstand scrutiny.")) This confusion may provide a basis for courts of appeals to deny enforcement in the future. The Board should address and reconcile case law on this issue.

(Members Liebman, Walsh, and Acosta participated.)

* * *

Jam Productions, Ltd. (13-RC-20697; 338 NLRB No. 172) Chicago, IL April 30, 2003. The Board agreed with the hearing officer's recommendation to overrule the Employer's challenges to the ballots of three determinative votes in a mail ballot election held between February 8-21, 2002. The panel rejected the Employer's contention that its loss of potential business following the December 14, 2001 representation hearing has resulted in the regular part-time unit employees becoming casual employees. In its previous denial of review of the Acting Regional Director's Decision and Direction of Election in this case (in which Member Schaumber noted he did not participate), the Board found that these employees were regular part-time unit employees. In the instant case, the Board directed the Regional Director to open and count all the ballots in this election, serve on the parties a tally of ballots, and issue the appropriate certification. [HTML] [PDF]

(Members Liebman, Schaumber, and Walsh participated.)

* * *

Pepsi Bottling Group, Inc. (1-CA-38036; 338 NLRB No. 174) Allston, MA and Cranston, RI April 30, 2003. The Board reversed the administrative law judge's unfair labor practice finding and dismissed the complaint. The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the terms and conditions of employment of unit employees working at the Respondent's Allston, MA and Cranston, RI facilities by implementing a new 401(k) matching contribution for the Respondent's unrepresented employees without giving the Union notice and opportunity to bargain for the benefit as to the unit employees. The Board found that the unilateral change violation found by the judge was not alleged in the complaint or litigated at the hearing and that the General Counsel failed to prove the violation alleged in the complaint and litigated by the parties-the repudiation of a contractual obligation to provide the 401(k) matching contribution to unit employees. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by New England Joint Board, R.W.D.S.U. Local 513; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on April 10, 2001. Adm. Law Judge Richard H. Beddow issued his decision June 15, 2001.

* * *

Lance Investigation Service (2-CA-33579; 338 NLRB No. 171) Bronx, NY April 30, 2003. Chairman Battista and Member Schaumber reversed the administrative law judge's finding that the Respondent discharged Robert Smith in violation of Section 8(a)(1) of the Act and dismissed the complaint, agreeing with the Respondent that Smith was not discharged, but rather abandoned his employment. Member Walsh dissented. [HTML] [PDF]

Smith made several inquiries about his vacation pay for the week of Dec. 17, 2000, including phone calls to the office of Keith Johnson, the Respondent's vice president of finance and operations in charge of payroll. On January 24, 2001, Smith left a message for Johnson with a secretary, asking, "What do I have to do to get my vacation pay, get a lawyer?" Johnson returned Smith's call and informed him that his vacation check was at the office and he could pick it up. Johnson also stated to Smith, "[Y]ou're that wise guy who threatened me with a lawyer," and "we'll see how long you're working for me at that site, wise guy." The next day, Smith's supervisor Headen told him to come to the office and when Smith got there, Headen told Smith to punch out and go home; he was "off the schedule."

The judge found that the Respondent's action in removing Smith from the schedule, in the context of the conversation Smith had with Johnson the previous day, would reasonably have led Smith to believe that he had been terminated. He found that any ambiguity in Smith's status should be resolved against the Respondent. Member Walsh agreed. Chairman Battista and Member Schaumber disagreed, saying, "the Respondent's conduct would not logically lead a reasonable person to conclude that he had been discharged." Even if there was an ambiguity as to whether Smith was discharged, Smith could have easily cleared the matter up, they held, noting that the Respondent twice invited Smith to meet with Johnson to clarify Smith's employment status, but Smith failed to do so. "The ambiguity in Smith's employment status existed because he failed to act on the Respondent's invitations," the majority held.

Member Walsh believes the majority applied the wrong burden of proof and, consequently, reached the wrong result when it stated "the Respondent twice offered Smith the opportunity to clarify his status, but he failed to do so." He said, "it was not Smith's burden, but the Respondent's burden, to clarify any ambiguity caused by its actions that would have reasonably caused Smith to believe that his employment status was questionable."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Robert Smith, an individual; complaint alleged violation of Section 8(a)(1). Hearing at New York on Nov. 15, 2001. Adm. Law Judge Michael A. Marcionese issued his decision Feb. 12, 2002.

* * *

Food and Commercial Workers Local 1996 (Visiting Nurse Health System, Inc.) (10-CC-1335; 338 NLRB No. 163) Atlanta, GA April 30, 2003. The Board denied, as untimely, the motion for reconsideration filed by the Charging Party VNHS, formerly known as Visiting Nurse Association of Metropolitan Atlanta, Inc., on January 23, 2003, more than 15 months after the Board's September 28, 2001 decision and order (336 NLRB No. 35). Section 102.48(d)(2) of the Board's Rules and Regulations requires the filing of motions for reconsideration within 28 days after service of the Board's decision and Section 102.48(d) provides that the Board, in its discretion, may extend the 28-day period. The Board wrote: [HTML] [PDF]

In the instant case, the Charging Party has failed to make a showing of excusable neglect and lack of prejudice to support of the filing of a motion for reconsideration beyond the 28-day period, much less a showing as to why that period should be extended 14 months beyond the 28 days. Accordingly, the Board will not accept the motion. In any case, the Charging Party has cited no 'extraordinary circumstances' within the meaning of Section 102.48(d)(2) that would support its motion, even if it has been timely made. Insofar as Charging Party cites changes in the composition of the Board since the issuance of the decision, it relied on an inappropriate ground for reconsideration. See Iron Workers Local 471 (Wagner Iron Works), 108 NLRB 1237, 1239 (1954).

Although Chairman Battista agreed with this disposition, he noted his "grave doubts" about the legal correctness of the Board's underlying decision and that he would reconsider it if an appropriate case is brought before the Board.

Members Schaumber and Acosta did not participate in the underlying case and expressed no view regarding the merits of the Board's decision.

In the underlying case, the Board addressed an issue of first impression: whether Section 8(b)(4)(B) of the Act prohibits a union from engaging in picketing of one employer in order to pressure another employer to recognize and bargain with the union as the certified representative of that employer's employees. Members Liebman and Walsh, with Chairman Hurtgen dissenting, concluded that Section 8(b)(4)(B) does not proscribe secondary activity by a union for the purpose of enforcing its certification by the Board as the exclusive collective-bargaining representative of the primary employer's employees. Accordingly, the majority found that the Respondent Union did not violate Section 8(b)(4)(ii)(B) by threatening to picket, picketing, and leafleting the United Way of Metropolitan Atlanta, a neutral, because an object of those actions was to enforce the Union's certification by the Board as the exclusive collective-bargaining representative of a unit of the Employer VNHS's employees.

(Full Board participated.)

* * *

Waste Management of Maryland, Inc. (5-RD-1309; 338 NLRB No. 155) White Plains, MD April 25, 2003. The Board, finding that the parties' exchange of written materials is insufficient for contract bar purposes, reversed the Regional Director's conclusion that an existing contract between the Employer and Intervenor Teamsters Local 639 barred the decertication petition. It reinstated the petition and remanded the case to the Regional Director for further appropriate action. [HTML] [PDF]

Teamsters Local 639 was certified on September 18, 2001, to represent the Employer's drivers, helpers, and mechanics at its White Plains, MD site and, thereafter, the parties began negotiations for a first contract.

The Regional Director found that the parties entered into a collective-bargaining agreement on September 18, 2002, which barred the decertification petition filed on September 19, 2002, relying on (1) the Employer's July 15, 2002 written contract proposal, (2) the Employer's signature from the July 15 cover letter, and (3) the Union's September 18, 2002 acceptance letter. He found that the three documents, taken together, satisfied the Board's longstanding requirements under Appalachian Shale Products Co., 121 NLRB 1160 (1958).

The Board disagreed, saying the parties' exchange of letters "leaves much doubt as to the terms of the alleged contract." Given this ambiguity, "we cannot ascertain the exact terms the Union accepted on September 18" and "the parties' exchange of letters cannot serve as a bar to the decertification election." Branch Cheese, 307 NLRB 239 (1992).

(Members Liebman, Schaumber, and Walsh participated.)

* * *

Laborers Local 79 (DNA Contracting, LLC) (2-CD-1053; 338 NLRB No. 153) New York, NY April 25, 2003. The Board decided that employees of DNA Contracting, LLC (DNA), represented by Bricklayers Local 1, are entitled to perform demolition work, brick and window cleaning, and the cleaning of mortar droppings at the facade restoration project at 150 West 51st Street, New York, NY. [HTML] [PDF]

The Board agreed with DNA and Local 1 that the dispute is jurisdictional and not representational as Local 79 contended. It noted that Local 79 expressly claimed the disputed work as "its work" and also demanded that DNA sign a contract that contained a union-security clause, even though employees represented by Local 1 were already performing the work under a collective-bargaining agreement between DNA and Local l. The Board explained:

"Had DNA signed that contract, Local 79 could have insisted that DNA fire any current employees who resisted joining Local 79, thus effectively taking the disputed work away from employees represented by Local 1 and giving it to employees represented by Local 79. In nearly identical circumstances, the Board has found disputes to be jurisdictional, even though the unions attempting to acquire the disputed work framed their demands in representational terms. Parkersburg Building & Construction Trades Council, 119 NLRB 1384 (1958); International Hod Carriers' Local 1149, 125 NLRB 753 (1959)."

Member Schaumber added that Local 79's assertion that the dispute "was over which union should represent the workers employed by DNA, the Bricklayers or Local 79" raised a different set of concerns. "If Local 79 had indeed signed a collective-bargaining agreement with DNA covering the very unit employees already represented by Local 1, thus resulting in DNA repudiating the agreement with Local 1, a question would be raised as to whether both DNA and Local 79 had violated the Act. See Finiz & Scission, Inc., 207 NLRB 752 (1973), enfd. mem. 506 F.2d 1404 (7th Cir. 1974)."

(Members Liebman, Schaumber, and Acosta participated.)

* * *

Performance Friction Corp. (11-CA-16040, 18044; 338 NLRB No. 145) Clover, SC April 22, 2003. The Board granted the General Counsel's motion for summary judgment and ordered that the Respondent pay Martha Hinson $26,973, Jerry Kennedy $11,738, and Manuel Mantecon $5,438, as stated in the third amended compliance specification, plus interest and minus tax withholdings required by Federal and State laws. [HTML] [PDF]

The Board in 2001 remanded this proceeding to the Regional Director for the issuance of a new backpay specification recalculating the backpay for Hinson, Kennedy, and Mantecon in accordance with specific instructions. 335 NLRB No. 86. The Regional Director issued a third amended compliance specification on August 16, 2002. The Respondent, in its answer, admitted that the recalculated backpay in the third amended compliance specification was consistent with the Board's instructions, but it expressly denied that Hinson, Kennedy, and Mantecon were entitled to any backpay relying on its positions litigated in the hearing on the first amended compliance specification and rejected by the Board in its 2001 supplemental decision.

The Board found that the Respondent's arguments were directed toward relitigating issues previously litigated and decided in the initial phase of this compliance proceeding. It rejected this effort, noting it is well settled that issues litigated and decided in an earlier phase of a backpay proceeding cannot be relitigated in a later phase. The Board deemed admitted all paragraphs of the third amended compliance specification not specifically admitted by the Respondent, concluded that the net backpay due the three discriminates is as stated in the third amended compliance specification, and ordered the Respondent to pay those amounts.

(Chairman Battista and Members Liebman and Acosta participated.)

General Counsel filed motion for summary judgment Sept. 13, 2002.

* * *

Micro Pacific Development, Inc. d/b/a Saipan Grand Hotel (37-CA-4979, 37-RC-3720; 338 NLRB No. 152) Suspue, Saipan, CNMI April 23, 2003. The Board vacated its decision and order in Case 37-CA-4979 (326 NLRB 80 (1998)), denied the General Counsel's motion for summary judgment in that case, and dismissed the complaint. It also revoked the decision and certification of representative in Case 37-RC-3720 and remanded the case to the Regional Director to conduct a second election. [HTML] [PDF]

In the earlier decision, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Hotel & Restaurant Employees Local 5 and refusing to provide the Union with requested information necessary for collective bargaining. Thereafter, the Respondent petitioned the U.S. Circuit Court of Appeals for the District of Columbia for review, contending that the Board erred in affirming the administrative law judge's finding in Case 37-RC-3720 that housekeeping supervisor, Edwin Melon, was not a supervisor within the meaning of Section 2(11) of the Act. The court reversed the Board's finding that Melon was not a statutory supervisor and remanded the case for a determination of whether Melon's prounion conduct constituted objectionable conduct warranting a second election.

The Board accepted the court's remand and its determination that Melon was a statutory supervisor as the law of the case. As no exceptions were filed to the judge's alternative finding that, if Melon was found to be a statutory supervisor, his prounion conduct was objectionable, the Board concluded that Melon engaged in objectionable conduct warranting setting aside the election.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

National Association of Letter Carriers (5-CA-29667; 338 NLRB No. 151) Washington, DC April 23, 2003. Members Liebman and Walsh, after review of the administrative law judge's decision dismissing the complaint, and the record in light of the exceptions and briefs, remanded the case to the judge to provide further analysis. [HTML] [PDF]

The majority held that the judge did not clearly explain his reasoning, beyond observing that the Board decisions cited by the General Counsel and the Charging Party Union (Office Employees Local 2) did not apply to the circumstances of this case. Members Liebman and Walsh said that on remand the judge should set forth a complete legal analysis, including relevant case law, on the issue of whether the Respondent lawfully prohibited employees from (1) wearing large fluorescent poster-board signs in its national headquarters office, and (2) displaying the same signs on the exterior walls of the employees' workplace cubicles.

Chairman Battista, dissenting, disagreed with his colleagues' decision to remand. He believes that the record facts, plus the judge's decision and the briefs of the parties, provide an adequate basis for the Board to now perform any supplementary legal analysis and to decide this case.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Office Employees Local 2; complaint alleged violation of Section 8(a)(1). Hearing at Washington, D.C., Oct. 18, 2001. Adm. Law Judge Marion C. Ladwig issued his decision Dec. 11, 2001.

* * *

Evergreen America Corp. (Longshoremen ILA) (22-CA-25542; 338 NLRB No. 156) Morristown, NJ April 25, 2003.

Duane Reade, Inc. and UNITE Local 340-A (2-CA-32871-1, et al., 2-CB-17982-1, et al.; 338 NLRB No. 140) New York, NY April 14, 2003. The Board affirmed the administrative law judge's findings that the Company violated Section 8(a)(2) and (1) of Act by providing unlawful assistance and recognition to Local 340 (UNITE) and that UNITE violated Section 8(b)(1)(A) and (2) by accepting the same. It agreed with the judge's findings that the Company and UNITE, by entering into, maintaining, and enforcing collective-bargaining agreements, including union-security clauses, violated Section 8(a)(3) and 8(b)(2) respectively. [HTML] [PDF]

The Company recognized two unions, Allied Trades Council (ATC) and UNITE as its employees' bargaining representatives at its various stores. Citing Tecumseh Corrugated Box Co., 333 NLRB No. 1 (2001), the Company asserted that the assistance was not coercive. The Board, however, held that unlike the employer in Tecumseh, the Company did more than simply provide meeting space to UNITE on company time and voluntarily grant UNITE immediate recognition.

The Board noted that the Company assisted UNITE in numerous ways, e.g. despite its no-solicitation policy prohibiting union organization visits, the Company invited UNITE into its stores for the purpose of organizing its employees; directed its employees to meet with UNITE representatives on store premises during paid work time for the purpose of signing authorization cards; and the store managers were present at most of these meetings and in one store, the store manager was not only present, but informed the employees that UNITE was the only union with whom the Company was affiliated, that they had to sign UNITE's authorization cards, and they were forbidden from signing with any other union. The Company denied ATC equal access to its employees in seven stores and in at least three stores, it ordered ATC representatives to leave under threat of arrest.

(Members Schaumber, Walsh, and Acosta participated.)

Charges filed by Allied Trades Council; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at New York, Dec. 19 and 20, 2001 and Feb. 5 and 6, 2002. Adm. Law Judge Howard Edelman issued his decision May 17, 2002.

* * *

MJM Studios of New York, Inc. (34-RC-1881; 338 NLRB No. 147) Rock Tavern, NY April 18, 2003. The Board in this supplemental decision reversed the hearing officer's findings, sustained the challenges to six laid-off temporary employees, and certified the results of the election held on May 9, 2001. The tally of ballots showed four ballots cast for and four ballots cast against the Petitioner (Stage Employees Local 311), with nine determinative challenged ballots. In the absence of exceptions, the Board adopted the hearing officer's recommendation to sustain the challenges to the ballots of three other temporary employees. [HTML] [PDF]

At issue is whether the hearing officer properly recommended overruling the challenges to the ballots of six employees who were laid off before the election. The Board's test for determining whether laid-off employees are eligible to vote is whether they have a reasonable expectancy of reemployment in the near future and involves consideration of four objective factors: (1) the employer's past practice of layoff and recall; (2) the employer's future plans; (3) the circumstances surrounding the layoff; and (4) what employees were told about the likelihood of recall. Apex Paper Box Co., 302 NLRB 67, 68 (1991). After review of the objective factors, the Board held, contrary to the hearing officer, that the six laid-off temporary employees had no reasonable expectation of recall. The evidence showed that the Employer was struggling with a decline in contracts, coupled with diminished revenues, that required downsizing in its administrative and managerial staffs.

In its earlier decision, 336 NLRB No. 129 (2001), the Board affirmed the Regional Director's decision to conduct an election and remanded the proceeding for further appropriate action.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Laborers Local 81 (Kenny Construction Co.) (13-CD-629-1; 338 NLRB No. 146) Gary, IN April 17, 2003. The Board determined that the employees of Kenny Construction Co. represented by Laborers Local 81 instead of employees represented by Ironworkers Local 395 are entitled to perform the disputed work: the handling, placement, and installation of reinforcing steel rods and wire mesh for the construction of the tunnel and shaft and facilities associated with the shaft and tunnel construction at the Borman Park Tunnel Project for Indiana American Water Company in Gary, Indiana. In making the award, the Board relied on the collective-bargaining agreement, the Employer's preference and past practice, and economy and efficiency of operations. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Daimler-Chrysler Corp. (7-RC-22246; 338 NLRB No. 148) Auburn Hills, MI April 18, 2003. A Board majority of Members Liebman, Walsh, and Acosta agreed with the Regional Director's conclusion that a ballot containing an "X" in the "YES" square but also including a handwritten question mark (?) immediately adjacent to the "YES" square counted as a valid "YES" vote for the Petitioner (Auto Workers); and certified the Petitioner as the exclusive collective-bargaining representative in the appropriate unit. The tally of ballots showed 18 ballots for and 17 against the Petitioner, with no challenged ballots. [HTML] [PDF]

The majority believe that whatever the reason the voter may have had for placing the question mark, the voter deliberately decided to express a preference by placing an "X" in the "YES" square--and, absent a clear negation of this preference, the Board should honor that expression.

Dissenting, Chairman Battista and Member Schaumber held that the test of whether a ballot is to be counted or not is whether the ballot, considered as a whole, clearly expresses the voter's intent. Contrary to their colleagues, they find that it does not. If the ballot "clearly expresses the voter's intent," it is to be counted. If there is doubt as to the voter's intent, the ballot is not to be counted. Here, they concluded that there is a reasonable doubt as to the voter's intent and that the ballot is void.

(Full Board participated.)

* * *

Meyers Transport of New York, Inc. (29-CA-23523; 338 NLRB No. 144) Melville, NY April 14, 2003. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (2) of the Act by soliciting, instructing and ordering its employees to sign authorization cards on behalf of Trade Unions Local 713; threatening its employees with discharge if they did not sign authorization cards for Local 713; and promising its employees wage increases, medical benefits, and other improvements in their terms and conditions of employment, in order to induce them to sign authorization cards for Local 713. [HTML] [PDF]

The Board also affirmed the judge's findings that the Respondent violated Section 8(a)(1) and (3) by discharging or laying off employees Dwight Meldendez, Anthony Smith, Raymond Albanese, Thomas Winkler, and Robert Aprile because of their activities on behalf of and support for Teamsters Local 707; and Section 8(a)(1), (2), and (3) by recognizing Local 713 as the collective-bargaining representative of its employees and subsequently executing a collective-bargaining agreement with Local 713, which contained a union security clause, at a time when Local 713 did not represent an uncoerced majority of the Respondent's employees.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Teamsters Local 707; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing held Feb. 6-8, 2001. Adm. Law Judge Steven Fish issued his decision Sept. 5, 2001.

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Kankakee Valley Rural Electric Membership Corp. (25-CA-28011-1; 338 NLRB No. 135) Wanatah, IN April 7, 2003. No exceptions to the administrative law judge's recommendations having been filed, the Board affirmed the judge's findings that the Respondent violated Section 8(a)(1), (3), and (5) of the Act by failing and refusing to bargain in good faith with the Union by unilaterally failing and refusing to grant, since January 1, 2002 (1) annual wage increases to employees in the unit; (2) biannual wage increases to apprentice linemen and groundmen who are employees in the unit; and (3) matching 401(k) retirement plan contributions to employees in the unit, without prior notice to the Union and without affording the Union an opportunity to bargain with respect to any changes in terms and conditions of employment. [HTML] [PDF]

The Board modified the recommended Order to reflect all the violations found and substituted a new notice to conform to the Order and to provide that the 1-year extension of the Union's initial year of certification shall begin on the date that the Respondent commences to bargain in good faith with the Union.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Electrical Workers (IBEW) Local 1393; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Valpraiso, IN, Aug. 12 and 13, 2002. Adm. Law Judge John T. Clark issued his decision Dec. 18, 2002.

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Brad Snodgrass, Inc. (25-CA-27500-1; 338 NLRB No. 138) Indianapolis, IN April 9, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by: (a) informing employees and their union representatives that employees were being laid off because Sheet Metal Workers Local 20 filed grievances; (b) threatening employees with loss of jobs because Local 20 raised complaints about wages; and (c) instructing employees to request that Local 20 withdraw its grievances and promising employees that they would be recalled to work if Local 20 withdrew those grievances. It also agreed with the judge that the Respondent violated Section 8(a)(1) and (3) by laying off 13 employees on January 31, 2001 because Local 20 filed contractual grievances on their behalf. [HTML] [PDF]

In the absence of exceptions, the Board adopted the judge's finding that the Respondent violated Section 8(a)(1) by sending to a union representative two letters, in response to the Union's filing of grievances on the employees' behalf, which threatened loss of employment for bargaining unit members because of the representative's protected activity.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ft. Wayne, IN, Oct. 9 and 10, 2001. Adm. Law Judge Eric M. Fine issued his decision March 1, 2002.

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Onan Corp., a wholly owned subsidiary of Cummins, Inc. (18-RC-16729; 338 NLRB No. 139) Fridley, MN April 7, 2003. Contrary to the hearing officer, a Board majority of Chairman Battista and Member Acosta overruled the Petitioner's (Auto Workers) objection alleging that the Employer interfered with the rerun election by informing bargaining unit employees, shortly before the rerun election, it had settled certain employee-initiated litigation regarding its pension plan; and certified the election results. The tally of ballots showed 296 for and 413 against the Petitioner, with 6 challenged ballots, an insufficient number to affect the results. [HTML] [PDF]

The majority stated that the Board has held that during a union organizing campaign, employers must act as they would in the absence of a union campaign. Waste Management of Palm Beach, 329 NLRB 198 (1999); American Sunroof Corp., 248 NLRB 748 (1980). The majority found that the Employer showed that it would have announced the settlement of the pension litigation regardless of the ongoing union organizing campaign. Chairman Battista and Member Acosta concluded that the record evidence shows that the Employer had a pattern of announcing developments in the pension litigation to its employees as they occurred, answered employees' questions about the litigation during employee meetings, and under Board precedent, this is all that the Employer was required to show.

Member Liebman, dissenting, found that the Employer failed to establish that the timing of the announcement of the proposed settlement was unrelated to the impending rerun election. Member Liebman held that it was the Employer's burden to establish a legitimate explanation for the time of its announcement. Because the Employer has failed to rebut the inference that its real motive here was¾as it was prior to the initial election¾to influence the outcome of the pending rerun election, she would adopt the hearing officer's recommendation to set aside the election and direct a second rerun election.

In an earlier decision reported at 334 NLRB 531 (2001), the Board set aside the first election partly because of the announcement, 6 days before the election, of the Employer's willingness to seek a settlement of the class action litigation. This conduct was found to be objectionable as an ill-timed offer of benefit.

(Chairman Battista and Members Liebman and Acosta participated.)

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Cibao Meat Products (2-CA-32811; 338 NLRB No. 134) Bronx, NY April 11, 2003. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by suspending employee Mario Mendez for 1 day on January 17, 2000. The judge concluded that Mendez was engaged in protected concerted activity when he spoke up to protest a new company policy at an employee meeting called by Respondent on January 17, and that he was admittedly suspended for such activity. The Respondent argued that Mendez' actions were unprotected insubordination. The Board reversed the judge's finding that the Respondent constructively discharged Mendez, who did not return to work after his unlawful suspension, since the contention was never alleged in the complaint and was not fully or fairly litigated. [HTML] [PDF]

The judge found, with Board approval, that the Respondent unlawfully discharged Jose Luis Mendez, Cayetano Flores, and Modesto Flores because the Respondent's owner believed that they might protest the unlawful suspension of Mario Mendez. Member Acosta would hold that the judge improperly relied on Wright Line, which is properly used in resolving cases alleging violations where the respondent's motivation for taking the allegedly unlawful action is undisputed, saying it is undisputed that the Respondent discharged the three employees because it "believed they would act concertedly in the protected endeavor of protesting Mario Mendez' unlawful suspension. See Felix Industries, 331 NLRB 144, 146 (2000)."

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by UNITE Local 169; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on May 21 and 22, 2001. Adm. Law Judge Howard Edelman issued his decision Aug. 17, 2001.

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Torch Operating Co. (31-CA-20895; 338 NLRB No. 143) Santa Maria and Lompoc, CA April 11, 2003. The Board reconsidered its earlier decision, 322 NLRB 939 (1997), the record in light of the Supreme Court's decision in Allentown Mack Sales and Service v. NLRB, 522 U.S. 359, and the parties' statements of position, and dismissed the complaint. [HTML] [PDF]

The Board, in its initial decision, affirmed the administrative law judge's findings that the Respondent was a successor employer to Unocal with respect to certain Lompoc, CA facilities and that it violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Petroleum and Industrial Workers International as the exclusive bargaining representative of the unit employees. The judge found that statements relied on by the Respondent were not sufficient to raise a good-faith doubt as to employees' support for the Union and rejected the Respondent's good-faith doubt defense. Thereafter, the Respondent filed a petition for review with the U.S. Court of Appeals for the Fifth Circuit.

Prior to the court's issuance of its opinion, the Supreme Court issued its decision in Allentown Mack, holding that the Board's "good-faith doubt" standard must be interpreted to permit an employer to withdraw recognition of a union when the employer has "reasonable uncertainty" of the union's majority status. The Supreme Court clarified the good-faith doubt standard as meaning only a good-faith uncertainty, rather than disbelief, as to whether a union bargaining representative has the support of a majority of the unit employees and repudiated the approach used by the judge, and by the Board generally, to analyze the sufficiency of certain kinds of employee statements as objective proof of a good-faith doubt.

At the Board's request, the Fifth Circuit remanded the instant case without prejudice for further consideration in light of Allentown Mack and the Board invited the parties to submit statements of position.

(Members Schaumber, Walsh, and Acosta participated.)

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St. Vincent Medical Center, A Division of Catholic Healthcare West, Southern California (31-CA-24325; 338 NLRB No. 130) Los Angeles, CA March 31, 2003. Adopting the administrative law judge's recommendations, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees in its respiratory care department and subcontracting out their work shortly before a representation election involving these employees. [HTML] [PDF]

The General Counsel contended that antiunion animus was a motivating factor in the Respondent's decision to subcontract the respiratory care department. However, the Board noted that the Respondent has established that it implemented its subcontracting decision within the 30-to-60 day timeframe it announced prior to the filing of the petition for a representation election.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Healthcare Employees (SEIU) Local 399; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, June 26-30, 2000. Adm. Law Judge Frederick C. Herzog issued his decision Dec. 11, 2000.

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Bergensons Property Services, Inc. (21-CA-34528; 338 NLRB No. 127) San Diego, CA March 31, 2003. In the absence of exceptions, the Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees with loss of benefits and discharge because they engaged in union activity and Section 8(a)(3) and (1) by discharging employee Alejandra Rodriguez because of her support for the union. The Board provided formal "Conclusions of Law" which the judge failed to include in his decision for the violations that he found. [HTML] [PDF]

The Board found merit in the General Counsel's exceptions to the judge's failure to provide for notices to employees in both Spanish and English in view of the fact that a majority of the Respondent's employees are primarily Spanish-speaking and also to the General Counsel's request that the notice be mailed to the last known addresses of Respondent's employees who were employed since the date that the unfair labor practices occurred.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Service Employees Local 2028; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Diego, Dec. 3 and 4, 2001. Adm. Law Judge James L. Rose issued his decision Feb. 11, 2002.

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Dilling Mechanical, Inc. (25-CA-28171-2, 28185-1; 338 NLRB No. 136) Morristown, IN April 4, 2003. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging James Michael Colvin on May 10, 2002 and Section 8(a)(1) by prohibiting employees from leaving union literature in break areas, threatening employees with unspecified reprisals if they engaged in union activities, and prohibiting employees from talking about the Union during break times and from discussing the Union on company property. [HTML] [PDF]

The judge held that the General Counsel failed to establish any of the violations alleged in the complaint and failed to make a prima facie case in regard to any of them. With regard to the alleged 8(a)(3) and (1) violation, the judge said "it is incumbent on the General Counsel to prove, as an element of his case, that James Michael Colvin engaged in protected activity prior to time that Respondent requested his removal from the jobsite and that Respondent was, by that time, aware of such activity. The General Counsel has failed to establish these essential elements of its case either through direct or circumstantial evidence."

(Members Schaumber, Walsh, and Acosta participated.)

Charges filed by Indiana State Pipe Trades Association and Plumbers Local 440; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Indianapolis, Oct. 17-18, 2002. Adm. Law Judge Arthur J. Amchan issued his decision Dec. 23, 2002.

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Teamsters Local 557 (General Motors) (5-CC-1247; 338 NLRB No. 133) Baltimore, MD March 31, 2003. The Board affirmed the administrative law judge's conclusion that the Respondent's picketing at General Motors (GM) on December 4, 2001, was coercive and for an unlawful object, and violated Section 8(b)(4)(ii)(B) of the Act. [HTML] [PDF]

GM decided to shift its car-hauling contract from Leaseway Auto Carriers (Leaseway), which recognized Local 557, to New Concept Solutions (NCS), which did not. Before the change took effect, Leaseway employees and their families picketed at the GM facility. NCS was not present on the site at the time of the picketing. The day after the picketing, the Respondent requested recognition from NCS. The judge found that the object of the picketing was to force GM to cease doing business with NCS and/or to force NCS to recognize Local 557. He rejected the Respondent's assertion that GM is not a neutral employer, saying GM remained a neutral employer despite the fact that it terminated its business with Leaseway.

Member Liebman, in her concurring opinion, agreed with her colleagues that current law compels the result reached but wrote separately to highlight how strained the concept of "neutrality" is, as applied to certain labor disputes. In her view, "the concept of 'neutrality,' as it has been applied, turns on a legal fiction. It shields from legitimate concerted activity employers who are by no real definition neutral to a labor dispute. A secondary employer will be treated as a 'neutral' and protected from picketing, regardless of its actual involvement in a labor dispute, its involvement in determining employees' terms and conditions of employment through contracting decisions, or its demonstrated antiunion animus." Although she joined in the finding that the Respondent's picket line was unlawful, she said she does so only because the Respondent was unable to establish that GM shifted its car-hauling contract from Leaseway to NCS with antiunion animus.

In his concurring opinion, Member Acosta addressed the concerns raised by Member Liebman and said that the thrust of her concerns is that the concept of neutrality as it has been applied in Section 8(b)(4) parlance has been strained and distorted. He stated that the view of "neutrality" that Member Liebman disputes is nearly as longstanding as Section 8(b)(4) itself. See NLRB v. Denver Building Trades Council, 341 U.S. 675 (1951), one of the Supreme Court's first decisions involving the then-recently enacted Section 8(b)(4). He said that the instant decision is consistent with the original interpretation of the secondary boycott provisions of the Act.

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by General Motors; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Baltimore, June 19 and 20, 2002. Adm. Law Judge William G. Kocol issued his decision July 18, 2002.

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Trumbull Memorial Hospital and Western Reserve Personnel, Inc. (8-RC-16381; 338 NLRB No. 132) Warren, OH April 3, 2003. The Board concluded, contrary to the Regional Director, that Trumbull Answering Service (TAS) telephone operators do not share a sufficient community of interest with the Trumbull Memorial Hospital (TMH) business group employees to warrant their inclusion in an existing TMH business office unit already represented by the Petitioner (Service Employees Local 627). The Regional Director, finding that the TAS employees constituted an appropriate voting group, directed an election to determine their inclusion in the existing unit. The Board dismissed the petition. [HTML] [PDF]

TMH is an acute care facility. The Petitioner and TMH are parties to a collective-bargaining agreement in which TMH recognizes the Petitioner as the exclusive representative of its business clerical employees, including those who work in information technology, accounting, and as telephone operators. TMH created TAS in 1989 as an answering service for its doctors, and TAS has taken on other clients since then. TAS has never directly hired the employees who work for it and initially was staffed by TMH employees employed through Home Healthcare, a division of TMH. TMH later decided to staff TAS with employees supplied by Western Reserve Personnel (WRP).

The Regional Director found that TMH and WRP were joint employees of the petitioned-for employees. No party filed a request for review of this finding. Applying M.B. Sturgis, Inc., 331 NLRB 1298 (2000), the Regional Director held that the petitioned-for TAS operators share a sufficient community of interest with the TMH telephone operators to warrant their inclusion in the existing unit. He relied principally on his finding that Karen Brooks was the "key supervisor" with respect to both groups of operators; that the two groups of employees have similar skills and work in close proximity to each other; that there is some interchange between the two groups; and that the employees share certain privileges and wear TMH-issued pagers and the same type of identification badges.

In the Board's view, the Regional Director's findings are outweighed by others; e.g. the principal factor relied on by the Regional Director, that of common supervision, is not supported by the record; that the two groups of employees receive dissimilar wages and benefits; and the TAS employees are not covered by TMH's retirement plan, hospitalization plan, vacation policies, disciplinary rules, seniority rules, or job posting rules. The Board further noted the two groups of employees do not serve the same clientele¾TMH operators serve primarily the hospital and its patients and employees and TAS employees serve doctors on the hospital staff and other clients not connected to the hospital. It also noted TMH's general policy against employees working for both TMH and TAS.

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Amveco Magnetics, Inc. (16-RC-10443; 338 NLRB No. 137) Houston, TX April 4, 2003. The Board reversed the hearing officer and overruled Sheet Metal Workers' (Petitioner) Objection 5 alleging that a 1-page document entitled "Thought for the Day or Don't Be a Chump," which the Employer posted on a bulletin board, contained an implied threat to eliminate bonuses and overtime work if the Petitioner won the election, and certified the results of the election. In the absence of exceptions, it adopted the hearing officer's recommendations to overrule the Petitioner's remaining objections. The tally of ballots showed 21 ballots cast for and 40 ballots cast against the Petitioner, with one void ballot and no challenged ballots. [HTML] [PDF]

The hearing officer found merit to Objection 5 and recommended that the election be set aside and a new election conducted. The Board noted that the Petitioner lost the election by a nearly 2-1 margin and in the absence of sufficient evidence that posting the document would have affected the results of the election, saw no basis for overturning the election.

(Members Liebman, Schaumber, and Acosta participated.)

* * *

David G. Cubitt and Brenda Cubitt, a California Partnership d/b/a Grass Valley Grocery Outlet (20-CA-30479-1, 20-RC-17087; 338 NLRB No. 128) Grass Valley, CA March 28, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act through its agent Dorn by interrogating Michael Cox regarding his union activity. It also agreed with the judge that Food & Commercial Workers Local 588's objections in Case 20-RC-17807 are identical to the unlawful conduct found and, therefore, sustained the objections, set aside the election, and remanded Case 20-RC-17087 to the Regional Director to conduct a third election. [HTML] [PDF]

The Board found merit in the General Counsel's contention, in cross-exceptions, that the judge failed to specify in his recommended Order, that the conduct engaged in by the Respondent's Doug Cubitt in the store parking lot constituted unlawful surveillance.

No exceptions were filed to the judge's dismissal of allegations that the Respondent sought to influence employees' votes in the rerun election by granting them Christmas bonuses, providing them with a free bar tab at the annual Christmas party, and promising Cox a 50-cent an hour wage increase.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Food & Commercial Workers Local 588; complaint alleged violation of Section 8(a)(1). Hearing at Green Valley, July 2, 2002. Adm. Law Judge Gerald A. Wacknov issued his decision Oct. 30, 2002.

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Association of Community Organizations for Reform Now (ACORN) (16-CA-21007-1, et al.; 338 NLRB No. 129) Dallas, TX March 27, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by threatening employees and interrogating them about their union activities; and Section 8(a)(3) and (1) by laying off Gigi Nevils, Sarah Stephens, and Erin Howley. [HTML] [PDF]

The Respondent is a nonprofit corporation whose activities include organizing community groups and individuals, primarily low and moderate income families, in efforts to make political and economic changes beneficial to its constituency. The Respondent contended that its discharge of the three employees was not motivated by antiunion animus because of its principles as an organization, that its financial condition was the only motivating factor. The Board found it significant that Nevils' layoff was shortly after she informed Supervisor Kent Smith that Dallas employees were supporting the Union and the layoffs of Stephens and Howley occurred shortly after their meetings with Supervisor Olsen about the Union and employee concerns about working conditions.

(Chairman Battista and Members Liebman and Acosta participated.)

Charges filed by Sarah A. Stephens, Erin Marie Howley, and Gigi Nevils, Individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ft. Worth, Dec. 3 and 4, 2001. Adm. Law Judge Jane Vandeventer issued her decision June 24, 2002.

* * *

Clock Electric, Inc. and Congress of Independent Unions (8-CA-31671, 31812, 8-CB-9165; (338 NLRB No. 110) Cleveland, OH March 18, 2003. The Board affirmed the administrative law judge's findings that Respondent Clock Electric committed numerous unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act and specifically Section 8(a)(3) and (1) by granting wage increases to William Skiba and Brian Lufkin. The Board also agreed with the judge's finding that Respondent Congress of Independent Unions (CIU) violated Section 8(b)(1)(A) and (2) of the Act by unlawfully receiving support from Clock Electric and by accepting recognition and thereafter entering into a collective-bargaining agreement with Clock Electric containing a union-security clause. [HTML] [PDF]

Clock Electric contended that the Union, IBEW Local 38, was not really organizing its employees when it gave the raises and that it had no desire to discourage support for Local 38, but that it simply wanted to keep Skiba and Lufkin, both valuable employees, from defecting to higher-paying employment with Local 38 signatories. The Board found no merit in Clock Electric's claim and determined that the evidence warrants the inference that a motive in granting the wages increases was to discourage Skiba and Lufkin from supporting Local 38's organizational campaign.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Electrical Workers (IBEW) Local 38; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at Cleveland, OH, March 12-14, 2001. Adm. Law Judge Eric M. Fine issued his decision July 17, 2001.

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The Earthgrains Co. (10-CA-33181; 338 NLRB No. 118) Fort Payne, AL March 20, 2003. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Richard C. Jenkins on or about July 20, 2001 because he joined and assisted the Union and engaged in concerted activities. The judge found the evidence supported the conclusion that the Resondent discharged Jenkins because he was away from the plant while on the clock July 8, 2001. [HTML] [PDF]

The General Counsel did not file exceptions and the Charging Party excepted to some of the judge's credibility findings. The Board found no basis for reversing the judge's credibility findings. No exceptions were filed to the judge's finding that the evidence failed to establish that the Respondent harbored animus toward Jenkins because of his union or other protected activities.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Richard C. Jenkins, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Birmingham, AL, June 13 and 14, 2002. Adm. Law Judge Margaret G. Brakebusch issued her decision Sept. 11, 2002.

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Lee's Summit Hospital and Health Midwest (17-CA-21072, 21220; 338 NLRB No. 116) Kansas City, MO March 20, 2003. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally withholding the 2000 annual wage adjustment from unit employees. It agreed with the judge's finding that the wage adjustment had become an established pattern and practice over many years, and therefore constituted a condition of employment that the Respondent was not free to change unilaterally. [HTML] [PDF]

While agreeing with his colleagues, Chairman Battista noted, however, that Respondent was not necessarily bound to give a wage increase and to bargain from that point. He stated that when the Union was certified in April 2000 to represent the employees at Lee's Summit, the Respondent could have proposed that the past practice be discontinued at Lee's Summit because wages were to be collectively bargained there. Assuming that impasse on this proposal had been reached by September (during bargaining negotiations), he said it would have been lawful for the Respondent to discontinue the practice as to Lee's Summit at that time.

The Board approved the judge's dismissal of the allegation that the Respondent unlawfully threatened massive layoffs and closure of the hospital in the event of a strike, relying solely on the ground that the General Counsel did not meet his burden of proving the allegation by a preponderance of the evidence.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Nurses United for Improved Patient Care and Mary Nash, an Individual; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Overland Park, KS on Aug. 14, 2001. Adm. Law Judge Gerald A. Wacknov issued his decision Sept. 28, 2001.

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Nurses United for Improved Patient Healthcare, AFT (17-CB-5596, 17-RC-12040; 338 NLRB No. 113) Kansas City, MO March 20, 2003. The Board adopted the recommended order of the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(b)(1)(A) of the Act by threatening employees with reprisals for refusing to support the Union. It ordered that VNA Corp.'s objection to the election conducted in Case 17-RC-12040 be overruled, that the challenges to 3 ballots be overruled, and that Case 17-RC-12040 be severed from Case 17-CB-5596 and remanded to the Regional Director to open and count the ballots of Marsha O'Roark, Catherine Burrows, and Patricia Habiger. [HTML] [PDF]

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by VNA Corp. d/b/a Visiting Nurse Services of Health Midwest; complaint alleged violation of Section 8(b)(1)(A). Hearing at Overland Park, KS, May 7 and 8, 2002. Adm. Law Judge James L. Rose issued his decision July 25, 2002.

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Quest International, A Business Unit of Indopco, Inc. (5-RC-15417; 338 NLRB No. 123) Owings Mills, MD March 20, 2003. The Board overruled the Union's objection alleging that "immediately prior to and during the election, the Employer stationed security guards and guard dogs on the Employer's premises when neither had been so stationed prior to the filing of the petition for representation" and certified the results of the election. The tally of ballots showed 13 votes for and 33 against Teamsters Local 570, with one challenged ballot, which was not sufficient to affect the results of the election. [HTML] [PDF]

The hearing officer found, in recommending that the Union's objection to the election be sustained, that the unprecedented posting of uniformed security guards and security dogs for 10 days before the election was likely to cause fear among the employees and that the employees would understand the Employer's message to be that a vote for unionization was a vote for a workplace characterized by violence, in which guards and dogs would be necessary to keep the peace. The Board disagreed, concluding, contrary to the hearing officer, "that the Union failed to carry its burden of establishing that the Employer's implementation of security measures . . . had a reasonable tendency to interfere with the employees' free and uncoerced choice in the election."

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Taylor Machine Products, Inc. (7-CA-33135, et al.; 338 NLRB No. 117) Taylor, MI March 18, 2003. The Board, in this supplemental decision and order, adopted the administrative law judge's recommendation and ordered that the Respondent, Taylor Machine Products, make whole employees James Howells, Vernadette Bader, Ruth Cecil, Josephine Mallia, Floria Russell, Rosemary Smith, and Bonnie Warren the amounts set forth opposite their names for a total of $188,273.54 plus interest. [HTML] [PDF]

In its prior order reported at 335 NLRB No. 56 (2001), the Board granted the General Counsel's motion for partial summary judgment relating to the calculation of the gross backpay of the six discriminates and remanded for hearing the remaining issues related to interim earnings, medical expenses, and the job searches of the discrminatees.

(Chairman Battista and Members Liebman and Acosta participated.)

Hearing at Detroit, Feb. 4 and 5, 2002. Adm. Law Judge George Carson II issued his second supplemental decision March 21, 2002.

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Choctaw Builders, Inc. (17-CA-20333, 20515; 338 NLRB No. 112) Indianola, OK March 14, 2003. The Board granted the General Counsel's motion for summary judgment based on the Respondent's withdrawal of its answer to the consolidated complaint and held that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to consider for hire or to hire 13 applicants on various dates in 1999 because they assisted Iron Workers Local 48 and engaged in concerted activities, and to discourage employees from engaging in these activities. The Board held in abeyance a final determination of the appropriate remedy pending its remand of the case to the Regional Director on the limited issue of how many job openings were available to the discriminatees. [HTML] [PDF]

The Board agreed with the General Counsel that the undisputed complaint allegations are sufficient to establish the violations of Section 8(a)(1) and (3) under the standards set forth in FES, 331 NLRB 9, 12-16 (2000), supp. decision 333 NLRB No. 8 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), supp. decision 338 NLRB No. 77 (2002). It noted however that the consolidated complaint does not allege how many job openings were available and, accordingly, does not establish that a backpay and reinstatement remedy is warranted. In FES, the Board held that in cases involving more than one applicant, the General Counsel must show at the unfair labor practice stage of the proceeding the number of openings that were available in order to justify an affirmative remedy of reinstatement and backpay. See also Jet Electric Co., Inc., 334 NLRB No. 133 (2001).

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Iron Workers Local 48; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment Sept. 10, 2001.

* * *

City Wide Insulation of Madison, Inc. d/b/a Builders Insulation Inc. (30-RC-6503; 338 NLRB No. 108) Germantown, WI, Feb. 27, 2003. Affirming the Regional Director's recommendation, the Board overruled the Employer's Objection 1 and certified Milwaukee & Southern Wisconsin Regional Council of Carpenters as the exclusive representative of the employees in the appropriate unit. The tally of ballots showed 15 votes for and 5 against, the Union, with no challenged ballots. [HTML] [PDF]

The Employer, in Objection 1, contended that the election should be set aside because employees in the bargaining unit blamed it for the failure to conduct the election on November 20, 2002, as originally scheduled and announced. The Board agreed with the Regional Director's finding that the Regional Office, not the Employer, was responsible for the election's postponement and that the circumstances surrounding the postponement do not warrant setting aside the results of the election held on November 26, 2002. In the absence of exceptions, the Board adopted the Regional Director's recommendation to overrule Objections 2 and 3.

The Board noted that this is the second case to come to its attention recently where an election was postponed for administrative reasons. See Superior of Missouri, 338 NLRB No. 69 (2002). In order to avoid objections similar to the one raised by the Employer, the Board found it would be preferable for Regional Offices to include in any notice of rescheduled election a statement that the election has been rescheduled for administrative reasons beyond the control of the employer or the union and that the inclusion of such language would dispel any erroneous impression among employees that either the employer or the union was responsible for the election's rescheduling.

(Members Liebman, Schaumber, and Walsh participated.)

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Farr Furnishings, Inc. d/b/a Interiors for Today (21-CA-34204; 338 NLRB No. 103) Temecula, CA Feb. 12, 2003. The Board granted the General Counsel's motion for summary judgment based on the Respondent's failure to comply with the settlement agreement entered into by the parties on March 8, 2002 and approved by the Regional Director on April 23, 2002, and found that the Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act.[HTML] [PDF]

Under the terms of the settlement agreement, the Regional Director's approval constituted withdrawal of the complaint and the Respondent's answer to the complaint. The agreement required the Respondent to (1) make Cynthia Cuellar whole by paying her backpay in the amount of $28,448; (2) notify Cuellar in writing that the Respondent had removed all references to her termination from her personnel file and that the termination will not be used against her; and (3) post a notice to employees regarding the complaint allegations. The agreement also contained a provision, which stated in part "in case of noncompliance with any of the terms . . . and after 14 days notice . . . of such non-compliance without remedy . . . the Regional Director may reissue the complaint previously filed in the instant case."

The Respondent failed to comply with the settlement agreement by refusing to pay Cuellar the agreed-upon backpay amount and, on September 11, 2002, the Regional Director reissued the complaint alleging that the Respondent violated Section 8(a)(1) of the Act by discharging Cuellar. The Respondent filed no response to the complaint.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Cynthia Cuellar, an Individual; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment October 22, 2002.

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Command Security Corp. d/b/a Aviation Safeguards (29-RC-9442; 338 NLRB No. 94) Jamaica, NY Jan. 28, 2003. The Board dismissed the petition filed by Novelty and Production Workers Local 148 seeking to represent baggage handlers employed by the Employer at John F. Kennedy Airport, Jamaica, NY. It found that the Employer is engaged in interstate air common carriage so as to bring it within the jurisdiction of the National Mediation Board (NMB) pursuant to Section 201 of Title II of the Railway Labor Act (RLA).[HTML] [PDF]

The Employer provides baggage handling, wheelchair attendant and skycap services to air carriers who are subject to the RLA. At the time of the hearing, it had contracts to supply these services to United Airlines, British Airways, and Tower Air (the Carriers). The record shows that the Carriers exercise substantial control over the Employer, including the right to demand the removal of an employee and that the Employer must comply with the demand, that the Employer honors a request by a carrier for a particular employee or employees for an assignment, and that the Carriers occasionally direct the work of the employees.

The Board requested the NMB to consider the record and the application of the RLA to the Employer. Relying on the NMB's finding that the Employer is subject to the RLA, the Board dismissed the petition.

(Chairman Battista and Members Schaumber and Acosta participated.)