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NLRB - National Labor Relations Board 

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Recent Decisions of the
National Labor Relations Board
2003 July - December

 

Accubuilt, Inc. (8-RC-16511; 340 NLRB No. 161) Lima, OH Dec. 31, 2003.  The Board, finding no merit to the Employer’s exceptions to the hearing officer’s disposition of its objections, certified the Auto Workers (Petitioner) as the exclusive collective-bargaining representative of the employees in the appropriate unit.  The tally of ballots showed 78 votes for and 74 against, the Petitioner.  [HTML] [PDF]

The Employer argued that several prounion employees made election-related threats against coworkers during the election campaign.  The hearing officer found that three of the four threats potentially affected only three employees and were not disseminated to any additional bargaining-unit employees and therefore, were insufficient, either separately or in the aggregate, to warrant setting aside the election.  The Board agreed, saying that the four alleged threats known to no more than three employees in a unit of over 150, did not create a general atmosphere of fear and reprisal.  It wrote that in determining whether a threat is serious and likely to intimidate prospective voters to cast their ballots in a particular manner:

the Board evaluates not only the nature of the threat itself, but also whether the threat encompassed the entire bargaining unit; whether reports of the threat were disseminated widely within the unit; whether the person making the threat was capable of carrying it out, and whether it is likely that the employees acted in fear of his capability of carrying out the threat; and whether the threat was “rejuvenated” at or near the time of the election.

            The Board noted that the Employer did not except to the hearing officer’s conclusion that none of the conduct raised by the Employer can be attributed to the Petitioner or its agents.

(Chairman Battista and Members Liebman, Schaumber, and Walsh participated.)

***

CAB Associates (29-CA-24331; 340 NLRB No. 171) College Point, NY Dec. 31, 2003.  The Board affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from Teamsters Local 282 and by refusing to adhere to the terms of a collective-bargaining agreement effective July 1, 1999, through June 30, 2002, between the Union and the General Contractors’ Association of New York, Inc. (GCA).  [HTML] [PDF]

            The Respondent contended that the complaint was untimely under Section 10(b) of the Act.  The Board agreed with the judge’s finding that the complaint was not time barred as the Respondent had not complied with the 1999-2002 agreement since January 21, 2001 and the Union’s charge was filed on July 9, 2001 and served on the Respondent July 11, 2001.

The Respondent excepted to the judge’s remedial order that the Respondent “shall be ordered to revoke its withdrawal of recognition of the Union and instead to recognize and bargain with the Union.”  Finding merit in the Respondent’s exception, the Board explained that when the 1999-2002 agreement expired on June 30, 2002, either party was free to repudiate the relationship since the parties’ bargaining relationship was governed by Section 8(f).  Therefore, the remedial order was modified to omit any requirement of recognition or bargaining but to require the Respondent to fulfill its outstanding obligation under the 1999-2002 contract.  To the extent that the Respondent’s unlawful repudiation of the 1999-2002 agreement resulted in denial of employment or employees receiving less than they would have been entitled to for their work had the Act not been violated, the Board amended the remedy to provide for backpay formulas.

(Members Liebman, Schaumber, and Walsh participated.)

            Charge filed by Teamsters Local 282; complaint alleged violation of Section 8(a)(1), (5), and 8(d).  Hearing at Brooklyn on various dates between Jan. 16 and March 5, 2002.  Adm. Law Judge Jesse Kleiman issued his decision July 2, 2002.

***

Carroll & Carroll, Inc. (10-CA-34076; 340 NLRB No. 159) Savannah, GA Dec. 31, 2003.  The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by threatening to discharge its employees, threatening its employees with plant closure because of their union activities, and interrogating its employees about Operating Engineers Local 474; and Section 8(a)(1) and (3) by discharging and failing to reinstate employee Waldo Floyd because of his union activities.  [HTML] [PDF]

(Chairman Battista and Members Liebman and Schaumber participated.)

            Charge filed by Operating Engineers Local 474; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Savannah on May 21, 2003.  Adm. Law Judge Pargen Robertson issued his decision July 15, 2003.

***

Desert Aggregates (32-CA-18653, 18726; 340 NLRB No. 170) Ducor, CA Dec. 31, 2003.  The Board granted the General Counsel’s October 17, 2003 motion for reconsideration of the Board’s earlier decision reported at 340 NLRB No. 38 (2003).  Contending that the Board’s remedial language implicitly treated the Respondent’s recall offers to Mark Gregg and Wendy Miller as valid offers sufficient to relieve the Respondent of any additional reinstatement and backpay obligations, the General Counsel requested that the Order be amended to provide the traditional remedy¾full backpay until such time as the Respondent tenders valid offers of reinstatement.  The Board agreed with the General Counsel and amended its remedy and order accordingly.  [HTML] [PDF]

In the prior decision, the Board found, among others, that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily laying off Gregg and Miller.  The Respondent was ordered to pay Gregg and Miller backpay from the dates of their unlawful layoffs until the dates of recall letters that the Respondent sent several months later.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Enjo Contracting Co., Inc. d/b/a Enjo Architectural Millwork (29-CA-24260, 24370; 340 NLRB No. 162) Staten Island, NY Dec. 31, 2003.  Chairman Battista and Member Schaumber agreed with the administrative law judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Walter Clayton for his union activities and violated Section 8(a)(1) by telling its employees shortly after Clayton’s discharge not to talk to Clayton in connection with his organizing efforts.  Contrary to the judge, they found that the Respondent did not violate Section 8(a)(1) by threatening employees with layoffs or other unspecified reprisals if they supported New York District Council of Carpenters.  [HTML] [PDF]

            Dissenting in part, Member Liebman would find that Joseph Autovino, the Respondent’s president, violated Section 8(a)(1) at his first meeting with employees by threatening the Respondent’s employees with unspecified reprisals if they chose to be represented by the Union.  In her view, the context of Autovino’s remarks negates any attempt to portray as noncoercive his warning to employees to “think twice” about supporting the Union.  She said that the Respondent’s statement “suggested that unionization would have negative consequences for employees, regardless of other circumstances.”

(Chairman Battista and Members Liebman and Schaumber participated.)

            Charges filed by New York District Council of Carpenters; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Brooklyn, Oct. 16 and 17, 2001.  Adm. Law Judge Jesse Kleiman issued his decision Jan. 15, 2002.

***

Postal Workers Local 735 (United States Postal Service) (17-CB-5444-P, 5517-P; 340 NLRB No. 166) Wichita, KS Dec. 31, 2003.  Chairman Battista and Member Walsh remanded this proceeding to the administrative law judge for appropriate action and for a supplemental decision on the issue of whether the Respondent violated Section 8(b)(1)(A) of the Act by excluding Teri Adelson from the settlement of the Respondent’s underlying lost-work grievance, or by publishing a newsletter column by Dave Darrough, the Respondent's president, addressing the settlement of Adelson’s unfair labor practice charge relating to the grievance.  Member Liebman dissented.  [HTML] [PDF]

            This case arose from the Union's grievance alleging that an employee in another craft had been assigned work in the Respondent's bargaining unit jurisdiction.  Adelson filed a charge, alleging that Union Steward Christine Pruitt excluded her from the settlement of the grievance because she was not a member of the Respondent.  The charge was settled through a non-Board settlement agreement between the Respondent and Adelson that required the Respondent to post a notice and make an appropriate payment to Adelson.  The Regional Director approved Adelson's withdrawal of the charge and dismissed the complaint.  The following month, Darrough, signatory on the posted notice, discussed the settlement of Adelson's charge in his column.  Adelson filed a second charge.  The Regional Director revoked his dismissal of the previous complaint and issued a consolidated complaint, alleging that the Respondent violated Section 8(b)(1)(A) by the actions of Pruitt and Darrough.

The judge determined that Darrough’s column neither justified setting aside the settlement agreement nor violated Section 8(b)(1)(A), and that the General Counsel did not establish a postsettlement unfair labor practice or other grounds for setting aside the parties’ settlement agreement.  Therefore, the judge dismissed the complaint.

Unlike the judge, the Board majority agreed with the General Counsel’s contention that the Respondent failed to comply with the non-Board settlement agreement by virtue of its comments in the newsletter article, which they found served to undermine the assurances in the notice that the Respondent would respect the rights of all unit employees.

In dissent, Member Liebman said that the Respondent has complied with the non-Board settlement:  it paid the backpay agreed to, and posted the required notice.  She found that despite its harsh words, Darrough’s column was protected by Section 7 of the Act.

(Chairman Battista and Members Liebman and Walsh participated.)

            Charges filed by Teri Adelson, an Individual; complaint alleged violation of Section 8(b)(1)(A).  Hearing at Wichita on Oct. 11, 2001.  Adm. Law Judge James L. Rose issued his decision Dec. 7, 2001.

***

Royal Paper Stock Co., Inc. (9-RC-17605; 340 NLRB No. 164) Lima, OH Dec. 31, 2003.  The hearing officer found, and Chairman Battista and Member Schaumber, with Member Liebman concurring, agreed that Joann Cornett was an eligible voter.  Therefore, the Board adopted the hearing officer’s recommendations to overrule the challenge to Cornett’s ballot, directed that her ballot be opened and counted, and remanded the proceeding to the Regional Director for further appropriate action.  The tally of ballots showed 2 for and 2 against, Teamsters Local 89, with 1 determinative challenged ballot.  [HTML] [PDF]

            In her concurring opinion, Member Liebman said she applied the bright-line rule reaffirmed in Red Arrow Freight Lines, 278 NLRB 965 (1986), in deciding this case.  She noted that Red Arrow is based on case law 50 years old and there is no expiration date on that precedent.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

St. Francis Medical Center, Catholic HealthCare West, Southern California Region (21-CA-32642, et al.; 340 NLRB No. 168) Lynwood, CA Dec. 31, 2003.  With the exception of one Section 8(a)(3) allegation, the Board affirmed the administrative law judge’s findings that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act.  [HTML] [PDF]

The Board remanded the issue raised with respect to the judge’s finding that the Respondent violated Section 8(a)(3) by counseling technical radiologist Carmen Bautista for giving a copy of the Union’s employee survey to Ultrasound Technician Dominick Saati.  It found that the judge did not specifically resolve the factual issue of whether Saati was with a patient when Bautista gave him the survey and/or whether Bautista disturbed Saati’s delivery of patient care.  The Board said that without a specific factual finding, it is unable to review the judge’s ultimate determination under Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).  The Board noted it was not necessary to reopen the record to resolve this issue on remand.

(Members Liebman, Schaumber, and Walsh participated.)

            Charges filed by Service Employees Local 399; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Los Angeles on various dates between Oct. 12, 1999 and May 31, 2000.  Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 15, 2000.

***

Unified Creative Programs, Inc. (2-CA-34420-1; 340 NLRB No. 160) White Plains, New Rochelle, and Rye Brook, NY Dec. 29, 2003.  The Board adopted the administrative law judge’s findings and dismissed the complaint allegations that the Respondent violated the Act by: (1) changing procedures by which employees callout; (2) changing the method by which oncall employees are scheduled; (3) changing job qualifications of unit employees by disqualifying employees if they are employed at United Cerebral Palsy of Westchester; (4) implementing a schedule for dinner breaks; and (5) eliminating the use of starting time grace periods.  [HTML] [PDF]

            The Respondent asserted that it did not give prior notice to UNITE about any of the alleged unilateral changes because it did not make any material changes and was not required to give notice.  The judge found, with Board approval, that there were no significant changes in the rules or practices with respect to complaint allegations (1) and (2).  In the judge’s opinion, no credible evidence was shown that the Respondent made a rule or practice whereby it rejected job applicants who also held jobs at Cerebral Palsy of Westchester, and with respect to the issues concerning dinner breaks and the elimination of starting time grace period, the judge said that the posting of the dinner break schedules did not amount to a significant or material change in employee working conditions, and that there was no credible evidence that the Employer has or that it had a policy of allowing employees a 10-minute grace period.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by UNITE.  Hearing at New York City on May 8, 2003.  Adm. Law Judge Raymond P. Green issued his decision July 15, 2003.

***

United International Investigative Services, Inc. (5-CA-29490; 340 NLRB No. 165) Baltimore, MD and Alexandria, VA Dec. 31, 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 for summary judgment.  According to the uncontroverted allegations in the motion, the Respondent failed to comply with an informal settlement agreement entered into by the Respondent and the Union and approved by the Regional Director on July 14, 2003, by failing to remit agreed-upon amounts due employees Susan McPherson and Alfonso Terrell.  The Board ordered the Respondent to pay McPherson and Terrell backpay in the amounts set forth in settlement agreement.  [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

            General Counsel filed motion for summary judgment Dec. 4, 2003.

***

The Woods Quality Cabinetry Co. (6-RC-12194; 340 NLRB No. 163) Eighty Four, PA Dec. 31, 2003.  Contrary to the Regional Director, Chairman Battista and Member Schaumber found merit in the Employer’s contention that the erroneous designation of Greater Pennsylvania Regional District Council of Carpenters as affiliated with the AFL‑CIO and the Region’s failure to correct the designation warrant setting aside the election.  Accordingly, the majority set aside the election and directed that a second election be conducted.  The tally of ballots showed 31 votes for and 26 against, the Petitioner, with 3 challenged ballots, a number insufficient to affect the results of the election.  [HTML] [PDF]

Dissenting, Member Liebman stated that she would certify the results of the election.  She noted that the error clearly was harmless under the circumstances here and that there is no evidence that voters cared about the affiliation issue in the slightest.  She saw no basis for concluding that the mistaken designation of the Petitioner’s parent union as an AFL‑CIO affiliate interfered with employee free choice.

            The Regional Director found that the Petitioner’s affiliation was neither material to, nor an issue in, the campaign; that the Employer failed to meet its burden of establishing that employees were confused about the union for which they were voting; and that it was clear to employees that they were voting on whether they wanted to be represented by the Petitioner.  The Regional Director reasoned it would be too confusing and too disruptive of the election process to change only the ballot, which would then have been inconsistent with the notice of election.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Sheet Metal Workers Locals 102 and 105 (Comfort Conditioning Co., Inc.) (21-CB-13138; 340 NLRB No. 149) Corona, CA Dec. 11, 2003.  The Board adopted the administrative law judge’s recommended dismissal of the complaint which alleged that the Respondent Union violated Section 8(b)(1)(B) of the Act by restraining and coercing Comfort Conditioning Co. in the selection of its representatives for the purpose of collective bargaining or adjustment of grievances.  [HTML] [PDF]

            The primary issue in this proceeding was whether Charging Party Jack Dresser was a representative of the Employer at the time the Union preferred and processed internal union disciplinary charges and imposed a fine against him.  The Board agreed with the judge’s determination that Dresser retained his union membership while serving as the Employer’s supervisor but not as its Section 8(b)(1)(B) representative and, as such, incurred obligations to both the Union and the Employer.  The judge wrote “an employer is not coerced in the selection of its representatives merely because a supervisor-member having dual loyalties may find the supervisory position less desirable when faced with the application of legitimate union rules.”  Accordingly, the Board approved the judge’s finding that the Union did not violate the Act by its discipline of Dresser.

            The Board found it unnecessary to pass on the judge’s finding that the Respondent did not retaliate against Dresser for failing or refusing to help organize the Employer.  Member Schaumber noted that he did not participate in Electrical Workers Local 1547 (Veco, Inc.), 300 NLRB 1065 (1990), enfd. 971 F.2d 1435 (1992), referenced by the judge, and expressed no opinion on whether it was correctly decided.

(Members Liebman, Schaumber, and Walsh participated.)

            Charge filed by Jack Dresser, an Individual; complaint alleged violation of Section 8(b)(1)(B).  Hearing at Los Angeles on April 2, 2003.  Adm. Law Judge Lana H. Parke issued her decision May 27, 2003.

***

Yonkers Associates, 94 L.P. (2-CA-27156, 27564; 340 NLRB No. 147) Yonkers, NY Dec. 4, 2003.  Granting the General Counsel's motion for summary judgment, the Board deemed the allegations in the compliance specification to be admitted as true, concluded that the net backpay due the discriminatees is as stated in the compliance specification, and ordered the Respondent to pay Jose Borbon $46,220.29, Francisco Machado $19,151.73, and Ariel Rivera $16,294.38.  [HTML] [PDF]

The Board had ordered at 319 NLRB 108 (1995) that the Respondent, among other things, make the three discriminatees whole for losses suffered as a result of the Respondent's unfair labor practices in violation of Section 8(a)(5), (3), and (1) of the Act, and that the Respondent reestablish the status quo ante to remedy its unlawful changes in working conditions.

            In this supplemental decision, the Board found that the Respondent's responses to the allegations of the compliance specification are general denials of matters within the Respondent's knowledge and that the Respondent failed to file an answer that complies with the Board's Rules and Regulations.  It rejected the Respondent's affirmative defense that the status quo ante remedy sought here is unenforceable pursuant to the Second Circuit's opinion in NLRB v. Staten Island Hotel Limited Partnership, 101 F.3d 858 (2d Cir. 1996).  The Board explained that the record the Respondent seeks to develop would not affect its ruling on the summary judgment motion and that the court's dicta, understood in context, have no bearing on this case.

(Chairman Battista and Members Liebman and Schaumber participated.)

            General Counsel filed motion for summary judgment Oct 17, 2001.

***

Arvinmeritor, Inc. (8-CA-33322-1; 340 NLRB No. 124) Newark, OH Nov. 24, 2003.  The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) of the Act by unilaterally repudiating its obligations to meet with the Skilled Trades Committee for the purposes of entertaining and processing the grievances of the skilled trades employees; and violated Section 8(a)(1) when Maintenance Manager Combs threatened employees with unspecified reprisals if they continued to attempt to assert their Section 7 right to file and process grievances under the existing collective-bargaining agreements between the Respondent and UAW Local 1037.  [HTML] [PDF]

            The Board agreed with the judge that pursuant to Postal Service, 302 NLRB 767 (1991), the 8(a)(5) complaint allegation is not appropriate for deferral under Collyer Insulated Wire, 192 NLRB 837 (1971).  It also relied on American Commercial Lines, 291 NLRB 1066 (1988).  The Board noted that the 8(a)(5) allegation that the Respondent seeks to defer is closely interwined with the 8(a)(1) allegation that Combs threatened employees with unspecified reprisals, that the Respondent did not request that the 8(a)(1) allegation be deferred, and that it did not make sense to refrain from deciding the closely-related 8(a)(5) issue since it resolved the 8(a)(1) issue.

(Chairman Battista and Members Liebman and Walsh participated.)

            Charge filed by UAW Local 1037; complaint alleged violation of Section 8(a)(1) and (5).  Hearing at Newark on May 29, 2003.  Adm. Law Judge David L. Evans issued his decision July 29, 2003.

* * *

Diamond Walnut Growers, Inc. (32-CA-17353, et al.; 340 NLRB No. 135) Stockton, CA Nov. 28, 2003.  Agreeing with the administrative law judge, the Board held that the Respondent violated the Act by failing to reinstate former economic strikers Rosa Elena Juarez and Willie Smith. It also agreed that the Respondent did not violate the Act by failing to reinstate and/or offer 25 former strikers available positions which were not substantially equivalent to their prestrike jobs because it was not obligated to notify the 25 former strikers when it placed the positions up for bid pursuant to an internal job posting system.  [HTML] [PDF]

Contrary to the judge, the Board found that Willie Smith is only entitled to backpay for 6 weeks and that the Respondent did not unlawfully fail to reinstate and/or offer nonequivalent employment to former strikers Regina Herbert and Art Torres.  Member Walsh, dissenting in part, would not limit Willie Smith's backpay period to 6 weeks.

Citing Rose Printing Co., 304 NLRB 1076 (1991), the Board found that the record did not support the judge's finding that the packaging machine mechanic position, which became available after Torres submitted an unconditional offer to return to work, was substantially to his prestrike position as a lead maintenance mechanic.  The Board found that the Respondent did not violate the Act by failing to offer Herbert (a full-time regular employee assigned to drive a forklift at the time of the strike) a seasonal bid job as a lift truck operation.  In so doing, the Board noted its prior finding that unreinstated former strikers are not entitled to be considered for seasonal bid jobs, because they do not represent actual vacancies.

            When the strike began, Smith was an ESM operator whose primary function is to sort walnuts using an Elbascan sorting machine.  During the strike, the Respondent purchased new Elbascan machines that were more highly automated and computerized.  It consolidated some of the ESM operators' functions.  In March 2000, the Respondent offered to train Smith in the newly constituted ESM operator position.  Smith accepted and trained for about 6 weeks when he voluntarily "signed off," i.e., relinquished his bid right to perform that specific job, because he "had difficulty learning the new job . . . preferring forklift work."  The judge found, and the Board agreed, that the Respondent unlawfully failed to reinstate Smith to an ESM operator position that was posted in October 1998.

            Chairman Battista and Member Schaumber reasoned that "had the Respondent offered Smith the EMS operator position in 1998, as it was required, Smith would have received the same training that he received in 2000, and would have resigned before completion as he did in 2000."  Accordingly, they held that Smith voluntarily abandoned his interest in the ESM operator position by his resignation, that his backpay period shall run for 6 weeks, and that the Respondent is not obligated to offer him reinstatement.

            Member Walsh would find, consistent with Board precedent, that Smith is entitled to backpay from 1998, when he should have been offered the ESM training, until 2000 when he was offered the training.  See NLRB Casehandling Manual (Part 3) Compliance Proceedings Sec. 105.30.2 (defining backpay period as "beginning when the unlawful action took place and ending when a valid offer of reinstatement is made").

Chairman Battista and Members Schaumber and Walsh participated.)

            Charges filed by Teamsters Local 601; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Stockton on 6 days beginning Jan. 9, 2001.  Adm. Law Judge James J. Kennedy issued his decision Sept. 24, 2001.

* * *

G.I. Milliken Plastering (7-RC-22439; 340 NLRB No. 138) Chelsea, MI Nov. 28, 2003.  The Board found, contrary to the Regional Director, that an election should have been ordered in a proper residual unit of the Employer's unrepresented plasterers employed at its Chelsea, MI facility, and remanded the case to the Regional Director to determine the proper residual unit for an election.  The Acting Regional Director had dismissed the instant petition filed by Bricklayers Local 9, finding it was barred by a collective-bargaining agreement between the Employer and Operators Local 16.  [HTML] [PDF]

            The Employer is a member of the Washtenaw Contractors Association (WCA), and since 1997, through the WCA, has been a party to a Section 8(f) agreement covering work performed at certain limited areas in Michigan, including all of Washtenaw County (where the Employer's Chelsea facility is located) and eight townships in Livingston County.  The Employer and Local 16 are parties to a Section 9(a) collective-bargaining agreement covering work in the Lansing/Jackson area (Lansing/Jackson Agreement).  The geographic coverage of the Lansing/Jackson Agreement does not embrace the Employer's Chelsea location.

            The Acting Regional Director found that Local 16 had a 9(a) agreement with the Employer covering work in the Lansing/Jackson areas and in the Flint area by operation of the Lansing/Jackson contract's traveler clause.  Accordingly, he found the instant petition barred and denied the Petitioner's request to run an election in a residual unit. 

Local 9 contended, in its request for review, that 1) the Acting Regional Director erred in finding a contract bar because Local 16 failed to introduce the full agreement at the hearing, 2) the contract cannot serve as a bar because its geographically-limited unit is inappropriate, and 3) even if there is a contract bar, it should only extend to the areas covered by the agreement and an election should be run in a residual unit.

The Board said it could not, on the present record, determine if the petitioned-for unit includes all of the Employer's unrepresented employees and, accordingly, remanded the case to the Regional Director to reopen the record to establish whether the application of the traveler clause bars the petition and the proper scope of the residual unit, if any.

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Glesby Wholesale, Inc. (32-CA-19146(E), 19241(E); 340 NLRB No. 128) Oakland, CA Nov. 28, 2003.  The Board affirmed the administrative law judge's decision and dismissed the application for fees and expenses pursuant to the Equal Access to Justice Act (EAJA) filed by Respondent-Applicant Glesby Wholesale, Inc.  The Board concluded that the General Counsel's position as a whole in the underlying case was substantially justified.  [HTML] [PDF]

The complaint alleged that the Applicant violated the Act by interrogating Russell Johnson on two occasions about his union activity, denying Russell a day's work because of his union activity, offering to keep Russell's son Eugene employed if Russell would stop supporting Teamsters Local 853, and later terminating Eugene, also because of Russell's union activity.  The judge dismissed the complaint, finding that General Manager Scharffenberg's questioning of Russell was not unlawfully coercive, that Russell was sent home solely due to lack of work, and that Eugene was hired only as a temporary driver during another driver's disability leave and that he was terminated solely because the driver had returned to work.  The General Counsel filed no exceptions and the Board adopted the judge's decision.

The Applicant asserted that the General Counsel had no substantial basis for litigating the interrogation allegations, the denial of work to Russell, and the termination of Eugene.  The Applicant did not seek fees with respect to the allegation that Operations Manager Robert Avila unlawfully offered to keep Eugene employed and did not contend that the allegation lacked substantial justification.  Further, it did not except to the judge's finding, which becomes final, that the Region had substantial justification for making the allegation that Eugene Johnson was unlawfully terminated.  Instead, the Applicant claims that the General Counsel should have moved for dismissal of this allegation at the end of the hearing.

(Chairman Battista and Members Liebman and Schaumber participated.)

            Adm. Law Judge Jay R. Pollack issued his supplemental decision Sept. 4, 2002.

* * *

Goldens Foundry & Machine Co. (10-CA-32913, 33376; 340 NLRB No. 140) Columbus, GA Nov. 28, 2003.  The Board agreed with the administrative law judge, for the reasons stated by him, that the Respondent violated Section 8(a)(1) of the Act by threatening employee Anthony Jones, and explained its reasons for affirming the judge's finding that the Respondent violated Section 8(a)(3) and (1) by discharging Jones.  [HTML] [PDF]

The judge found, and the Board agreed, that the General Counsel established his initial burden of proof under Wright Line.  The General Counsel established that Jones engaged in protected activity by having Glass Workers International pursue a grievance against his supervisor John Toland, that Toland and Human Resource Manager Judith Giddings knew about the Union's involvement in Jones' grievance, and that Jones' discharge occurred shortly thereafter.  The judge found that there was evidence of antiunion animus on the part of Toland, not Giddings, the decisionmaker, and that Giddings made her decision to discharge Jones without knowledge of Toland's illegal threat to Jones about pushing the issue to the fullest extent because Jones had involved the Union.  The judge imputed Toland's animus to Giddings and found the violation.

The Board held that Toland's unlawful motivation must be imputed to Giddings because were it not for the fact that Toland brought Jones' purported misconduct to Giddings' attention, Jones would not have been discharged.  "Giddings' good-faith belief in what Toland falsely told her does not insulate the Respondent from the consequences of its action in discharging Jones in reliance thereon," the Board said.  It also agreed that the Respondent failed to meet its Wright Line burden of establishing that it would have discharged Jones even absent his protected activity, noting that Toland's lie, which was the deciding factor for Giddings' decision to fire Jones, "arose and was maintained due to Jones' protected activity."

(Members Liebman, Schaumber, and Walsh participated.)

            Charges filed by Anthony Jones and Darwin Lipscomb; complaint alleged violation of Section 8(a)(1), (3), and  (5).  Hearing at Columbus for 2 days in Feb. 2002.  Adm. Law Judge William N. Cates issued his decision March 22, 2002.

* * *

Iron Workers Local 1 (Goebel Forming, Inc.) (13-CD-661; 340 NLRB No. 136) Chicago, IL Nov. 28, 2003.  Relying on the factors of collective-bargaining agreements, employer preference, and employer practice, Chairman Battista and Member Schaumber awarded the installation of metal embeds attached to the structural steel of the building at 540 West Madison Street, Chicago, IL to employees of Goebel Forming, Inc., represented by the Carpenters Chicago and Northeast Illinois District Council, not Iron Workers Local 1.  The majority found that the three factors in favor of an award to the Carpenters-represented employees outweighed the factors of area practice and interunion agreement, saying the factor of employer preference "is entitled to substantial weight."  [HTML] [PDF]

            Dissenting Member Walsh found that the majority erred in its final analysis of two key factors relevant to determining the appropriate assignment of the disputed work and, accordingly, erred in awarding the disputed work to employees represented by Carpenters, rather than to employees represented by Iron Workers.  He pointed out that several of the relevant factors are not helpful to resolving the dispute because neither Union is the certified bargaining representative of the Employer's employees; neither Union has a collective-bargaining agreement with the Employer covering the work in dispute; both groups of employees possess the necessary skills and training; and an award to either group of employees would not materially affect the economy and efficiency of the Employer's operations.  Accordingly, Member Walsh found it appropriate to give greater weight to the factors of area practice and the interunion agreement, which favor an award to Iron Workers-represented employees, than to the factors of employer preference and past practice, which favor an award to Carpenters-represented employees.

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

 Lincoln Center for the Performing Arts, Inc. (2-CA-32983; 340 NLRB No. 134) New York, NY Nov. 28, 2003.  The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by promulgating its no-leafleting policy to discourage protected conduct by representatives of Hotel Employees and Restaurant Employees Local 100 and by discriminatorily enforcing its policy on May 11, 2001.  The Board found it unnecessary to pass on a third possible basis for finding a violation, i.e., that the Respondent violated Section 8(a)(1) by excluding and attempting to exclude union leafletters without having a property right entitling it to do so.  [HTML] [PDF]

The Board also found it unnecessary to pass on the judge's additional finding that the Respondent violated Section 8(a)(1) by discriminatorily enforcing its no-leafleting policy on June 28, 2001, and the subsidiary finding that Section 10(b) did not bar the General Counsel from including that allegation in the complaint.  The Board explained that the finding of a violation on June 28, 2001 would be cumulative of the violation found on May 11 and would not materially affect the remedy.

            Following issuance of the judge's original decision, the Board granted the Respondent's motion to reopen the record to provide the Respondent an opportunity to adduce evidence that Dennis Diaz, the principal witness testifying on behalf of the General Counsel, allegedly committed perjury while testifying during the original hearing.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Hotel Employees and Restaurant Employees Local 100; complaint alleged violation of Section 8(a)(1).  Original hearing held July 11, 12, and 25, 2001 and reopened hearing held on Dec. 5, 2002.  Adm. Law Judge Steven Fish issued his original decision April 1, 2002 and his supplemental decision June 20, 2003.

* * *

Los Angeles Water and Power Employees Association (21-RC-20514; 340 NLRB No. 146) Los Angeles, CA Nov. 28, 2003.  The Board overruled the challenges to the ballots cast by lead clerical Soane Clark and accountant Julie Surmeian in an election held Sept. 12, 2002, and remanded the proceeding to the Regional Director to open and count their ballots and to issue a revised tally of ballots and the appropriate certification.  The election resulted in 2 for and 1 against the Communications Workers, with 2 determinative challenged ballots.  [HTML] [PDF]

            The Employer is a nonprofit corporation that provides benefits and services to employees and retirees of the Los Angeles Department of Water and Power.  It challenged the ballot of Clark on the ground that she is a supervisor within the meaning of the Act.  The hearing officer found, with Board approval, that the Employer failed to establish that Clark is a supervisor under Section 2(11).  The Union challenged the ballot of Surmeian on the ground that her job classification, "accountant," is not included in the stipulated bargaining unit.  The Board reversed the hearing officer's finding that the parties intended to exclude the job classification of "accountant" from the bargaining unit and, applying a community-of-interest analysis, included Surmeian in the unit.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Music Express East, Inc. (22-CA-25174; 340 NLRB No. 129) Elmwood Park, NJ Nov. 28, 2003.  The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(2) and (1) of the Act by dominating and interfering with the formation and administration of, and rending unlawful assistance and support to the Chauffeurs Committee as a means of drawing support away from Teamsters Local 805 (the Union); and violated Section 8(a)(1) by coercively interrogating its employees concerning their activities for the Union; soliciting grievances with an implied promise of benefits, promising and granting its employees benefits in order to discourage them from supporting the Union, and creating the impression that employees' union activities were under surveillance.  [HTML] [PDF]

            Chairman Battista and Member Schaumber dismissed the allegation that the Respondent violated Section 8(a)(3) and (1) by discharging employee Emad Mercho.  They found, contrary to the judge, that the General Counsel failed to establish his burden under Wright Line that the Respondent discharged Mercho because of his union activities by showing that Respondent's General Manager Badalamenti, who decided to discharge Mercho, knew that he had engaged in union activities or supported the Union.

            Member Walsh, dissenting on this issue, would affirm the judge's conclusion that the Respondent unlawfully discharged Mercho, agreeing with the judge that the General Counsel presented "compelling evidence"—both direct and circumstantial—that the Respondent knew that Mercho was a union adherent.

(Chairman Battista and Members Schaumber and Walsh participated.)

            Charge filed by Teamsters Local 805; complaint alleged violation of Section 8(a)(1), (2), and (3).  Hearing at Newark, Sept. 3, 4, 5, and 24, 2002.  Adm. Law Judge Steven Fish issued his decision May 14, 2003.

* * *

 Nicholas Morrone and Robert M. Verbosky d/b/a Nick and Bob Partners et al. (6-CA-33210; 340 NLRB No. 142) Lemont Furnace, PA Nov. 28, 2003.  Members Liebman and Walsh granted in part and denied in part the General Counsel's motion for default judgment based on the Respondent's failure to answer the complaint.  Chairman Battista, dissenting, found that the complaint is not well pleaded and would deny the motion in its entirety.  [HTML] [PDF]

Members Liebman and Walsh decided that the undisputed complaint allegations are sufficient to establish that the Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union support and sympathies, and violated Section 8(a)(5) and (1) by failing to provide the Union with notice and an opportunity to bargain over the effects of its decision to close its Lemont Furnace, PA facility and cease operations, including the layoff of unit employees and subcontracting of unit work, and by failing to continue in effect the terms and conditions set forth in the collective-bargaining agreement.

The majority denied the motion for default judgment with respect to allegations that the Respondent unlawfully failed to bargain over its decisions to close its facility and cease all operations, and remanded the allegations for further appropriate action.  The complaint alleged that the decisions were mandatory subjects of bargaining.  Members Liebman and Walsh found that the allegations do not support a cause of action, citing the Supreme Court's decision in First National Maintenance v. NLRB, 452 U.S. 666 (1981).

Chairman Battista agreed that the complaint alleges insufficient facts to show that the closing of the Respondent's facility itself was a mandatory subject of bargaining and with the denial of summary judgment in this respect.  He believes the Respondent's subcontracting and layoff decisions were part and parcel of the decision to go out of business.  Given that the decision to go out of business is not a mandatory subject, decisions that are part and parcel of the basic decision to go out of business are also nonmandatory subjects, he reasoned.  The Chairman noted several factors in finding that the complaint is not well pleaded, including that the subcontracting and layoffs are separately alleged and thus it is unclear as to whether the "effects" generally mentioned in paragraph 23 are intended to refer to subcontracting and layoffs.  He also observed that while the complaint alleges that the subcontracting and layoffs are violation of the contract, a mere breach of contract is not a violation of Section 8(a)(5).

(Chairman Battista and Members Liebman and Walsh participated.)

            Charge filed by Carpenters Greater Pennsylvania Regional Council; complaint alleged violation of Section 8(a)(1) and (5).  General Counsel filed motion for default judgment July 21, 2003.

* * *

John Menzies, PLC, d/b/a Ogden Ground Services, Inc. (31-RC-8191; 340 NLRB No. 137) Los Angeles, CA Nov. 28, 2003.  The Board 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).  Accordingly, the petition filed by Transportation Workers seeking to represent a certain group of the Employer's employees working at the Los Angeles International Airport (LAX) in Los Angeles, CA, was dismissed.  [HTML] [PDF]

The Employer provides aviation support services for several domestic and international carriers.  At the Board's request, the NMB studied the record in this case and concluded that the Employer is a carrier subject to the RLA.  The NMB specifically concluded that the facts here are distinguishable from previous NMB cases involving Ogden operations where it has determined that those operations were not subject to the RLA.  See e.g., Ogden Aviation Service, 23 NMB 98 (1996); Ogden Aviation Service, 20 NMB 181 (1993).  See also Ogden Aviation Service, 320 NLRB 1140 (1996).

(Members Liebman, Schaumber, and Walsh participated.)

* * *

Operating Engineers Local 3 (Cross-Link Inc. d/b/a Westar Marine Services) (20-CC-3381-2; 340 NLRB No. 127) Alameda, CA Nov. 28, 2003.  The Board affirmed the administrative law judge's findings, as amended, and held that the Respondent violated Section 8(b)(4)(ii)(B) of the Act by threatening to cause a work stoppage on the Richmond-San Rafael Bridge Retrofit Project of the Tutor-Saliba/Koch/Tidewater Joint Venture, with an object to force or require the Joint Venture to cease doing business with Westar Marine Services.  The Board amended the judge's conclusions of law and modified his cease-and-desist order to conform to the violation alleged in the complaint and established at the hearing.  [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

            Charge filed by Operating Engineers Local 3; complaint alleged violation of Section 8(b)(4)(ii)(B).  Hearing at San Francisco, Nov. 18, 19, and 21, 2002.  Adm. Law Judge Clifford H. Anderson issued his decision March 31, 2003.

* * *

 Operating Engineers Local 3 (Cross-Link, Inc. d/b/a Westar Marine Services (20-CD-718-1; 340 NLRB No. 131) San Francisco, CA Nov. 28, 2003.  The Board decided that employees of Westar Marine Services represented by the International Organization of Masters, Mates, and Pilots are entitled to perform work on construction boats or vessels used as work boats by Westar at the Richmond-San Rafael Bridge Seismic Retrofit Project, including, but not limited to, moving barges, moving materials by barge, and transporting employees and other personnel to locations on the bridge project.  Operating Engineers Local 3 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Westar to assign the disputed work to employees represented by it.  [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Progressive Transportation Services, Inc. (3-RC-11287; 340 NLRB No. 126) Dutchess County, NY Nov. 26, 2003.  Chairman Battista and Member Schaumber found, contrary to the hearing officer, that Deck Lead Supervisor Sandra Yozzo is a supervisor within the meaning of Section 2(11) of the Act and sustained the challenge to her ballot.  The majority certified the results of the election held January 9, 2003, which showed 2 for and 2 against Teamsters Local 445, with 1 challenged ballot (Yozzo's).  Member Walsh, dissenting, agreed with the hearing officer that the challenge to Yozzo's ballot should be overruled.  He found that the Employer failed to provide that Yozzo uses independent judgment to effectively recommend discipline.  [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Shearer's Foods, Inc. (8-CA-32917, et al.; 340 NLRB No. 132) Canton, OH Nov. 28, 2003.  The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging David Vaughn and violated Section 8(a)(1) by threatening to close its plant if Bakery Workers Local 19 came in.  The Board found that the General Counsel met his burden of proof by showing that Vaughn's protected activity was a motivating factor in the Respondent's decision to discharge him.  Vaughn had distributed union authorization cards after work in the employee parking lot on several occasions and the Respondent knew about Vaughn's protected activity and displayed its animus against employee Section 7 activities.  The Respondent failed to prove that it would have discharged Vaughn even in the absence of his protected activity for threats he allegedly made against Company President Shearer.  [HTML] [PDF]

            In a footnote, Member Schaumber noted that the Board, administrative law judges, and circuit courts of appeals in variously describing the evidentiary elements of the General Counsel's initial burden of proof under Wright Line have added a fourth element—the necessity for there to be a causal nexus between the union animus and the adverse employment.  He agrees with the addition and believes in the near future the Board should adopt and thereafter consistently apply a single statement of the elements of proof, but that it is not necessary to address the issue here in deciding that the General Counsel met his burden.

(Chairman Battista and Members Schaumber and Walsh participated.)

            Charges filed by Bakery Workers Local 19; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Canton on Sept. 17, 2002.  Adm. Law Judge Robert A. Pulcini issued his decision March 28, 2003.

* * *

St. Luke's Health System, Inc. (18-RC-16937; 340 NLRB No. 139) Sioux City, IA Nov. 28, 2003.  Chairman Battista and Member Schaumber found that the Employer has rebutted the single-facility presumption and held, contrary to the Regional Director, that the petitioned-for single-facility unit of professional employees, excluding physicians at the Employer's Sunnybrook facility in Sioux City, Iowa, is inappropriate.  The majority reversed the Regional Director's decision and direction of election and remanded the proceeding for further appropriate action, explaining: "[T]he interests of the petitioned-for employees have been effectively merged into a more comprehensive unit, such that the petitioned-for clinic is not a separate appropriate unit." [HTML] [PDF]

            Member Walsh, dissenting, agreed with the Regional Director that a single-facility unit of professional employees at the Employer's Sunnybrook clinic is appropriate.  He found that the Employer has failed to rebut the single-facility presumption because the record shows separate supervision and an absence of employee interchange at Sunnybrook.

The Employer operates a health care system in the Sioux City area that includes a network of 21 clinics operating out of 16 locations.  The clinics, which are not separately licensed, provide nonacute health care-related services in family practice, rehabilitation, and specialty areas.  The Employer's system also includes an acute care hospital, a college offering nursing and medical technology courses, and a nursing home.

UFCW Local 222 sought to represent a unit of only registered nurses at the Sunnybrook family practice clinic—one of 11 such clinics.  The Union did not file a request for review of the Regional Director's inclusion of all other professionals (nurse practitioners and physician assistants), except physicians or of his direction that the medical technologist vote under challenge.  The Employer, in its request for review, asserted that the smallest appropriate unit consists of all professional employees, other than physicians at the Employer's network of clinics in the Sioux City area.  The Board granted the Employer's request for review by order dated March 13, 2002.

(Chairman Battista and Members Schaumber and Walsh participated.)

* * *

Stormont-Vail Healthcare, Inc. (17-RC-12100; 340 NLRB No. 143) Topeka, KS Nov. 28, 2003.  The Board, reversing the Regional Director, included registered nurses (RNs) on the Employer's off-campus psychiatric facility, outlying clinics, and community nursing centers in the otherwise employer-wide multifacility unit of RNs found appropriate by the Regional Director.  The Board decided that a multifacility unit, excluding the Stormont West psychiatric facility, the outlying clinics, and the community nursing centers is an arbitrary grouping of employees, inasmuch as the evidence failed to establish that the RNs in the unit found appropriate share a community of interest distinct form the included RNs.  [HTML] [PDF]

The Employer operates a comprehensive regional medical system, which is highly centralized and includes a hospital complex in Topeka, KS consisting of four connected central inpatient acute hospital buildings with a single address, stipulated to be a single building.  Teamsters Local 959 sought to represent a unit of RNs employed in the hospital complex only, which is stipulated to be a single facility.

The Regional Director found that a unit of approximately 700 full-time and regular part-time RNs employed by the Employer at its hospital complex and at about seven other buildings located within six blocks of the hospital complex (the main campus) in Topeka is appropriate for bargaining.  The parties stipulated to the inclusion of about 11 RNs that work for LifeStar, a helicopter ambulance service owned and operated by the Employer, based in 3 locations 10 to 70 miles away from the hospital complex, and the RNs based at the Pozez Educational Center, a facility connected to the hospital complex by a walkway.

Applying the single facility presumption, the Regional excluded other non-main campus RNs employed by the Employer in Topeka and in surrounding towns throughout Topeka and Shawnee counties, including RNs at the Stormont-Vail West psychiatric facility, outlying clinics, and community nursing centers.  Because the Petitioner agreed to a multi-facility unit, the Board found that the Regional Director erred by applying a single-facility presumption. 

(Members Liebman, Schaumber, and Walsh participated.)

* * *

TNT Logistics of North America, Inc. (12-CA-22309; 340 NLRB No. 141) Cape Coral, FL Nov. 28, 2003.  The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging James Morgan on about June 18, 2002 and thereafter failing and refusing to reinstate him and Section 8(a)(1) by telling Morgan that it would be futile for him to select a union as his collective-bargaining representative.  [HTML] [PDF]

In agreeing with his colleagues that the Respondent violated Section 8(a)(3) and (1) by discharging Morgan, Member Schaumber found the judge erred to the extent that he relied on the Respondent's hostility toward "unionization" in finding the violation, saying:  "Employers have a right under Sec. 8(c) of the Act to openly oppose 'unionization'; however, they do not have a right to oppose or interfere with employees' Sec. 7 rights, such as the right to organize a union."  Member Schaumber found that the Respondent, by making the statement to Morgan that he should have known there could be no union, evidenced animus toward Sec. 7 pro-union activities in general and toward Morgan's specific activities seeking to organize a union in particular.  He recommended that the Board use the term "Section 7 animus" rather than "anti-union animus" to avoid the same kind of error the judge made.

(Members Liebman, Schaumber, and Walsh participated.)

            Charge filed by James Morgan, an Individual; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Fort Meyers on April 7, 2003.  Adm. Law Judge Keltner W. Locke issued his decision May 13, 2003.

* * *

Wal-Mart Stores, Inc. (25-CA-27387-1, 27389; 340 NLRB No. 144) Noblesville, IN Nov. 28, 2003.  Affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) of the Act by discriminatorily applying its solicitation/distribution policy at its Noblesville, IN store by unlawfully prohibiting union organizers from handbilling while allowing other organizations to solicit, and by contacting the police and causing them to warn the handbillers.  [HTML] [PDF]

The Board found that the Respondent's solicitation policy allows solicitation on its property, outside its stores, at least 15 feet from entrances and exits, and that the Respondent informs prospective solicitors of the policy.  At the Noblesville store, the Respondent insisted that the union organizers leave its premises without informing them of the policy or permitting them to solicit at least 15 feet from the entrances and exists.  The Board found that the Respondent's actions were inconsistent with its written policy and its practice of explaining the policy to solicitors and giving them the opportunity to comply with it.

            Chairman Battista noted that the Respondent discriminated against the Union by treating it differently than it treated all others with regard to solicitation.  Accordingly, he found it unnecessary to reach the issue of whether an employer violates the Act by allowing solicitation by charitable organizations while restricting solicitation by all others, including unions.

            The Board agreed with the judge that Muncie, IN Support Manager Douglas Roof did not engage in unlawful surveillance when he sat on a bench outside the store entrance for about 30 minutes, watching the organizers distribute handbills.

(Chairman Battista and Members Liebman and Walsh participated.)

            Charges filed by Food and Commercial Workers International; complaint alleged violation of Section 8(a)(1).  Hearing at Indianapolis, Aug. 30-31, 2001.  Adm. Law Judge Jerry M. Hermele issued his decision Dec. 14, 2001.

* * *

Zarcon, Inc. (26-CA-20603, 20604; 340 NLRB No. 145) Springfield, MO Nov. 28, 2003.  The Board rejected the Respondent's exceptions and affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(3) of the Act by laying off Eric Berner because of his activities for Carpenters District Council of Kansas and Vicinity and refusing to hire nine employee-applicants because of their union affiliation.  [HTML] [PDF]

The Respondent did not except to the judge's findings that it violated Section 8(a)(1) by informing its employees that it would have union organizers removed from the jobsite by law enforcement officers, informing its employees that an employee had been laid off because of his union activities, threatening that the Company would close if the Union succeeded in organizing its employees, and threatening employees with physical violence if they did not cease engaging in activities protected by Section 7.

The Charging Party filed exceptions to the judge's dismissal of the allegations that the Respondent unlawfully interrogated Michael Butts and Todd Bearden.  The Board concluded that Supervisor Randy Lea unlawfully interrogated Butts concerning his union membership, activities, and sympathies in violation of Section 8(a)(1) and, thus, found it unnecessary to pass on the Bearden interrogation because it would not affect the Order.

(Chairman Battista and Members Liebman and Schaumber participated.)

            Charges filed by Carpenters District Council of Kansas and Vicinity; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Springfield, Dec. 16-18, 2002.  Adm. Law Judge George Carson II issued his decision March 7, 2003.

* * *

Allen's Electric Co., Inc. (16-RC-10472; 340 NLRB No. 119) Travis, et al., TX Nov. 19, 2003.  Members Liebman and Walsh certified Electrical Workers IBEW Local 520 as the exclusive representative of all electrical workers employed by Allen's Electric Co. in various counties in the State of Texas.  The results for the election held January 7, 2003 shows 13 for and 7 against the Union.  The majority affirmed the hearing officer's recommendation and overruled the Employer's Objection to the Union's promises and payments to voters to reimburse them for wages lost while they voted.  The Employer failed to prove that the Union's conduct had a reasonable tendency to influence voters' free choice in the election, the majority held.  [HTML] [PDF]

            Member Schaumber wrote in his dissent:  "I will assume for purpose of this dissent that a party's offer to reimburse employees—in these circumstances—for lost wages is not per se objectionable.  Nonetheless, I find that such an offer taints the election by unduly affecting the election's outcome if it is not made available to all employees eligible to vote."  Member Schaumber agreed with his colleagues that the Union's providing an election day carpool to help voters get to the polls was not objectionable.

(Members Liebman, Schaumber, and Walsh participated.)

***

Chrill Care, Inc. (22-RC-12218; 340 NLRB No. 123) Montclair, NJ Nov. 20, 2003.  The Board overruled the Employer's objections and certified Home Health Care, 1199, AFSCME as the collective-bargaining representative of all certified home health aides employed by the Employer at its Montclair, NJ facility.  The tally of ballots for the election held August 1, 2002, shows that in a unit of approximately 412 eligible voters, 174 cast votes for and 170 cast votes against the Union, with no challenged ballots.  [HTML] [PDF]

            The Board agreed with the hearing officer that the Employer presented insufficient credible evidence to support its Objection 1, alleging that the Union engaged in intimidating or coercive conduct, and its Objection 2, which alleged that the Union engaged in objectionable conduct by photographing employees who came to the Employer's premises to vote in the election.

The Employer's Objection 3 alleged that the Union engaged in objectionable conduct by picketing or otherwise demonstrating on the date of the election at the Employer's place of business, thus blocking or intimidating employees who appeared to vote, and by recording the names of employees who appeared to vote.  The Board agreed with the hearing officer that there is no evidence that any unit employee's access to the business, the Employer's premises, or the voting area was inhibited or blocked more than momentarily.  Turning to the allegation of note taking or recording of voter's names, the Board agreed with the hearing officer, who found no evidence that any eligible voter witnessed the list keeping and, accordingly that no eligible voter could have been coerced by the Union's conduct.

            The Board, in overruling the Employer's Objection 6, agreed with the hearing officer that employees witnessing union organizer Ramjas' conduct at an Employer offsite meeting about 2 weeks before the election, would not reasonably have felt coerced in the exercise of their free choice in the election.  Ramjas briefly disputed the meeting and initially resisted the Employer's efforts to eject her, but was ultimately persuaded to leave once the police were called.  The Board wrote: "We agree with the hearing officer that, rather than give employees the impression that the Employer was powerless against the force of the Union, this incident would be more likely to convince employees that the Employer was fully able to maintain control."

            The Board adopted, in the absence of exceptions, the hearing officer's recommendations to overrule the Employer's Objections 4 and 5.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Detroit Newspaper Agency, d/b/a Detroit Newspapers (7-CA-40270, et al.; 340 NLRB No. 121) Detroit, MI Nov. 21, 2003.  The Board adopted, absent exceptions, the administrative law judge's findings that the Respondent's discharges of James Schafranek in Case 7-CA-40556 and Gerald Kociemba in Case 7-CA-40331 violated Section 8(a)(1) and (3) of the Act.  [HTML] [PDF]

            The Respondent is a joint operating partnership of the Detroit News and Detroit Free Press, two Detroit area newspapers.  The Board accepted as the law of the case the D.C. Circuit's decision that a strike by the Respondent's employees (and the employees of the Detroit News and Detroit Free Press) was an economic strike.  Detroit Typographical Union No. 18 v. NLRB, 216 F.3d 109 (2000), motion for reconsideration denied by unpublished decision (Aug. 31, 2000).  The judge had issued his decision in the instant case before the Court granted the Respondents' petition for review and rejected the Board's finding at 326 NLRB 700 that unfair labor practices had caused the strike.

Members Liebman and Walsh revised the judge's remedy and recommended Order to grant the discriminatees the rights of returning economic strikers.  Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).  They noted that their accompanying cease-and-desist order for the finding that the discharges of Kociemba and Schafranek violated Section 8(a)(1), is consistent with the Board's longstanding practice where a violation is found under NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964).  Addressing Member Schaumber's disagreement with the cease-and-desist order, Members Liebman and Walsh wrote:  "We see no reason for revisiting this practice here, particularly where the Respondent has not excepted either to the finding of the violation or to the remedy."

In his partial dissent, Member Schaumber said his colleagues' issuance of a cease-and-desist order lacked a rational basis.  He pointed out that all three Members agreed with the judge's finding that the Respondent held a good-faith but mistaken belief that Kociemba and Schafranek had engaged in serious strike-related misconduct.  Thus, the judge correctly found a violation, applying a Burnup & Sims analysis.  Member Schaumber explained how he would revise the order, saying the Board must refashion the order in this case and similar cases to remove the threat of contempt proceedings.  He wrote:

In this case and in all cases involving Burnup & Sims-type violations, there is no evidence that the employer failed to conduct an adequate investigation or otherwise prevented itself from discovering its mistake.  On the contrary, the employer in these cases acts reasonably and in good faith, but errs.  In effect, therefore, my colleagues order the Respondent not to make innocent mistakes in the future.  It is tantamount to ordering the Respondent to be infallible.  However, the absurdity of the order is not the worst of its drawbacks.  A cease-and-desist order, once enforced by a court of appeals, becomes a vehicle for bringing contempt proceedings.

(Members Liebman, Schaumber, and Walsh participated.)

            Charges filed by Teamsters Local 372 and Detroit Mailers Union No. 2040; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Detroit, Nov. 30 through Dec. 3, 1998 and March 18, 1999.  Adm. Law Judge Richard A. Scully issued his decision March 13, 2000.

***

DHL Worldwide Express (29-RC-9845; 340 NLRB No. 122) Long Island City, NY Nov. 21, 2003.  The Board held that DHL Worldwide Express (the Employer or DHL) is engaged in commerce within the meaning of the National Labor Relations Act and remanded the case to the Regional Director for further appropriate action.  DHL is engaged in the business of package delivery by air and ground.  The Employer contended that the petition filed under Section 9(c) of the Act by Teamsters Local 804 should be dismissed because it is subject to the jurisdiction of the Railway Labor Act (RLA).  The Board requested the National Mediation Board (NMB) to determine the applicability of the RLA to the Employer.  The NMB determined that DHL is not subject to the RLA because DHL is not controlled by or under common control with a carrier and thus, the control prong of the NMB's jurisdictional test was not satisfied.  [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

***

A-NIV Cab Co. d/b/a Las Vegas Limousine (28-CA-17748, et al.; 340 NLRB No. 120) Las Vegas, NV Nov. 20, 2003.  The Board upheld the administrative law judge's recommended dismissal of the complaint, which alleged that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by suspending and discharging Stephanie Maitland and imposing more onerous conditions of employment on its drivers; Section 8(a)(3) and (1) by suspending Maitland; and Section 8(a)(1) by threatening employees with discharge because of their union activities and because they filed charges or gave testimony under the Act and by interrogating employees about their union activities.  [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

 

Charges filed by Stephanie Maitland, Julio Cavalcanti, and Michael Horrocks, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (4).  Hearing at Las Vegas, June 9-12, 2003.  Adm. Law Judge Lana H. Parke issued her decision Aug. 22, 2003.

***

Cooper Tire & Rubber Co. (18-RC-17081; 340 NLRB No. 108) Cedar Rapids, IA Oct. 28, 2003. A Board majority of Members Liebman and Walsh agreed with the hearing officer's finding that the Employer engaged in objectionable conduct when it threatened unit employees with a loss of benefits if they selected Electrical Workers IBEW Local 1634 as their bargaining representative. Accordingly, Members Liebman and Walsh directed that the election of January 31, 2003, be set aside and a second election be conducted. Chairman Battista dissented. The tally of ballots for the election showed 6 votes for and 6 against, the Union, with no challenged ballots. [HTML] [PDF]

The hearing officer found that the Employer interfered with the election when Distribution Center Manager Todd Lemke circulated a question and answer memorandum to employees on January 27, 2003, containing the following statement regarding employee eligibility for its ROAM bonus (part of a profit-sharing program calculated from the Employer's financial results in the preceding year that is typically granted to employees in mid to late February):

QUESTION #22: If the I.B.E.W. gets in here, will we still be eligible for the ROAM bonus?

ANSWER: I don't know. Cooper has some unionized workers at other facilities and none of them participate in the ROAM bonus program. Cooper expects to announce the amount of the ROAM bonus for this year early next month. Early indications show that the ROAM bonus looks very promising this year.

Members Liebman and Walsh agreed with the hearing officer that the January 27 question and answer statement interfered with the election because it reasonably would lead employees to believe that receipt of the 2002 ROAM bonus was contingent on how they voted in the election.

Dissenting, Chairman Battista disagreed with his colleagues' finding. He said the employees reasonably understood that they definitely would receive a bonus for 2002, and that if the Union were selected, future bonuses would not necessarily be given. Chairman Battista wrote:

[E]ven if it were assumed, arguendo, that the 2002 bonus was not a 'done deal' until board of director approval, I would find that the Employer's statements were nonetheless privileged. If the Union won the election on January 31, the ROAM bonus would be subject to negotiations. . . . Thus, the Employer would be correct to say that if the Union were chosen the 2002 bonus would be uncertain.

In Chairman Battista's view, the Employer's statements were factually and legally correct and therefore, not objectionable.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Dura Art Stone, Inc. (31-RC-8177; 340 NLRB No. 113) Fontana, CA Oct. 31, 2003. The Employer and Intervenor No. 1's (Amalgamated Industrial Workers) joint request for review of the Regional Director's Decision and Direction of Election was denied by the Board as it raised no substantial issues warranting review. In denying review, the Board found it unnecessary to rely on the Regional Director's conclusion that the issuance by the District Court of the Temporary Injunction and Order constituted an "unusual circumstance" under Mistletoe Express, 268 NLRB 1245 (1984). The petitioning union is Electrical Workers UE and Intervenor No. 2 is Laborers Local 783. [HTML] [PDF]

(Members Liebman, Schaumber, and Walsh participated.)

* * *

The Lamar Co., LLC d/b/a Lamar Advertising of Janesville (30-RC-6254; 340 NLRB No. 114) Janesville, WI Oct. 31, 2003. The Board agreed with the hearing officer's recommendation to overrule the Employer's objections 5, 6, 9, and 10 alleging that the Union (Painters Local 802) or its agents interfered with the election by promising employee Steven Jones a leather jacket if the Union won the election, engaging in electioneering, misrepresenting the election bar rule, and threatening an employee with loss of benefits. Finding no merit in objections 1, 3, and 4, the Board also adopted the hearing officer's recommendation to overrule them. Accordingly, the Board certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit. The tally of ballots for the election of January 5, 2001 showed 9 for and 7 against the Union, with no challenged ballots. [HTML] [PDF]

(Chairman Battista and Members Liebman and Schaumber participated.)

* * *

Plaza Properties of Michigan, Inc. a/k/a Plaza Operations, Inc. d/b/a Michigan Inn, et al. (7-CA-43711, 44205; 340 NLRB No. 115) Southfield, MI Oct. 31, 2003. Chairman Battista and Member Schaumber denied the General Counsel's motion for default summary judgment with respect to Respondents Plaza Properties of Michigan, Inc. (PPM) a/k/a Plaza Operations, Inc. d/b/a Michigan Inn (POI), Michigan Inn, Inc. (Michigan Inn), Plaza Properties, Inc. (PPI), and J&M Hotel Management Co., L.L.C. d/b/a Clarion Ambassador Hotel a/k/a Michigan Inn (J&M) (the predecessor Respondents) and remanded the proceeding to the Regional Director for further appropriate action. Member Walsh dissented. [HTML] [PDF]

In denying the motion, the majority found that Respondents PPM, POI, Michigan Inn, PPI, and J&M failed to show good cause for failing to file a timely answer to the consolidated complaint, but that a significant number of the complaint allegations were insufficient to determine whether it was appropriate to find the alleged violations and what the appropriate remedy should be. They wrote: (1) the complaint failed to specify which Respondents committed which violations; (2) the complaint failed to specify the dates when many of the alleged violations occurred; (3) the complaint contained inconsistent allegations regarding when the predecessor Respondents ceased managing and controlling the facility; (4) the complaint allegations are insufficient to find that the predecessor Respondents unlawfully laid off all unit employees and closed or partially closed the facility; (5) the complaint and motion failed to explain the basis for finding that the predecessor Respondents' other alleged 8(a)(5) conduct also violated 8(a)(3); and (6) the complaint and motion also raised a number of remedial issues.

Contrary to his colleagues, Member Walsh would grant the General Counsel's motion against the predecessor Respondents that have failed to answer the complaint and would provide the General Counsel the relief he seeks. Member Walsh argued that: "In denying the General Counsel's uncontested motion for partial default judgment and sending this case back to the drawing board, the majority opinion unjustly delays any remedy for the innocent victims of the unfair labor practices committed by multiple wrongdoers three years ago." He concluded by saying that the predecessor Respondents have admitted all the allegations against them in a proper complaint and the General Counsel is entitled to a summary finding of unlawful conduct.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Hotel & Restaurant Employees Local 24; complaint alleged violation of Section 8(a)(1), (3) and (5). General Counsel filed motion for partial default summary judgment Feb. 10, 2003.

* * *

Providence College (1-CA-39493, 39547; 340 NLRB No. 111) Providence, RI Oct. 31, 2003. In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by its denial of the day before Thanksgiving as a vacation day in retaliation for the Union's decision to take Veterans Day as a holiday in 2001; and Section 8(a)(1) and (5) by being unreasonably dilatory in turning over to the Union requested information which was relevant and necessary to carry out its collective-bargaining responsibilities and, unilaterally modifying the agreed- upon staffing arrangement for men's ice hockey games without prior notice to and affording the Union an opportunity to bargain. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Service Employees Local 134; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Pawtucket, June 10-12, 2002. Adm. Law Judge Martin J. Linsky issued his decision Nov. 14, 2002.

Barnard College (2-CA-33460, 33462; 340 NLRB No. 106) New York, NY Oct. 21, 2003. The Board affirmed the administrative law judge's conclusions that the Respondent violated Section 8(a)(5) and (1) of the Act on November 30, 2000 by unilaterally changing the parties' agreed-upon grievance handling procedures when the Respondent's director of facilities services, Suzanne Gold, refused to meet with two union representatives at a second-step grievance meeting; and Section 8(a)(1) on August 24, 2000, by limiting the union representative's participation in John Crespo's and Fernando Calvo's investigatory interviews to that of a silent observer, denying their right under NLRB v. Weingarten, 420 U.S. 251 (1975).[HTML] [PDF]

Chairman Battista and Member Schaumber held that the Respondent did not violate Section 8(a)(1) by suspending Crespo and Calvo at the end of each employee's August 24 interview. Although the complaint alleged that Crespo and Calvo were unlawfully suspended because they refused to participate in the investigatory interviews without union representation, the majority said that the motivating factor for their suspension was their insistence for not one, but two union representatives. They found that Crespo's and Calvo's demands for two union representatives were not protected conduct.

Dissenting in part, Member Liebman argued that Crespo's and Calvo's demands for union representation were protected conduct, even if the employees actually insisted on being represented by two union representatives. She said that her colleagues ignored the direct connection between the Respondent's unlawful denial of representation and the employees' subsequent demand. Member Liebman noted that if Crespo's suspension was unlawful, then his discharge--which was predicated in part on the suspension--must be evaluated separately under Wright Line. She would sever this issue and remand it to the judge for initial findings and conclusions.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Transport Workers Local 264; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, April 16-17, 2002. Adm. Law Judge Michael A. Marcionese issued his decision Nov. 14, 2002.

* * *

Ready Mix USA, Inc. (10-CA-32872; 340 NLRB No. 107) Florence, AL Oct. 24, 2003. The Board adopted the administrative law judge's finding that the Respondent, by refusing to recognize and bargain with Operating Engineers Local 320, violated Section 8(a)(1) and (5) of the Act.[HTML] [PDF]

The Respondent, as found by the judge and agreed to by the Board, is a successor to Southern Ready-Mix (SRM) and passed the test for determining successorship under NLRB v. Burns Security Services, 406 U.S. 272 (1972). In its exceptions, the Respondent claimed, among other things, that because of significant changes in the management and overall corporate structure of the business, its predecessor's historical combined unit of ready-mix batch plant and concrete block plant, employees no longer remained an appropriate unit.

The Board held that the unit remained appropriate as there was a substantial and representative employee complement because the Respondent had offered employment to all the SRM employees and operation of the facilities continued uninterrupted, and the Respondent continued to operate its predecessor's facilities in essentially an unchanged manner from the time of the purchase.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed Operating Engineers Local 320; complaint alleged violation of Section 8(a)(1), (5), and 8(d). Hearing at Florence on Oct. 29, 2001. Adm. Law Judge Margaret G. Brakebusch issued her decision Jan. 18, 2002.

* * *

G & K Services, Inc. (15-RD-843; 340 NLRB No. 103) New Orleans, LA Oct. 16, 2003. The Board affirmed the hearing officer's finding that the Union's (UNITE Southwest Regional Joint Board) objections to the election were timely filed and his recommendation that the Employer's challenge to the ballot of Jennifer Ellsworth be sustained, that the Union's challenges to the ballots of Donna Martin and Lucinda Williamson be overruled, and that the Union's objections to the election be overruled. In the absence of exceptions, the Board adopted the hearing officer's recommendation that the challenge to the ballot of Angel Cantrell be overruled. [HTML] [PDF]

Contrary to the hearing officer, the Board determined that Raphael Chambliss, who was hired for the Employer's Saint Rose facility, was not an employee in the bargaining unit and sustained the challenge to his ballot. The Board noted that the language of the unit description clearly and unambiguously describes the unit as "all production and maintenance employees employed by the Employer at its facility in New Orleans" and, thus, by its clear language, the unit includes only employees at that location and, by implication, excludes production and maintenance employees employed at any other facility.

The Board directed the Regional Director to open and count the ballots of Cantrell, Martin, and Williamson and thereafter, to prepare and serve on the parties a revised tally of ballots and to take further appropriation action. The tally of ballots for the decertification election held on December 19, 2002, showed 13 votes cast for and 11 votes cast against, the Union, with 5 determinative challenged ballots.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Omahaline Hydraulics Co., a Division of Prince Manufacturing Corp. (18-RM-1355; 340 NLRB No. 104) North Sioux City, SD Oct. 15, 2003. Members Liebman and Walsh, with Chairman Battista dissenting, agreed with the hearing officer's finding that 27 employees who had been on strike since May 3, 2001 were still employees at the time of the election held on March 28, 2002, and adopted his recommendation that the challenges to their ballots be overruled. Members Liebman and Walsh concluded that the Employer failed to meet its burden of establishing that the strikers' jobs had been permanently eliminated and directed the Regional Director to open and count their ballots and thereafter, to prepare and serve on the parties a revised tally of ballots and the appropriate certification. [HTML] [PDF]

Contrary to his colleagues, Chairman Battista would sustain the Employer's challenges to the ballots of the striking employees. He held that the strikers were not eligible voters in the election as their jobs had been eliminated and they had no reasonable expectation of recall. He wrote:

The Employer made that clear in letters of February 27 and March 25. Indeed, even the Union was not contesting this fact. It simply wanted to assure that certain vacation benefits were paid to these employees and it wanted to secure a more advantageous termination date. My colleagues contend that these letters were mere proposals to the Union. The contention has no merit. The letters set forth facts which made it clear that there was no reasonable expectancy of recall. The proposal was that the Union agree to a termination date as a condition of receiving vacation pay.

In the absence of exceptions, the hearing officer's recommendation to sustain the challenges to the ballots of eight employees who were separated in February 2001 was upheld. The tally of ballots for the decertification election held on March 28, 2002 showed 0 votes cast for and 21 votes cast against, the Machinists, with 35 challenged ballots.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

TKC, a Joint Venture (5-CA-30504, 30554; 340 NLRB No. 102) Oxon Hill, MD Oct. 17, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by interrogating employee Marcus Lumpkin, implying that Lumpkin's union activity was the reason for his layoff, and issuing disciplinary warnings to employees Daniel McVicker and Clay Cunningham for engaging in protected activity; and violated Section 8(a)(3) and (1) by laying off Lumpkin because of his activities in support of Operating Engineers Local 77. In the absence of exceptions, the Board approved the judge's finding that the Respondent did not violate Section 8(a)(3) by reducing McVicker's overtime hours or by discharging McVicker. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Operating Engineers Local 77; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Washington, DC, April 28 and 29, 2003. Adm. Law Judge Richard A. Scully issued his decision Aug. 7, 2003.

* * *

LIST OF DECISIONS OF ADMINISTRATIVE LAW JUDGES

Greater Cincinnati Cardio-Vascular Consultants, Inc. (an Individual) Cincinnati, OH October 15, 2003. 9-CA-39928; JD-110-03, Judge Joseph Gontram.

Spectrum Contracting, Inc. (Painters District Council 51) Catharpin, VA October 10, 2003. 5-CA-31064, JD-111-03, Judge Richard A. Scully.

Taos Health Systems, Inc., d/b/a Holy Cross Hospital (Hospital Employees District 1199 N.M., AFSCME) Taos, NM October 7, 2003. 28-CA-16818, et al.; JD(SF)-69-03, Judge Albert A. Metz.

* * *

NO ANSWER TO COMPLIANCE SPECIFICATION

(In the following case, the Board granted the General Counsel's
motion for summary judgment based on the
Respondent's (ITS) failure to file an answer
to the compliance specification.)

Indiana Personnel Services d/b/a Indiana Temporary Services (ITS) et al. (Plumbers Local 669) (25-CA-24068, 24189; 340 NLRB No. 101) Indianapolis, IN October 14, 2003.

Alabama Catfish, Inc. d/b/a Harvest Select Farms, LLC (10-CA-34246; 340 NLRB No. 100) Uniontown, AL Sept. 30, 2003. The Board, having found that the administrative law judge's bench decision does not adequately set forth his reasons for crediting certain witnesses over others, remanded this proceeding to the judge to reconsider his credibility determinations and to issue a supplemental decision fully explaining the basis for crediting or discrediting the testimony of the respective witnesses. It also ordered the judge to further consider the issue of whether the Respondent violated Section 8(a)(1), (3), and (4) of the Act. [HTML] [PDF]

The Board wrote: "Of particular concern, the judge's decision does not indicate whether he considered certain undisputed facts that arguably are inconsistent with his credibility determinations. As a result, we are unable to resolve the Respondent's exceptions to the judge's finding that it unlawfully refused to rehire [Charging Party Pamela] Witherspoon."

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Pamela Witherspoon, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Uniontown on May 9, 2003. Adm. Law Judge Lawrence W. Cullen issued his bench decision June 11, 2003.

* * *

American Postal Workers Local 64 (21-CB-13333(P); 340 NLRB No. 98) Encino, CA Oct. 10, 2003. Members Liebman and Walsh denied the Union's petition to revoke two subpoenas which were served by the Regional Director on union officials Yolanda Elder and Arthur Clark in connection with the investigation of the unfair labor practice charge filed by Teresa Taft. In denying the Union's petition, the Board wrote: "Section 11(1) of the Act specifically authorizes the issuance of investigatory subpoenas seeking testimony, and the Board's authority to issue such subpoenas is well established." Offshore Mariners United, 338 NLRB No. 88 (2002); NLRB v. North Bay Plumbing, Inc., 102 F.3d 1005, 1007-1008 (9th Cir. 1996). Chairman Battista dissented. [HTML] [PDF]

In support of its petition, the Union asserted, among others, that it had already cooperated with the Region by providing two written statements setting forth its position, as well as numerous documents and was unaware of any law that required a party to produce "the Charged Party for the purpose of providing an affidavit to the Region during the investigation of an unfair labor practice charge against that party."

Chairman Battista would grant the Union's petition to revoke on the grounds that the Regional Director has failed to show that the subpoenaed testimony is relevant to the investigation, and that the subpoenas do not describe with particularity the evidence being sought. He disagreed with his colleagues that it is sufficient that the subpoena simply identify the name and number of the case under investigation. In his view, the mere naming of the case does not, standing alone, "describe with sufficient particularity the evidence whose production is required." He said "it makes no sense to permit a subpoena to be vague and indefinite and to have the gaps filled in only after motions and countermotions."

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

CTS, Inc. (30-CA-16057-1; 340 NLRB No. 99) Wales, WI Oct. 9, 2003. Chairman Battista and Member Schaumber affirmed the administrative law judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to adhere to the terms of the June 1, 2002-May 31, 2005 collective-bargaining agreement (the 2002 agreement) between the Associated General Contractors of Wisconsin (AGC) and the Union. The majority agreed with the judge's conclusion that the Respondent was not bound by the 2002 agreement and, based on the totality of the Union's conduct, that the Union consented or acquiesced in the Respondent's effort to abandon multiemployer bargaining. [HTML] [PDF]

Dissenting, Member Walsh concluded that the Respondent violated the Act by failing and refusing to abide by the 2002 multiemployer agreement. He found that under the standards set out in Retail Associates, Inc., 120 NLRB 388 (1958), the Union's letter of February 20, 2002 does not constitute or reasonably communicate a withdrawal by the Union from multiemployer bargaining and that the Union has not unequivocally disclaimed representation of the Respondent's employees. Citing Standard Roofing Co., 290 NLRB 193 (1988), Member Walsh found that the Union's post-February 20 conduct cannot be considered individual contract negotiations with the Respondent.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Bricklayers District Council of Wisconsin; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Milwaukee on Nov. 4, 2002. Adm. Law Judge Benjamin Schlesinger issued his decision Feb. 11, 2003.

* * *

Tri-Tech Services, Inc. (15-CA-16177-1, et al.; 340 NLRB No. 97) Selma, AL Sept. 30, 2003. The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing the layoff of 24 employees without providing the Steelworkers an opportunity to bargain about it. The Board found it unnecessary to pass on the judge's finding that the Respondent violated Section 8(a)(3) by using the layoff to retaliate against employees' selection of the Union. [HTML] [PDF]

When Delta Airlines informed Respondent that there would be no more orders for rotary container transporters, the Respondent shut down the line that manufactured the equipment and laid off 24 employees represented by the Union. The Respondent argued that the layoff was not a unilateral change over which it was required to bargain because the layoff was consistent with its past practice of employee layoffs and that the Union waived its right to bargain about the layoff by not making a demand for bargaining when it learned that the layoff had occurred. The Board agreed with the judge that the Respondent's unilateral implementation of the layoff was presented to the Union as a fait accompli, making any demand for bargaining futile. See, e.g., Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023-1024 (2001).

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Selma, Dec. 12, 13, and 14, 2001. Adm. Law Judge Jane Vandeventer issued her decision Aug. 8, 2002.

* * *

Active Transportation Co., L.L.C. (11-CA-19328; 340 NLRB No. 47) Mt. Holly, NC Sept. 30, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act, as alleged, by failing and refusing to execute, on request, a written contract incorporating the agreement concerning unit employees' health insurance and pensions, which it reached with Teamsters Local 71 in September 2001. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 71; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Winston-Salem on July 11, 2002. Adm. Law Judge Keltner W. Locke issued his decision Aug. 8, 2002.

* * *

Air Contact Transport, Inc. (5-CA-29322; 340 NLRB No. 81) Lorton, VA Sept. 30, 2003. The Board affirmed the administrative law judge's finding that employee Gary Good engaged in protected concerted activity at the Respondent's goodbye luncheon for its terminal manger when he raised his hand and stated that he "had some questions on behalf of [himself] and other coworkers," and that the memo Goode received from the Respondent on September 22, 2000, reprimanding him for his protected concerted activity at the luncheon was unlawful. The Board also agreed with the judge that the Respondent discharged Good in violation of Section 8(a)(1) of the Act, relying on Kolkka Tables & Finnish-American Saunas, 335 NLRB 844 (2001), not the judge's analysis under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Member Walsh agreed with the judge that Goode's discharge also violated Section 8(a)(1) under a Wright Line analysis. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Gary Goode, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Washington, D.C., April 15-16, 2002. Adm. Law Judge Karl H. Buschmann issued his decision July 31, 2002.

* * *

Air Flow Equipment, Inc. (7-CA-44131-1; 340 NLRB No. 62) Kalamazoo, MI Sept. 29, 2003. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by implying to employees that selecting a union to represent them would be futile, threatening them with unspecified consequences if they tried to organize a union, interrogating employees about the union activities of other employees, encouraging and assisting employees to withdraw their signed authorization cards, and informing employees that it would no longer make personal loans to them if Sheet Metal Workers Local 7 were selected; and violated Section 8(a)(3) by discharging employee Eric Furtaw. [HTML] [PDF]

Contrary to his colleagues, Member Schaumber found that the General Counsel did not prove by a preponderance of the evidence that the comment made by Company Owner and President Dick DeYoung at an employee meeting concerning the Respondent's continued ability to make personal loans if the Union came in was a threat to withdraw an existing benefit in violation of Section 8(a)(1).

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Sheet Metal Workers Local 7; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Kalamazoo, Nov. 8-9, 2001. Adm. Law Judge Jane Vandeventer issued her decision Feb. 22, 2002.

* * *

Alaska Ship and Drydock, Inc. (19-CA-27490, et al.; 340 NLRB No. 95) Ketchikan, AK Sept. 30, 2003. Affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) of the Act by maintaining an employee handbook provision that interferes with employee discussion of their pay rates or salaries and an employee handbook provision that requires employees to obtain management authorization to distribute literature on its premises at any time, threatening to discharge employees who possess or sign union authorization cards, and threatening employees for discussing their wages among themselves. It modified the recommended Order and notice to accurately reflect the violations found. [HTML] [PDF]

The Board, in adopting the judge's finding that the maintenance of the Respondent's wage discussion policy violated Section 8(a)(1), found, contrary to the judge, that the Respondent did in fact proffer a business justification for the policy, but that it is insufficient to warrant reversal of the judge's finding of a violation. The Respondent claimed that, because the employees are not aware that the hourly wage rates are based on different skill levels, the wage discussion policy is designed to prevent "hurt feelings" that would result should the employees become aware that they are being paid different hourly wage rates.

In adopting the judge's conclusion that the Respondent's wage discussion policy violated Section 8(a)(1), Chairman Battista and Member Schaumber noted that the policy is not simply a confidentiality policy, but expressly bans the discussion of wages. Cf. Lafayette Park Hotel, 326 NLRB 824, 826 (1998). They also noted that, from late 2000 to 2001, the Respondent's work force swelled from no more than 50 to more than 200 employees, and thus a significant number of employees were brought under the handbook provisions for the first time during the period covered by the complaint; and that although the employee handbook did not specify a form of discipline for failure to adhere to the wage discussion policy, the Respondent violated Section 8(a)(1) when Supervisor Carney told employee Mike Hamilton that he would be in "big trouble" if he talked about wages.

No exceptions were filed to the judge's recommended dismissal of the allegation that the Respondent discharged David Harvey in violation of Section 8(a)(3) and (1).

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Carpenters Local 2520; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ketchikan, Nov. 5-6, 2002. Adm. Law Judge William L. Schmidt issued his decision March 14, 2003.

* * *

Alliance Steel Products, Inc. (8-CA-32650; 340 NLRB No. 65) Alliance, OH Sept. 30, 2003. In the absence of exceptions, the Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Donald Braham, Gary Combs, Nelson Lanham, Scott Stiffler, and Marcus Grinter and by issuing written warnings to and discharging Debra Watson; and violated Section 8(a)(1) by removing a union flyer from a bulletin board on which nonwork-related materials were allowed to be posted. The Board found merit in the General Counsel's exception and held, contrary to the judge, that the Respondent violated Section 8(a)(1) by threatening employees with discharge on or about July 2, 2001. It concluded that Plant Manager Bob Balint's threat on July 2 to fire Stiffler "on the spot" if he continued to talk about the union reasonably tended to interfere with, threaten, or coerce employees in the exercise of their Section 7 rights. [HTML] [PDF]

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Canton, Sept. 9-12, 2002. Adm. Law Judge Arthur J. Amchan issued his decision Nov. 14, 2002.

* * *

American Alpha Construction, Inc. (13-CA-40937-1; 340 NLRB No. 48) West Chicago, IL Sept. 26, 2003. Absent good cause being shown for the Respondent's failure to file a timely answer to the complaint, the Board granted the General Counsel's motion for default judgment insofar as the complaint alleges that the Respondent committed violations of Section 8(a)(1) and (3) of the Act, including refusing to hire and/or consider for hire four job applicants. It found that the undisputed complaint allegations are sufficient to establish the violations under the standards of FES, 331 NLRB 9 (2000), supp. decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). The Board however held in abeyance a final determination of the appropriate affirmative remedy because the complaint fails to allege how many available positions the Respondent had for the discriminatee applicants. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Bricklayers Illinois Local 21; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment July 18, 2003.

* * *

Bulkmatic Transport Co. (8-CA-33405; 340 NLRB No. 74) Cleveland, OH Sept. 30, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally failing and refusing to deduct and remit to the Union proper dues from the unit employees since on or about May 1, 2002. [HTML] [PDF]

The parties' master agreement contained, among others things, the dues checkoff obligation and provisions pertaining to union security and expired March 31, 2003. Their rider agreement contained articles relating to matters such as wages, and health and welfare and pension benefits and expired April 30, 2002. The Respondent ceased to deduct and remit dues to the Union upon expiration of the rider agreement but before the expiration of the master agreement.

The Board found that the parties intended the provisions of the rider agreement and the master agreement would expire at different times, and that the separate expiration dates were not inconsistent clauses in the collective-bargaining agreements. It did not rely on the judge's conclusion that the master agreement contained substantial terms and thus would be a contract bar. Rather, the Board relied upon the fact that the master agreement contained the checkoff clause, and thus the expiration date of that contract governed the termination date for checkoff.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 407; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cleveland, Oct. 24-25, 2002. Adm. Law Judge Margaret G. Brakebusch issued her decision Oct. 25, 2002.

* * *

Campbell Electric Co., Inc. (25-CA-27041-1; 340 NLRB No. 93) Mishawaka, IN Sept. 30, 2003. The administrative law judge found, and the Board agreed, that the Respondent committed numerous violations of Section 8(a)(1) of the Act. It also found that by discharging Michael Fenrick and Michael Popovich on January 11, 2000; discharging Matthew Petruska on February 7; accelerating the resignation of Robert Kellogg on February 21; and discharging Brian Zache on February 24, the Respondent violated Section 8(a)(3) and (1). [HTML] [PDF]

The General Counsel excepted to the judge's remedy for the unlawful discharges of Popovich and Petruska. The judge found that both of them, before their terminations, had plans to resign their employment that were sufficiently definitive to toll their backpay as of the date of their planned departures.

Members Liebman and Walsh agreed that Popvich had specific and definitive plans to resign before he was unlawfully terminated, but not Petruska. At the time of his discharge, Petruska was contemplating giving notice of his resignation, but he did not do so because he was waiting for the union apprenticeship placement test results. The majority rejected the judge's finding that Petruska would have left his employment within two weeks of receiving the test results and modified the Order directing the Respondent to offer Petruska full reinstatement to his former job or, if the job no longer existed, to a substantially equivalent position.

Chairman Battista, dissenting in part, disagreed with the majority's decision to modify the judge's remedial order regarding discriminatee Petruska. He agreed with the judge's finding that prior to the Respondent's unlawful discharge of him, Petruska had formed a definite intention to resign his employment with the Respondent. Chairman Battista noted that the judge accordingly declined to order the Respondent to offer Petruska reinstatement, and tolled the backpay period as of the time that Petruska would have resigned his employment even if the discharge had not occurred.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 153; complaint alleged violation of Section 8(a)(1) and (3). Hearing at South Bend, Nov. 1-2, 2000. Adm. Law Judge Eric M. Fine. issued his decision April 5, 2001.

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City Stationery, Inc. (24-CA-9070, 24-RC-8213; 340 NLRB No. 70) Caguas, PR Sept. 30, 2003. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(1) of the Act by discharging 20 warehouse employees because of their protected concerted activities in seeking to discuss possible wage increases with its president, and, except for a few employees who had already been reinstated or who had waived reinstatement and backpay pursuant to settlement agreements, ordered the discriminatees reinstated with backpay. Further, in agreement with the judge, the Board ordered that the 16 challenged ballots, all cast by discriminates, in a Board-conducted representation election held on December 3, 2001, be opened and counted and that the Regional Director issue a revised tally of ballots and an appropriate certification. [HTML] [PDF]

The election resulted in 3 for and 6 against, Teamsters Local 901, with 17 challenged ballots. The 17th ballot was challenged by the Union on the basis of the voter's familial relationship with an officer of the Respondent and that ballot is not at issue in these proceedings.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Teamsters Local 901; complaint alleged violation of Section 8(a)(1). Hearing at San Juan, March 26-27, 2002. Adm. Law Judge William N. Cates issued his decision June 17, 2002.

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Cora Realty Co., LLC a/k/a 301 Holdings, LLC and Chestnut Holdings of New York Inc. (2-CA-32008; 340 NLRB No. 55) Bronx, NY Sept. 29, 2003. The Board held, contrary to the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act, following its September 1998 takeover of the operations at an apartment building at 2170 University Avenue, Bronx, NY, by unilaterally changing unit employees' wages and benefits, but not by changing their work schedules, without prior notice to or providing Service Employees Local 32E an opportunity to bargain about the changes. [HTML] [PDF]

The judge found that the Respondent, although a successor employer, was not a "perfectly clear" successor obligated to consult with the Union before setting the employees' initial terms and conditions of employment. NLRB v. Burns Security Services, 406 U.S. 272 (1972).

The Board did not pass on the issue of whether the Respondent fell within the "perfectly clear" caveat to the general rule of Burns that a successor employer is free to set the initial terms and conditions of employment. Assuming arguendo that the Respondent was free to set the initial terms, it explained that, in setting the initial terms and conditions, the Respondent told the employees that scheduling would change, thereby implicitly telling them that all other terms and conditions would remain the same. In these circumstances, the Board concluded that the Respondent could not thereafter unilaterally depart from the other terms and conditions of employment.

On other issues, the Board found, in agreement with the judge, that the Respondent adopted the Union's multiemployer agreement with the Bronx Realty Advisory Board (BRAB) on October 21, 1998 and failed to apply the agreement to unit employees since that date in violation of Section 8(a) (5) and (1); and that the Respondent discharged Juan Velasco because of his Union membership in violation of Section 8(a)(3) and (1). In another agreement with the judge, the Board found that the Respondent did not unlawfully suspend and discharge Manual Mendez.

Finding merit in the Respondent's exception that "301 Holdings, LLC" is a separate entity and not another name for "Cora Realty, LLC," the Board deleted the reference to "301 Holdings, LLC" from the Order and the notice.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Service Employees Local 32E; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, Sept. 13 and 14 and Oct. 18, 1999. Adm. Law Judge Raymond P. Green issued his decision March 6, 2000.

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Corporate Interiors, Inc. (17-CA-20750, 20979; 340 NLRB No. 85) Olathe, KS Sept. 30, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act in numerous respects, including calling the police to seek the removal of union organizers attempting to apply for jobs, attempting to videotape and videotaping pickets, and interrogating employee-applicants and employees about their union membership and sympathies; and violated Section 8(a)(3) and (1) by refusing to consider for hire 12 job applicants and laying off Lee Murphy. [HTML] [PDF]

In adopting the judge's findings of the Section 8(a)(3) refusal-to- hire/consider violations, Chairman Battista does not rely on either the judge's discussion of the dissenting opinion of Members Liebman and Walsh in Aztech Electric Co., 335 NLRB 260 (2001), or the judge's discussion of the asserted Section 7 right of three of the union applicants to wear "anti-Respondent" T-shirts.

The Board, finding merit in the Charging Party's exception, reversed the judge's dismissal of the allegation that the Respondent's owner, Roger Kilma, during an office phone call and with an employee standing nearby, violated Section 8(a)(1) by threatening a union organizer with physical harm, and found the violation.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Carpenters District Council of Kansas City & Vicinity; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Overland Park, July 17-20, 2001. Adm. Law Judge Margaret G. Brakebusch issued her decision Nov. 23, 2001.

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CSX Hotels, Inc. d/b/a The Greenbrier (11-CA-19537; 340 NLRB No. 92) White Sulphur Springs, WV Sept. 30, 2003. Members Liebman and Walsh, in agreement with the administrative law judge, held that the Respondent violated Section 8(a)(1) of the Act by contacting the police in order to seek the removal or arrest of the union representatives who were engaged in lawful picketing. Wild Oats Community Markets, 336 NLRB 179, 182 (2000). [HTML] [PDF]

Dissenting, Chairman Battista found that the Respondent lawfully contacted the police based on a concern that there was a potential traffic safety problem. In his view, citizens have a constitutional right to contact governmental authorities with respect to their reasonable concerns. He wrote: "That right is enshrined in the First Amendment, i.e., the right to petition the government for redress of grievances."

The majority held that the Respondent has shown no legally protected injury at the hands of the picketers and no judicially cognizable interest in procuring enforcement of the traffic laws. As the judge found, they said there is no evidence of an actual or potential traffic problem as a result of the picketing.

The Union, which represents employees at the Lynch Construction Co., learned on June 12, 2002 that Lynch was performing work traditionally performed by operating engineers on the premises of the Respondent, using nonunion employees of the Respondent. The Union began picketing at the gate used by Lynch on June 20 after an unsuccessful attempt to resolve the issue with Lynch's management. The Respondent admits that the Union's pickets were on public property.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Operating Engineers Local 132; complaint alleged violation of Section 8(a)(1). Hearing at Lewisburg on June 21, 2002. Adm. Law Judge Benjamin Schlesinger issued his decision May 2, 2003.

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Exxon Chemical Co. (22-CA-23546; 340 NLRB No. 51) Linden, NJ Sept. 29, 2003. The primary issue alleged in the complaint was whether the Respondent violated Section 8(a)(1) and (5) of the Act when it refused to designate an arbitrator pursuant to the procedures set forth in its collective-bargaining agreement with Teamsters Local 877 and refused to arbitrate the grievances. The administrative law judge found, and Members Liebman and Walsh agreed, that the Respondent was in violation of the Act. Chairman Battista dissented from this finding. [HTML] [PDF]

In its grievances filed January 30, 1999, the Union contended that the Respondent had not provided the employees with the contractually required 6-month notice of layoff; had failed to match a contribution to the employees' thrift fund based upon a severance pay; and had unilaterally decided to transfer the Exxon thrift fund to another thrift fund. The judge determined that the issues raised by the grievances are clearly covered by the grievance-arbitration procedure under the parties' collective-bargaining agreement and that there is no exclusion from arbitration.

In his partial dissent, Chairman Battista did not agree that the Respondent's refusal to designate an arbitrator and to proceed to arbitration on three specific grievances violated Section 8(a)(5). He claimed that the Respondent has not abrogated the arbitration provisions of the contract but has refused to arbitrate three grievances. Unlike his colleagues who said that the Respondent has repudiated the agreement, he claimed that the Respondent had simply taken the position that the three grievances are not arbitrable.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 877; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, Nov. 14, 2000 and Jan. 22, 2001. Adm. Law Judge Howard Edelman issued his decision March 28, 2001.

* * *

Freedman Die Cutters, Inc. (29-CA-25110; 340 NLRB No. 46) Long Island, NY Sept. 30, 2003. The Board upheld the administrative law judge's decision that the Respondent violated Section 8(a)(5) and (1) of the Act by ceasing operations at its facility and laying off all of its unit employees without prior notice to and affording Paper Workers Local 107 an opportunity to bargain with the Respondent regarding the effects of the plant closing on the unit employees. No exceptions were filed to the judge's grant of the General Counsel's motion for partial default judgment regarding complaint paragraphs 3, 6, 7, and 8. The Board adopted the judge's grant of default judgment with respect to complaint paragraphs 4 and 5. [HTML] [PDF]

Member Schaumber found the Respondent's answer sufficient to raise an issue for hearing with respect to complaint paragraph 5, which alleges the Union's labor organization status within the meaning of Section 2(5). He concluded however that the General Counsel met the burden of proof on this issue by other undisputed factual allegations of the complaint and by evidence adduced at the hearing.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Paper Workers Local 107; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Jan. 29, 2003. Adm. Law Judge Joel P. Biblowitz issued his decision Feb. 14, 2003.

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Golden State Foods Corp. (36-CA-8426; 340 NLRB No. 56) Portland, OR Sept. 29, 2003. The Board agreed with the administrative law judge that the Respondent suspended and discharged employee Danny L. Davidson because of his activities for Teamsters Local 162 in violation of Section 8(a)(3) and (1) of the Act; and threatened employees with job loss, and loss of work and pay if they supported the Union, and promised employees new driving routes if they did not support the Union, in violation of Section 8(a)(1). Members Liebman and Walsh also agreed with the judge that the Respondent created the impression that employees' Union activities were under surveillance, in violation of Section 8(a)(1), through comments the Respondent made to several employees in the context of its unlawful threats of job loss. Chairman Battista would find that the Respondent was denied due process with respect to this allegation and would reverse the judge's finding that the Respondent created an impression of surveillance in violation of Section 8(a)(1). [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Danny L. Davidson, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Portland, Dec. 7, 2000 and Jan. 16-17, 2001. Adm. Law Judge Thomas Michael Patton issued his decision Aug. 14, 2001.

* * *

Guardian Automotive Trim, Inc. (25-CA-28140-1, 28140-2; 340 NLRB No. 63) Evansville, IN Sept. 30, 2003. The Board, agreeing with the administrative law judge that the Respondent failed to show that it would have terminated the employees had they not engaged in union activities, affirmed the judge's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Jimmie Powell and Brian Smith because of their activities for the Electrical Workers (IUE) International. In affirming the judge's conclusion that the Respondent's proffered basis (insubordination) for the discharges was pretextual, Chairman Battista and Member Schaumber did not rely on all of his findings. Member Walsh would adopt the judge's decision in all respects. [HTML] [PDF]

Chairman Battista and Member Schaumber relied particularly on disparate treatment to show the Respondent's antiunion motive for discharging Powell and Smith. They noted that the Respondent failed to follow its own progressive discipline policy and did not issue a lesser corrective action to Powell and Smith as it did in disciplining other employees for similar conduct. Chairman Battista and Member Schaumber did not rely on the judge's findings that the Respondent conducted an incomplete and skewed investigation of the October 14, 2001 incident involving the employees, or that the discipline imposed by the Respondent's was not in proportion to their misconduct. And, they did not rely on the judge's finding that the Respondent's general animus was demonstrated in an earlier Board case finding that the Respondent violated the Act. Guardian Automotive Trim, Inc., 337 NLRB No. 53 (2002).

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by the Electrical Workers (IUE) International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Evansville, Oct. 1-2, 2002. Adm. Law Judge Ira Sandron issued his decision Dec. 31, 2002.

* * *

Hotel & Restaurant Employees Local 2 (Castagnola, Inc. of San Francisco d/b/a Castagnola's Restaurant) (20-CB-11531; 340 NLRB No. 52) San Francisco, CA Sept. 30, 2003. The Board adopted the administrative law judge's decision dismissing the complaint allegations that the Respondent violated Section 8(b)(3) of the Act by refusing to bargain with the Employer. It agreed with the judge's conclusion that the Employer's attorney summarily rejected all of the Union's proposals, had no counterproposals, and did not want to change anything. The Union accepted the Employer's bargaining position and did not respond to the Employer's subsequent letters advising the Union to inform the Employer if it wished to continue bargaining. The Board wrote that the Union, having accepted the Employer's bargaining position, saw no need to respond and did not act unlawfully in failing to resume negotiations. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Castagnola's Restaurant; complaint alleged violation of Section 8(b)(3). Hearing at San Francisco on November 29, 2001. Adm. Law Judge Burton Litvack issued his decision July 11, 2002.

* * *

Indian River Memorial Hospital, Inc. (12-CA-21201; 340 NLRB No. 58) Vero Beach, FL Sept. 30, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its shift schedules and on-call procedures without providing notice to Teamsters Local 769 of any proposed changes and, upon request bargaining with the Union concerning the changes on behalf of unit employees. The judge found, and the Board agreed, that the Respondent's conduct was unlawful because the change involved a mandatory subject of bargaining, the Respondent implemented it after the Union's recognition, the Respondent failed to prove it decided to make the change before recognizing the Union, and the Union requested bargaining about the change. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Teamsters Local 769; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Vero Beach on Dec. 14, 2001. Adm. Law Judge Lawrence W. Cullen issued his decision Jan. 8, 2002.

* * *

Jack Cooper Transport Co., Inc. (26-CA-19350; 340 NLRB No. 78) Nashville, TN Sept. 30, 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 supply information requested by Teamsters Local 89. The judge based his finding on Local 89's shared interest with the other local unions covered by a multiemployer bargaining agreement in making sure that the employers covered by the agreement followed its terms. The Board, however, relied solely on the specific evidence establishing that Local 89 had reason to believe that the Respondent was operating within Local 89's jurisdiction on a "defunct" competitive agreement and in a manner that directly affected the employees represented by Local 89. [HTML] [PDF]

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Teamsters Local 89; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Nashville on April 8, 2002. Adm. Law Judge Keltner W. Locke issued his decision May 8, 2002.

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Jackson Hospital Corp. d/b/a Kentucky River Medical Center (9-CA-37734, et al.; 340 NLRB No. 71) Jackson, KY Sept. 30, 2003. Affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) of the Act by threatening employees, videotaping and creating the impression of videotaping striking employees, both without lawful justification; and Section 8(a)(3) and (1) by discharging Clara Gabbard, Sandra (Barker) Hutton, Eileene Jewell, Debbie Miller, Lois Noble, Maxine Ritchie, Laotta Sizemore, and Melissa Turner; issuing warning notices to Diana Taulbee; and suspending Debbie Miller. [HTML] [PDF]

The Board also found, in agreement with the judge, that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Steelworkers since August 11, 2000. The Board deemed it unnecessary to pass on that portion of the judge's decision concerning the allegation that the Respondent unlawfully refused to meet and bargain with the Union from April 26 through August 11, 2000. The General Counsel and the Union excepted to the judge's dismissal of this allegation. The Board found that the violation sought would be cumulative to the Section 8(a)(5) violation the judge found and would not affect the remedy in this case since no unilateral changes were alleged to have occurred from April 26 through August 11, 2000.

After the record closed, the judge granted the General Counsel's motion to reopen the record to litigate two additional alleged discriminatees. During the reopened hearing, testimony was adduced that Supervisor Jan Pelfry stated that the employees who engaged in the strike "had to go." The judge considered the evidence as relevant to the originally alleged discriminatees as well as the two additional alleged discriminatees. The Board found, contrary to the Respondent's assertion, that there was no "understanding" between the General Counsel and the Respondent that the evidence in the reopened hearing would be limited to the two additional alleged discriminatees. And, it decided that, even absent Pelfrey's statements, the record in the initial phase contained abundant evidence of threats, including multiple threats of discharge, supporting the judge's finding of antiunion animus and that the General Counsel met his initial burden of proof regarding the 8(a)(3) allegations.

Member Schaumber found no need to rely on Pelfrey's statements in the analysis of the 8(a)(3) allegations. He also does not pass on the alleged 8(a)(1) threat by Supervisor Hicks, inasmuch as the finding of a violation would be cumulative of other 8(a)(1) threat findings and would not affect the remedy for this unlawful conduct.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Jackson various dates between June and Nov. 2000 and Jan. and Aug. 2001. Adm. Law Judge David L. Evans issued his decision Feb. 20, 2002.

* * *

Jerry Cardullo Ironworks, Inc. (29-CA-24655, et al.; 340 NLRB No. 69) Bayshore, NY Sept. 30, 2003. The Board affirmed the administrative law judge's decision, as modified, and held that the Respondent violated Section 8(a)(5), (3), and (1) of the Act by, among others: failing to provide Iron Workers Local 455, on request, with relevant and necessary information; unilaterally granting a wage increase without first notifying and affording the Union an opportunity to bargain with respect to the change; insisting as a condition of agreeing to terms of a successor agreement that the Union agree to withdraw a National Labor Relations Board complaint, a demand for a trust fund audit, a pending arbitration, and other nonmandatory proposals; refusing to execute the 2002-2005 collective-bargaining agreement, although the terms and conditions of employment had been agreed upon; discharging and laying off employees because of their union membership and activities; and summoning law enforcement officials to remove union agents visiting the Respondent's facility for the purpose of policing and enforcing its collective-bargaining agreement with the Union, notwithstanding a broad visitation clause. [HTML] [PDF]

The Board amended the judge's remedy, modified the recommended Order, and substituted a new notice to conform to the Board's standard remedial language and the facts of the case. It ordered the Respondent to execute the 2002-2005 collective-bargaining agreement requested by the Union on September 25, 2002, and to comply with the terms of the agreement retroactive to July 1, 2002, the effective date of the agreed-upon collective-bargaining agreement. To the extent that the Respondent has failed to comply with the terms of the contract, the Board ordered the Respondent to make whole its employees for any loss of earnings and other benefits they may have suffered as a result of that failure and to make payments to any benefits funds in the amount required by the contract, including paying any additional amounts applicable to such delinquent payments. The Respondent shall reimburse unit employees for any expenses ensuing from its failure, if any, to make such required payments or contributions.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Ironworkers Local 455; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn on Jan. 29, 2003. Adm. Law Judge Howard Edelman issued his decision May 30, 2003.

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King Soopers, Inc. (27-CA-16965; 340 NLRB No. 75) Denver, CO Sept. 30, 2003. Members Liebman and Walsh agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with PACE Local 5-920 before implementing a policy regarding the use of new technology by employees in the Respondent's pharmacies. [HTML] [PDF]

In May 2000, the Respondent installed in its pharmacies prescription accuracy scanners, which are used by pharmacists to prevent errors in filling prescriptions. Shortly after installing the scanners, the Respondent issued its Prescription Accuracy Scanner Policy requiring that all of its pharmacists and technicians use the scanners on all prescriptions filled. The Scanner Policy provided that "this is a zero tolerance policy and failure to comply will be grounds for discipline up to and including termination." On Dec. 4, 2000, the Respondent informed the Union of its intent to implement a revised scanner policy, but it refused to bargain over the policy prior to its implementation on Dec. 11.

The majority agreed with the judge that the Respondent was required to bargain with the Union over both the original and revised scanner policies prior to their implementation.

Member Schaumber, concurring in part and dissenting in part, agreed that the Respondent violated Section 8(a)(5) and (1) when it implemented the scanner policy with a "zero tolerance" disciplinary standard on June 7, 2000, but not when it implemented a revised policy on December 11. In his view, the judge erred when he primarily focused on the disciplinary component of the scanner policies without adequately explaining why the subject matter of the scanner policies do not reflect a managerial decision that lay at the core of entrepreneurial control.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by PACE Local 5-920; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Denver on Dec. 11, 2000. Adm. Law Judge Albert Metz issued his decision Feb. 22, 2001.

* * *

Le Marquis Hotel, LLC (2-CA-34440; 340 NLRB No. 64) New York, NY Sept. 30, 2003. The Board adopted the administrative law judge's decision that the Respondent violated Section 8(a)(1), (2), and (3) of the Act by recognizing and signing a contract containing a union-security clause with Industrial Service, Transport and Health Employees District 6, at a time when District 6 did not represent a majority of its employees. The Respondent excepted only to the judge's application of the Board's dual card doctrine, which it contended is no longer valid precedent in finding that the Respondent violated the Act. [HTML] [PDF]

The Respondent recognized District 6 on the basis of authorization cards signed by 17 of 28 unit employees. The judge found that Charging Party (Hotel and Allied Services Local 758, SEIU) obtained cards from nine employees, who also signed cards for District 6, before the Respondent recognized District 6. He wrote: "[T]he employees by signing their Local 758 cards intended to clearly repudiate their District 6 membership, and to support Local 758 as their bargaining representative." Thus, the judge held that the dual cards preclude a finding that District 6's cards represent the unambiguous choice of those employees as their representative and the cards cannot be counted toward establishing District 6's majority status.

Member Liebman noted her previously expressed view that the dual card rule should be abandoned on the ground that an employee, by signing authorization cards for each of two rival unions, indicates a willingness (absent an explicit revocation of one card by the other) to be represented by either union, and that both cards should therefore be counted toward, respectively, a majority showing of support for each union. See Alliant Foodservice, 335 NLRB 695, 698-699 (2001) (Member Liebman dissenting). In this case, she pointed out that the cards signed for Charging Party Local 758, explicitly revoked the cards previously signed for District 6, and the judge correctly found that a majority showing was not made.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Hotel and Allied Services Local 758, SEIU; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at New York, Aug. 15-16, 2002. Adm. Law Judge Steven Fish issued his decision Jan. 22, 2003.

* * *

Life Care Centers of America, Inc. d/b/a Lakeside Health Center (12-CA-22172; 340 NLRB No. 57) West Palm Beach, FL Sept. 29, 2003. The Board upheld the administrative law judge's finding that the Respondent unilaterally discontinued its matching contribution to its 401(k) plan by failing to give notice to the Union, or affording it an opportunity to bargain, in violation of Section 8(a) (1) and (5) of the Act. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by SEIU 1199 Florida; complaint alleged violation of Section 8(a)(1) and (5). Hearing on Dec. 2, 2002. Adm. Law Judge George Carson II issued his decision Jan. 17, 2003.

* * *

McClendon Electrical Services, Inc. (16-CA-22434; 340 NLRB No. 73) Austin, TX Sept. 30, 2003. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging employee Dan Elgin for participating in a picket line established by the Union to protest alleged unfair labor practices of the Respondent. [HTML] [PDF]

The Respondent contended that had the judge properly analyzed the case under Wright Line, he would not have found that Respondent violated by Act by its discharge of Elgin. The Board rejected this contention, finding that the General Counsel satisfied his burden under Wright Line by showing that Elgin's protected conduct was a substantial or motivating factor in the Respondent's decision to discharge him, and that the Respondent did not meet its burden by showing that it would have discharged Elgin even in the absence of his protected conduct. The Respondent argued that Elgin would have been terminated in any event for two reasons: (1) he failed to give notice to his supervisor before leaving the worksite; and (2) poor work performance.

As to reason (1), the Board held that the Act generally does not require employees to give notice to their employers before ceasing work in connection with a labor dispute. International Protective Services, 339 NLRB No. 75 (2003). Therefore, it found Elgin's failure to give such notice did not afford the Respondent a lawful basis for discharging him. With respect to reason (2), the Board noted that Elgin's disciplinary notice stated that he was being discharged for "failure to complete shift" which the Respondent explained was his absence from the job while on the picket line and "insubordination," which was Elgin's thinking he could come and go from the jobsite as he pleased without notifying his supervisor. The Board held that Elgin's absence from the job while on the picket line was protected by the Act, and he had the right to do so without giving advance notice to the Respondent and, accordingly, neither reason constituted a lawful ground for taking adverse action against Elgin.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers (IBEW) Local 520; complaint alleged violation of Section 8(a)(1). Hearing at Austin on April 25, 2003. Adm. Law Judge William N. Cates issued his decision May 13, 2003.

* * *

The Philadelphia Coca-Cola Bottling Co. (4-CA-31026; 340 NLRB No. 44) Philadelphia, PA Sept. 29, 2003. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally instituting a bonus incentive program for its quality control employees, and by granting bonuses to those employees. [HTML] [PDF]

The Respondent excepted to the judge's conclusion that union shop stewards were not authorized to act as the Union's agents to receive notice of proposed unilateral changes such as the incentive bonus program. The Board agreed with the judge's conclusion that the Respondent failed to establish that notice of the bonus program to a shop steward, if it had been made, would have served as notice to the Union.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 830; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia on Aug. 21, 2002. Adm. Law Judge George Aleman issued his decision Feb. 6, 2003.

* * *

Quality Mechanical Insulation, Inc. (28-CA-18031-1, et al.; 340 NLRB No. 91) Phoenix, AZ Sept. 30, 2003. The Board adopted the administrative law judge's findings that the Respondent committed numerous violations Section 8(a)(1) of the Act. Among others, it held that the Respondent interrogated its employees regarding their union membership, activities, and sympathies; threatened its employees with unspecified reprisals to discourage them from engaging in union and other concerted activities; prohibited its employees from speaking with, or taking papers from, organizers on behalf of the Union, or any other union; coerced or intimidated its employees by suggesting that bodily harm be done to an organizer of the Union, or any other union; threatened employee-applicants with trespassing and to summon police; and engaged in surveillance of employee- applicants by photographing them. [HTML] [PDF]

The Board modified the judge's conclusions of law, recommended Order, and notice to more closely conform to the facts of the case and further modified the recommended Order in accordance with Excel Container, Inc., 325 NLRB 17 (1997).

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Arizona Asbestos Workers Local 73; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix on nine days between March 17 and 28, 2003. Adm. Law Judge Gregory Z. Meyerson issued his decision July 7, 2003.

* * *

Resort Nursing Home and Kingsbridge Heights Rehabilitation Care Center (29- CA-24886; 340 NLRB No. 77) Far Rockaway and Bronx, NY Sept. 30, 2003. The Board affirmed the administrative law judge's finding that the Respondents, by refusing to execute a collective-bargaining agreement that was mutually agreed to between the Greater New York Health Care Association and New York's Health & Human Services SEIU District 1199, violated Section 8(a)(5) and (1) and Section 8(d) of the Act. [HTML] [PDF]

The Board modified the third paragraph in the remedy section of the judge's decision by, among other things, ordering the Respondents to make whole their employees for any loss of earnings and other benefits they may have suffered and to make such benefit funds whole in accordance with the terms of that contract, including paying any amounts applicable to such delinquent payments in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 (1979).

Chairman Battista agreed that under Chel LaCort, 315 NLRB 1036 (1994), the Respondents' untimely withdrawal from the multiemployer bargaining unit was not justified by "unusual circumstances." Noting that there are not three votes to overrule it, he found it unnecessary to express an opinion on whether Chel LaCort was correctly decided.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by New York's Health & Human Services SEIU District 1199; complaint alleged violation of Section 8(a)(1), (5), and 8(d). Hearing in Brooklyn, Feb. 13 and March 10-12, 2003. Adm. Law Judge Raymond P. Green issued his decision May 15, 2003.

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S&P Electric (13-CA-40583; 340 NLRB No. 53) Addison, IL Sept. 26, 2003. The Board denied the General Counsel's motion for summary judgment as to complaint paragraphs V(d) and VI, having deemed the pro se Respondent's letter filed on February 25, 2003, to be an adequate response as to the allegations. Paragraph V(d) alleges that the Respondent, through Paul Fisher, caused the layoff of Terry S. Jones from E. Stone Electric because Jones had engaged in, or the Respondent believed he had engaged in, union activities, and to discourage employees from engaging union activities. Paragraph VI alleges that the Respondent's conduct was discriminatory and violated Section 8(a)(1) and (3) of the Act. [HTML] [PDF]

The Board granted the General Counsel's motion with respect to the allegations in complaint paragraphs I-IV and V(a)-(c), which the Respondent did not challenge. Paragraphs I-IV pertain to the filing and service of the unfair labor practice charge, jurisdiction, and Fisher's status as owner, supervisor, and agent of the Respondent. Paragraphs V(a) and (c) allege that the Respondent subcontracted with E. Stone Electric to perform work on a time and material basis on a job site located at the Oak Brook Club, Oak Brook, IL, and that the Respondent caused Jones' layoff. Paragraph V(b) alleges that, pursuant to the subcontracting arrangement described in paragraph V(a), on or about September 25, 2002, E. Stone Electric hired Terry S. Jones to perform work at the Oak Brook job site.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 701; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment March 17, 2003.

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Sanderson Farms, Inc. (Production Division) (15-CA-16450; 340 NLRB No. 59) Fernwood, MI Sept. 29, 2003. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating its employees about Food and Commercial Workers Local 1529, impliedly threatening its employees with negative consequences if they become involved with the Union, threatening its employees that it is experiencing problems and will weed out troublemakers who support the Union; and Section 8(a)(3) and (1) when it discharged Bill Noland on November 6, 2001. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Food and Commercial Workers Local 1529; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Magnolia, Sept. 16-17, 2002. Adm. Law Judge Pargen Robertson issued his decision Nov. 20, 2002.

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Santa Maria El Mirador (28-CA-16824; 340 NLRB No. 84) Santa Fe, NM Sept. 30, 2003. The Board reversed the administrative law judge's dismissal of the complaint and found that the Respondent violated Section 8(a)(1) of the Act by: (1) promulgating an overly broad no-access rule; and (2) discharging employee Ed Gellis on October 20, 2000, because he engaged in the protected concerted activity of circulating letters to other employees for their signatures regarding wages, hours, and other terms and conditions of employment. [HTML] [PDF]

The judge found that the primary justification for discharging Gellis was his violation of the no-access rule promulgated by the Respondent in September 2000. The Board, however, found this rule to be unlawful and accordingly, held that Gellis was unlawfully discharged.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Ed Gellis, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Santa Fe on May 30-31, 2001. Adm. Law Judge Thomas Michael Patton issued his decision Sept. 26, 2001.

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The Second Shift, Inc., d/b/a Jobsite Staffing and Jobsite Personnel, Inc., a single employer (12-CA-17521; 340 NLRB No. 43) Altamonte, FL Sept. 29, 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 refusing to hire job applicants Jonathan Carnes, Robert Murphy, Phillip Pelc, and Stephen Williams; and violated Section 8(a)(1) by informing employees that it was futile for union applicants to apply for work, maintaining a work rule prohibiting employees from discussing their wage rates with each other, and interrogating employees concerning their union membership, activities, and sympathies. [HTML] [PDF]

The Board severed and remanded to the judge the refusal-to-hire allegations regarding 13 job applicants that he dismissed and the refusal-to-consider allegations, other than those concerning Carnes, Murphy, Pelc, and Williams, plus the refusal-to-hire violation that the judge found concerning Barry Bostwick, who was not alleged as a discriminatee in the complaint. It decided that the judge's decision failed to set forth sufficient findings and rationale. The 13 job applicants are John Barrington, Richard Buffington, Christopher Downs, Bruce Evans, Jamie Eyler, Richard Forrester, John Bambone Sr., John Bambone Jr., Jason Harrison, Robert Higley, Eric Law, Ken Mortensen, and James Warren.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 756; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New Smyrna Beach, Aug. 26-27 and Sept. 11, 2002. Adm. Law Judge Keltner W. Locke issued his decision Oct. 10, 2002.

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Superior Emerald Park Landfill, LLC (30-CA-16148, 30-RC-6468; 340 NLRB No. 54) Muskego, WI, Sept. 30, 2003. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing an overbroad prohibition on solicitation and distribution of literature; granting a wage increase and soliciting and promising benefits; and threatening to freeze wages and benefits, bargain from scratch, refuse to reach a collective-bargaining agreement, and terminate employees engaged in an economic strike. The Board also agreed with the judge that the Respondent's commission of unfair labor practices precluded achievement of the requisite laboratory conditions and undermined the employees' freedom of choice and ordered that a second election in Case 30-RC-6468 be conducted. [HTML] [PDF]

In adopting the judge's finding that the Respondent unlawfully promulgated, maintained, and enforced an unlawful no-distribution policy, the Board found it unnecessary to pass on the judge's finding that the Respondent promulgated and enforced the policy in reaction to union organizing and with antiunion animus.

Chairman Battista, in adopting the judge's finding that the Respondent unlawfully solicited grievances and impliedly promised to remedy them, found it unnecessary to rely on the statement by Respondent's general manager, Robert Borkenhagen, asking employees to give him a chance to prove himself, and the judge's finding that the Respondent changed from a past practice of passive grievance solicitation to an active practice of grievance solicitation. Chairman Battista also found it unnecessary to pass on the judge's finding that the Respondent violated Section 8(a)(1) when Borkenhagen told employees that if the Union won, bargaining would start from "zero" or "scratch," because this finding would be cumulative of other violations found and would not affect the remedy.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Operating Engineers Local 139; complaint alleged violation of Section 8(a)(1). Hearing at Milwaukee, Jan. 23-24, 2003. Adm. Law Judge Paul Bauxbaum issued his decision May 3, 2003.

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Teamsters Local 631 (Vosburg Equipment, Inc. and Bechtel Nevada, Inc.) (28- CB-5102, et al.; 340 NLRB No. 96) Las Vegas, NV Sept. 30, 2003. The Board, on the recommendation of the administrative law judge, dismissed the complaint allegations that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act by: failing to comply with its hiring hall rules by improperly maintaining an unwritten rule which required a hiring hall registrant to show that he had a commercial driver's license and the necessary endorsements when filing his experience or interest card; dispatching certain employees and refusing to dispatch others; removing an employee's name from the out-of-work list; and refusing to refer an employee to employment because she associated with individuals who opposed the Respondent's officers in an internal union election. [HTML] [PDF]

The Board found no merit in the General Counsel's contention that the Respondent changed its procedure for handling "by name" requests (requests by employers to the Respondent's hiring hall for specific employees) and that this change constituted an unlawful departure from the Respondent's hiring hall rules. In addition to emphasizing that this contention was the gravamen of the General Counsel's exceptions as to the Respondent's alleged failure to follow its hiring hall rules, the Board emphasized the judge's finding that unions are accorded a wide range of discretion in serving the employees whom they represent. "Even if we assumed (as some courts have held) that in the context of an exclusive hiring hall, there is a heightened duty of fair representation, we would still find the Respondent's conduct lawful," the Board explained.

There were no exceptions to the dismissal of the allegations concerning the Respondent's refusal to give Keith Sinclair a copy of its hiring hall rules; discrimination against Wayne King, Connie King, and Phil Spagnolo; Bechtel's request for two forklift drivers; Vosburg's request for a dispatcher, and the alleged removal of Wayne King from the referral list.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Connie K. King, Keith J. Sinclair and Phil Spagnolo, Individuals; complaint alleged violation of Section 8(b)(1)(A) and 8(b) (2). Hearing at Las Vegas, Feb. 1-2 and March 21-22, 2000. Adm. Law Judge Jay R. Pollack issued his decision Feb. 8, 2001.

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Titanium Metals Corp. (28-CA-15910; 340 NLRB No. 88) Henderson, NV Sept. 30, 2003. The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by issuing a written warning to David Smallwood, allegedly for poor work performance and failing to cooperate in the related investigation, distributing a newsletter, and encouraging employees to call him during work hours; suspending and later discharging, Smallwood for distributing the newsletter; denying Smallwood's request for union representation during an interview regarding the warning; and maintaining and enforcing an overly broad no-solicitation/no distribution rule. [HTML] [PDF]

The Board agreed with the judge that the newsletter, which Smallwood published and that dealt with wages, hours, and working conditions and was critical of the Respondent, was not so misleading, inaccurate or reckless, or otherwise outside the bounds of permissible speech, to cause Smallwood to lose the Act's protection.

The judge found it inappropriate to defer to an agreement between the Respondent and the Union purporting to settle Smallwood's grievance over his dismissal. The Board agreed, but only for these reasons. Assuming, without deciding, that the "Letter of Understanding" was a settlement agreement subject to analysis under Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955), it decided that the process was not fair and regular and failed to satisfy the standard for deferral.

The Board noted that the agreement was reached without Smallwood's participating or his agreement to be bound by it, that the existence of the agreement was never disclosed to him by the Union (Steelworkers Local 4856) or the Respondent, and that Smallwood only became aware of it when, during preparation for the hearing in this case, the General Counsel made a copy available to him. The Board also pointed out that the "Letter of Understanding" recites several reasons for Smallwood's discharge and that those reasons were not the explanation given to Smallwood when he was discharged, saying: "In the absence of any explanation from the Respondent or the Union for this deviation, the 'Letter of Understanding' appears to be an attempt to disguise the real reason for the discharge: Smallwood's protected, concerted activity of distributing a newsletter that addressed employment conditions and employment related matters."

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by David W. Smallwood, an individual; complaint alleged violation of Seciton 8(a)(1) and (3). Hearing at Las Vegas, Jan. 16-19, 2001. Adm. Law Judge John J. McCarrick issued his decision March 30, 2001.

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Tuv Taam Corp. (29-CA-24329, et al.; 340 NLRB No. 86) Brooklyn, NY Sept. 30, 2003. The Board granted the General Counsel's motion for summary judgment based on the Respondent's failure to comply with an informal settlement agreement approved by the Regional Director on March 26, 2002. [HTML] [PDF]

The Respondent raised issues regarding the remedy and the applicability of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275 (2002). The Board found no merit in the Respondent's contentions, saying it is not foreclosed by Hoffman from awarding a backpay remedy on the basis of the Respondent's bare assertion that the discriminatees might be undocumented workers. Here, the Board found where immigration status has no bearing on whether the Respondent did, in fact, commit the unfair labor practices of which it had been accused, questions regarding employee status must be litigated at compliance, and cannot insulate the Respondent from a decision on the merits of the complaint allegations or the consequences of its unlawful conduct.

(Chairman Battista and Members Liebman and Walsh participated.)

General Counsel filed motion for summary judgment June 19, 2002.

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United Parcel Service (7-CA-41749; 340 NLRB No. 89) Madison Heights, WI Sept. 30, 2003. Members Liebman and Walsh affirmed the administrative law judge's finding and held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Paul Simpson for engaging in protected concerted activity. Member Schaumber dissented. [HTML] [PDF]

The Respondent contended that Stimpson was discharged for referring to a coworker in a vulgar, derogatory, offensive, and intimidating fashion after being warned for the same conduct previously. The majority found, in agreement with the judge, that the record clearly reflects that Stimpson engaged in activity protected by Section 7 of the Act by filing numerous grievances, that the Respondent was aware of these grievances, and that the Respondent took an adverse action against Stimpson by suspending and discharging him.

Member Schaumber would dismiss the complaint. He agreed with his colleagues that the General Counsel has met his initial burden of proving that Stimpson's protected activity in filing numerous grievances was a factor motivating his discharge. However, he found that the Respondent rebutted this evidence by showing that it would have discharged Stimpson even absent his protected activity. He said: "It appears to me, by finding an 8(a) (3) discharge here, the majority puts Stimpson in a better position because he engaged in protected activity than he would have been in if he had done nothing. This is a result with which I cannot agree."

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Paul Stimpson, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Detroit on July 13, 1999. Adm. Law Judge Karl H. Buschmann issued his decision Dec. 27, 1999.

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United Services Automobile Association (12-CA-21735; 340 NLRB No. 90) Tampa, FL Sept. 30, 2003. The Board agreed with the administrative law judge, for the reasons set forth in her decision, that Charging Party Loretta Williams engaged in protected concerted activity by distributing fliers anonymously throughout the Respondent's facility, and that the Respondent promulgated unlawful no- solicitation/no distribution rules via e-mail and voice mail. In agreeing with the judge that the Respondent unlawfully interrogated Williams and employee Andrew Snyder regarding employees' protected concerted activity and unlawfully discharging Williams for engaging in such activity, the Board explained its rationale. [HTML] [PDF]

Loretta Williams, an insurance adjustor for the Respondent, distributed 1200 to 1300 fliers anonymously, requesting fellow employees to wear a red ribbon in support of colleagues who had been laid-off as a result of a reorganization plan implemented by the Respondent.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Loretta Williams, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Tampa, Dec. 18-19, 2002. Adm. Law Judge Margaret G. Brakebusch issued her decision Jan. 28, 2003.

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Wal-Mart Stores, Inc. (11-CA-18629, 18636; 340 NLRB No. 83) Boone, NC Sept. 30, 2003. In agreement with the administrative law judge, the Board dismissed the complaint allegations that the Respondent promulgated, maintained, and enforced an overly broad no-solicitation and no-distribution rule or disparately removed union literature from company bulletin boards in break rooms in violation of Section 8(a)(1) of the Act; and discharged Steven Lockyer in violation of Section 8(a)(1) and (3). The judge found, with Board approval, that the Respondent demonstrated that it would have terminated Lockyer despite his union activity for a timeclock violation. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Steven Lockyer, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Boone, Feb. 20-21, 2000. Adm. Law Judge Margaret G. Brakebusch issued her decision April 21, 2003.

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Wal-Mart Stores, Inc. (17-CA-21045-1; 340 NLRB No. 76) Tahlequah, OK Sept. 30, 2003. Members Liebman and Walsh agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act when it removed Brian Shieldnight from its property because he wore a T-shirt with a union-related message during an off-duty visit to the Respondent's store and violated Section 8(a)(3) and (1) by issuing Shieldnight a written "coaching" based, in part, on his wearing of the T-shirt. Contrary to the judge, the majority found that the Respondent did not violate Section 8(a)(1) by allegedly soliciting grievances from Shieldnight and promising to remedy them in order to discourage him from supporting the Union. [HTML] [PDF]

Chairman Battista, dissenting in part, found that the Respondent lawfully disciplined Shieldnight for violating the Respondent's no- solicitation policy. He said that a T-shirt, which tells readers to ask the wearer how they can sign a union card constitutes solicitation. In his view, Shieldnight was soliciting on working time and was lawfully disciplined.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Food & Commercial Workers Local 1000; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tahlequah, August 2-3, 2001. Adm. Law Judge William N. Cates issued his decision Aug. 27, 2001.

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Weldun International, Inc. (7-CA-34343, 34805; 340 NLRB No. 79) Birmingham, MI Sept. 30, 2003. The main issue before the Board in this supplemental decision concerned the backpay formula set forth in the compliance specification implementing its earlier decision reported at 321 NLRB 733 (1996), enfd. in relevant part, NLRB v. Weldon International, 165 F.3d 28 (6th Cir. 1998). The Board adopted the administrative law judge's conclusion that the average earnings formula used in the backpay specification is fair, reasonable, and most accurately approximates the earnings the discriminates would have earned with the Respondent had they not been unlawfully laid off; and ordered the Respondent to make whole the 29 discriminatees by paying them amounts totaling $932,961.87. [HTML] [PDF]

In the prior decision, the Board found that the Respondent violated the Act by, among others, discriminatorily terminating 29 employees, telling employees that the terminated employees would not be reinstated because of the Steelworkers and the charges filed by the Union, and impliedly threatening employees that the plant would be closed. The Board rejected the Respondent's contentions that the layoffs, including those in the machine department, were justified by valid business reasons. It also found that private settlement agreements entered into by some employees following their layoffs did not preclude a reinstatement order or a backpay remedy, but could potentially limit the amount of backpay due the discriminatees.

(Chairman Battista and Members Liebman and Schaumber participated.)

Adm. Law Judge Paul Bogas issued his supplemental decision April 11, 2001.

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West Maui Resort Partners, a Limited Partnership, consisting of Signature Capital-West Maui, LLC and WHKG-S GEN-PAR, Inc., d/b/a Embassy Vacation Resorts (37-CA-5472, et al.; 340 NLRB No. 94) Maui, HI Sept. 30, 2003. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by its suspension and discharge of employees Robbie Fronda, Robert Craddick, Kevin Freitas, and George Balagso because of their known or suspected union activities. It reversed the judge's finding that the Respondent violated Section 8(a)(1) by hiring consultant Keith Hunter for the purpose of legitimizing those suspensions and discharges. And, it found that the Respondent did not violate Section 8(a)(1) by Housekeeping Manager Cathy Quevido's questioning of employee Abraham Pena about the result of a representation election. [HTML] [PDF]

Chairman Battista, dissenting in part, agreed that the Respondent's suspension and discharge of Fronda were unlawful, concluding, as did the majority, that the General Counsel satisfied his initial burden under Wright Line, and the Respondent did not adequately rebut it. He did not agree however that the suspensions and discharge of the three other employees were unlawful. Assuming that the General Counsel satisfied his initial burden, the Respondent has rebutted it, the Chairman reasoned. He noted that, unlike Fronda, the three employees engaged in sexual harassment and misconduct and that the victim-employee hired counsel who threatened to sue under Title VII for such sexual harassment and misconduct.

Chairman Battista also noted that the prior situations of lesser discipline, on which his colleagues rely, did not involve sexual harassment in violation of Federal law and did not involve threatened lawsuits. The Chairman observed that the alleged conduct of the three employees was "serious, and the Respondent's policies permit discharge for such misconduct, even for first offenders. In these circumstances, the Respondent simply wished to avoid a threatened lawsuit and damaging publicity."

No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(3) by suspending employee Leo Ramelb for 5 days and Section 8(a)(5) by making certain unilateral changes without prior notification to and bargaining with Hotel Employees and Restaurant Employees Local 5; and the judge's dismissal of allegations that the Respondent violated Section 8(a)(3) by issuing warnings to employees Abraham Pena and Noreen Medeiros.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Hotel Employees and Restaurant Employees Local 5; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Maui, Sept. 25-29 and Oct. 2-5, 16, 23-24, 2000. Adm. Law Judge Gerald A. Wacknov issued his decision Feb. 13, 2001.

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Williams Energy Services (16-CA-20164; 340 NLRB No. 87) Galena Park, TX Sept. 30, 2003. The Board reconsidered its prior decision reported at 336 NLRB 160 (2001) in light of MV Transportation, 337 NLRB No. 129 (2002), and dismissed the complaint. In the earlier decision, the Board concluded that the Respondent, a successor employer, violated Section 8(a)(5) and (1) of the Act, under the then applicable successor-bar rule set forth in St. Elizabeth Manor, Inc., 329 NLRB 341 (1999), by failing and refusing to bargain with PACE Local 4-227 and withdrawing recognition from the Union because there had not been a reasonable period of time for bargaining. [HTML] [PDF]

In this supplemental decision, the Board applied MV Transportation, which overruled St. Elizabeth Manor and returned to the prior standard that a union in a successorship situation will be entitled only to a rebuttable presumption of majority status. It found that the Union's presumption of majority status has been rebutted based upon the Respondent's receipt of a petition, signed by all of the unit employees, stating that they no longer desired to be represented by the Union, and that the Respondent's withdrawal of recognition and refusal to bargain thus were lawful.

Member Liebman dissented in MV Transportation and adheres to the views expressed in her dissent. She concurred in the application of MV Transportation to this case "for institutional reasons" in the absence of three votes to overrule that decision.

The Respondent filed a petition for review of the Board's original decision in the U.S. Court of Appeals for the Fifth Circuit, and the Board filed a cross application for enforcement of its Order. Thereafter, on May 16, 2002, the Board filed a motion with the Fifth Circuit to remand the case without prejudice for further consideration. On July 9, 2002, the Fifth Circuit granted the Board's motion.

(Chairman Battista and Members Liebman and Walsh participated.)

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Desert Aggregates (32-CA-18653, 18726, 340 NLRB No. 38) Ducor, CA Sept. 23, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by soliciting and promising to remedy employee grievances and did not violate Section 8(a)(1) by granting employee Daniel Harris a wage increase. Unlike the judge, the Board found that the Respondent did not violate Section 8(a)(1) by threatening to replace employees and that the Respondent violated Section 8(a)(3) and (1) by laying off leading union supporters Mark Gregg and Wendy Miller. [HTML] [PDF]

The Board denied the General Counsel's posthearing motion to amend the complaint to allege that the Respondent's general manager, Bruce Bunting, violated Section 8(a)(1) by telling employees during a captive audience meeting that he could make no changes because the union election had not been canceled. And, it found no merit in the Charging Party's exception to the judge's failure to find that the Respondent violated Section 8(a)(1) by holding a captive audience meeting the day before the election and by coercively interrogating employees, noting that the issues are not alleged in the complaint and the General Counsel has not moved to amend the complaint to include them. The Board explained that the Charging Party cannot enlarge upon or change the General Counsel's theory of the case. See, e.g., Kimtruss Corp., 305 NLRB 710, 711 (1991).

Although the Board found the layoffs of Gregg and Miller unlawful, it agreed with the judge that a Gissel bargaining order is not warranted in this case and found that traditional remedies will suffice to ensure a fair election and erase the effects of the Respondent's unfair labor practices. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tulare, April 10-11, 2002. Adm. Law Judge Jay R. Pollack issued his decision May 28, 2002.

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Federated Logistics and Operations, A Division of Federated Corporate Services, Inc. (12-CA-21047, 21242, 12-RC-8539; 340 NLRB No. 36) Tampa, FL Sept. 19, 2003. Members Liebman and Walsh affirmed the administrative law judge's findings that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act during UNITE's organizing drive and also upheld the judge in sustaining the Union's objections to the election held on October 6, 2000. The majority severed and remanded Case 12-RC-8539 to the Regional Director for the purpose of conducting a second election. Chairman Battista dissented in part. [HTML] [PDF]

Members Liebman and Walsh agreed with the judge that certain statements to employees by Managers Joe Vella, Kevin Hart, and Jody Beachy constituted unlawful threats of futility if the employees selected the Union. The majority also agreed with the judge's recommendation of extraordinary remedies, consisting of a broad cease and desist order; a public reading of the notice by a Board agent or responsible management official; and the furnishing of periodic and updated lists of employee names and addresses to the Union.

Members Liebman and Walsh believe these factors justify some of the extraordinary remedies recommended by the judge: 1) when faced with the Union organizing effect among its employees, the Respondent responded with extensive and serious unfair labor practices; 2) some of the Respondent's unlawful conduct pervaded the unit; 3) some of the Respondent's unfair labor practices tended to have a long-term coercive impact on the unit; and 4) many of the violations were committed by high-level management officials.

The majority did not adopt the judge's recommendation to impose other remedies sought by the Union and the General Counsel--Union access to the facility, and notice and equal time for the Union for captive audience meetings and the holding of a second election offsite. It decided that the Respondent's violations may be remedied without allowing the Union special access and equal time to address employees at the Respondent's facility and noted the Board's longstanding policy to defer in most cases to the Regional Director's judgment on the issue of election site.

Contrary to his colleagues and the judge, Chairman Battista did not find that the statements made by Managers Vella and Hart, at their October 2 and 4, 2000 presentations to employees, and Beachy in mid-September, constituted unlawful threats of futility under Section 8(a)(1). Nor did he agree with the majority that extraordinary remedies are warranted in this case because of the "numerous violations of [Sec.] 8(a)(1) and (3)." Chairman Battista noted that he did not agree with all of the violations found, particularly those that were found to be important bases for extraordinary remedies. In his view, there were no unlawful threats of strikes, plant shutdown, and to cut wages. Further, even were he to find all of the violations found by the majority, the Chairman said he would still find that traditional remedies suffice to remedy the unfair labor practices.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by UNITE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tampa, Sept. 10-12 and Oct. 25, 2001. Adm. Law Judge Lawrence W. Cullen issued his decision March 14, 2002.

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Food & Commercial Workers Local 1657 (Food World) (10-CB-7863; 340 NLRB No. 60) Huntsville, AL Sept. 26, 2003. Finding that the Respondent Union raised no substantial reason for refusing to provide bargaining-unit employee Richard Hamrick with requested photocopies of an arbitration decision disposing of his grievance, the Board granted the General Counsel's motion for summary judgment and held that the Respondent breached its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. [HTML] [PDF]

The Respondent contended that it fairly represented Hamrick because it offered to give the requested photocopies to Hamrick's attorney if Hamrick signed a confidentiality agreement, it allowed him to visually inspect the arbitration decision on two occasions, and it gave Hamrick a copy of the backpay and benefits settlement, which it reviewed with him and a representative of the Employer.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Richard Hamrick, an individual; complaint alleged violation of Section 8(b)(1)(A). General Counsel filed motion for summary judgment May 14, 2003.

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Loudon Steel, Inc. (7-CA-44080-1, et al.; 340 NLRB No. 40) Millington, MI Sept. 26, 2003. The Board affirmed the administrative law judge's findings, as modified, that the Respondent violated Section 8(a)(1) of the Act, in various respects, including threatening to place employee Daniel Hurren's union activities under surveillance and doing so; threatening Hurren with physical harm and property damage and with discharge if he failed to achieve an unrealistic production quota; engaging in surveillance of employees' union activities by approaching their vehicles as Sheet Metal Workers Local 7 attempted to distribute handbills; and promulgating and maintaining a no- solicitation rule that is overbroad; and violated Section 8(a)(3) and (1) by laying off Donald Davis on May 31, 2001 and failing to recall him, creating an unrealistic production quota on him on May 29, 2001, and constructively discharging Hurren on May 29, 2001. [HTML] [PDF]

The Board granted the General Counsel's conditional cross-exceptions to the judge's failure to conform the recommended Order and notice with the conclusions of law and modified the Order and notice accordingly. It also found merit in the General Counsel's conditional cross-exceptions and found that the Respondent violated Section 8(a)(1) by threatening to discharge Hurren if he did not meet an unrealistic production quota, and Section 8(a)(3) and (1) by imposing the unrealistic quota on Hurren. The Board noted that the violations are alleged in the complaint and were fully litigated and that the findings support the judge's conclusion that the Respondent constructively discharged Hurren in violation of Section 8(a)(3) and (1).

In agreeing with the judge that the Respondent unlawfully interrogated Donald Davis regarding his union sympathies when the Respondent's foreman, Aaron Burrows, asked Davis to sign an antiunion petition, the Board found it unnecessary to pass on the judge's additional finding that the Respondent's second shift supervisor Emory Close also unlawfully interrogated Davis when Close asked Davis if Davis and Hurren were friends. The Board said any such violation would be cumulative and would not affect the remedy or Order.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Sheet Metal Workers Local 7; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Flint on Oct. 23, 2001. Adm. Law Judge Arthur J. Amchan issued his decision April 12, 2002.

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Mediaone of Greater Florida, Inc., an affiliate of AT&T Broadband LLC (12- CA-21220; 340 NLRB No. 39) Jacksonville, FL Sept. 19, 2003. Chairman Battista and Member Schaumber affirmed the administrative law judge's findings that a provision in the Respondent's handbook limiting employees' access to the Respondent's property violated Section 8(a)(1) of the Act, and that a provision prohibiting disclosure of proprietary information outside the Company is not unlawful. In a reversal of the judge, Chairman Battista and Member Schaumber found that a handbook provision limiting employees' solicitation of other employees did not violate Section 8(a)(1). [HTML] [PDF]

Member Walsh, dissenting in part, would find that the nonsolicitation and nondisclosure provisions of the Respondent's handbook violate Section 8(a)(1). He believes all the rules are unlawful because they have the reasonable tendency to chill the employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 1999).

The majority found that the nondisclosure provision of the Respondent's handbook would be understood by employees as protecting from disclosure only the Respondent's proprietary private business information and would not reasonably be construed as restricting discussion or disclosure of employees' own terms and conditions of employment.

Turning to the nonsolicitation provision, the full policy appears on page 69 of the handbook and the policy is briefly paraphrased in the "At a Glance" section on page 45, which also lists the page number where the full policy can be found. The parties do not dispute that the provision on page 69, by itself, is valid on its face. The majority decided that employees would reasonably believe that the Respondent's nonsolicitation rule was that set forth on page 69, and would not reasonably rely on the page 45 material as representing the Respondent's solicitation policy. It wrote: "While we agree with our dissenting colleague that the material on page 45 would be, by itself, overbroad, that material cannot be read in isolation, particularly in light of the fact that it directs the reader to page 69 where the actual policy is set forth in detail."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 177; complaint alleged violation of Section 8(a)(1). Adm. Law Judge George Carson II issued his decision July 11, 2002.

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Missouri and Kansas Bricklayers Local 15 (Jacor Contracting, Inc. and D. H. Restoration, Inc.) (17-CD-367, et al.; 340 NLRB No. 41) Kansas City, MO Sept. 24, 2003. Concluding that this matter was not a jurisdictional dispute within the meaning of Section 10(k), the Board quashed the notice of hearing. It found that the dispute here is not over the assignment of the work to one group of employees instead of a different group but "involves the question of which union will represent the employees who are currently performing the . . . work." The Board found the Employers would like to retain their current employees but prefer that Cement Masons Local 518 represent them. Citing Carpenters Local 275 (Lymo Construction), 334 NLRB 422 (2001), the Board said that it is well established that a dispute within the meaning of Section 8(b)(4)(D) requires a choice between two competing groups and the dispute here is over which union will represent the single group of Jacor or D.H. Restoration employees currently performing the work. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

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The Edward S. Quirk Co., Inc. d/b/a Quirk Tire (1-CA-33249, 34383; 340 NLRB No. 33) Watertown, MA Sept. 24, 2003. In the prior proceeding, 330 NLRB 917 (2000), the Board found, among other things, that the Respondent violated Section 8(a) (5) of the Act by unilaterally implementing, after reaching impasse, a discretionary wage plan for its commercial operations employees. The Board had adopted the judge's finding that the Respondent's wage proposal allowed the Respondent "broad discretionary power to unilaterally adjust wages and the wage incentive plans without any established criteria," and as such was in contravention of McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. in relevant part 131 F.3d 1026 (D.C. Cir. 1997), cert denied mem. 524 U.S. 937 (1998). [HTML] [PDF]

Subsequently, the Respondent filed a petition for review of the Board's Order with the U.S. Court of Appeals for the First Circuit and the Board cross- petitioned for enforcement. On February 27, 2001, the court denied enforcement of the Board's order with respect to the unilaterally implemented wage plan. The court noted that "McClatchy is based on employer discretion and discretion is a matter of degree." The court remanded the case to the Board for "something more of a reasoned explanation of where it draws the line and why the line has been crossed in this instance."

The Respondent's proposed wage plan stated that the commercial operations employees would "be paid at a base rate of not less than $8.90 an hour, however, the Company may continue its current pay practices." In this supplemental decision, the Board determined that by including the word "may" in its implemented wage proposal, the Respondent reserved to itself the recurring decision of whether to pay the commercial operations the $8.90 per hour minimum, or to adjust wage rates to the "current marketplace pay." The Board also wrote that inclusion of the word "may" necessarily precludes any basis for meaningful review of whether a wage change constitutes a departure from the Respondent's unilaterally implemented wage proposal and would allow the Respondent to make recurring unilateral changes in wage rates with unfettered discretion. Accordingly, the Board reaffirmed its earlier finding that the Respondent violated Section 8(a)(5) and (1) of the Act.

(Chairman Battista and Members Liebman and Walsh participated.)

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Sierra Bullets, LLC (17-CA-20255, 20368; 340 NLRB No. 32) Sedalia, MO Sept. 19, 2003. The Board reversed the administrative law judge's unfair labor practice findings and dismissed the complaint in its entirety. [HTML] [PDF]

No party excepted to the judge's dismissal of the allegation that the Respondent discharged employee Eddie Nevils in violation of Section 8(a)(3). The judge found that the Respondent violated Section 8(a)(5) of the Act by implementing its "best and final" contract proposal, that the Respondent's failure to provide relevant information pursuant to the Steelworkers' request further precluded it from lawfully declaring impasse, that the strike following the Respondent's implementation of its contract proposal was an unfair labor practice strike from its inception, and that the Respondent unlawfully refused to reinstate the strikers upon their unconditional offer to return to work and unlawfully threatened employees with permanent replacement if they continued to engage in an unfair labor practice strike.

The Board rejected the judge's finding--based on the theory that the parties were not at impasse--that the Respondent unlawfully implemented its final contract offer. It noted that the General Counsel expressly choose to litigate only the narrow Decker Coal, 301 NLRB 729 (1991), theory of the violation, i.e., that impasse was precluded by the Union's outstanding information request. In finding an 8(a)(5) violation on the broader theory that the parties were not at impasse, the judge deprived the Respondent of due process, the Board said. It rejected the Union's argument that the complaint was sufficient to inform the Respondent that the broader impasse issue would be litigated, and that the judge was free to resolve the 8(a)(5) allegation on any theory regardless of whether it was advanced by the parties.

The Board found also that the record did not support the judge's alternative finding of an 8(a)(5) violation based on the Respondent's implementation of its final offer while an outstanding information request was pending and, accordingly, that this case is distinguishable from Decker Coal, on which the judge relied. It ruled that the Respondent's implementation of its final contract proposal did not violate Section 8(a)(5) and that the strike was therefore not caused or prolonged by any unfair labor practice. Since the strikers were economic and not unfair labor practice strikers, the Respondent did not violate Section 8(a)(1), as alleged, by informing its employees that they could be permanently replaced while on strike. Nor did it violate Section 8(a)(3) by failing immediately to reinstate the economic strikers upon their unconditional offer to return to work.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a) (1) and (5). Hearing at Sedalia on Feb. 9, 2000. Adm. Law Judge Pargen Robertson issued his decision May 8, 2000.

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Teamsters Local 500 (Acme Markets, Inc.) (4-CB-8863; 340 NLRB No. 35) Philadelphia, PA Sept. 19, 2003. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(b)(3) of the Act by refusing to furnish Acme Markets, Inc. with the information requested in the Employer's letter dated January 22, 2002. [HTML] [PDF]

The Employer's letter referenced the "most-favored nations" clause in the parties' collective-bargaining agreement and requested copies of all current collective-bargaining agreements to which the Respondent was a party; all rules and policies that the Respondent negotiated with other employers or allowed other employers to implement; and, all arbitration decisions and grievance settlement agreements since July 3, 1997, that involved the interpretation of the language of the collective-bargaining agreement. The "most-favored nations" clause in the parties' agreement states:

Union will not enter into any Agreement or have any understanding with any carrier of any type which gives to such carrier any better terms as to wages, hours or working conditions than those expressed in this Agreement.

The Board found that the Respondent's contention that the matter should be deferred to the parties' contractual grievance/arbitration procedures, which the Respondent raised for the first time in its poststipulation brief to the judge, was untimely. Chairman Battista noted that no party makes the argument that the "most-favored nations" clause is nonmandatory or unlawful. See Dolly Madison Industries, 182 NLRB 1037 (1970), distinguishing Mine Workers v. Pennington, 381 U.S. 657 (1965).

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Acme Markets, Inc.; complaint alleged violation of Section 8(b) (3). Parties waived their right to a hearing. Adm. Law Judge Paul Bogas issued his decision Dec. 2, 2002.

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Essex County Arc (3-CA-23939; 340 NLRB No. 26) Plattsburgh, PA Sept. 15, 2003. The Board affirmed the administrative law judge's finding and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) of the Act by: (a) explicitly and implicitly threatening to reduce the employees' benefits if they selected the Union as their collective-bargaining representative; (b) informing its employees that bargaining would start from scratch if the Union was selected as their representative; (c) interrogating its employees about their union activities; (d) directing its employees to refrain from signing union authorization cards; and (e) soliciting grievances from employees and impliedly promising to redress them in order to dissuade employees from supporting the Union. [HTML] [PDF]

The unlawful activity was alleged to have taken place at two monthly meetings conducted by the Respondent. The judge credited the testimony of Mary Savage, Respondent's regional director whom he found to be a credible witness. The judge noted that his observation of Savage convinced him that it would be out of character for her to make the unlawful statements attributed to her.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Civil Service Employees Association (AFSCME); complaint alleged violation of Section 8(a)(1). Hearing at Plattsburgh on May 28, 2003. Adm. Law Judge Joel P. Biblowitz issued his decision July 17, 2003.

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Jeffrey A. Swardson, an Individual d/b/a Swardson Painting Co. (17-CA-20795, 17-RC-11892; 340 NLRB No. 24) Clarksdale, MO Sept. 15, 2003. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a) (1) of the Act by threatening to close its shop and to discharge employees who engaged in union activity and by instructing a union representative to leave its jobsite. Chairman Battista and Member Schaumber found, contrary to the judge, that the Respondent did not, in fact, discharge employees Tommie A. Maddox and Charles E. Simpson and therefore, did not violate Section 8(a)(3) with respect to them. Member Walsh disagreed with his colleagues. [HTML] [PDF]

Chairman Battista and Member Schaumber noted that Maddox and Simpson, along with employee Michael Shaw, walked off the job to protest the fact that they were earning lower wages than a newly hired employee. After a series of telephone conversations with the Respondent's owner, Shaw was offered and accepted a $1 hourly raise. Maddox and Simpson were never offered a raise and after this incident, neither attempted to return to work for the Respondent. Chairman Battista and Member Schaumber said, in finding that Maddox and Simpson were not discharged, that their choices were to return to work without a raise, continue their work stoppage, or quit. They remanded Case 17-RC-11892 to the Regional Director to determine the voter eligibility of Maddox and Simpson.

Dissenting in part, Member Walsh wrote that the Respondent's harsh display of hostility toward Maddox and Simpson in the face of their work stoppage, created a climate of ambiguity and confusion which caused Maddox and Simpson to believe that they had been discharged or that their employment was at least questionable because of their strike activity. He agreed with the judge that the Respondent discharged Maddox and Simpson because of their protected concerted walkout in protest of their wages and their support for the Union.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Painters District Council 3; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Overland Park, KS and St. Joseph, MO, Nov. 28 and 29, 2000. Adm. Law Judge Mary Miller Cracraft issued her decision Feb. 16, 2001.

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Labinal, Inc. (17-CA-22024; 340 NLRB No. 25) Pryor Creek, OK Sept. 16, 2003. The Board upheld the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule prohibiting its employees from discussing salaries and wages with each other; interrogating them concerning their discussion of salaries and wages with each other; suspending Nancy Weaver on July 25, 2002; and discharging Weaver on or about July 26, 2002. [HTML] [PDF]

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Nancy Weaver, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Tulsa on April 10, 2003. Adm. Law Judge John H. West issued his decision June 20, 2003.

* * *

LB & B Associates, Inc. (32-CA-19334; 340 NLRB No. 29) Fallon, NV Sept. 16, 2003. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Mark Becker in retaliation for filing a grievance. The judge also found that the Respondent refused to bargain over the decision to discharge Becker and its effects, in violation of Section 8(a)(5) and (1). The Board found it unnecessary to reach the merits of the 8(a)(5) allegation. It said the judge's recommended broad order was "overbroad" for the 8(a)(5) violation he found and that a bargaining remedy tailored to his specific finding is unnecessary in light of the 8(a)(3) reinstatement and make-whole remedy it adopted. Given the finding of unlawful discrimination, the Respondent's decision to discharge Becker was itself unlawful, the Board reasoned. Under these circumstances, it dismissed the 8(a)(5) allegation. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Machinists District Lodge 190, Local Lodge 801; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Reno on July 30, 2002. Adm. Law Judge John J. McCarrick issued his decision Nov. 13, 2002.

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Norris Sucker Rods (17-CA-21436; 340 NLRB No. 28) Tulsa, OK Sept. 15, 2003. In agreement with the administrative law judge, the Board concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide information relevant to the processing of grievances or the administration of the collective-bargaining agreement requested by the Steelworkers on October 29, 2001. [HTML] [PDF]

The Board modified the judge's recommended order and directed the Respondent to provide the Union a list of unit employees who had submitted absence excuse slips in the 6 months preceding the Union's request. The Board also required the Respondent to produce the absence excuse slips with the names of treating physicians and medical information directly stating diagnosis, treatment, or medication given redacted.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Zachary Trosky, an Individual; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Tulsa on May 21, 2002. Adm. Law Judge Albert A. Metz issued his decision Oct. 18, 2002.

* * *

Tom Cat Development Corp. (2-CA-34267, 34600; 340 NLRB No. 27) Patchogue, NY Sept. 15, 2003. The Board granted the General Counsel's motion for summary judgment and ordered the Respondent to make whole Alberto Bota in the amount of $6000 plus interest. [HTML] [PDF]

On March 27, 2003, the Regional Director approved a Stipulation under which the Respondent agreed to make Bota whole by paying him $6000 in three equal installments on April 2, August 14, and December 12, 2003. The stipulation also provided that in the event the Respondent did not make the scheduled payments, the entire liquidated amount still unpaid would be immediately due and payable in one lump sum. The Respondent failed to remit the agreed-upon backpay payment due Bota on April 2.

In its earlier decision reported at 338 NLRB No. 89 (2002), the Board directed the Respondent to make whole Bota and Philip Peyton for loss of earnings and other benefits resulting from their discharges in violation of Section 8(a)(1) and (3) of the Act. Prior to approval of the stipulation, the Region determined that Peyton was not owed any backpay as his interim earnings exceeded what he would have earned had he remained employed by the Respondent throughout the backpay period.

(Chairman Battista and Members Liebman and Walsh participated.)

General Counsel filed motion for summary judgment July 25, 2003.

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Wal-Mart Stores, Inc. (18-CA-14757, 15017; 340 NLRB No. 31) Grand Rapids, MN Sept. 17, 2003. The Respondent filed exceptions to the administrative law judge's findings that the Respondent (1) threatened employee Deborah Hager in violation of Section 8(a)(1) of the Act, (2) changed the work schedule of Sherry Nelson in violation of Section 8(a)(3) and (1), and (3) instructed its 22 department managers that they could not participate in union activities, that it would be unlawful for them to do so, and that they were to report union activity to management, in violation of Section 8(a)(1). The Board found that the Respondent unlawfully threatened Hager, changed the schedule of Nelson in violation of Section 8(a)(3) and (1), and that the Respondent's instructions to four department managers who were not statutory supervisors violated Section 8(a)(1). [HTML] [PDF]

Chairman Battista, dissenting in part, would dismiss the 8(a)(3) allegation regarding Nelson. Contrary to the judge, he found that the General Counsel failed to establish that the Respondent knew or even suspected that Nelson was a union supporter.

The General Counsel and the Charging Party did not file exceptions. The Respondent did not except to the judge's findings that it violated Section 8(a) (1) by implementing and maintaining a broad rule prohibiting employees from discussing their wages and benefits among themselves and by telling employees that they would be terminated if they did so.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by the Paperworkers International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids on April 26-27, 1999 and in Minneapolis on May 24, 1999. Adm. Law Judge C. Richard Miserendino issued his decision Dec. 14, 1999.

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Abell Engineering & Manufacturing, Inc. (25-CA-25966(E), 26263(E); 340 NLRB No. 19) Indianapolis, IN Sept. 12, 2003. The Board affirmed the administrative law judge's decision that the General Counsel's position in the underlying unfair labor practice case was substantially justified and denied Applicant Abell Engineering's application for award of fees and expenses under the Equal Access to Justice Act (EAJA). [HTML] [PDF]

In the underlying unfair labor practice proceeding, 338 NLRB No. 42 (2002), there was a dispute over what activity motivated the Applicant to discharge Richard Gist. The Applicant contended that Gist was fired for a single act, i.e., for breaching a duty of loyalty to the Applicant when he solicited welder David Bautista to take a job with a union contractor. The General Counsel contended that Gist was fired for all of his protected union activity, i.e., for attempting to organize the Applicant's sheet metal shop workers. The judge accepted the General Counsel's position and determined that Gist's solicitation of Bautista was an extension of Gist's union organizing and fell within the broad protective ambit of Section 7.

The Board however reversed the judge and dismissed the consolidated complaint, finding that Gist had engaged in unprotected conduct when he attempted to recruit Bautista to work for another employer with the full knowledge that if Bautista took the job the Respondent would lose one of only three unit employees. Accordingly, it held Gist's attempts to induce Bautista to quit were unrelated to organizing the Respondent's employees or improving their working conditions. The Board analyzed Gist's solicitation of Bautista differently than either the parties or the judge. It held that Gist's conduct exceeded the protection of the Act and that the facts were analogous to those in Clinton Corn Processing, 194 NLRB 184 (1971), and distinguishable from those in cases where the Board found that the protection of the Act was not lost.

In this supplemental decision, the Board concluded that the General Counsel's reliance on a Wright Line legal theory to prosecute Gist's discharge and his view that Gist's solicitation of Bautista was protected were both reasonable. Although the General Counsel did not attempt to distinguish Clinton Corn Processing and instead argued that Gist's solicitation of Bautista was comparable to M.J. Mechanical Service, Inc., 324 NLRB 812, 813 (1997), it did not make his position unreasonable for EAJA purposes, the Board held. It noted that neither Clinton Corn Processing nor M.J. Mechanical Services is directly on point, but that the Board found certain features of Clinton Corn Processing to be more applicable to Gist's situation.

(Members Liebman, Schaumber, and Walsh participated.)

Adm. Law Judge C. Richard Miserendino issued his supplemental decision Jan. 17, 2003.

* * *

Caritas Good Samaritan Medical Center (1-CA-39471; 340 NLRB No. 6) Brockton, MA Sept. 8, 2003. The administrative law judge held that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally making changes to health insurance benefits. Contrary to the judge, Chairman Battista and Member Schaumber dismissed the complaint, agreeing with the Respondent that this case should be deferred to the grievance-arbitration procedure contained in the parties' collective bargaining agreement. Collyer Insulated Wire, 192 NLRB 837 (1971). Member Liebman dissented. [HTML] [PDF]

The majority wrote:

An application of the Collyer factors to the case at hand shows that deferral is appropriate. Here, the Respondent and the Union have enjoyed a bargaining relationship for at least 6 years. There is no claim of animosity on the part of the Respondent toward the employees' exercise of their protected rights. The Respondent has expressed its willingness to arbitrate the dispute, offering to waive any timeliness issue. Moreover, the arbitration clause, by its language, provides for arbitration in a broad range of disputes, including, no doubt, the instant dispute. Most importantly, the instant dispute is well suited to resolution by arbitration because the meaning of the contract is at the heart of the dispute.

The issue in this case is whether the Agreement is free from ambiguity so as to make arbitration unnecessary. In our view, it is not.

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

Dissenting, Member Liebman noted that the dispositive issue is whether the collective-bargaining agreement the parties reached in September 2001, unambiguously required the Respondent to bargain with the Union before changing the terms of employees' health coverage. She believes that it did and that the Board should not defer this case to arbitration under the doctrine of Collyer.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by SEIU Local 767; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on June 17, 2002. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Sept. 12, 2002.

* * *

Custom Cut, Inc. (28-CA-18062; 340 NLRB No. 17) Las Vegas, NV Sept. 11, 2003. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by telling employees that they should not discuss their wages among themselves and that the Respondent would not discuss wages with them. It affirmed the judge's finding that the General Counsel failed to prove that the Respondent's refusal to rehire Edward Jim and Joe Milli violated Section 8(a)(1), (3), and (4) of the Act. [HTML] [PDF]

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Carpenters Southwest Regional Council; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Las Vegas on Jan. 7, 2003. Adm. Law Judge James L. Rose issued his decision March 5, 2003.

* * *

Elevator Constructors Local 91 (Otis Elevator Co.) (34-CD-64; 340 NLRB No. 14) East Hartford, CT Sept. 9, 2003. The Board determined that the employees of Perini Building Company, Inc., represented by Operating Engineers Local 478 instead of employees represented by Elevator Constructors Local 91, are entitled to operate the interior cars used for transporting a combination of workmen and materials (after the cars are turned over but before final inspection and certification for public use) at the hotel tower at the Mohegan Sun Resort in Uncasville, Connecticut. In making the award, the Board relied on the factors of employer preference and collective-bargaining agreements. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

La-Z-Boy Midwest, a Div. of La-Z-Boy Inc. (17-CA-20888, et al.; 340 NLRB No. 10) Neosho, MO Sept. 9, 2003. The administrative law judge found, among others, that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing employee John Phillips a verbal warning for engaging in misconduct in the course of his union solicitation activities, basing this finding on the absence of credible evidence that Phillips had engaged in the alleged misconduct. The Board agreed with the judge's conclusion that the Respondent unlawfully disciplined Phillips but held that the judge erred in applying the analytical framework for dual motivation cases established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), because there is no dispute as to the reason for the discipline. [HTML] [PDF]

The Board said that the Respondent's motivation is not at issue, and the Wright Line analysis is not appropriate. It wrote that the proper analytical framework is that found in NLRB v. Burnup & Sims, 379 U.S. 21 (1964), where the Supreme Court affirmed the Board's rule that an employer violates Section 8(a)(1) by discharging or disciplining an employee based on its good-faith but mistaken belief that the employee engaged in misconduct in the course of protected activity.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by PACE; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Joplin on April 5, 2001. Adm. Law Judge John H. West. issued his decision July 20, 2001.

* * *

Lenz & Riecker (22-CA-24921; 340 NLRB No. 21) Totowa, NJ Sept. 12, 2003. The Board reversed the administrative law judge and dismissed the complaint allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off employees in September 2001 and then subcontracting bargaining unit without prior notice to or affording Graphic Communications Local 31 an opportunity to bargain. In the absence of exceptions, the Board adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by contacting bargaining unit members directly and offering them temporary employment after October 1, 2001, when it subcontracted with Interstate Litho Corp. to complete the Respondent's outstanding work. [HTML] [PDF]

The parties do not dispute that the Respondent's decision to terminate its business was not a mandatory subject of bargaining. Members Liebman and Walsh found therefore the Respondent had no duty to bargain over its decision to wind down its operations at the end of September 2001 and ultimately to close its Totowa, NJ facility. They explained that the Respondent had an "effects bargaining" obligation to provide the Union an opportunity to bargain over how it was going to wind down its operations, but that the Respondent did not fail to honor that obligation because it notified the Union of its decision to liquidate and explicitly offered to bargain over the effects of the decision. The Union waived its right to bargain, Members Liebman and Walsh decided.

Chairman Battista, in his concurring opinion, did not pass on whether the Respondent had a duty to bargain over its decision to subcontract because it was an effect of its decision to liquidate its business. Assuming arguendo that there was such a duty, he agreed with the majority for the reasons set forth in its decision that the Union failed to assert its right to bargain and, thus, no violation occurred. Further to the extent that the decision to subcontract was an "effect" of the decision to liquidate, the Chairman concluded that the Respondent had no obligation to bargain because the decision to subcontract was not a mandatory subject of bargaining.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Graphic Communications Local 31; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on July 22, 2002. Adm. Law Judge Eleanor MacDonald issued her decision Feb. 14, 2003.

* * *

Observer & Eccentric Newspapers, Inc. (7-CA-44695; 340 NLRB No. 18) Detroit, MI Sept. 11, 2003. The Board affirmed the administrative law judge's conclusion that the Respondent did not violate Section 8(a)(3) and (1) of the Act when it laid off employee Anne Grabda in December 2001. Members Liebman and Walsh agreed with the judge's finding that the Respondent violated Section 8(a)(1) by its interrogation of employee Donna Gregway. Member Schaumber would dismiss the complaint allegation that Respondent's interrogation of Gregway violated the Act. [HTML] [PDF]

The Respondent's interview of Gregway pertained to a private lawsuit. The judge found, with the majority's approval, that the Respondent was obligated to comply with the interview standards set forth in Johnnie's Poultry, 146 NLRB 770, 775 (1964), enf. denied on other grounds 344 F.2d 617 (8th Cir. 1965), because the lawsuit pertained to protected activities of the potential employee witnesses who were interviewed.

Member Schaumber said that the few short questions asked Gregway did not violate Section 8(a)(1) under the Rossmore House, 269 NLRB 1176 (1984), totality-of-the- circumstances test. In his view, the questions asked Gregway were substantively nonobjectionable as they were asked in a neutral and nonpejorative manner; did not constitute an "interrogation" unlawful under the Act; and represented the kind of natural dialogue to be expected between employer and employee on a topic of mutual interest and fully protected by Section 8(c) of the Act.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Anne Grabda, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, June 18-19, 2002. Adm. Law Judge Arthur J. Amchan issued his decision Sept. 3, 2002.

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SKD Jonesville Division L.P. (7-CA-42244; 340 NLRB No. 11) Hillsdale, MI Sept. 10, 2003. The Board reversed the administrative law judge's dismissal of the complaint, finding that the Respondent violated Section 8(a)(1) of the Act by threatening Pamela Cole with unspecified retaliation if she engaged in union activities and by warning her in writing not to speak to her fellow employees about work-related matters, on pain of discipline or discharge. Chairman Battista and Member Schaumber agreed with the judge that the Respondent did not violate the Act in any other respects. [HTML] [PDF]

Unlike her colleagues, Member Liebman would also find that the Respondent, by supervisor Kevin Varney, unlawfully interrogated Cole and gave the impression that her union activities were under surveillance.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Pamela J. Cole, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Hillsdale on Feb. 9, 2000. Adm. Law Judge Arthur J. Amchan issued his decision March 24, 2000.

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Skyline Builders, Inc. (12-CA-21783, 12-RC-8695; 340 NLRB No. 13) Pampano, FL Sept. 10, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union support and activities, and by threatening not to hire employees because they supported the Union and engaged in union activities; and Section 8(a)(3) and (1) by discharging Mike Solano and David Richardson because they joined, supported and assisted the Union, and engaged in concerted activities, and to discourage employees from engaging in these activities. [HTML] [PDF]

It adopted, in the absence of exceptions, the judge's recommendation that Objections 3 through 7 to the election held on October 7, 2001 be overruled and that Objection 8 be sustained. The Board found it unnecessary to pass on his recommendation that Objections 1 and 2 be sustained.

The judge, without conducting an investigation into the 22 determinative challenged ballots, set aside the election and remanded the representation case to the Regional Director for further appropriate action. Contrary to the judge, the Board remanded Case 12-RC-8695 to the Regional Director for a hearing on the eligibility of the challenged voters and a supplemental report on challenged ballots because resolution of the challenged ballots may result in a Union victory, which would mike it unnecessary to set aside the election based on the Union's objections.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Carpenters South Florida Regional Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, Oct. 28-29, 2002. Adm. Law Judge John H. West issued his decision Jan. 14, 2003.

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Sun Transport, Inc., a wholly owned subsidiary of Marine Investment Corp., et al. (4-CA-26705; 340 NLRB No. 8) Philadelphia, PA Sept. 8, 2003. Contrary to the administrative law judge, the Board dismissed the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by offering less severance pay to the employees represented by the Union than it offered to other employees. The judge claimed that the Respondent made this offer in response to protected activity, specifically in retaliation against the Union's past bargaining positions. [HTML] [PDF]

When the Respondent divested itself of its marine transport business, it applied the Involuntary Termination Plan (a severance package) to terminated unrepresented employees which provided, among other benefits, two weeks of severance pay for each year of service up to 20 years, and offered the represented employees one week of severance pay per year of service. The severance package was rejected and the employees represented by the Union received no severance pay.

Unlike the judge's finding, the Board held that the General Counsel failed to show that the Respondent was motivated by antiunion animus when it offered lower severance pay to employees represented by the Union. It agreed that the judge correctly noted the Board has long held that employers may offer different benefits to represented and unrepresented groups of employees as part of its bargaining strategy. Shell Oil Co., 77 NLRB 1306, 1310 (1948). The Board wrote: "the mere fact that different offers are made or that different benefits are provided does not, standing alone, demonstrate unlawful motive. Although an employer is not free to discriminatorily afford represented employees less benefits than unrepresented employees, . . . the record does not establish that the Respondent engaged in such conduct here."

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Sun Marine Licensed Officers Assn.; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Jan. 20 and 21 and June 15, 2000. Adm. Law Judge Robert A. Giannasi issued his decision Oct. 3, 2000.

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Teamsters Local 174 (Airborne Express, Inc.) (19-CD-483, 484; 340 NLRB No. 20) Seattle, WA Sept. 12, 2003. The Board found reasonable cause to believe that all of the elements of Section 8(b)(4)(D) of the Act have been shown and that there is no agreed-upon method for resolving the jurisdictional dispute. Relying on the factors of employer preference, economy, and efficiency of operations, relative skills and experience, and avoidance of loss of jobs, it determined that employees of Wick's Airfreight represented by Teamsters Local 174, rather than employees of Airborne Express represented by Local 174, are entitled to perform the work of ground transportation of freight from Cutter & Buck to an ABX Air, Inc. regional hub. [HTML] [PDF]

The Board noted the "unusual" fact pattern in this case involving two groups of employees in separate bargaining units represented by the same local union but working for two different employers. In finding that Airborne's local truckdrivers represented by Local 174 and Wick's line haul truckdrivers represented by Local 174 are competing groups of employees, it relied on: the Board's holdings that employees qualify as different competing groups under

Section 8(b)(4)(D) in these circumstances and that employees demonstrate a competing claim to disputed work by performing it, and the Board's rejection of the argument that local truckdrivers and over-the-road drivers are in the same trade, craft, or class (truckdrivers).

(Chairman Battista and Members Schaumber and Walsh participated.)

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U.S. Steel, a Div. of USX Corp. (4-CA-27695-1, -2; 340 NLRB No. 22) Fairless Works, PA Sept. 12, 2003. The Board affirmed the administrative law judge's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging active union representatives Brian Koontz and Stanley Zuczek on June 4, 1998 because of their union and other protected concerted activities. The judge said "[t]he real issue here is whether [Koontz' and Zuczek's] failure to return [their] pagers would have resulted in their [June 4] termination if not for Koontz' and Zuczek's history of union and protected concerted activity." Member Schaumber agreed with the judge and his colleagues that the answer is "no," saying: "I write separately to explain why the Respondent's argument-- that given Koontz' and Zuczek's history of insubordination, the answer should be 'yes,' an argument to which I am not sympathetic, must fail." [HTML] [PDF]

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Steelworkers Local 5092; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, June 6-7, Aug. 14-18, and Sept. 6, 2000. Adm. Law Judge Michael A. Marcionese issued his decision July 25, 2001.

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The Arrow Line, Inc./Coach USA (34-CA-9388; 340 NLRB No. 5) Waterford, CT Aug. 21, 2003. Members Schaumber and Acosta adopted the administrative law judge's recommendations and dismissed the complaint alleging that the Respondent violated Section 8(a)(5) and (1) and 8(d) of the Act by unilaterally changing the vacation benefits of its union-represented mechanics and washers since on or about February 15, 2000. Member Walsh dissented. [HTML] [PDF]

The parties' 1996 agreement increased vacation pay from 40 to 50 hours but this increase was applied only to drivers who generally worked 10 more hours a week than nondriver employees. The General Counsel alleged that the Respondent's failure to pay the mechanics and cleaners vacation benefits based on a 50-hour week constituted a midterm modification of the collective-bargaining agreement.

The judge concluded that the complaint is time-barred by Section 10(b) because the Respondent simply adhered to a method of calculating vacation benefits that had been established more than 6 months before the charge and had continued without change. Members Schaumber and Acosta agreed with the judge that this case is akin to Continental Oil Co., 194 NLRB 126 (1971), where the Board found that the employer's mere adherence to its methods of allocating overtime established outside the Section 10(b) period did not constitute a midterm modification within the 10(b) period.

Member Walsh asserted that his colleagues erred in dismissing the complaint on 10(b) grounds. He would find that in continuously failing to pay mechanics and cleaners their contractual 50 hours per week vacation pay, without obtaining the Union's consent, the Respondent has effected midterm modification of the collective-bargaining agreement resulting in a series of continuing or recurring separate and distinct violations of Section 8(a)(5) and (1) and 8(d) of the Act.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Amalgamated Transit Union Local 1342; complaint alleged violation of Section 8(a)(1) and (5) and 8(d). Hearing at Hartford, March 8 and 9, 2001. Adm. Law Judge Michael A. Marcionese issued his decision June 14, 2001.

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Ken Maddox Heating & Air Conditioning, Inc. (25-CA-24297, et al.; 340 NLRB No. 7) Indianapolis, IN Sept. 5, 2003. Chairman Battista and Member Schaumber, with Member Liebman concurring, concluded that there was insufficient evidence that the Respondent engaged in any unlawful discrimination and, therefore, reversed the administrative law judge and dismissed the complaint. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by maintaining a hiring policy that deprived 35 union members of both employment and consideration for employment and by paying one union member whom the Respondent knowingly hired, lower wages than other hires because of his union membership. [HTML] [PDF]

The judge determined, in his first decision, that the Respondent's primary hiring policy was to give priority to applicants it had previously employed and to applicants referred by current employees and business associates (the referral policy). He said this was "inherently destructive of important employee rights" within the meaning of NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), because it precluded consideration of an entire class of applicants, i.e., overt union members. In reversing the judge's finding that the referral policy per se violated the Act, the majority did not pass on the judge's theory as those matters were neither alleged nor litigated.

Chairman Battista and Member Schaumber contended that the record demonstrated that the Respondent's hiring decisions regarding the alleged discriminatees were "based on neutral hiring policies, uniformly applied." Sunland Construction Co., 309 NLRB 1224, 1229 fn. 33 (1992). They held that referral policies like the Respondent's to be legitimate employment practices and that there is no substantial evidence that the Respondent refused to hire, or refused to consider for hire, the 35 alleged discriminatees because of their union membership.

Member Liebman agreed with her colleagues that the complaint was properly dismissed and that the judge's use of the Great Dane doctrine to satisfy the animus requirement was not appropriate. She also agreed with the majority's analysis that the alleged unlawful discrimination is consistent with the framework established in FES, 331 NLRB 9 (2000), affd. 301 F.3d 83 (3d Cir. 2002) and Wright Line.

The case was pending on exceptions to the judge's first decision when FES issued, clarifying the analytical framework for refusal-to-hire and refusal-to- consider unfair labor practice allegations. In light of FES, the proceeding was remanded to the judge for further consideration.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Sheet Metal Workers Local 20; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis on March 2-5, 1998. Adm. Law Judge Richard H. Beddow Jr. issued his decision June 15, 1998 and his supplemental decision Dec. 8, 2000.

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Alexandria Clinic, P.A. (18-CA-15371; 339 NLRB No. 162) Alexandria, MN Aug. 21, 2003. Chairman Battista and Members Schaumber and Acosta reversed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating its striking nursing employees and dismissed the complaint in its entirety. Member Acosta also wrote a separate concurrence. Members Liebman and Walsh dissented. [HTML] [PDF]

The Respondent's licensed practical nurses and medical assistant employees (nurses) on August 25, 1999, rejected the Respondent's final contract offer and voted to strike. In accordance with Section 8(g)'s requirement that labor organizations give health care institutions 10- days advance written notice of the date and time of its intended strike, the Union informed the Respondent that it would strike the clinic on September 10, 1999, starting at 8 a.m. On September 7, members of the Union's negotiating committee changed the commencement time of the strike from 8 a.m. to noon. Although the Union was aware of this change, it was decided that neither the nurses nor the Respondent was to be notified. The employees were told that someone would come to get them when it was time to strike.

The Respondent hired temporary nurses to replace the striking nurses and when the walkout commenced, the replacement nurses were assigned the unit nurses' work. On September 13 the Respondent sought an explanation as to "why the Union chose to delay the commencement of the strike and why the Union did not give the clinic advance notice of this change in plan." The Union replied by letter, stating that "[u]nder statute, we gave the proper notice to strike and went out on strike within the allowable time." Claiming that this response was legally inadequate, the Respondent wrote to the striking nurses that their walkout was "in violation of the notice provisions of Section 8(g)" and that their employment was, therefore, terminated.

The issue presented in this matter was whether the judge correctly found that the Respondent committed unfair labor practices when it discharged its nursing employees because of the failure to comply with the literal requirements of Section 8(g), i.e. there was a delay in the start of the economic strike of 4 hours after the time set forth in the Union's 10-day notice to the Respondent.

The judge determined that, despite the strike's delay of 4 hours beyond the specified hour of 8 a.m., the Union's noon-time strike did not violate Section 8(g). In reaching this conclusion, the judge relied on Greater New Orleans Artificial Kidney Center, 240 NLRB 432 (1979), where the Board held that Section 8(g) was not to be "rigidly applied" in accordance with its statutory language which provides for extension of strike time by "written agreement of both parties." The judge asserted that no supplemental notice was necessary in this matter because the "strike and picketing began within a reasonable time after the scheduled time [and] . . . the Union was in substantial compliance with Section 8(g)."

Chairman Battista and Member Schaumber noted that the last sentence of Section 8(g) says that the 10-day "notice, once given, may be extended by the written agreement of both parties." Thus, they asserted, a union cannot unilaterally extend the commencement time of its strike and to the extent that the Board's decision in Greater New Orleans holds to the contrary, they overruled it.

Concurring, Member Acosta noted that Section 8(g) of the Act expressly states that a labor organization, before commencing a strike at a health care institution, "shall not less than 10 days prior to such action, notify the institution in writing" and that the "notice shall state the date and time that such action will commence." He said in his view, because the statutory language is unambiguous, "we cannot depart from it." Member Acosta agreed with Chairman Battista and Member Schaumber that the Board inappropriately relied on legislative history to turn the plain statutory language on its head. Therefore, he joined them in overruling Greater New Orleans.

Dissenting, Members Liebman and Walsh concluded that the relevant statutory language is ambiguous with respect to the situation presented here. They wrote:

Read together, Section 8(g) and 8(d) simply do not compel the result the majority reaches. . . . [T]he Board must interpret the Act, taking into account not merely the words of Section 8(g) and 8(d), but also the purpose of these provisions and of the Act as a whole. . . . Applying a rule of reason derived from these legitimate guides to Congressional intent¾and not the majority's mechanical approach¾demonstrates that the discharged nurses did not lose the protection of the Act and that their employer did indeed violate Section 8(a)(3) and (1) by discharging them. The contrary result reached today would surely appall the Congress that enacted Section 8(g), even if it does not trouble the majority.

(Full Board participated.)

Charges filed by Minnesota Licensed Practical Nurses Assn.; complaint alleged violation of Section 8(a)(1) and (3). Hearing in Alexandria, Jan. 24-27, 2000 and Minneapolis on February 3, 2000. Adm. Law Judge John H. West issued his decision June 16, 2000.

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American Steel Erectors, Inc. (1-CA-37051; 339 NLRB No. 152) Greenfield, NH Aug. 26, 2003. Chairman Battista and Member Schaumber dismissed the complaint allegations that the Respondent violated Section 8(a)(1) of the Act by refusing to consider David Paquette for hire in 1998 because of his affiliation with, and concerted activities on behalf of Iron Workers Local 474, and by telling Paquette that he was not being considered for hire because of his union activities. Member Liebman dissented. [HTML] [PDF]

This case involves whether Paquette, an apprentice coordinator and instructor for the Union, lost the protection afforded to Section 7 concerted activity when he voiced his objections to the Respondent's application for certification of its apprenticeship program during meetings of the New Hampshire Apprenticeship Council.

Chairman Battista and Member Schaumber held that even assuming that Paquette was initially engaged in protected activity when he opposed the Respondent's application for certification of its apprenticeship program, he lost any Section 7 protection, when through use of deliberate and outrageous exaggerations, he accused the Respondent of unsafe practices. The majority noted that during one meeting, Paquette told the Council "putting ironworkers up on steel is like throwing babies into the Merrimack River if they worked for [the Respondent]." Although Paquette did not use obscenities and was not loud or threatening, his comments portrayed the Respondent as a concern with a callous indifference to the safety of its employees, Chairman Battista and Member Schaumber explained. They decided that Paquette's statements rendered him unfit for future employment with the Respondent, finding that his remarks satisfied the standard of Dreis & Krump, 221 NLRB 309, 315 (1975) (standard is whether remarks were "so flagrant, violent, or extreme as to render the individual unfit for further service").

Dissenting Member Liebman pointed out that Paquette was a paid advocate, seeking to persuade a state agency, and that his statement should be assessed in that context. She noted that Paquette was not an employee of the Respondent when he made his statement, that he owed the Respondent no duty of loyalty then, and that the issue is not whether the Respondent was privileged to discipline or discharge a current employee, but whether it was free to refuse to consider Paquette for employment after he left his union position. Member Liebman found that Paquette's language was not so extreme that it made him categorically unfit for future service with the Respondent. She believes the result of the majority decision "will be to chill union advocates," adding that "they must now watch their words carefully when they criticize an employer from whom they may one day seek a job."

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by David Paquette, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Boston on Dec. 1, 1999. Adm. Law Judge Richard H. Beddow, Jr. issued his decision March 2, 2000.

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Bakery Workers Local 205 (Metz Baking Co.) (30-CD-167-1; 339 NLRB No. 141) Milwaukee,WI Aug. 21, 2003. The Board concluded that the employees of Metz Baking Company, represented by Bakery Workers Local 205 instead of employees represented by Teamsters Local 344 are entitled to perform the work of the stocker/receiving clerk position at the Employer's Milwaukee, Wisconsin facility. In making the award, the Board relied on the collective-bargaining agreement, employer's preference and past practice, and efficiency and economy. [HTML] [PDF]

(Members Liebman, Schaumber, and Acosta participated.)

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Beverly Health and Rehabilitation Services, Inc., et al. (10-CA-32797, 10- RC-15153; 339 NLRB No. 161) Oneonta, AL Aug. 21, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by interrogating an employee about her union activity and the union activity of other employees (complaint par. 13), threatening employees with loss of benefits if they supported Food and Commercial Workers Local 1657 (complaint par. 14), threatening employees with adverse changes in working conditions if they chose union representation (complaint par. 15), and soliciting employee grievances and impliedly promising to remedy them if employees ceased supporting the Union (complaint pars. 16-17). Chairman Battista would find violations as to complaint pars. 13-16, but would not find a violation as to complaint par. 17. [HTML] [PDF]

The Board also agreed with the judge that the violations (complaint pars. 14 and 16), which occurred during the critical period constituted objectionable conduct and that a second election is warranted.

Chairman Battista and Member Acosta agreed with the judge that the Respondent's shown proclivity to violate the Act justifies a broad order, but they disagreed that a corporatewide order and notice posting provisions are necessary, after finding that this case is distinguishable from other cases where the Board has ordered corporatewide remedies involving this Respondent. They wrote: "In those cases, the Respondent committed multiple violations at multiple locations with high-ranking corporate and regional offices either visiting the facilities at issue and playing a role in the unlawful conduct, or taking prominent roles in directing, approving, or knowingly failing to prevent unlawful actions. Here, the Respondent committed three types of unfair labor practices at one facility with a state manager being the perpetrator in two instances. As such, this case involves discrete violations at an individual facility, and, as in other similar cases, involving this Respondent, traditional remedies are warranted."

Member Liebman, dissenting on this issue, would find that corporatewide remedies are appropriate, saying: "It seems that the majority infers that the regional corporate official who visited this facility and committed unfair labor practices was acting alone and on an ad hoc basis. In my view the opposite inference is warranted. It seems more likely that the regional manager was present at this facility for a reason, namely, to implement the Respondent's corporate labor policies and to conduct himself in a manner consistent with those policies. To that end, he was successful." Member Liebman added that issuance of a corporate remedy is consistent with the Board's findings in Beverly Health & Rehabilitation Services (commonly known as Beverly IV), 335 NLRB 635 (2001), enfd. in pertinent part 317 F.3d 316 (D.C. Cir. 2003), and "promotes the likelihood that our remedies will have a deterrent effect at all the Respondent's facilities."

Chairman Battista and Member Acosta, in finding a corporatewide remedy is not warranted, distinguished Beverly IV from this case. They noted that in Beverly IV, the Board explicitly named five "high ranking corporate and regional officials who played prominent roles in directing, approving, or knowingly failing to prevent unlawful actions," including the company president, two vice presidents, and two regional managers. 335 NLRB at 639. In this case, Chairman Battista and Member Acosta found no such evidence of high-level management involvement in the unlawful conduct, stating: "Indeed, our dissenting colleague can only say that there is a 'likelihood' that the lawful conduct emanated from a central source. That 'likelihood' is not supported by concrete evidence of central direction. Contrary to our dissenting colleague, the involvement of one state human resources manager, who is not alleged to have had any involvement in corporate policy making, does not provide that support."

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Food and Commercial Workers Local 1657; complaint alleged violation of Section 8(a)(1). Hearing at Birmingham on Oct. 17, 2001. Adm. Law Judge Keltner W. Locke issued his decision Nov. 29, 2001.

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Communications Workers Local 13000 (Verizon Communications, Inc.) (6-CB-10814, 10830; 340 NLRB No. 2) Pittsburgh, PA Aug. 29, 2003. The administrative law judge found, and the Board agreed, that the Respondent Union violated Section 8(b)(1)(A) of the Act by prosecuting and firing Susan Irving and Margaret Eichner in 2002 for working mandatory overtime and not obeying its directive to engage in unprotected activity, which would subject them to lawful discipline by Verizon. [HTML] [PDF]

On August 4, 2000, the Union, to get concessions from Verizon in negotiations for a new contract, issued a directive that its members work "No" overtime, "forced or voluntary till we get a contract" and that "At end of tour¾leave/go home." The Union promised: "There will be no contract till there is complete amnesty for disciplinary action taken against any member taking part in this action on 8/4 & 8/5/2000" (2 days before the expiration of the old contract).

Eichner volunteered to work overtime from 5 p.m. until midnight after her day shift on August 4 and Irving also volunteered to work overtime on August 5. After being advised that the Union did not want the employees to work overtime on August 4 and 5, both employees notified their supervisors but were advised that they had to stay on the job or they would be subject to disciplinary action.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Susan L. Irving and Margaret L. Eichner, Individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Pittsburgh, Dec. 11-12, 2002. Adm. Law Judge Marion C. Ladwig issued his decision April 21, 2003.

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Electrical Workers (IBEW) Local 236 (3-CA-23141; 339 NLRB No. 156) Schenectady, NY Aug. 21, 2003. The Board adopted the administrative law judge's recommendation and dismissed the complaint allegation that the Respondent violated Section 8(a)(1) of the Act by discharging Frederick Nirsberger for engaging in protected concerted activities. It approved the judge's finding that Nirsberger forfeited his right to co-worker representation under Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part, 268 F.3d 1095 (D.C. Cir. 2001), by insisting on a representative who was unavailable to be present during an investigatory interview. [HTML] [PDF]

At the interview with Respondent's business manager Tim Paley, Niresberger invoked his Weingarten rights and asked for Jerry Comer, an International Representative who worked for the International and acts as a liaison between the International and its local unions. Comer works out of his home, 120 miles and 2 hours' drive from the Respondent's offices. In response to Nirsberger's request for representation by Comer, Paley told Nirsberger: "You can have anybody you want here, but I want to finish this conversation." Nirsberger refused to continue the conversation without Comer and left the office. Paley then discharged Nirsberger.

The General Counsel asserted that Nirsberger's request for representation was protected under Section 7 and that his discharge was unlawful because Respondent terminated Nirsberger solely for invoking his Weingarten rights, not for requesting a third-party representative. However, as Comer was not Nirsberger's coworker, the Board found that Nisberger did not act in a concerted manner with a coworker for mutual aid or protection.

(Chairman Battista and Members Walsh and Acosta participated.)

Charge filed by Frederick M. Nirsberger, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Albany on Nov. 13, 2001. Adm. Law Judge Joel P. Biblowitz issued his decision Jan. 2, 2002.

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Gadsden Tool, Inc. (10-CA-30005-2; 340 NLRB No. 3) Rainbow City, AL Aug. 29, 2003. Contrary to Chairman Battista, Members Liebman and Walsh agreed with the administrative law judge's finding that the Retail, Wholesale and Department Stores Union's failure to submit dues authorizations to the Respondent did not excuse the Respondent from its obligation to remit dues to the Union. It ordered the Respondent to pay retroactive dues to the Union in the amount of $14,904, with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [HTML] [PDF]

In the prior decision, 327 NLRB 164 (1998), the Board found that the Respondent violated Section 8(a)(5) of the Act by engaging in bad-faith bargaining for an initial contract and by failing to execute a collective-bargaining agreement to which the parties agreed on February 18, 1997. The Respondent thereafter petitioned the U.S. Court of Appeals for the 11th Circuit for review and, on December 1, 2000, the court enforced the Board's Order.

Chairman Battista would reverse the judge's finding that the Respondent is obligated to remit retroactive dues payments to the Union. Chairman Battista contended that although the parties' collective-bargaining agreement makes clear that the submission of dues-checkoff authorizations is a prerequisite to the obligation to deduct and remit dues, the Union did not submit any dues-checkoff authorization cards until December 1, 2000, after the Board's Order was enforced. He noted that the contract makes clear that the Respondent's duty to deduct dues from the employees' pay and to remit these funds to the Union is contingent on the Union's furnishing signed checkoff authorizations to the Respondent. Chairman Battista wrote: "It is not disputed that, during the relevant period, the Union failed to furnish any authorizations to the Respondent."

(Chairman Battista and Members Liebman and Walsh participated.)

Adm. Law Judge Jane Vandeventer issued her supplemental decision Jan. 24, 2002.

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Pieper Electric, Inc., PPC Holdings, Inc. (Single Employer) (30-CA-15504; 339 NLRB No. 160) Milwaukee, WI Aug. 21, 2003. Members Schaumber and Acosta reversed the administrative law judge's findings and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to furnish Electrical Workers IBEW Local 494 certain requested information. Member Walsh dissented. [HTML] [PDF]

The Union requested the names of all Local 494 employees who were participating or had been solicited to participate in the Respondent's Employee Stock Purchase Plan (ESPP) after the Respondent's announcement that PPC Holdings would be implementing an employee ownership program. The purpose of the Union's request was section 12.05 of the parties' collective-bargaining agreement, which restricts stock ownership by covered employees. The Respondent argued that the names of ESPP participants were irrelevant to the Union's duties as a collective- bargaining representative because the Union's purpose was to impose internal union discipline on ESPP participants.

Members Schaumber and Acosta determined that the ESPP does not constitute "wages" because employees receive no "emolument of value" and that the ESPP does not come within the scope of "other conditions of employment" because it does not operate as a retirement plan. They wrote: "Accordingly, we find that the ESPP does not come within the scope of those subjects of bargaining made mandatory by Section 8(d) of the Act: wages, hours, or other terms and conditions of employment."

Contrary to his colleagues, Member Walsh would find that the Respondent unlawfully refused to provide the Union with the information it requested about employee participation in the ESPP. He said that the ESPP, which provides its employees with substantial advantages related to their purchase of the Respondent's stock, is clearly a mandatory subject of bargaining.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Electrical Workers (IBEW) Local 494; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Milwaukee on Aug. 5, 2002. Adm. Law Judge Bruce D. Rosenstein issued his decision Nov. 1, 2002.

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Riverbay Corp., d/b/a CO-OP City and Marion Scott Real Estate, Inc. (2-CA-33290, 33830; 340 NLRB No. 4) Bronx, NY Aug. 29, 2003. No exceptions having been filed by the Respondent, the Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(2) and (1) of the Act by recognizing Party- in-Interest Painters Local 1456 and executing a collective bargaining contract with Local 1456 at a time when the Respondent did not employ any employees who were members of Local 1456 or who had authorized Local 1456 as their collective- bargaining representative. Neither the Respondent nor the Parties-in-Interest (Local 1456 and Painters District Council No. 9) excepted to the judge's recommended order requiring the rescission of the collective-bargaining agreements between them. [HTML] [PDF]

The Parties-in-Interest asserted that the recommended order should be clarified in two respects, noting that the language of the notice did not conform to the language of paragraphs 1(b) and (c) of the Order. They requested that the "permissive 'shall not require' language in the Order should be replaced with the mandatory 'will not withdraw' language in the proposed notice of posting," and that the Board "clarify exactly what is meant by 'wages or other benefits or other terms or conditions of employment established by' the agreements." The Board rejected both requests but reconciled the language of the Order and Notice by issuing a new Notice that conforms with paragraphs 1(b) and (c) of the judge's Order. See, e.g. Windsor Castle Health Care, 310 NLRB 579, 594 and 596 (1993).

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Johnny Olivio and Narciso Rafael Luna, Individuals; complaint alleged violation of Section 8(a)(1) and (2). Hearing at New York, Dec. 5-6, 2002. Adm. Law Judge Eleanor MacDonald issued her decision April 17, 2003.

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Wal-Mart, Inc. (21-CA-34515; 339 NLRB No. 153) Lake Elsinore, CA Aug. 21, 2003. Chairman Battista and Member Acosta reversed the administrative law judge and held that the Respondent did not violate Section 8(a)(1) of the Act by soliciting and/or resolving employee grievances to dissuade employees from supporting the Union during the period January through April 2000. In accordance with this finding, they dismissed the complaint in its entirety. Member Walsh dissented. [HTML] [PDF]

The issue to be determined was whether during the union organizing campaign the Respondent solicited grievances in a manner that was significantly altered from its past practice and methods. The judge found that the Respondent's solicitation of grievances during the critical period was extraordinary in incident, pervasiveness, and managerial level involved. The judge stated: "It is reasonable to infer that Respondent's solicitous omnipresence during the union campaign demonstrated Respondent's ability to address and resolve employee needs and inherently implied a promise to remedy grievances."

The Respondent has a longstanding company program called "Coaching By Walking Around" (CBWA) which involved managers spending time with employees at the employees' jobs and being available to listen, advise, and instruct. After the advent of the union organizing campaign, Respondent "stepped up" the intensity of the CBWA. Chairman Battista and Member Schaumber held that the "stepped up" activity included countercampaigning and noted it was not unlawful to engage in such activity. The majority found that the evidence established that the occurrence of soliciting and remedying grievances during the critical period was substantially consistent with past practice.

Member Walsh found that in direct response to the Union's organizational campaign, the Respondent flooded the Lake Elsinore store with high-level managers who systematically solicited employee complaints, requests, and grievances. He wrote that this was a significant departure from the Respondent's more limited past practice of soliciting and remedying employee grievances and, therefore, unlawful.

(Chairman Battista and Members Walsh and Acosta participated.)

Charges filed by Food and Commercial Workers Local 1167; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Temecula on May 28 and at Lake Elsinore on May 29, 2002. Adm. Law Judge Lana H. Parke issued her decision July 17, 2002.

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Webco Industries, Inc. (17-CA-19047, 19120; 340 NLRB No. 1) Sand Springs, OK Aug. 28, 2003. Members Liebman and Walsh affirmed the administrative law judge's supplemental findings, with two exceptions, and ordered the Respondent to pay Charles Thornton $18,030.10 in backpay, $3,128.03 for profit sharing, and $16,849.38 in 401(k) contributions. Member Schaumber dissented in part. [HTML] [PDF]

In one disagreement with the judge, the majority found that the record established that Thornton did not qualify for attendance bonuses throughout the period leading up to his discharge. It reduced his gross earnings from the beginning of the backpay period through July 31, 2000, when the bonuses were eliminated and also reduced the profit sharing and 40l(k) contributions through July 31, 2000 because they were based on gross wages.

On the second issue, the majority deleted the provision from the judge's recommended Order, which related to his finding that if Thornton incurs higher income tax liability as a result of receiving his backpay in a lump sum, the Respondent should be required to reimburse him for the additional taxes. It noted that the General Counsel did not seek this relief in the underlying case; that the Board's prior order, as enforced, contained no such provision; and that to provide the requested remedy at this stage would require the Board to amend its Order and possibly to return to court to seek enforcement of the amended Order. "We think that this is not the time to raise this issue; the General Counsel should have made this argument to the Board in the earlier proceeding," the majority held. Member Liebman agreed that the relief was not timely sought but nonetheless believes that this form of relief would be appropriate if timely sought.

Member Schaumber joined his colleagues in all but two aspects of their decision. One, before awarding Thornton any bonuses for attendance and safety, he would require the General Counsel to introduce evidence of Thornton's attendance and safety record during his interim employment; and two, he would not award Thornton moneys for his claimed weekly purchases of work clothes without some evidence substantiating that claim, either in the form of receipts, a credible explanation why the receipts are unavailable, or some corroborative evidence of the need and the cost.

The Board's decision in the underlying unfair labor practice proceeding is reported at 327 NLRB 172 (1998). The U.S. Court of Appeals for the Tenth Circuit enforced the Board's decision. 217 F.3d 1306 (2000). The Respondent reinstated Thornton on September 25, 2000 and this proceeding concerns the amount of Thornton's make-whole relief.

(Members Liebman, Schaumber, and Walsh participated.)

Adm. Law Judge Albert A. Metz issued his decision Dec. 28, 2001.

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Zimmerman Plumbing & Heating Co., Inc. (7-CA-41389; 339 NLRB No. 138) Kalamazoo, MI Aug. 25, 2003. Agreeing with the administrative law judge, Members Liebman and Walsh held that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to offer former unfair labor practice striker Tim O'Brien positions that were substantially equivalent to his prestrike job that became available in 1998; that the Respondent further violated Section 8(a)(3) and (1) by failing to consider O'Brien for other nonequivalent positions in 1998 because of his activities for Plumbers Local 357; and that the Respondent did not unlawfully fail to consider former unfair labor practice striker James Fogoros for nonequivalent positions. The judge concluded that the Respondent did not consider, and would not have considered, Fogoros for the nonequivalent positions that became available in 1998 because it did not believe Fogoros, as a skilled journeyman would be interested in the less skilled positions. [HTML] [PDF]

Member Schaumber, concurring in part and dissenting in part, agreed that the Respondent unlawfully failed to recall O'Brien to positions which were substantially equivalent to his prestrike position, but not by refusing to consider him for nonequivalent positions. He also agreed that the Respondent did not unlawfully refuse to consider Fogoros for nonequivalent positions. He would dismiss this allegation on the additional ground that Fogoros never applied for such positions.

The Board in 2001 affirmed the judge's findings that the Respondent unlawfully failed to recall O'Brien in 1998 to certain positions that were substantially equivalent to his prestrike job. Contrary to the judge, it found that none of the positions that became available in 1998 were substantially equivalent to Fogoros' prestrike job and dismissed the allegation that the Respondent unlawfully failed to recall Fogoros to substantially equivalent positions. The Board remanded to the judge the Respondent's contention that O'Brien and Fogoros had previously abandoned their employment relationship with the Respondent by accepting substantially equivalent employment elsewhere. 334 NLRB 586.

Members Liebman and Walsh agreed with the judge that the Respondent failed to establish that O'Brien intended to abandon his reinstatement rights by accepting interim employment at another employer. In finding that the Respondent unlawfully failed to consider O'Brien for nonequivalent positions that became available, Members Liebman and Walsh noted O'Brien's repeated inquiries of the Respondent about any available work and when he could start working for the Respondent again. They found that O'Brien's words reasonably put the Respondent on notice to consider him for any available position.

Member Schaumber noted that there is no evidence that O'Brien ever applied with the Respondent for nonequivalent positions or that he ever intended to apply for such positions. He wrote: "O'Brien was lawfully entitled to return to a substantially equivalent position after the strike. His inquiries evidence his anxiousness to do so. Such inquiries are not uncommon. That is the end of the matter."

(Members Liebman, Schaumber, and Walsh participated.)

Adm. Law Judge Bruce D. Rosenstein issued his supplemental decision Jan. 29, 2002.

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Accel, Inc. (8-CA-33013; 339 NLRB No. 134) Lewis Center, OH Aug. 21, 2003. The Board found that the administrative law judge correctly applied Board law in concluding that eight employees who walked off their assembly line to protest the Respondent's decision to deny them a scheduled work break engaged in protected activity and that the Respondent violated Section 8(a)(1) of the Act by discharging them for their work stoppage. The Respondent contended that the work stoppage was unprotected because it was a disproportionately disruptive response to a trivial grievance, citing several court decisions holding that employees' means of protecting a managerial decision that involves the conduct, selection, or discharge of a supervisor must be "reasonable" in order to be protected. The Board found no merit in the Respondent's argument. [HTML] [PDF]

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Food and Commercial Workers Local 1059; complaint alleged violation of Section 8(a)(1). Hearing at Delaware, OH, Aug. 21-22. 2002. Adm. Law Judge Paul Bogas issued his decision Oct. 10, 2002.

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A.P. Painting & Improvements, Inc., t/a All Pro Painting Co. (29-CA-24353, 24368; 339 NLRB No. 157). West Hempstead, NY Aug. 21, 2003. In the absence of exceptions, the Board adopted the administrative law judge's conclusion that by discharging employee John Koshmieder, the Respondent violated Section 8(a)(1) and (3) of the Act. [HTML] [PDF]

The two issues before the Board were: (1) the General Counsel's challenge of the judge's failure to address the allegation that statements made by the Respondent's Vice President Stephen Dunne while unlawfully discharging employee John Koshmieder violated Section 8(a)(1) of the Act; and (2) the Respondent's challenge of the judge's finding that its offer to reinstate Koshmieder was invalid because it was conditioned on his acceptance of a restriction on his statutory right to organize fellow employees.

Members Walsh and Acosta found the additional violation sought by the General Counsel and affirmed the judge's finding that the Respondent's reinstatement was invalid. In his partial dissent, Member Schaumber found that the Respondent made a valid offer to reinstate Koshmieder, untainted by an unlawful no- solicitation condition. Unlike his colleagues, Member Schaumber contended that Koshmieder's right to employment with Respondent, and its backpay obligation to him, ended when Koshmieder failed to report to work in accord with the valid reinstatement offer.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Painters District Council No. 9; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn on Nov. 15, 2001. Adm. Law Judge Howard Edelman issued his decision Feb. 22, 2002.

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Bartlett Heating & Air Conditioning, Inc., and Robert Bartlett, Inc., successors, alter egos, and/or single employer (13-CA-39134; 339 NLRB No. 131) Mt. Prospect, IL Aug. 20, 2003. The Board granted the General Counsel's motion for summary judgment based on the Respondents' failure to comply with the terms of the settlement agreement approved by the Regional Director on October 12, 2001. Member Liebman dissented in part. [HTML] [PDF]

The agreement required the Respondents to (1) make whole Michael Bauer in the amount of $21,054.08 and make whole Robert Wailley in the amount of $945.92; and (2) post a notice to employees regarding the complaint allegations. The Board ordered the Respondents to immediately remit $17,891.94, the outstanding balance as of December 12, 2001, to the Region to be disbursed to the discriminates in accordance with the settlement agreement.

Although the General Counsel's motion alleged that the Respondents have failed to comply with the notice-posting requirement of the settlement agreement, Chairman Battista and Member Schaumber said that the Respondents will not be required to post a notice. They found the language in the agreement ambiguous regarding what remedies would be warranted to remedy the Respondents' violations in the event of noncompliance, and did not find it appropriate to provide for any remedies beyond the payment of $22,000, less any amounts already remitted. Chairman Battista and Member Schaumber stated that unlike their colleague, they found that this ambiguity limits the remedy and in a default judgment proceeding such as this, the Board should be reluctant to impose a remedy by default in the absence of clear language in the noncompliance clause.

Member Liebman dissented from her colleagues' failure to provide the Board's full standard remedies. She found the majority's conclusion regarding the noncompliance clause counterintuitive, stating: "Any ambiguity in the noncompliance clause, . . . should be resolved in favor of following the Board's customary approach and against the wrongdoer."

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Michael Bauer, an Individual; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment Feb. 25, 2002.

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Bell-Atlantic-Pennsylvania, Inc. (4-CA-23255, 23418; 339 NLRB No. 139) Philadelphia, PA Aug. 21, 2003. The Board deferred to an arbitration award and dismissed the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by promulgating a rule prohibiting employees who had visible contact with customers from wearing "Road Kill" shirts containing insignia and by suspending employees for wearing the shirts. The Union grieved the suspensions and an arbitration panel upheld the suspensions and denied the grievance. The arbitrator found that the Respondent's prohibition of the Road Kill T-shirt was in furtherance of its desire to maintain its public image. [HTML] [PDF]

The Road Kill T-shirt, red and white in color, contains the words "Info Superhighway" in large letters over a cartoon-type image of a squashed rodent like animal lying in a pool of blood in the middle of a road. The squashed carcass is labeled "Bell Atlantic employees" and is described at the bottom of the shirt as "Road Kill." The shirt also depicts an overpass in which trucks labeled as "Bell Atlantic" and "AT&T" pass above the Road Kill scene. The arbitrator found that the wearing of the Road Kill T-shirts, depicting employees as squashed and lying in a poll of blood, was disputive to the Employer's public image interests.

Members Liebman and Acosta found that the General Counsel and the Charging Party failed to meet their burden by showing that the award is repugnant to the Act. They found also that although the Road Kill shirt was protected under Section 7, it was not repugnant or "palpably wrong" for the arbitrator to find that employees' Section 7 interests may give way to the Respondent's legitimate interests in protecting its public image under the circumstances of this case.

Member Liebman joined in deferring to the arbitration award insofar as it covered employees who worked in customer homes and businesses, but not to the extent that it covers customer contract employees who worked exclusively on roadways, in manholes, and on telephone poles.

Member Schaumber joined his colleagues in deferring to the arbitrator's award, and thus, did not reach the issue of whether the discipline violates Section 8(a)(3) and (1) of the Act. As to the employees who work outside, he noted that the parties stipulated, and the arbitrator found, that the employees have contact with customers and the public. Like Member Acosta, Member Schaumber would therefore not differentiate among customer contact employees and treated the arbitrator's award finding a legitimate interest in banning the T-shirts as applying to all.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Communications Workers Local 13000; complaint alleged violation of Section 8(a)(1) and (3). Parties waived their right to a hearing before an administrative law judge.

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Carpenters Pacific Northwest District Council (DWA Trade Show and Exposition Services) (36-CC-1016-1, 1017-1; 339 NLRB No. 129) Portland, OR Aug. 18, 2003. Members Liebman and Walsh reversed the administrative law judge and dismissed the complaint in its entirety alleging that the Respondent Union violated Section 8(b)(4)(ii)(B) of the Act by engaging in secondary picketing at a common situs and that the Respondent's object in picketing was to force or require neutral parties to cease doing business with the Charging Party, DWA Trade Show and Exposition Services. Chairman Battista dissented. [HTML] [PDF]

The judge found that the picketing was unlawful under Sailors Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950) because the picket signs did not state that the Respondent's dispute was solely with the Charging Party, and as the signs referred to neutral parties Dental Show and Sysco Food Show, those signs evinced a secondary object.

Members Liebman and Walsh wrote that under Moore Dry Dock, a rebuttable presumption that the object of picketing at a common situs is lawful arises if a union can show that it has complied with the following criteria: (1) the picketing was limited to times when the situs of the dispute was located on secondary premises; (2) the primary employer was engaged at its normal business at the situs; (3) the picketing took place reasonably close to the situs; and (4) the picketing clearly disclosed that the dispute was only with the primary employer. They found that the first three criteria are satisfied; therefore the only relevant inquiry was whether the Respondent's picket signs clearly disclosed that the picketers' dispute was only with the Charging Party. Contrary to the judge and Chairman Battista, they did not find that the picket signs demonstrate an intent to create confusion as to which employer the Respondent intended to target with its picketing.

Dissenting, Chairman Battista argued that the Respondent's picketing failed the fourth Moore Dry Dock criterion. He wrote that under the fourth criterion, "a union must ensure that its picketing clearly discloses that its dispute is only with the primary employer. By prominently including the names of the Charging Party's clients (neutrals) on its picket signs, the Respondent created confusion as to the target of its picketing. The Respondent thereby failed to clearly ensure that the public would understand that its dispute was only with the Charging Party." See West Kentucky Building Trades Council (Daniel Constr. Co.), 192 NLRB 272, 276 (1971).

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by DWA Trade Show and Exposition Services; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Portland on Oct. 16, 2002. Adm. Law Judge Clifford H. Anderson issued his decision Feb. 4, 2003.

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Carter's Inc. (7-CA-43097, 7-RC-21554; 339 NLRB No. 140) Petoskey, MI Aug. 21, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by, among others, making changes to employee wages, benefits, and its employee handbook before a second election held in Case 7-RC-21554 on May 19, 2000 (Food and Commercial Workers Local 876 lost 43-22). The Respondent excepted only to the judge's conclusions that its implementation of wage increases and handbook policy changes violated Section 8(a)(3) and (1). The Board agreed with the judge that the timing of the implementation of the changes, occurring shortly before the second election, raised an inference of coercion that the Respondent failed to rebut by establishing an explanation for the timing of its actions other than the election. [HTML] [PDF]

The judge recommended, with Board approval, that the Union's objections 1, 6, 7, 10, 11, 12 and 13 be overruled, and that the Union's objections 2, 3, 4, 5, 8, 9, and 14 be sustained. The Board set aside the second election and directed that a new election be held.

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Food and Commercial Workers Local 876; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Petoskey on Jan. 17, 2001. Adm. Law Judge Jerry M. Hermele issued his decision March 28, 2001.

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Caraustar Mill Group, Inc. d/b/a Cincinnati Paperboard (9-CA-38996; 339 NLRB No. 137) Cincinnati, OH Aug. 21, 2003. The Board affirmed the administrative law judge's dismissal of the complaint allegation that the Respondent did not violate Section 8(a)(5) and (1) of the Act when it unilaterally changed its "traditional time" shift policy to eliminate trades of less than a full shift. No exceptions were filed to the judge's finding that the Respondent did not violate Section 8(a)(5) and (1) by requiring Charging Party Paper Workers Local 5-0609 to vacate in-plant office space. Member Liebman wrote a separate concurring opinion "to deal with precedent that the majority does not address." [HTML] [PDF]

Members Schaumber and Acosta agreed with the judge that sections 2 and 4 of article XXIV of the parties' collective-bargaining agreement exempt the trading policy from the Company's bargaining obligation and allowed the Respondent to change its shift trading policy unilaterally.

The judge, in dismissing the complaint, applied a "clear and unmistakable" waiver standard to the conduct consistent with Board precedent. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Johnson-Bateman Co., 295 NLRB 180 (1983). In NLRB v. Postal Service, 8 F.3d 832 (D.C. Cir. 1993), the court found appropriate a "contract coverage" analysis, rather than a clear and unmistakable waiver analysis, where the contract covers the issue in dispute. Members Schaumber and Acosta found that dismissal of the complaint is warranted under either standard. Member Liebman relied on the judge's clear and unmistakable waiver analysis.

In dismissing the complaint, Member Schaumber found it unnecessary to pass on whether section 4 of the contract constituted a waiver of the conduct at issue in this case.

Member Liebman agreed that, in conjunction, sections 2 and 4 of the collective-bargaining agreement amounted to a waiver of the Union's right to bargain over a change in the "trading time" shift policy.

Member Acosta noted Member Liebman's concurrence, setting forth her view that the contract provisions raise more compelling circumstances for finding a waiver than do certain other cases previously decided by the Board. He did not find it necessary to discuss whether the present case raises a more compelling circumstance for finding a waiver than do those cases. He believes that dismissal is appropriate under either a contract coverage or waiver analysis, and observes that to the extent that waiver is questioned in this case, a contract coverage analysis provides clear grounds for dismissing the complaint.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Paper Workers Local 5-0609; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cincinnati on Sept. 10, 2002. Adm. Law Judge Karl H. Buschmann issued his decision Jan. 10, 2003.

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Corner Furniture Discount Center, Inc. (2-RC-22448; 339 NLRB No. 146) Bronx, NY Aug. 21, 2003. The Board, finding no merit in the Employer's exceptions to the administrative law judge's disposition of its Objection 2, overruled the objection and certified Teamsters Local 531 as the exclusive collective- bargaining representative of the employees in the appropriate unit. The tally of ballots showed 6 votes for and 5 against, the Petitioner, with no challenged ballots. [HTML] [PDF]

In agreement with the judge, Members Liebman and Acosta rejected the Employer's contention that prounion employee Terence Cosgrove interfered with the election by threatening three bargaining unit employees that how they voted would become known by the Union and that if they voted against it, they would suffer reprisals. They agreed that Cosgrove's statements do not warrant setting aside the election, that the record failed to establish that Cosgrove was the Union's agent when he made the statements, and that viewed as third-party conduct, the statements were not objectionable conduct which would tend to create a general atmosphere of fear and reprisal rendering a free election impossible.

In his concurring opinion, Member Schaumber wrote he joined his colleagues in overruling the Employer's objection and in their determination that Cosgrove was not an agent of the Union with respect to the alleged objectionable conduct. However, he said he wrote separately because he reached the same conclusion using a somewhat different path. One aspect of the majority's opinion with which he disagreed was the matter of determining whether the Employer met is burden of proving Cosgrove had apparent authority as the Union's agent when he made allegedly objectionable statements. Another aspect with which Member Schaumber disagreed with the majority was the implication in their decision that an employee who, like Cosgrove, organized and spoke at union campaign meetings, solicited authorization cards, and played a leading role in the campaign, could not, without more, be the apparent agent of the union for all statements and activities related to the campaign. He would find Cosgrove an agent clothed with apparent authority when he made the statements at issue.

(Members Liebman, Schaumber, and Acosta participated.)

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Curwood, Inc., A Div. of Bemis Co., Inc. (30-CA-15245-1, 30-RC-6203-04; 339 NLRB No. 148) Oshkosh, WI Aug. 21, 2003. Members Schaumber and Acosta agreed with most of the administrative law judge's decision that the Respondent, in response to the Union's organizing drive, unlawfully solicited grievances and made unlawful promises, threats, and other statements in various documents that interfered with an election held in Case 30-RC-6203-04, including his recommendation for a new election. They reversed the judge's findings that the Respondent (1) unlawfully threatened that customers and jobs would be lost if the employees chose Graphic Communications Local 77-P; (2) unlawfully solicited grievances in a June 12, 2000 memorandum to employees; and (3) unlawfully solicited employee grievances and unlawfully interrogated employees in a June 30, 2000 letter. [HTML] [PDF]

Members Schaumber and Acosta found no merit in the General Counsel's cross- exceptions to the judge's failure to address four additional grievance solicitation allegations arising from a July 18, 2000 "question and answer" document distributed to employees.

Member Liebman, dissenting in part, agreed with her colleagues' unfair labor practice findings, that a new election is required, and with their reversal of the judge's unlawful-interrogation finding involving the Respondent's June 30 letter. She found it unnecessary to pass on the judge's unlawful-solicitation finding in the June 30 letter. Member Liebman believes the majority's conclusion that the Respondent's June 30 letter did not unlawfully threaten employees with the loss of their jobs, if they chose to union, is inconsistent with NLRB v. Gissel Packing, 395 U.S. 575 (1969); and that the majority erred in reversing the judge's finding that the Respondent unlawfully promised, through its June 12 memorandum, to resolve employee grievances solicited earlier.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Graphic Communications Local 77-P; complaint alleged violation of Section 8(a)(1). Hearing at Oshkosh, Dec. 6-7, 2000. Adm. Law Judge Robert A. Giannasi issued his decision Feb. 2, 2001.

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Des Moines Register and Tribune Co. (18-CA-16243-1; 339 NLRB No. 130) Des Moines, IA Aug. 20, 2003. The Board reversed the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by insisting, as a condition of continued negotiations for a new collective-bargaining agreement, that the Union bargain concerning a nonmandatory subject of bargaining: the number of full-time journeymen positions in the Respondent's mailroom. [HTML] [PDF]

The judge held that the language of section 3.02(E) of the parties' expired 1998-2001 collective-bargaining agreement created a lifetime job guarantee for 40 journeymen situation holders; that the provision did not expire with the agreement, but was effective until the last of the 40 situation holders in the unit left the work force; and that the Union was not required to bargain over it when negotiating a new contract. He also found that, even if the number of full-time journeymen positions was a mandatory subject, the disputed contractual language constituted a "clear and unmistakable" waiver of the Respondent's right to bargain over this issue without the Union's consent.

The Board, finding that the language of section 3.02(E) is ambiguous as to the duration of the provision, decided that the General Counsel failed to show that section 3.02(e) became a contract term that survived expiration of the 1998-2001 agreement. It said:

Contrary to the judge's finding, the language in question¾which recites that the "40 full-time situations will be maintained for as long as 40 of the Journeyman situation holders employed as of the signing of the contract continued to be employed and desiring a full-time situation"¾does not, by its terms, indicate that the arrangement was intended to survive the expiration of the collective- bargaining agreement and to be effective until the last situation leaves the Respondent's employ. Although the language could bear that interpretation, it also could mean only that the number of situations would not be reduced (unless a situation holder left) during the life of the contract. In this respect, the usual rule of contract interpretation is that, without further clarifying language, the duration of a provision of a collective-bargaining agreement is determined by the terms of the overall agreement. . . . The collective- bargaining agreement here had a 3-year term, and section 3.02(E) does not contain any language expressly extending its duration beyond that term. Consequently, the Respondent's interpretation of the language as creating only a minimum number of situations, subject to renegotiation at the expiration of the 1998-2001 agreement, is at least as plausible as the Union's interpretation that it was meant to be a lifetime job guarantee.

Concluding that the General Counsel failed to show that the number of situations is a permissive of bargaining under Section 8(d) or that the Respondent waived its right to bargain over the subject, the Board held that the Respondent did not violate the Act by insisting to impasse on this issue.

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Teamsters Local 358; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Des Moines on April 24, 2002. Adm. Law Judge Bernard Litvack issued his bench decision April 24, 2002.

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Dish Network Service Corp. (29-CA-24670; 339 NLRB No. 147) Farmingdale, NY Aug. 21, 2003. Members Liebman and Acosta affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act, through General Manager Daniel McCann, by telling employees that the Respondent did not recognize the Union's shop stewards as the employees' collective-bargaining representative; and violated Section 8(a)(5) and (1) by refusing to provide a copy of a disciplinary consultation sheet to Steward Sean Ambrose and telling Ambrose that he should make his request to his union representative, who could then ask for the information from the Respondent's attorney. Member Schaumber dissented in part. [HTML] [PDF]

On December 12, 2001, technician Derrick Durant reported to the manager's office to return his paperwork. Three company officials were in the office, including McCann. McCann asked Durant to sign an employee consultation form that memorialized a verbal warning given to Durant two days earlier. Durant refused to sign the form and asked that a shop steward be present. While in the office, Durant saw union steward Brian Feldman walking by and asked him to come into the office. McCann remarked that Feldman could not enter the office because "we have no contract; therefore we don't recognize shop stewards."

Member Schaumber found McCann's remark was at most de minimis. He noted that his colleagues conceded that McCann lawfully refused to permit Steward Feldman to be present because employees do not have a Weingarten right to representation at a meeting devoted entirely to the administration of predetermined discipline. Member Schaumber wrote:

[W]hen the remark is properly considered within the context of the disciplinary situation in which the statement was made, a context in which the Respondent was not legally required to permit a steward's presence in the first place, and in light of evidence that prior to the time the remark was made the Respondent did recognize and deal with stewards of the newly certified Union, it cannot be said that McCann's isolated and offhand remark reflects a policy of refusing to deal with the stewards as the bargaining representatives of unit employees. It, therefore, warrants, neither the issuance of a Board order nor the imposition of a remedy. Rather, where, as here, a collective-bargaining relationship is in its infancy and the parties are still negotiating a first collective-bargaining agreement, the Board should hesitate before permitting either party to interrupt and distort the bargaining process by pursuing a rigid and mechanistic application of the Act to such an isolated and incidental remark.

The majority, saying it was not persuaded by the dissent's arguments, pointed out that the issue is whether McCann's statement reasonably tended to coerce employees in the exercise of their Section 7 rights. The majority found it did.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Communications Workers Local 1108; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on May 7, 2002. Adm. Law Judge Steven Davis issued his decision June 27, 2002.

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Ferndale Foods, Inc. (19-CA-28279; 339 NLRB No. 155) Ferndale, WA Aug. 21, 2003. Absent good cause being shown for Respondent's failure to file an answer, Members Walsh and Acosta granted the General Counsel's motion for summary judgment. The majority held that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee Antonio Angula because he joined and assisted Food & Commercial Workers Local 440 and engaged in concerted activities. Member Schaumber dissented. [HTML] [PDF]

Members Walsh and Acosta rejected the same arguments that Member Schaumber referred to in Patrician Assisted Living Facility, 339 NLRB No. 149 (2003). They do not reach their colleague's assessment of the Respondent's assertions in the context of his analytical framework that the Board rejected in Patrician.

Contrary to his colleagues, Member Schaumber would deny the General Counsel's motion for default judgment. In his view, the Respondent has established "good cause" for its failing to file a timely answer to the complaint. He wrote: "The majority's strict construction of the 'good cause' requirement in Section 102.20 of the Board's Rules and Regulations is inconsistent with the construction given that same term by the federal courts, lacks a sound policy basis and poses an undue risk of injustice."

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Food & Commercial Workers Local 44; complaint alleged violation of Section 8(a)(1) and (3). General Counsel filed motion for summary judgment March 7, 2003.

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McClatchy Newspapers, Inc. d/b/a The Fresno Bee (32-CA-17299, 17499; 339 NLRB No. 158) Fresno, CA Aug. 21, 2003. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its existing practices regarding length of lunch period; shift selection; shift schedules; double shifts; hours; days and shift schedules of union employees (including creating new shifts and changing shift starting times); and vacation relief; without prior notice to and affording Graphic Communications Local 404 an opportunity to bargain with regard to such changes. [HTML] [PDF]

The Board also agreed with the judge's finding that the Respondent was not obligated to bargain with the Union over its decisions to implement a corporatewide, computerized employee benefits system (PeopleSoft), and a new printing system (Two Parts to the Field, or TPF), because those decisions were made before the election which resulted in the certification of the Union. See Howard Plating Industries, 230 NLRB 178, 179 (1977).

The judge further found that the Respondent was free unilaterally to change the employees' unpaid lunch period or shift schedules, even though these changes resulted from the postelection implementation of TPF, after concluding that the Respondent was required to bargain only over "the effects of these changes."

Members Schaumber and Acosta found however that, under established Board precedents, the lunch period and shift changes were themselves the discretionary "effects" of preelection decisions on terms and conditions of employment and the Respondent was consequently required to bargain over them. They also disagreed with the judge that the Respondent was obligated to bargain over the effects of a unilateral change in the Respondent's payroll period and their dissenting colleague that the Respondent was required to bargain over the change in the payroll period itself, saying the change and its effects was, at most, a ministerial and de minimis effect of the implementation of PeopleSoft.

Dissenting in part, Member Liebman noted that she and her colleagues agreed on the controlling legal principles and differed only with respect to factual matters related to two of the unilateral changes at issue. In her view, the Respondent could not lawfully change its payroll period or its method for assigning overtime without bargaining with the Union, as both of these changes and their effects were material and substantial.

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Communications Workers Local 404; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fresno, Aug. 5 and 6, 1999. Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 1, 1999.

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Glasforms, Inc. (10-CA-33715, et al.; 339 NLRB No. 144) Birmingham, AL Aug. 21, 2003. Members Liebman and Acosta affirmed the administrative law judge's finding that by issuing a written warning to William Bailey, suspending him, changing his job description, and discharging him, all in direct retaliation for Bailey's support for the Steelworkers, the Respondent violated Section 8(a)(3) and (1) of the Act. Member Schaumber, concurring in part and dissenting in part, would find that the Respondent has established, as an affirmative defense, that it would have revised Bailey's job description and discharged him even absent his union support and the Respondent's antipathy towards the Union. [HTML] [PDF]

Bailey was suspended for 3 days without pay for allegedly refusing to perform part of his assigned job duties. Upon his return to work, the Respondent presented him with a revised job description which required him to do amounts of work that he had not previously been required to do, and which he had indicated that he was unable to do while performing his other duties. When Bailey refused to sign the revised job description, the Respondent fired him. The majority claimed that were it not for the Respondent's antiunion animus, the Respondent would not have insisted on the increase in Bailey's duties, would not have produced the new job description, and would not have fired him for refusing to sign it.

Member Schaumber agreed with the judge and his colleagues that the Respondent has failed to rebut the General Counsel's case as required under Wright Line, 251 NLRB 1083 (1980). He reached a different conclusion with respect to Respondent issuing a revised job description to Bailey and discharging him when he refused to sign it. He concluded that Respondent has shown that it would have taken the same action in the absence of the perception that Bailey had prounion sympathies.

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Leroy Boyd, an Individual and Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Birmingham on Feb. 3, 2003. Adm. Law Judge Lawrence W. Cullen issued his decision April 15, 2003.

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Dunbinclipped Inc. t/a Great Clips (5-CA-29452; 339 NLRB No. 143) Belair, MD Aug. 21, 2003. In the absence of good cause being shown for the Respondent's failure to file a legally sufficient answer, Members Walsh and Acosta granted the General Counsel's motion for summary judgment and found that the Respondent, by discharging employee Henrietta Hindle, violated Section 8(a)(1) of the Act. [HTML] [PDF]

The majority deemed that under Section 102.20 of the Board's Rules and Regulations, the Respondent's response stating, "The allegations in the Complaint are denied. Respondent demands strict proof thereof," failed to address any of the factual or legal allegations of the complaint, and is legally insufficient under the Board's Rules.

Dissenting, Chairman Battista would not take the drastic step of imposing a forfeiture on Respondent's right to contest the allegations of the complaint, and unlike his colleagues, would not grant default judgment. He noted that it is not unusual for a respondent/defendant, in answer to a complaint in a civil case, to simply say "denied" with respect to individual paragraphs of the complaint, finding such denials are routinely accepted.

(Chairman Battista and Members Walsh and Acosta participated.)

Charge filed by Henrietta Hindle, an Individual; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment May 2, 2001.

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Lalique, N.A., Inc. (22-RC-12182; 339 NLRB No. 145) Carlstadt, NJ Aug. 22, 2003. The hearing officer recommended, and the Board agreed, that that the Employer failed to show that Petitioner Novelty Workers Local 223 made an objectionable promise of a direct medical benefit if employees voted for it. Accordingly, it certified the Petitioner as the bargaining representative of the employees in the appropriate unit. The tally of ballots for the election held April 19, 2002 showed 8 for and 4 against the Petitioner, with no challenged ballots [HTML] [PDF]

The Employer contended that the Petitioner promised free medical coverage as an automatic benefit of membership, rather than as a benefit to be negotiated. The Board affirmed the hearing officer's recommendation overruling the objection "based on the totality of the circumstances, i.e., Petitioner's campaign leaflets, along with what Petitioner communicated to employees at its meeting, and the credible testimony of employee witnesses, that employees were fully informed that free medical benefits [were] dependent on the parties' collective-bargaining negotiations."

(Members Liebman, Schaumber, and Walsh participated.)

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Laneco Construction Systems, Inc. (15-RC-8311; 339 NLRB No. 132) Baton Rouge, LA Aug. 21, 2003. The Board adopted the hearing officer's recommendation to overrule the Employer's challenges to the ballots cast by seven voters and to sustain the Petitioner's challenges to the ballots cast by 12 voters. It directed the Regional Director to open and count the ballots of Aaron Begnaud, John Begnaud, Joey Fontenot, Robert Parezo, Sterling Paul, Rodney Primeaus, and Linda Soileau at a time and place to be set by him and, thereafter, to prepare and serve on the parties a revised tally of ballot. The tally of ballots for the election held November 17, 2000 showed 23 for and 25 against the Petitioner (Carpenters Local 1098) with 29 determinative challenged ballots. [HTML] [PDF]

In the absence of exceptions, the Board also adopted the hearing officer's recommendations to sustain the challenges to six ballots, and to overrule the Petitioner's Objections 1 and 3. Prior to the hearing, the parties agreed to sustain the challenges to four ballots. In view of its direction to open and count seven ballots, the Board found it unnecessary to pass on the hearing officer's disposition of the Petitioner's Objections 4 and 6 at this time.

The Board wrote that if the revised tally of ballots shows that the Petitioner has received a majority of the valid ballots cast, the Petitioner's Objections 4 and 6 will be moot and the Regional Director shall issue a certification of representative. However, if the revised tally of ballots shows that the Petitioner has not received a majority of the ballots cast, then the Regional Director shall transfer the case back to the Board for further proceedings.

The Employer claimed that the employees whose ballots it challenged were permanently laid off prior to the election. The Board agreed with the hearing officer that the Employer failed to establish that they had no reasonable expectation of recall. The Petitioner challenged the ballots cast by the 12 journeymen carpenters and helpers who were supplied by an outside company, claiming that the jointly-employed employees were not covered by the Stipulated Election Agreement. The hearing officer determined that under the Board's traditional community-of-interest principles, a unit limited to the Employer's solely-employed carpenters and helpers was an appropriate unit.

(Members Liebman, Schaumber, and Acosta participated.)

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Patrician Assisted Living Facility (10-CA-33505; 339 NLRB No. 149) Birmingham, AL Aug. 21, 2003. Members Liebman and Acosta, in the absence of good cause being shown for the failure to file an answer, granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a) (1) of the Act by discharging employees Synthia Marshall and Wykeithia Williams. Member Schaumber dissented. [HTML] [PDF]

Following the General Counsel's submission of the motion and the Board's notice to show cause, the Respondent, pro se, filed a response with an affidavit in support and an answer to the complaint. The Respondent contended that its failure to file a timely answer was due to its inability to retain legal counsel and that, because of a lack of legal training, the Respondent's owner was unaware of the gravity of a failure to file a timely answer. The Respondent argued that principles of fairness and equity mandate that its answer to the complaint be accepted by the Board, and not be considered as untimely, because there are genuine issues of disputed fact.

The majority observed that when determining whether to grant a motion for summary judgment, the Board has shown some leniency toward respondents who proceed without benefit of counsel. Kenco Electric & Signs, 325 NLRB 1118 (1998). Citing A.P.S. Production/A. Pimental Steel, 326 NLRB 1296, 1297 (1998); Harborview Electric Construction Co., 315 NLRB 301 (1994), Members Liebman and Acosta explained that the Board will generally not preclude a determination on the merits of a complaint if it finds that a pro se respondent has filed a timely answer, which can reasonably be construed as denying the substance of the complaint allegations. Similarly, they said that where a pro se respondent fails to file a timely answer, but provides a "good cause" explanation for such failure, a default judgment will not be entered against it on procedural grounds.

Members Liebman and Acosta held that merely being unrepresented by counsel does not establish a good cause explanation for failing to file a timely answer and under Section 102.20 of the Board's Rules and Regulations, the Respondent, despite being advised to do so, failed to file an answer to the complaint allegations, and did not provide good cause for its failure to file a timely answer even after it was granted an extension of time.

Member Schaumber, dissenting, would deny the General Counsel's motion for default judgment. He said that the Board has interpreted the "good cause" provision of Section 102.20 in such a way as to render it almost meaningless. He claimed that it is all but impossible to show "good cause" as the Board construes that phrase and that this harsh interpretation of Section 102.20 is inconsistent with Section 102.121, which provides that the Board's Rules and Regulations "shall be liberally construed." In his view, the majority's decision exemplifies and perpetuates the harshness that has long characterized the Board's decision making in cases before the Board on what until recently was misleading called a motion for "summary judgment." Member Schaumber stated:

Having changed the name, appropriately, to a Motion for Default Judgment, we should change our approach to match. I would draw upon federal judicial precedent in this area, which interprets "good cause" for setting aside a default so as to emphasize the interests of justice over rigid adherence to technical deadlines. In short, I would give effect to the Board's own stated preference for deciding cases on the merits.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Synthia Marshall, an Individual; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for default judgment May 31, 2002.

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SEIU District 1199 (Staten Island University Hospital) (29-CB-10586; 339 NLRB No. 135) Staten Island, NY Aug. 21, 2003. Members Schaumber and Acosta affirmed the administrative law judge's findings that the Respondent, by its organizer and admitted agent, Fabienne Josephs, violated Section 8(b)(1)(A) of the Act by restraining and coercing employees in the exercise of their Section 7 rights by engaging in a series of open confrontations with managers, supervisors, and security guards employed by the Staten Island University Hospital. They wrote: "[A]t a time when a possible strike was imminent, Josephs subjected the Respondent's agents to deliberate, repeated, and unprovoked verbal abuse, including profanity, racial and sexual slurs, and threats of physical harm. On two occasions, Josephs attempted to physically push past the Hospital's agents in order to gain access to areas of the Hospital that had been clearly and lawfully placed off limits to her." [HTML] [PDF]

Members Schaumber and Acosta reversed the judge's finding that Josephs' statement to the Hospital executive vice president and chief operating officer, Dr. Andrew Passeri, and the Hospital's security services supervisor, Dawn McMahon, that they could be replaced, was a threat to cause their discharge. Rather, they found that "Josephs' statement was a lawful response to the Hospital's widely circulated memoranda discussing the possibility of using replacement employees, and could not reasonably be viewed by employees as a threat to accomplish the outser of management officials."

Member Liebman, dissenting in part, agreed with her colleagues that Josephs' threats to replace Passeri and McMahon did not violate the Act. She found no violation is made out by the remaining verbal abuse that Josephs directed at the Hospital's managers and security guards. "What we have here is a union organizer running half-dressed through the Hospital corridors, chanting childish slogans, shouting scatological and racial insults at guards, and humiliating managers without any overt motive," Member Liebman said. She wrote:

Emphasizing the hospital setting here, as well as the combination of Josephs' abusive language over two weeks and her two 'physical confrontations' with security guards, my colleagues conclude that it was the 'obvious' intent of Josephs to 'send a message that Respondent would retaliate against anyone, including employees, who stood in its way.' While I do not condone Josephs' behavior-it may well have amounted to actionable trespass under state law, and it almost certainly was not protected by the Act-I see no basis for finding a violation here. It seems dubious to me that employees would interpret Josephs' actions as sending them any message at all, even directly. The record simply does not establish the required 'unmistakable nexus' between Josephs' conduct and the Section 7 rights of employees, the only legal interests that Section 8(b)(1)(A) is concerned with.

(Members Liebman, Schaumber, and Acosta participated.)

Charge filed by Staten Island University Hospital; complaint alleged violation of Section 8(b)(1)(A). Hearing at Brooklyn on June 16, 1999. Adm. Law Judge Margaret M. Kern issued her decision Dec. 17, 1999.

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United States Postal Service (16-CA-21816(P); 339 NLRB No. 150) Houston, TX Aug. 21, 2003. The Board adopted, in the absence of exceptions, the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide requested relevant information on multiple instances between December 28, 2001, and March 20, 2002. [HTML] [PDF]

Members Liebman and Walsh granted the General Counsel's request and ordered the Respondent to post the notice to employees district-wide. They also imposed a broad remedial Order, and removed language in the Order requiring the Union to re-request information. Member Acosta disagreed with the extraordinary remedies of a district-wide posting and a broad order. Members Liebman and Acosta denied the General Counsel's request that the notice be read aloud. Member Walsh disagreed.

The Respondent has a history of violating Section 8(a)(5) and (1) by failing to provide requested relevant information at many of its locations over the past two decades, particularly within its Houston district. Members Liebman and Walsh found a district-wide posting was necessary in view of the Respondent's repeated violations of the same type in the Houston district in the past, the Respondent's persistence in violating the Act despite repeated warnings not to do so, and the lack of evidence that the Respondent has taken any affirmative steps to control its misconduct.

Member Acosta held: "The violations here were site-specific; to the extent the Respondent's practices give rise to a concern about the Houston district as a whole, they are addressed by the district-wide posting in United States Postal Service, JD(ATL)-39-02. Because the violation in the present case occurred before we issued that decision, we have no basis for concluding that the remedies ordered there will not be effective in curbing the Respondent's unlawful conduct." Member Acosta noted also that the violations in this case are based on the Respondent's failure to respond to information requests filed by a steward at one facility within the district. Since nether the General Counsel nor the Charging Party has requested a broad order in this case, he found that it is inappropriate to grant one on these facts.

Member Walsh would order that the notice be read aloud to employees in the presence of a Board Agent, but only at the Respondent's North Shepherd Station in Houston, TX because the Respondent's recidivist conduct there is sufficiently egregious to warrant the special remedy. He also noted that the Board has held "the public reading of the notice is an 'effective but moderate way to let in a warning wind of information and, more important, reassurance.'" United States Postal Service Industries, 319 NLRB 231, 232 (1995), enfd. 107 F.3d 923 (D.C. Cir. 1997) (quoting J.P. Stevens & Co. v. NLRB, 417 F2d 533, 540 (5th Cir. 1969).

(Members Liebman, Walsh, and Acosta participated.)

Charge filed by Letter Carriers Branch 283; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Houston, Nov. 4-5, 2002. Adm. Law Judge George Carson II issued his decision Jan. 14, 2003.

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United States Postal Service (10-CA-32518(P); 339 NLRB No. 151) Atlanta, GA Aug. 21, 2003. The administrative law judge found that the Respondent violated Section 8(a)(1) of the Act by denying access to three persons, who sought access to a room on the Respondent's Atlanta Bulk Mail Center (BMC) known as the "contract drivers' lounge" in order to solicit drivers who worked at the Mail Contractors of America (MCOA), a company that provides mail hauling services to the Respondent on contract basis. The three persons were Joe Johnson, an off- duty employee of the Respondent; Will Hardy, an off-duty employee of MCOA; and Lyle Grimes, a union organizer who was not employed by the Respondent or MCOA. [HTML] [PDF]

Chairman Battista and Member Acosta found that the Respondent violated Section 8(a)(1) by denying access to its employee Johnson, but not by denying access to Hardy and Grimes, who were not employees of the Respondent. They found that the judge erred in concluding that the Respondent's denial of access discriminated against union solicitation and rejected the Union's argument that its collective-bargaining agreement with the Respondent gave Grimes and Hardy a right of access to the lounge to solicit the drivers.

Chairman Battista and Member Acosta found the principles of Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and NLRB v. Babcock & Wilcox, Co., 351 U.S. 105, 113 (1956), applicable to both Grimes and Hardy. They noted that Grimes is not employed by the Respondent or MCOA, and therefore is unquestionably a "nonemployee." They assumed that Hardy, like other MCOA drivers, worked "regularly" on the Respondent's premises and then determined that he did not work there "exclusively" and that Lechmere governs his access to the Respondent's property, like Grimes's.

Member Walsh would find a violation as to Johnson and Hardy. He noted that Lechmere allows the Respondent to bar nonemployees from its premises except under very limited circumstances, but that Hardy was not a stranger to the Respondent's property. He pointed out that the Board has held that employees who work on the premises of an employer other than their own have the same access rights enjoyed by the employees of the owner of the premises. New York New York Hotel and Casino, 334 NLRB 955 (2001), enfd. denied and remanded 313 F.3d 585 (D.C. Cir. 2002); Gayfers Department Store, 324 NLRB 1246, 1250 )1997); Southern Services, 300 NLRB 1154, 1155 (1990), enfd. 954 F.2d 700 (11th Cir. 1992). Member Walsh disagreed with his colleagues' reliance on dicta in the cited cases to the effect that an employee of a subcontractor is only protected if he works "regularly and exclusively" on the premises of the Respondent, saying: "Where employees perform services exclusively for another employer and are required to be on that employer's premises on a regular basis pursuant to the work relationship, they should be able to engage in Section 7 activity there, as well as on their own employer's property."

(Chairman Battista and Members Walsh and Acosta participated.)

Charge filed by Postal Workers Atlanta Metro Area Local; complaint alleged violation of Section 8(a)(1). Hearing at Atlanta, April 19-20, 2001. Adm. Law Judge Pargen Robertson issued his decision July 18, 2001.

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ADS Electric Co. (14-CA-27016; 339 NLRB No. 128) Vandalia, IL Aug. 15, 2003. In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) and (3) of the Act by laying off Dennis Peterson and Ron Seals and failing to recall them to work. [HTML] [PDF]

The Board, noting evidence that Peterson and Seals misrepresented their work experience in their job applications or interviews with the Respondent, provided the Respondent with an opportunity in the compliance stage of this proceeding to establish when it became aware of the employees' asserted misconduct and to show whether this would have provided grounds for termination based on a preexisting, nondiscriminatory company policy. Arrow Flint Electric Co., 321 NLRB 1208, 1210 (1996), et al.

Although Member Walsh agreed that it is appropriate to allow the Respondent to litigate this remedial matter in the compliance stage of this proceeding, he noted that the type of misrepresentation that the discriminatees allegedly committed may not be proper justification for their termination. See Hartman Bros. Heating & Air Conditioning, Inc. v. NLRB, 280 F.3d 1110, 1112-1113 (7th Cir. 2002).

(Members Schaumber, Walsh, and Acosta participated.)

Charges filed by Electrical Workers (IBEW) Local 702; complaint alleged violation of Section 8(a)(1) and (3). Hearing at St. Louis on Oct. 17, 2002. Adm. Law Judge Margaret M. Kern issued her decision Feb. 14, 2003.

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The Big Brass Band, LLC (2-RC-22544; 339 NLRB No. 122) New York, NY, Aug. 11, 2003. Chairman Battista and Member Schaumber, with Member Liebman dissenting, denied the Petitioner's (Actors' Equity Association) request for review of the Acting Regional Director's (ARD) Supplemental Decision and Certification of Results of Election. In his decision, the ARD overruled the Petitioner's objections, one of which asserted that the Employer threatened employees with discharge by placing a casting notice for all roles in Backstage theater publication and by limiting those roles to non-union performers. [HTML] [PDF]

The majority, in agreement with the ARD, found that the Employer's advertisement for replacements did not threaten its employees with discharge because it is common for touring shows to advertise for replacement actors even when there are no roles to be filled. Chairman Battista and Member Schaumber found no merit in Member Liebman's speculation that employees might have objectively interpreted the advertisement as a threat to their continued employment should they select the Union to represent them.

The Petitioner contended that the ARD erred in not finding (1) that the Employer threatened employees with discharge by advertising for nonunion replacements, and (2) that the Employer required employees to sign contracts effectively waiving their rights to join a union. With regard to contention (1), the majority noted that an employer may seek prospective replacements to prepare for a possible strike. See Southland Cork Co., 146 NLRB 906, 908 (1964). On the issue of contracts, Chairman Battista and Member Schaumber agreed with the ARD that the work contracts that the Employer required its employees to sign did not interfere with its employees' freedom to choose a bargaining representative and did not require employees to waive their rights to join a union.

Dissenting, Member Liebman would grant review in this proceeding because it raised unusual and troubling issues arising during a union election campaign in the "non-union" theatrical stage industry among employees in a so-called "Non- Equity" production. She asserted: "However legitimate the advertisements may be in the normal course of business, the request for review raises the issue whether on the eve of an NLRB election--unusual in this industry--the message conveyed by the ads--particularly as explained by the Employer--is one that would likely interfere with employees' free choice."

Member Liebman also found troubling "the contractual requirement imposed on employees during the critical period that they effectively must acknowledge the current nonunion status of the Employer and, as a condition of employment, must pledge to undertake obligations that might impair their employment obligations." In her view, it is appropriate to grant review to ascertain whether the stage industry is so unique in its union/nonunion dichotomy that established principles for the protection of union and protected concerted activities are inapplicable to this industry, at least in the context of this election.

(Chairman Battista and Members Liebman and Schaumber participated.)

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Cannelton Industries, Inc.; Princess Beverly Coal Co.; Kanawha Corp.; and Dunn Coal and Dock Co. (9-CA-37785-1, et al.; 339 NLRB No. 124) Fayette and Kanawha Counties, WV August 14, 2003. The Board agreed with the administrative law judge's findings that the Respondents violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Mine Workers with requested information relevant to its collective-bargaining responsibilities. The judge found that the Union's information requests were clearly directed at showing the sharing of functions necessary to prove a single employer or alter-ego relationship between the Respondents and a new company, CC Coal, such that CC Coal was bound under the Respondents' memorandum of understanding with the Union. [HTML] [PDF]

The Board determined that the Union provided the Respondents with specific evidence of their suspected alter-ego or single-employer relationship with CC Coal, which included evidence that: the Respondents shared a common address with CC Coal; the Respondents and CC Coal shared some of the same officers; the Respondents and CC Coal shared personnel and equipment; and radio communications indicated that coal mined at CC Coal's Skitter Creek operation was being shipped to Cannelton's prep plant and blended with the Respondents' coal. It accordingly held that the Union demonstrated to the Respondents both the relevance of the requested information and the existence of evidence that gave rise to a reasonable belief in the relevance of the information and that the Respondents' refusal to supply the information at that point had no lawful justification.

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Mine Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Charleston on Dec. 4, 2001. Adm. Law Judge Benjamin Schlesinger issued his decision March 14, 2002.

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Elevator Constructors Local One (National Elevator Industry, Inc.) (29-CB-11649; 339 NLRB No. 123) Long Island City, NY August 11, 2003. The Board agreed with the administrative law judge that the Respondent Union, by imposing a monetary fine against Peter McVicker, a supervisor, because he refused Respondent's October 13, 2000 demand that the Employer utilize additional employees to unload an escalator truss at a Secaucus, New Jersey project, and by prohibiting McVicker from working as a mechanic in charge for one year from March 9, 2001, violated Section 8(b)(1)(B) of the Act. [HTML] [PDF]

The Respondent excepted to the judge's finding that McVicker was a Section 2(11) supervisor. The Board noted that it need not rely on the judge's supervisory finding inasmuch as it agreed that McVicker was a Section 8(b)(1)(B) representative. See NLRB v. Electrical Workers Local 340, 481 U.S. 573, 584 (1987).

(Chairman Battista and Members Schaumber and Acosta participated.)

Charge filed by National Elevator Industry, Inc.; complaint alleged violation of Section 8(b)(1)(B). Hearing at Brooklyn on Dec. 12, 2001. Adm. Law Judge Steven Davis issued his decision April 16, 2002.

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Pepsi America, Inc. (fka Delta Beverage Group) (26-CA-19686, et al.; 339 NLRB No. 125) Collierville, TN Aug. 13, 2003. The Board adopted, among others, the administrative law judge's finding that by unilaterally changing its attendance policy, the Respondent violated Section 8(a)(5) and (1) of the Act. The Respondent, without notice to the Union, eliminated from its attendance policy a provision that enabled employees to earn credits for good attendance that could be used for future paid time off. The change eliminated the employees' existing credits as well as the employees' ability to earn future credits. [HTML] [PDF]

The Respondent contended that it could unilaterally change the attendance policy because it unilaterally changed rules concerning employee conduct, including attendance, in the past without union objection and because it was authorized to do so under the management functions article of the parties' collective- bargaining agreement. The judge concluded that the collective-bargaining agreement did not specifically provide the Respondent the right to unilaterally change its attendance policy and that the Respondent failed to establish that the Union had waived its right to bargain over the attendance policy change.

Members Schaumber and Acosta agreed with the judge that the Respondent's unilateral change of its attendance policy violated the Act but did not agree with his rationale. They said: "The portions of the management functions article on which the Respondent relies concern rules governing employee conduct . . . . The matter at issue here--the Respondent's attendance credit program-- concerns an employee benefit, not a rule. The program does not regulate attendance; it establishes a reward for good attendance--that is, a benefit or an additional form of compensation. In sum, the management functions provision relied on by the Respondent does not even arguably apply to the attendance credit program."

Member Walsh, concurring, agreed with his colleagues in all respects except for their rationale for affirming the judge's conclusion. Unlike his colleagues, Member Walsh fully agreed with the judge's rationale for finding the violation and asserted that the judge's finding is based on well-established Supreme Court and Board precedent governing resolution of the question of whether a union has contractually or by practice waived its statutory right to bargain about terms and conditions of employment. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Johnson-Batement Co., 295 NLRB 180 (1989).

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by Teamsters Local 1196; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Memphis, May 21 and 22, 2001. Adm. Law Judge Lawrence W. Cullen issued his decision Oct. 1, 2001.

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Sprint/United Management Co. (17-CA-21603; 339 NLRB No. 127) Overland Park, KS Aug. 15, 2003. The Board adopted the administrative law judge's decision dismissing the complaint allegation that the Respondent unlawfully discharged Jeborah Diebold because she sent an e-mail to employees stating that anthrax had been found in the Respondent's Lenexa, KS Warehouse. [HTML] [PDF]

Chairman Battista and Member Acosta disagreed with Member Liebman's assertion that this case involved a balancing of the Respondent's legitimate interest in preventing the spread of false information and Diebold's interest in communicating safety-related information to fellow employees. They agreed with the judge that Diebold spread information that was false and was uttered with reckless disregard for truth or falsity. In their view, Diebold had no legitimate interest or right to spread this information, and thus no balancing is required or warranted.

Member Liebman agreed that the Respondent acted lawfully in discharging Diebold under its anthrax-related "zero tolerance" policy after she sent the e-mail message to four co-workers. However, she does not endorse the judge's analysis of this case. Member Liebman questioned whether the policy's application to Diebold's e-mail message unlawfully interfered with the exercise of her Section 7 rights to communicate with fellow workers about a possible anthrax threat. She concluded that the Respondent's interest in preventing the spread of false information and fear about anthrax contamination outweighed Diebold's interest in communicating what was false information, based entirely on an overheard conversation and her own embellishments, to coworkers who did not even work at the warehouse in question. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Jeborah Diebold, an Individual. Hearing at Overland Park, Aug. 13 and 14, 2002. Adm. Law Judge Mary Miller Cracraft issued her decision Sept. 30, 2002.

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Canal Carting, Inc. and Canal Sanitation, Inc., A Single Employer (29-RC-10043; 339 NLRB No. 121) Brooklyn, NY Aug. 8, 2003. The Board granted the Employer's request for review of the Regional Director's Decision and Direction of Election and reversed the Regional Director's finding that the bargaining unit represented by the League of International Federated Employees, Local 890 (Intervenor) is inappropriate. It found that the collective-bargaining agreement between the Employer and the Intervenor bars the Petitioner's (Teamsters Local 813) petition, and dismissed the petition. [HTML] [PDF]

Canal Carting, Inc. (Carting) and Canal Sanitation, Inc. (Sanitation) are engaged in waste removal and recycling. They operate out of a facility in Brooklyn, NY. Carting performs services only in Manhattan. Sanitation conducts business primarily in Queens, Brooklyn, the Bronx, Staten Island, and New Jersey. Carting and Sanitation drivers do not interchange routes, and Carting and Sanitation do not interchange trucks or other equipment. The Employer's mechanics and truck washer work on vehicles owned by both Carting and Sanitation. The parties do not dispute that Carting and Sanitation are a single employer under the Act.

The Petitioner has represented drivers and helpers at Carting since the 1970s. Although the most recent agreement between Carting and the Petitioner expired on November 30, 2002, Carting continues to pay wages and fund contributions pursuant to the expired contract. On November 1, 2001, the Intervenor signed a collective-bargaining agreement with Sanitation that expires on October 19, 2004, which covers a unit of drivers, helpers, mechanics, welders, utility, and laborers. The Petitioner sought to represent a unit that encompasses employees at both Carting and Sanitation.

(Members Liebman, Schaumber, and Acosta participated.)

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International Business Machines Corp. (3-CA-22062; 339 NLRB No. 120) Fishkill, NY Aug. 8, 2003. Chairman Battista and Member Schaumber, with Member Walsh dissenting, denied the Union's request for review of the General Counsel's denial of its request, at the compliance stage, that the Respondent be required to post the Board's remedial notice on its electronic (e-mail) system and intranet, in addition to its traditional paper bulletin boards. In denying the Union's request, the majority held that the appropriate time for the Union to request electronic posting of the remedial notice on the Respondent's e-mail system and intranet was before the administrative law judge and/or the Board in the underlying proceeding. See Section 102.53(d) of the Board's Rules and Regulations. [HTML] [PDF]

In the prior proceeding, the Board adopted the judge's findings that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule precluding employees from displaying prounion signs on their vehicles in company parking lots, and telling employees that doing so violated company policy. 333 NLRB 215 (2001). The U.S. Court of Appeals for the Second Circuit enforced the Board's order on March 22, 2002.

The Regional Director, by letter dated May 7, 2002, denied the Union's request that the Respondent be required to communicate the notice to employees via its e-mail system and intranet saying she lacked authority to require such a "special" remedy because: (1) the Board's decision and order contained the standard notice-posting provisions; (2) there was no requirement in either the Board's decision or the court's decision enforcing the Board's order that the notice be electronically posted; and (3) the Union had the opportunity to urge electronic posting of the notice before the judge and the Board, but failed to do so. The General Counsel denied the Union's subsequent appeal substantially for the reasons set forth in the Regional Director's letter.

The Union argued that posting the Board's notice on the bulletin boards would not fully comply with the Board's order because the Company's bulletin boards are not in "conspicuous places," and that, by the Respondent's own estimate, 30 percent of its employees work off-site at least 50 percent of the time.

Member Walsh would grant the Union's request for review and order Respondent to post the Board's notice via e-mail and on its intranet, noting that IBM is essentially a paperless company that "customarily" posts notices to its employees on its email system and intranet. He agreed with the Union that electronic posting is required because paper bulletin board posting would be inadequate; that approximately 30 percent of the employees work away from the facility 50 percent of the time; and there are relatively few paper bulletin boards in the affected IBM facilities (one in the cafeteria, one in the building basement, and one in the main lobby at one of the sites). Member Walsh wrote: "The Regional Director cites no Board decision holding that it is inappropriate to require a respondent to post the Board's notice electronically . . . requiring IBM to post the Board's notice on its e-mail and intranet would not be contrary to, or involve a change in, Board law, but instead is mandated by the plain language of the Board's standard notice-posting provision."

(Chairman Battista and Members Schaumber and Walsh participated.)

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Jackson County Commission on Aging (9-CA-37292; 339 NLRB No. 119) Ripley, WV Aug. 5, 2003. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate economic striker James Anderson on December 27, 1999, and thereafter. [HTML] [PDF]

Chairman Battista found it unnecessary to pass on the judge's finding that the Union's December 23, 1999 letter to the Respondent constituted a valid unconditional offer to return but found that the General Counsel established a prima facie case by showing that Anderson made a valid unconditional offer to return by arriving at the Respondent's facility ready to work on December 27. The Respondent did not meet its burden of showing that its failure to reinstate Anderson was motivated by legitimate objectives and noted that Respondent's reliance on the fact that, in 1998, all employees returned from a strike on the day following their acceptance of a contract proposal is¾without more¾inadequate to establish a legitimate business justification for the failure to reinstate Anderson.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Health Care and Social Service Union District 1199 SEIU; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ripley on April 3, 2002. Adm. Law Judge Richard S. Scully issued his decision Sept. 19, 2002.

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Pratt Institute (29-RC-10016; 339 NLRB No. 126) New York, NY Aug. 8, 2003. Chairman Battista and Member Acosta granted the Employer's request for a stay of the hearing in this case pending the Board's decision in Brown University, Case 1-RC-10016, and Trustees of Columbia University, Case 2-RC-22358, currently before the Board. Member Walsh dissented from his colleagues' Order. [HTML] [PDF]

The majority contended that if, in the pending cases, the Board holds that graduate assistants are not entitled to representation through NLRB processes, a hearing in this matter will be unnecessary and the Board will have saved money and time, both for the U.S. taxpayer and for the private parties. They found that even if the decisions in Brown and Columbia uphold extant law or hold only that the graduate assistants in those cases are not employees entitled to representation through NLRB processes, those decisions would at least give guidance to the parties who could therefore litigate with greater focus and greater expedition.

In his dissenting opinion, Member Walsh asserted that the Employer cited no precedent supporting its unusual request and he knows of none. He said that although the Board is reconsidering New York University, 332 NLRB 1205 (2000) (NYU), in the pending cases, NYU is still the law. He wrote: "While one may speculate whether, when, and how that law may ultimately be changed, such speculation provides no basis whatsoever for delaying the resolution of the representation question raised by the filing of the instant petition." Member Walsh asserted that the Regional Director's decision to proceed to a hearing is in accord with Agency policy and there is no dispute that the petition raised a question concerning representation and that a hearing must be held.

(Chairman Battista and Members Walsh and Acosta participated.)

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A&E Foods Co. 1, Inc., d/b/a Best Yet Market (29-CA-24995; 339 NLRB No. 104) Astoria, NY July 29, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by directing Union handbillers and pickets to remove themselves from the shopping center parking lot in Queens County, NY; informing the owner of the shopping center (where the Respondent leases a store) about the Union's lawful picketing and handbilling with an object of interfering with such activities; causing the owner of the shopping center to issue a letter to cause the Union handbillers and pickets to leave the shopping center parking lot; and threatening Union handbillers and pickets that it would call the police if they did not remove themselves from the shopping center parking lot. [HTML] [PDF]

Chairman Battista and Member Acosta agreed with the judge that, under the precedent of Wild Oats Community Markets, 336 NLRB No. 14 (2001), the Respondent violated the Act by imploring the property manager, Elias Properties, to expel union representatives from Elias' parking lot. They noted, however, that the Respondent did not challenge that precedent directly and in the absence of such a challenge, accepted Wild Oats as controlling precedent, and affirmed the judge's finding of a violation, adding: "Such affirmance should not be construed as an endorsement of that precedent."

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Food & Commercial Workers Local 1500; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on Oct. 2, 2002. Adm. Law Judge Steven Davis issued his decision Jan. 14, 2003.

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Comar, Inc. (4-CA-28570; 339 NLRB No. 110) Vineland and Buena, NJ July 31, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain with the Union concerning the effects on employees of the Respondent's relocation of its applicator division from Vineland to Buena, New Jersey. It found merit in the General Counsel's contention that the judge failed, pursuant to Transmarine Navigation Corp., 170 NLRB 389 (1968), to extend the limited backpay remedy to all unit employees, including those who transferred to the Respondent's Buena facility. Accordingly, the Board modified the judge's remedy to conform to its Order. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Flint Glass Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, PA, May 21-22, 2001. Adm. Law Judge William G. Kocol issued his decision Aug. 2, 2001.

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Contract Carriers Corp., Bucko Construction Co. and Vector Transport Corp., A Single Integrated Enterprise (13-CA-39900, 39932; 339 NLRB No. 103) Gary, IN July 29, 2003. The Board affirmed the administrative law judge's findings that Respondent Contract Carriers violated Section 8(a)(5) and (1) of the Act by refusing to provide requested information to the Union and by refusing to meet with Steven Parks, the Union's designated representative, for processing grievances; and that Respondent Vector Transport violated Section 8(a)(5) and (1) by refusing to meet with Steven Parks for grievances processing. Contrary to the judge and Chairman Battista, Members Liebman and Walsh held that the Respondents' failure and refusal to attend contractual grievance hearings for the purpose of resolving several grievances violated Section 8(a)(5) and (1). [HTML] [PDF]

The judge held that the Respondents' presence was not necessary for the grievances to be heard by the contractual review boards, and that the Union, although it chose not to, could have pursued the grievances to arbitration without the Respondents' participation in the hearings. He also noted there was no evidence that the Respondents' refusal to attend the scheduled hearings prejudiced or precluded the Union from processing the grievances.

Members Liebman and Walsh wrote that the Respondents' failure to attend any of the five scheduled grievance hearings, spanning a five-month period, occurred in the context of related unfair labor practices clearly intended to frustrate the operation of the grievance process. They also found that the Respondents' failure to participate in the grievance procedures and attend grievance hearings, particularly in light of the refusals to provide information and deal with the Union's designated representative, hindered the constructive resolution of the parties' dispute and violated the Act.

In his partial dissenting opinion, Chairman Battista agreed with the judge that the Respondents' refusal to attend the scheduled grievance hearings was not unlawful and would dismiss this allegation of the complaint. He contended that the Union's contracts with Contract Carriers and Vector Transport, although separate, provide that if the parties cannot settle a grievance, it is referred to a grievance board, consisting of three employer members and three union members. In the event that one of the parties fails to appear and fails to give appropriate notice of such nonappearance, the board shall hear the case and make a decision based on the evidence presented. Chairman Battista found that in the absence of Employer opposition, there is a significant chance that the Union would prevail and, even if it did not, the Union could go to the next step, which is arbitration.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 142; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago on May 20, 2002. Adm. Law Judge C. Richard Miserendino issued his decision July 2, 2002.

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Elevator Constructors Local 2 (Unitec Elevator Services Co.) (13-CB-16499-1; 339 NLRB No. 114) Des Plaines, IL July 31, 2003. The Board affirmed the administrative law judge's conclusion that the Union's initiation of discipline against supervisor union member Charles Hillstrom did not violate Section 8(b) (1)(B) of the Act. It found it unnecessary to decide whether Hillstrom functioned as a representative of the Employer for the purposes of collective-bargaining or the adjustment of grievances, explaining that even assuming that Hillstrom was such an employer representative, the General Counsel failed to establish that the disciplinary proceedings initiated against Hillstrom restrained or coerced an employer in the selection of its representative within the meaning Section 8(b)(1)(B). [HTML] [PDF]

In the absence of exceptions, the Board affirmed the judge's finding that the Union violated Section 8(b)(1)(A) by maintaining, in conjunction with a collective-bargaining agreement containing a union-security clause, a provision in its constitution and bylaws requiring the payment of members' fines before dues or before procuring a current working card.

The Board modified the judge's recommended Order to omit the requirement related to notice mailing in the event that the Employer or the Union goes out of business or closes the facility involved in this proceeding. See L.D. Kichler Co., 335 NLRB No. 106 (2001). Consistent with the Board's standard remedial practice, the Order was further modified to require the Respondent to provide sufficient copies of the notice to the Regional Director for posting by the Employer, if willing, and to require the Respondent within 21 days after service by the Region, to file with the Regional Director a sworn certification of a responsible official attesting to the steps the Respondent has taken to comply with the Order.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Charles Hillstrom, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (B). Hearing at Chicago on June 11, 2001. Adm. Law Judge Jerry M. Hermele issued his decision Sept. 21, 2001.

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Fantasia Fresh Juice Co. (13-CA-38526(E); 339 NLRB No. 112) Rosemont, IL July 31, 2003. Chairman Battista and Member Liebman adopted the administrative law judge's recommendation and ordered that the Applicant, Fantasia Fresh Juice Co., be awarded the sum of $10,680.68 pursuant to its application for an award under the Equal Access to Justice Act (EAJA), plus additional compensable fees and expenses incurred since the period covered by the Applicant's last EAJA application submitted on June 6, 2002. [HTML] [PDF]

Pursuant to C. Factotum, Inc., 337 NLRB No. 1 (2001), the majority agreed with the judge that the General Counsel's "overall position in the case," was not substantially justified. The General Counsel chose to file exceptions as to every alleged violation but Chairman Battista and Member Liebman noted that the exceptions could only be characterized, in their totality, primarily as an attempt to reverse credibility findings.

Dissenting, Member Walsh would not award legal fees and expenses to the Applicant. He agreed that the General Counsel was substantially justified in pursuing the complaint through trial but unlike his colleagues, believes that the General Counsel was also justified in filing exceptions to the judge's decision. Member Walsh found that the General Counsel's credibility-based exceptions were intertwined with the law-based exceptions and, in hisview, did not require the Applicant to file any briefs it would not otherwise have filed, or to take any other actions it would not otherwise have taken and did not cause the Employer to incur substantial expenses it would not have otherwise had to incur.

In the prior decision, 335 NLRB No. 61 (2001), the Board affirmed the judge's recommendation to dismiss the unfair labor practice complaint in its entirety. Following the dismissal of the complaint, Fantasia initiated proceedings pursuant to EAJA to recover its attorney's fees of $108,888.83 and expenses of $2,574.46 incurred in defending against the complaint.

(Chairman Battista and Members Liebman and Walsh participated.)

Adm. Law Judge Benjamin Schlesinger issued his supplemental decision Nov. 6, 2002.

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Classical Stone Works, Inc. d/b/a Gothic Stone Masonry (4-CA-31409; 339 NLRB No. 116) West Chester, PA July 31, 2003. Absent good cause being shown for the Respondent's failure to file a timely answer to the complaint, the Board granted the General Counsel's motion for default judgment insofar as the complaint alleges that the Respondent violated Section 8(a)(1) of the Act in certain respects, and violated Section 8(a)(3) by refusing to consider for hire or hire employee applicants Frederick Cosenza and Bernard Griggs because of their announced intention to engage in organizing activity. Citing FES, 331 NLRB 9 (2000), the Board found that the undisputed complaint allegations are sufficient to establish the alleged 8(a)(3) violations. Under the FES standards, however, it decided that the complaint allegations are insufficient for it to determine the appropriate remedy and remanded the case for a hearing before an administrative law judge on the limited issue of the number of openings that were available to the discriminatees. [HTML] [PDF]

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Bricklayers Local 1; complaint alleged violation of Section 8(a) (1) and (3). General Counsel filed motion for summary judgment Jan. 10, 2003.

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Heartshare Human Services of New York, Inc. (29-CA-24269, et al.; 339 NLRB No. 102) Woodside, NY July 29, 2003. Chairman Battista and Member Schaumber affirmed the administrative law judge's findings that the Respondent's executive vice president, Kathleen Meskell, unlawfully threatened Larry Evans with job loss if the employees selected a union to represent them; and that the Respondent's former program director, Carol Roberti, did not unlawfully interrogate Consuela Hodge and Evans about their union activities and did not unlawfully create the impression that the employees' union activities were under surveillance. Member Walsh, concurring in part and dissenting in part, would find that the Respondent violated Section 8(a)(1) in all respects. [HTML] [PDF]

Roberti's questioning of Hodge and Evans occurred a couple days after Hodge had voluntarily reported to management her encounter with a woman who only identified herself as "Shirley." Shirley had separately approached Hodge and Evans after work hours at a bus stop near the Hoffman facility. Shirley, a union representative, did not mention that she was from a union and asked Hodge and Evans questions regarding the Respondent's wages and working conditions. The following day, Shirley approached Hodge again at the bus stop and asked her questions similar to those she asked the previous day.

Chairman Battista and Member Schaumber wrote: "The Respondent was trying to find out about Shirley. The questions did not concern the employees' union sympathies or activities, but instead were limited to entirely neutral matters, such as Shirley's physical description. *** In our view, this type of exchange does not amount to coercive interrogation. As the judge pointed out 'the mere fact that Roberti sought to satisfy her curiosity as to who was approaching employees on their way home, was normal behavior and was rather innocuous and noncoercive.'" Chairman Battista and Member Schaumber said the dissent's claim that the Respondent sought the limited information in order to take future disciplinary action against its employees is "wholly speculative." And, they disagreed with the dissent that employees would reasonably be inhibited from engaging in Section 7 activity because of Roberti's very narrow area of inquiry.

Member Walsh found the questioning by Roberti, the Respondent's highest- ranking official, in her office tended to create a coercive environment. He also noted that Evans was summoned over the loudspeaker to Roberti's office. Member Walsh believes that Roberti's detailed questions were not "harmless inquiries" as the majority suggests. He wrote: "The employees would have reasonably assumed that the Respondent's painstaking examination as to Shirley's physical characteristics was for the purpose of ensuring that it would be able to spot her should she ever come near the Respondent's facility again. An employee would reasonably be inhibited from associating with a person that the Respondent was taking pains to spot, out of fear of reprisal for associating with such a person." He also found that Roberti's questioning had a tendency to be coercive in light of the fact that the employees had not disclosed their union sympathies.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by CSEA Local 1000, AFSCME; complaint alleged violation of Section 8(a)(1). Hearing at New York on March 22, 2001. Adm. Law Judge Raymond P. Green issued his decision June 7, 2003.

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Hope Electrical Corp. (17-CA-20758, 21062; 339 NLRB No. 113) St. Joseph, MO July 31, 2003. The Board affirmed the administrative law judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to comply with the terms of a contract imposed by an interest arbitration panel. "If, as is the case here, the matter at issue does not involve a mandatory bargaining subject, the Board cannot find an 8(a)(5) violation," it held. See, e.g., Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 185 (1971). [HTML] [PDF]

The Respondent is an electrical contractor. In 1997, it signed a collective-bargaining agreement with Electrical Workers IBEW Local 545 that ran until May 31, 1999. The agreement had an interest-arbitration provision permitting either party to submit unilaterally a successor contract proposal to binding arbitration. In the spring of 1999, the Union invoked the interest-arbitration provision before the agreement expired. The arbitration panel imposed a successor collective-bargaining agreement, with a term from June 1, 1999, until May 31, 2002. The Respondent refused to comply with the new agreement and the Union filed a suit in the District Court for the Western District of Missouri to enforce it. On May 30, 2000, the court, in an unpublished order, enforced the interest award, finding that the Respondent was party to a valid agreement until 2002. The court did not address any issues under the NLRA.

The Board noted well-established precedent that interest arbitration is a nonmandatory subject of bargaining and, accordingly, repudiation of a collective-bargaining agreement imposed through an interest-arbitration clause in a preceding collective-bargaining agreement does not violate Section 8(a)(5) and (1). See Tampa Sheet Metal Co., 288 NLRB 322, 325-326 (1988), and cases cited there. In Tampa Sheet Metal, the Board held "the remedy for such a repudiation lies not with the Board, but with the courts in a breach of contract proceeding." Id at 326. See also Electrical Workers Local 113 (Collier Electric), 296 NLRB 1095, 1098-1099 (1989). Member Liebman acknowledged that Tampa Sheet Metal, supra, represents current Board law, and accordingly she concurred in the dismissal of the complaint.

(Members Liebman, Schaumber, and Acosta participated.)

Charges filed by Electrical Workers IBEW Local 545; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Overland Park, Aug. 16-17, 2001. Adm. Law Judge Gerald A. Wacknov issued his decision Dec. 5, 2001.

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Jensen Enterprises, Inc. (28-CA-17401, 28-RC-5972; 339 NLRB No. 105) Las Vegas, NV July 31, 2003. The Board affirmed the administrative law judge's finding, among others, that the Respondent, through its agent and labor consultant Michael Penn, violated Section 8(a)(1) of the Act by informing employees that if the Union was voted in, wages would be "frozen" during negotiations and they "shouldn't expect to get any increases in wages or benefits until collective bargaining had concluded" and by promulgating and enforcing a rule against talking about the Union during working time, while allowing the discussion of other nonwork-related subjects. It ordered that the election held in Case 28-RC-5972 be set aside and that the Regional Director conduct a new election when the circumstances permit the free choice of a bargaining representative. [HTML] [PDF]

The Union filed 43 objections to the election but prior to the hearing, withdrew a number of them with the approval of the Regional Director. Absent exceptions, the Board affirmed the judge's recommendation to overrule certain of the objections and to sustain certain of the objections. In adopting the judge's recommendation to sustain certain objections, the Board found it unnecessary to pass on whether the judge, in his consideration of the allegation contained in Objection 6 correctly found that the objection was coextensive with the complaint allegations concerning the Respondent's promulgation and enforcement of a discriminatory no-talking rule.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Carpenters; complaint alleged violation of Section 8(a) (1) and (3). Hearing at Las Vegas, March 12-15, 2002. Adm. Law Judge Gregory Z. Meyerson issued his decision May 31, 2002.

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Nations Rent, Inc. (25-CA-27257-1, et al.; 339 NLRB No. 101) Columbus, IN July 29, 2003. Chairman Battista and Member Walsh found, contrary to the administrative law judge, that the Respondent failed to adhere to certain terms of the settlement agreement approved by the Regional Director on November 14, 2001, and that the Respondent's noncompliance warranted setting the agreement aside and reinstating the February 28, 2002 consolidated complaint. In dissent, Member Schaumber noted the significant remedial measures the Respondent has taken to comply with the settlement agreement and the absence of any renewed unlawful practices, saying: "I am unprepared to set aside the settlement agreement under the circumstances presented." See Deister Concentrator Co., 253 NLRB 358 (1980). [HTML] [PDF]

The consolidated complaint alleges various violations of Section 8(a)(1) and (3) of the Act, including that the Respondent maintained an unlawful no-solicitation/no-distribution rule in its employee handbook, and discharged Jerry Bickel on September 26, 2000, reinstated him on September 27, 2000, issued a written warning to him on April 26, 2001, and discharged him a second time on May 19, 2001 because of his activities for Operating Engineers Local 150 and because he engaged in an unfair labor practice strike.

The judge found no merit to the General Counsel's and Charging Party's contentions that the Respondent breached the settlement agreement by failing (1) to rescind its allegedly overly broad no-solicitation/no- distribution rule; (2) to notify Bickel in writing that any references to his disciplinary report or discharges had been removed from the Respondent's files and that the disciplinary report and discharges would not be used in any way; (3) to properly reinstate Bickel by treating him as a new hire; and (4) to properly make Bickel whole.

Chairman Battista and Member Walsh agreed with the judge's rejections of contentions (3) and (4) based on her finding that Bickel was properly reinstated to his former position and was properly made whole. Unlike the judge, the majority found merit in contentions (1) and (2), concluding that the Respondent continued to maintain the no-solicitation/no-distribution rule and failed to notify Bickel in writing of the expunction of his discipline. The majority remanded the proceeding to the judge to consider the merits of the presettlement unfair labor practice allegations and to issue a supplemental decision.

Member Schaumber found that the Respondent's failure to notify Bickel by separate written notification (when he was notified orally) of the expungement from his personnel file of the disciplinary reports and its failure to cross out the offending no-solicitation/no-distribution rule in its handbook, do not undermine the settlement agreement. He noted that almost contemporaneously with the distribution of the handbook to the two employees Respondent posted the Board's notice stating the rule would no longer be given effect. Member Schaumber added "if the Respondent was to continue to use its handbook unaltered or without an attached notice expressly deleting the contested no-distribution/no- solicitation rule, I would set it aside."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1) and (3). Hearing at South Bend, June 3-4, 2002. Adm. Law Judge Margaret M. Kern issued her decision Aug. 12, 2002.

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Ogden Ground Services, Inc. (36-RC-6169; 339 NLRB No. 107) Portland, OR July 29, 2003. The Board, having been advised by the National Mediation Board (NMB) that the Employer is a carrier subject to the Railway Labor Act (RLA), dismissed the representation petition filed by Machinists Lodge 24 seeking to represent a certain group of the Employer's employees working at the Portland International Airport in Portland, Oregon. [HTML] [PDF]

The Employer provides aviation support services for Alaska Airlines, its only customer at the Portland Airport. In February 2003, the Board requested that the NMB study the record and determine the applicability of the RLA to the Employer. The NMB concluded that the facts in this case are distinguishable from previous NMB cases involving Ogden operations where the NMB had determined that those operations were not subject to the RLA. See, e.g., Ogden Aviation Services, 23 NMB 98 (1996); Ogden Aviation Services, 20 NMB 181 (1993). See also Ogden Aviation Services, 320 NLRB 1140 (1996).

(Members Schaumber, Walsh, and Acosta participated.)

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Phillips Petroleum Co. (19-CA-28114; 339 NLRB No. 111) Ferndale, WA July 31, 2003. The administrative law judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by discharging Brandon Ingram for attempting to obtain family and medical leave. The Board found it unnecessary to pass on the judge's finding that Ingram's activities amounted to an attempt to enforce a provision of the collective-bargaining agreement, saying Ingram's conduct constituted protected concerted activity even apart from the issue of whether it concerned any contractual provision. It wrote: [HTML] [PDF]

"Ingram engaged in protected concerted activity to remedy a perceived inadequacy in working conditions, i.e., the inability of employees to use sick leave for family medical emergencies. Although Ingram's efforts to secure sick leave originated because of his need to care for his wife and children, the record clearly establishes that Ingram's efforts embraced the larger purpose of obtaining this benefit for all of his fellow employees."

Applying Wright Line, 251 NLRB 1083 (1980), the Board decided that Ingram's protected conduct was a motivating factor in the Respondent's decision to discharge him and that the Respondent failed to establish that it would have discharged Ingram in the absence of his protected conduct. In defense, the Respondent claimed that it discharged Ingram because of concerns about his ability to follow safety instructions.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Paperworkers Local 8-590; complaint alleged violation of Section 8(a)(1). Hearing at Bellingham, Oct. 22-23, 2002. Adm. Law Judge Jay R. Pollack issued his decision Dec. 11, 2002.

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Pro-Spec Painting, Inc. (4-CA-31034, 31050; 339 NLRB No. 115) Vineland, NJ July 31, 2003. Affirming the administrative law judge's decision, the Board concluded that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging Tim Hernberger and Tom Henze because of their activities for Painters District Council 711; and that the Respondent did not violate Section 8(a)(3) and (1) by laying off Philip Hann. The judge found that Hann voluntarily terminated his relationship with the Respondent. [HTML] [PDF]

No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) when Respondent's president, Ron Yarbrough, told Hann that Hernberger was no longer working for the Respondent because Hernberger had joined the Union, and when Yarbrough threatened to terminate Hann if he told Hernberger that Hann was painting Yarbrough's house.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Painters District Council 711; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on Aug. 4, 2002. Adm. Law Judge Robert A. Giannasi issued his decision Oct. 1, 2002.

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Shaw's Supermarkets, Inc. (1-CA-38399; 339 NLRB No. 108) Methuen, MA July 29, 2003. Members Liebman and Acosta adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by dilatorily providing requested information to Food and Commercial Workers Local 791 that was relevant and necessary to its role as the exclusive bargaining representative of the unit employees. Chairman Battista dissented. [HTML] [PDF]

The majority agreed with the judge that the allegations that the Respondent refused to furnish the requested information should not be deferred to the grievance-arbitration provisions of the collective- bargaining agreement. Members Liebman and Acosta said that the Board has a longstanding policy of nondeferral to arbitration in information request cases. General Dynamics Corp., 270 NLRB 829 (1984). The Respondent, citing Malrite of Wisconsin, 198 NLRB 241 (1972), contended that the Board should defer here because the Board's processes are being used to "enforce" an arbitration award. Members Liebman and Acosta disagreed, saying that unlike the union in Malrite, the Union here is not seeking from the Board the same relief it already obtained from an arbitrator but is seeking that the Respondent satisfy its independent obligation to furnish information concerning its implementation of an arbitrator's award.

Chairman Battista would defer this matter to the same arbitration process through which the parties agreed to resolve the merits of the underlying grievance. He wrote: ". . . I find that entangling the Board in the dispute through an unfair labor practice proceeding, without first seeking the assistance of the arbitrator, adds (rather than eliminates) inefficiency. Although seeking the involvement of the arbitrator would not guarantee an immediate resolution of the information request in all cases, e.g., when the arbitrator declines to consider the matter, I believe that this approach would in many cases save the parties substantial time in obtaining a determination of that issue."

(Chairman Battista and Members Liebman and Acosta participated.)

Charge filed by Food & Commercial Workers Local 791; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on April 24, 2001. Adm. Law Judge Martin J. Linsky issued his decision Aug. 17, 2001.

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Superior Protection, Inc. (16-CA-21399, 21495, 16-RC-10361; 339 NLRB No. 118) Houston, TX July 31, 2003. The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by imposing a 3-day suspension and 90-day probationary period on and then discharging employee Kelvin Trotter, and by threatening employees who engaged in union activity or who participated in NLRB proceedings with discharge. It modified the judge's recommended Order to include a remedial provision for the Respondent's Section 8(a)(4) violation but declined to include the judge's recommended remedial provision requiring the Respondent to reimburse Trotter for any extra Federal or State income tax that would result from the lump sum payment of any backpay award. [HTML] [PDF]

Trotter's ballot was determinative of the election results in Case 16- RC-10361. The Respondent challenged his ballot because he was a discharged employee. The Board, having adopted the judge's finding that Trotter was discriminatorily discharged, held that he was eligible to vote. Accordingly, the Board directed the Regional Director to open and count Trotter's ballot and to prepare and serve on the parties a revised tally of ballots and issue the appropriate certification.

The Board denied the Respondent's request for oral argument and its motion to reopen the case and receive further evidence. Member Acosta joined his colleagues in denying the Respondent's request to introduce further evidence from the preelection case rather than just the portion of the transcript containing the testimony of Trotter, whose testimony in the present proceeding the Respondent seeks to discredit. He found that the Respondent failed to explain how the admission is appropriate or necessary.

(Members Schaumber, Walsh, and Acosta participated.)

Charges filed by United Government Security Officers Local 229; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Houston, March 11 and 12, 2002. Adm. Law Judge Robert A. Pulcini issued his decision Aug. 28, 2002.

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Teamsters Local 662 (18-CB-4111-1; 339 NLRB No. 109) Eau Claire, MN July 31, 2003. The Board, on the recommendation of the administrative law judge, found that the Respondent Union, by failing and refusing to sign a written collective-bargaining contract embodying the final and binding agreement reached with Charging Party W.S. Darley & Co. on October 4, 2000, as the representative of all employees in the appropriate bargaining unit, violated Section 8(b)(3) of the Act. [HTML] [PDF]

(Members Schaumber, Walsh, and Acosta participated.)

Charge filed by W.S. Darley & Co.; complaint alleged violation of Section 8(b)(3) and 8(d). Hearing at Minneapolis on March 6, 2002. Adm. Law Judge William J. Pannier III issued his decision Sept. 23, 2002.

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Trane, an Operating Unit of American Standard Companies (14-RC-12421; 339 NLRB No. 106) Fenton, MO July 29, 2003. The Board found that the Regional Director erred in finding that Employer failed to rebut the single-facility presumption and that the petitioned-for single facility unit of heating, ventilation and air-conditioning (HVAC) technicians working out of the Employer's Fenton, MO facility is appropriate. It decided that the unit must include the HVAC technicians working from the Employer's Cape Girardeau, MO facility because the employees possess identical skills, perform identical functions, and labor under identical working conditions; and all supervisory functions for both Fenton and Cape Girardeau are centralized at the Fenton office. [HTML] [PDF]

The Employer manufacturers, installs, and services commercial and residential HVAC equipment throughout the U.S. and abroad. The Employer's operations are divided into various District Sales Offices (DSOs). The St. Louis DSO includes the Employer's facilities in Fenton, MO (Fenton), Cape Girardeau, MO (Cape); and Bridgeton, MO (Bridgeton). The petitioning union is Plumbers Local 562.

The Board found that the Regional Director placed too much emphasis on the geographic distance between the Fenton and Cape locations and the Employer's failure to present specific evidence of employee interchange. It wrote: "First, while we would generally consider a geographic distance of 108 miles between facilities significant, here, its significance is reduced by the fact that the employees are dispatched from their homes, only occasionally go into their respective offices, and the two areas are only loosely defined by fluid lines of demarcation. Second, the Employer's evidence of regular interchange between the two sites, while general in nature, stands unchallenged in this case." The Regional Director's reliance on the lack of historical bargaining on a multilocation basis to find the petitioned-for unit appropriate is misplaced, the Board said, noting that the Employer has no bargaining history at all.

(Chairman Battista and Members Walsh and Acosta participated.)

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Industrial, Professional & Technical Workers SIUNA (Recon Refractory & Construction, Inc.) (21-CD-635, 637; 339 NLRB No. 97) Carson, CA July 24, 2003. The Board quashed the notice of hearing after concluding that the real dispute in this case is a contractual dispute between Charging Party Bricklayers Local 4 and Charging Party Recon. It wrote: "When a dispute is fundamentally one between an employer and a union, and concerns the union's attempt merely to preserve the work it previously had performed, the Board will not afford the employer the use of a 10(k) proceeding to resolve a dispute of its own making." [HTML] [PDF]

Recon is a party to a collective-bargaining agreement called the National Refractory Agreement (NRA), with the Bricklayers and Craftworkers (BAC). Under the NRA, signatory refractory contractors are required to assign refractory work to BAC-represented bricklayers. The dispute resulted from Recon's alleged breach of the NRA agreement, and it concerned Local 4's efforts to preserve the work it previously had performed. Local 4-represented bricklayers performed the disputed work pursuant to the terms of the successive NRAs for a decade prior to January 2000. When Recon assigned the work in dispute to Industrial, Professional & Technical Workers-represented laborers at the Arco Refinery in Carson, CA, it was the first time that Recon had failed to assign refractory work in southern California to Local 4-represented bricklayers.

(Members Schaumber, Walsh, and Acosta participated.)

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Kaiser Aluminum & Chemical Corp. (32-CA-17041; 339 NLRB No. 100) Houston, TX July 25, 2003. At the request of the Charging Party, the Board has decided to publish a previously unpublished Order in the bound volumes of its decisions. [HTML] [PDF]

The Board, in its unpublished Order of September 7, 2001, granted Charging Party Steelworkers' request for special permission to appeal the administrative law judge's ruling denying the Charging Party's petition to revoke the subpoena duces tecum served on it by the Respondent. The subpoena demanded production of the position statements submitted by the Charging Party to the Region and to the General Counsel's Office of Appeals.

On appeal, Chairman Hurtgen and Member Liebman, with Member Walsh concurring, reversed the judge's ruling. They found that the work product doctrine as reflected in Rule 26(b)(3) of the Federal Rules of Civil Procedure applies to unfair labor practice proceedings, and specifically to a position statement submitted by a charging party's counsel to the General Counsel in support of its charge during the General Counsel's investigation; and that a charging party does not waive the work product privilege by submitting such a position statement to the General Counsel.

Chairman Hurtgen and Member Liebman held that the Respondent had not demonstrated a substantial need for the position statement and quashed the subpoena to the extent it sought the Charging Party's position statements. They authorized the judge to review in camera, any and all attachments to the position statements sought by the subpoena to determine whether they are also exempt from disclosure based on the work product privilege.

Member Walsh joined his colleagues in reversing the judge's ruling. He said that the confidentiality interests and policy considerations set forth in NLRB v. Robbins Tire Co., 437 U.S. 214 (1978), and H. B. Zachry Co., 310 NLRB 1037 (1993), apply to the Charging Party's position statements provided to the Agency, as well as to witness statements that similarly cannot be obtained by subpoena from the Agency. Member Walsh concluded that the Respondent cannot compel disclosure by the Union of the position statements that are the subject of the subpoena in question here.

(Chairman Hurtgen and Members Liebman and Walsh participated.)

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PPG Industries, Inc. (10-CA-32813; 339 NLRB No. 98) Huntsville, AL July 23, 2003. The Board, in the earlier proceeding reported at 338 NLRB No. 68, remanded the case to the administrative law judge to resolve certain evidentiary issues. Among others, the Board found that the judge failed to act on the Respondent's petition to revoke the General Counsel's subpoena for documents concerning the administration of the Respondent's attendance policy. [HTML] [PDF]

In the instant matter, the judge granted the Respondent's petition to revoke and reaffirmed his recommendation to dismiss the complaint allegation that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by suspending and discharging Randall Martin. The Board determined that the judge abused his discretion in granting the petition and, therefore, reversed the judge's ruling and remanded this proceeding back to the judge to direct the Respondent to comply fully with the terms of the subpoena.

The General Counsel's subpoena for documents concerned the Respondent's attendance policy for a 27-month period. In response to the subpoena the Respondent provided employee disciplinary notices for all employees who received discipline for violating the absenteeism policy and a printout providing the complete attendance history of nonsupervisory employees at the facility and discipline of employees for any absence-related offenses for a 21-month period.

The judge contended that the General Counsel had the necessary documents to determine whether the Respondent applied its absenteeism policy in a disparate manner. He determined that the Employee Action and Absence with Notes records did not include any relevant information with respect to absenteeism and/or failing to report off that was not already contained in the documents produced by the Respondent. The judge also found that the Respondent's limitation on the timeframe for disciplinary records provided was appropriate and that compelling production of the additional records was unnecessarily cumulative, duplicative, and/or would pose an undue burden on the Respondent. Contrary to the judge, the Board found that requiring production of the Employee Action and Absence with Notices records is necessary because the judge's finding is speculative as he never examined the unproduced documents.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Randall Martin, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Adm. Law Judge William N. Cates issued his supplemental decision Feb. 13, 2003.

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Arlington Masonry Supply, Inc. (7-RC-22225; 339 NLRB No. 99) Shelby Township, MI July 21, 2003. The Board sustained the challenges to the ballots of Lawrence Smith, Robert Hanson, and Dana Justice; overruled the challenge to the ballot of Michael Yax; and directed the Regional Director to open and count the ballots of Yax, Lee Roy Cox, and Brandon Faircloth and to issue a revised tally of ballots and the appropriate certification. Member Walsh would overrule the challenge to Justice's ballot. [HTML] [PDF]

The tally of ballots for the election held May 23, 2002 shows 4 for and 2 against Teamsters Local 247, with 6 challenged ballots. In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule the challenges to the ballots of Cox and Faircloth. The hearing officer found, and the Board agreed, that Yax is a regular part-time employee under the Act and should be included in the unit.

The Board also affirmed the hearing officer's finding that the record failed to establish that Smith and Hanson were eligible to vote as dual function employees. Chairman Battista and Member Schaumber did not rely on Oxford Chemicals, 286 NLRB 187 (1987), cited by the hearing officer, to the extent that it holds that if it can be shown that an employee regularly performs unit work for a sufficient period, it is inappropriate to evaluate other community of interest factors in determining whether that employee should be included in the unit. Member Walsh adhered to the well-established precedent of Oxford Chemical, saying it correctly holds that if a dual-function employee regularly performs a substantial amount of unit work, he is eligible to vote, and "it is both unnecessary and inappropriate to evaluate other aspects of the dual function employee's terms and conditions in a kind of second tier community-of-interest analysis." Id. at 188.

Chairman Battista and Member Schaumber disagreed with the hearing officer's finding that Dana Justice, who has the title of "maintenance supervisor" of the Employer's vehicle maintenance garage, is not a supervisor within the meaning of Section 2(11) of the Act. They found that the Employer met its burden of proving that Justice possessed supervisory authority, after concluding that the testimony of the Employer's general manager Cox is sufficient to establish that Justice possessed the authority to assign work utilizing independent judgment. They also relied upon Justice's authority to create the work schedule, grant time off, and assign hours and overtime, but they found it unnecessary to rely upon Justice's alleged authority to issue reprimands and recommend suspension and discharge.

Contrary to his colleagues, Member Walsh concluded that the Employer failed to meet its burden of proving that Justice possessed supervisory authority. He found that Cox's testimony was "purely conclusionary and failed to offer any specific instances or examples of Justice's exercise of independent judgment."

(Chairman Battista and Members Schaumber and Walsh participated.)

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Beverly California Corp. f/k/a Beverly Enterprises, et al. (32-CA-11950-1 (formerly 6-CA-22084-15); 339 NLRB No. 92) Monterey, CA July 16, 2003. Members Liebman and Walsh affirmed the administrative law judge's recommendations and ordered that the Respondent pay to Nelia Aldape the sum of $64,403.51 for the period ending December 31, 2001, the date as set forth in the compliance specification. Chairman Battista, dissenting, would toll backpay as of when the Respondent learned of the State's finding of patient abuse by Aldape and its citation of the Respondent for that abuse.[HTML] [PDF]

In the underlying proceeding, 326 NLRB 153 (1998), the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending certified nursing assistant Aldape for her union activities. The issue presented in this proceeding is the amount of backpay owed to her. The judge found that Aldape was entitled to backpay from her July 15, 1991 unlawful discharge until January 18, 2002. The latter date is 1 week after Aldape failed to respond to the Respondent's reinstatement offer. In exceptions, the Respondent argued that Aldape's backpay should be tolled about August 1, 1991 when the State cited the Respondent for alleged patient abuse by Aldape.

Members Liebman and Walsh said in agreeing with the judge that Aldape's backpay did not toll until January 18, 2002: "[J]ust as the Respondent failed in the underlying case to meet its burden of demonstrating that it would have suspended or discharged Aldape absent her union activity, it has failed here to meet its burden of showing that the State citation alone would have caused it to suspend and discharge Aldape." They noted, as did the judge, that the $64,403.51 sum does not include any backpay and interest that may be due and owing for the period of January 1 through 18, 2002.

Chairman Battista noted that the record supports the Respondent's past history of discharging employees found guilty of patient abuse. In his view this case involves an event occurring after the discharge, the event being the State's finding of patient abuse by Aldape and the State's citation of the Respondent for that patient abuse. Chairman Battista wrote: "In my view, the Board should not lightly condemn the integrity of State proceedings. It should do so, if at all, only upon strong evidence of taint or flaw. In this instant case, there is no such evidence."

(Chairman Battista and Members Liebman and Walsh participated.)

Adm. Law Judge Clifford H. Anderson issued his supplemental decision July 31, 2002.

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Champion International Corp. (3-CA-21954 and 21958; 339 NLRB No. 80) Deferiet, NY July 14, 2003. The Board agreed with the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to pay employees in the bargaining unit represented by PACE earned vacation pay in accordance with the collective-bargaining agreement between the Respondent and PACE, unilaterally implementing preconditions for receipt of any severance pay by the unit employees represented by PACE and Firemen & Oilers, and failing to satisfy its duty to bargain with those unions about the effects on unit employees of its decision to sell its paper mill in Deferiet. Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent engaged in direct dealing concerning preconditions for obtaining severance pay with employees in the PACE and Firemen & Oilers units. [HTML] [PDF]

On May 11, 1999, the Respondent informed union officials that the Deferiet mill was being sold and that evening distributed to unit employees a letter informing them that "to be eligible for severance you must complete the application process" for employment with the purchaser of the Deferiet mill, which process included undergoing drug testing. The parties' respective collective-bargaining agreements did not entitle the Respondent to engage in across-the-board drug testing of unit employees.

Chairman Battista and Member Schaumber contended that the complaint does not allege that the May 11, 1999 letter was distributed to employees or that such distribution was a "direct dealing" Section 8(a)(5) allegation. They said that a unilateral change violation involves a change in terms and conditions of employment and does not depend on whether there was a communication to employees while a direct dealing violation involves dealing with employees (bypassing the Union) about a mandatory subject of bargaining. Chairman Battista and Member Schaumber reasoned that absent a separate allegation, the Respondent could reasonably believe that those facts were relevant to the unilateral change allegation. Accordingly, they concluded that the Respondent was not placed on notice of the direct dealing allegation.

Member Walsh, in his partial dissenting opinion, would adopt the judge's findingof a separate direct dealing violation. He stated that although the complaint did not separately allege a direct dealing violation, the judge's finding of such a violation is correct under established Board and court precedent. Although the Respondent argued that the direct dealing issue was not fully litigated, Member Walsh wrote that the Respondent had a fair and full opportunity to offer a legitimate justification for its sending of the letter directly to employees without having first tendered the documents to the Unions. He said "finding unlawful direct dealing does not violate the Respondent's right to due process where, as here, it was at all times on notice of the acts which formed the basis of the additional unfair labor practice, and the matter was fully litigated."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by PACE Locals 45 & 46 and Firemen & Oilers/SEIU Local 349; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Syracuse, June 7-8, 2000. Adm. Law Judge Eric M. Fine issued his decision Jan. 5, 2001.

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Connecticut State Conference Board, Amalgamated Transit Union and Amalgamated Transit Locals 425, 443, and 281 (H.N.S. Management Co.) (34-CB-2506, et al.; 339 NLRB No. 89) New Haven, CT July 16, 2003. The Board affirmed the administrative law judge's conclusion that the Respondents violated Section 8(b) (3) of the Act by insisting that H.N.S. Management Co. (the Employer) agree to an interest arbitration clause as a condition of reaching a new agreement, and bargaining to impasse in support of that demand. [HTML] [PDF]

Members Liebman and Walsh modified paragraph 2(a) of the judge's recommended Order to include the customary affirmative bargaining language used to remedy an unlawful insistence to impasse on the inclusion of an interest arbitration clause in violation of Section 8(b)(3). Chairman Battista would not make the modification. He believes that the language of the judge's recommended Order, requiring the Respondents to notify the Employer that they are willing to sign the collective-bargaining agreement without the interest arbitration clause, "is narrowly tailored to the factual circumstances underlying the violation found and is sufficiently similar to the Board's customary remedial language."

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by H.N.S. Management Co.; complaint alleged violation of Section 8(b)(3). Hearing at Hartford on Sept. 12, 2002. Adm. Law Judge Joel P. Biblowitz issued his decision Dec. 3, 2002.

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Cornell Forge Co. (13-RC-20777; 339 NLRB No. 85) Chicago, IL July 15, 2003. The Board found no merit to the Employer's exceptions to the hearing officer's disposition of its objections and certified the Boilermakers International as the exclusive collective-bargaining representative of the employees in the appropriate unit. The tally of ballots for the election held June 13, 2002, showed 50 votes for and 34 against, the Union, with 4 challenged ballots, an insufficient number to affect the results. [HTML] [PDF]

The Employer argued that prounion employees Alfredo Aviles and Augustin Zapata engaged in electioneering near the polling place and that Aviles made threatening statements related to the election. In overruling the objections, the hearing officer held that neither Aviles nor Zapata was an agent of the Union, and that, under the standards applicable to conduct by third parties, their actions did not justify setting the election aside. Members Liebman and Acosta agreed in both respects and discussed prior Board decisions concerning the burden of proving an agency relationship and their applicability to the facts of this case.

Member Schaumber agreed that the Employer did not prove by a preponderance of evidence that Aviles and Zapata were union agents but did not agree with some of the statements of law in the majority's decision. However, he does not subscribe to any implication that members of a union's in-plant organizing committee must be the union's "primary conduits for communication" or "primary employee contact[s]" before a finding of apparent authority is warranted. Since he agreed with the result the majority reached, he found it unnecessary to comment on their characterization of prior Board decisions and their applicability here.

The Board adopted without further discussion the hearing officer's recommendation to overrule the Employer's objection to the Union's dissemination of an inaccurate Dun & Bradstreet report. In the absence of exceptions, the Board adopted his finding that Aviles and Zapata did not engage in objectionable surveillance near the polling place. In so doing, the Board noted that finding the two were not union agents precludes a conclusion that their conduct constituted objectionable surveillance by the Union.

(Members Liebman, Schaumber, and Acosta participated.)

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D&F Industries, Inc. and Staffing Services of America, Inc. ("Olsten") (21- CA-32952, 32973; 339 NLRB No. 73) Orange and Anaheim, CA July 14, 2003. The Board affirmed the administrative law judge's findings that the Respondents violated Section 8(a)(1) of the Act by, among others, informing employees that Respondents would never deal with a third party and that the doors were open for them to work somewhere else if Food & Commercial Workers Local 324 was coming in; threatening employees with discharge and informing them that they would be replaced if they engaged in a strike against Respondent; soliciting grievances from employees and promising them benefits in order to induce them to cease supporting the Union; and violated Section 8(a)(1) and (3) by laying off employees Silvia Martinez and Jose Luis Rivera because of their support for the Union. [HTML] [PDF]

Contrary to the judge, the Board found that Maria Paz-Vasquez and Rosa Jaramillo were agents of D&F; that certain unlawful conduct by them is therefore attributable to D&F; and that the July 7, 1998 layoffs of employees Claudia Mayne, Abigail Reyes, Carolina Orozco, and Salud Soria, and the September 9 layoff of Maria Jaramillo violated Section 8(a)(1) and (3).

Respondent Olsten excepted to the judge's conclusion that it is liable for the unfair labor practices of D&F. Citing Capitol EMI Music, 311 NLRB 997 (1993), the Board agreed with the judge that Olsten, as a joint employer, is liable for the discriminatory layoffs by D&F. The judge, in support of his finding, noted that Olsten's on-site manager, Carmen Reyes, attended and participated in translating Chief Operating Officer Howard Simon's speech to employees in which he, in part, stated that D&F would never deal with a third party, threatened plant closure, and impliedly threatened discharge in retaliation for the employees' union activities. With this notice of D&F's antiunion animus, Olsten was liable for carrying out the subsequent discriminatory layoffs directed by D&F, the Board held. And, Olsten, as a joint employer, is liable for the coercive conduct of D&F in violation of Section 8(a)(1). See, e.g., Windemuller Electric, 306 NLRB 664, 666 (1992).

Chairman Battista, while agreeing that Simon unlawfully threatened employees that if they went on strike they would be replaced, relied on the context in which the remark was made, and specifically on Simon's threat in the same speech that employees could go on strike but they were all going to be dismissed. He does not rely on Simon's failure to provide a more complete explanation of the respective reinstatement rights of economic and unfair labor practice strikers.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Food & Commercial Workers Local 324; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, July 26-30 and Aug. 16 and 24, 1999. Adm. Law Judge Bernard Litvack issued his decision Aug. 9, 2000.

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Dayton Newspapers, Inc. (9-CA-36894, et al.; 339 NLRB No. 79) Dayton, OH July 14, 2003. The Board found, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by making several statements in connection with a 1-day economic strike by its drivers; violated Section 8(a) (3) and (1) by laying off 13 drivers and withholding their bonuses and refusing to reinstate 9 of the locked-out drivers; and violated Section 8(a)(5) and (1) by dealing directly with the drivers. [HTML] [PDF]

At the time of the strike, the Respondent was in the process of gradually transferring its operations to a new plant, pursuant to a transition plan made before the strike and discussed with Teamsters Local 957. Several days after the strike, the Respondent laid off 13 drivers and locked out 18 others.

The Board, citing Eads Transfer, 304 NLRB 711 (1991), enfd. 989 F.2d (9th Cir. 1993), held that a fundamental principle underlying any lawful lockout is that the union may end the lockout, and return the employees to work, by agreeing to the employer's demands. It noted that in the present case, the Respondent failed to give the Union a clear set of conditions for reinstatement and imposed the "operational changes" condition without fully explaining what the operational changes were. Even after the Union's December 23, 1999 assurances against further work stoppages, the Respondent continued to revise its demand on that issue, the Board added. It said the Respondent's conditions for reinstatement became a "moving target" and because the demands were unclear, the Union was unable to intelligently evaluate its position and was powerless to end the lockout and obtain reinstatement of the drivers.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Teamsters Local 957; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Dayton, Aug. 7-9, 2000. Adm. Law Judge Benjamin Schlesinger issued his decision Nov. 14, 2000.

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Dole Fresh Vegetables, Inc. (9-CA-38067-1, et al.; 339 NLRB No. 90) Springfield, OH July 17, 2003. The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by unilaterally reducing the wage rates of maintenance leads Larry Saunders and Robert Ford, and acting lead Floyd Mann, without affording the Union notice and an opportunity to bargain over such changes; Section 8(a)(4) and (1) by reducing the wage rates of Saunders and Ford because they gave testimony under the Act; and Section 8(a) (3) and (1) by reducing the wage rates of Saunders, Ford, and Mann because of their union activities and union support. [HTML] [PDF]

While finding no merit in the Respondent's contention, among others, that the judge erred in failing to find that all three individuals are supervisors within the meaning of Section 2(11) of the Act, the Board said there are three issues that warrant further discussion¾the Respondent's contention that: (1) the judge impermissibly relied on the Regional Director's Decision and Direction of Election in the earlier representation case as substantive evidence that the maintenance leads are not supervisors; (2) the judge did not properly consider the evidence presented at the hearing ostensibly showing that the maintenance leads are Section 2(11) supervisors; and (3) the General Counsel failed to meet his burden to prove that the Respondent's reduction of the maintenance leads' wage rates was motivated by animus toward the employees' protected activities.

In its discussion of the first issue, the Board held that the judge correctly recognized that the Respondent was entitled to relitigate the issue of the status of the maintenance leads, and properly considered all the record evidence, including the Regional Director's findings in the representation proceeding. With regard to the second issue, the Board found, after review of the record, that the Respondent failed to establish that the maintenance leads exercise supervisory authority over the employees in their department. The Board, on the third issue, found that the Respondent's position was essentially that it reduced the wage rates of the three maintenance leads in order to provoke the filing of an unfair labor practice charge and complaint. The Respondent claimed its objective was to obtain "comprehensive consideration" of the status of the maintenance leads and that it is only in the context of a Section 8(a)(1) or (3) complaint that it could do so.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Operating Engineers Local 20; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Springfield, March 28-29, 2001 and at Cincinnati on April 27, 2001. Adm. Law Judge Lawrence W. Cullen issued his decision June 19, 2001.

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Elf Atochem North America, Inc. (4-CA-27569, 27657; 339 NLRB No. 93) Bristol, PA July 17, 2003. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with Steelworkers Local 88 and making unilateral changes in its employees' terms and conditions of employment. [HTML] [PDF]

The judge held, with Board approval, that the Respondent is a "perfectly clear" successor employer to the Rohm and Haas Co. (R&H) and AtoHaas Americas, Inc. (AtoHaas) that was obligated to bargain with the Union as of January 27, 1998, when it informed employees that it would provide employment to employees dedicated to the AtoHaas business, that their seniority would be recognized, and that they would receive equivalent salaries and comparable benefits.

In any event, the Board found that the Respondent would have become a "perfectly clear" successor when it informed the Union in a March 17, 1998 letter that pending the negotiation of a new collective-bargaining agreement it intended to maintain the current terms and conditions of employment. Marriott Management Services, 318 NLRB 144 (1995).

Chairman Battista agreed that, as of the March 17, 1998 letter, the Respondent became a "perfectly clear" successor. He found it unnecessary to pass on whether the Respondent became a "perfectly clear" successor earlier, on January 27 as the difference in dates is inconsequential as the Respondent did not begin operations until June 1998 and did not hire unit employees until November 1998.

The Board found it unnecessary to pass on the judge's stock transfer findings, concluding that the remedy would not be materially different if it found that, in connection with a stock transfer, the Respondent was required to honor its predecessor's collective-bargaining agreement. The Board ordered the reinstatement of terms and conditions in effect under the R&H contract at the time of the Respondent's assumption of the AtoHaas operations until the Union voluntarily entered into a new collective-bargaining agreement with the Respondent setting forth the terms and conditions of employment.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Steelworkers Local 88; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, April 4-5, 2000. Adm. Law Judge Eric M. Fine issued his decision Sept. 25, 2000.

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Rick Gellert d/b/a Henry's Refrigeration, Heating & Air (13-CA-39304-1; 339 NLRB No. 83) Addison, IL July 14, 2003. The Board granted the General Counsel's motion for summary judgment based on the Respondent's failure to comply with the terms of a settlement agreement requiring the Respondent to make employee Ben Boston whole by paying him $3000 in three $1000 payments, due on November 11 and December 13, 2001, and January 3, 2002. Although requested to do so by the General Counsel, the Respondent failed to remit any of the backpay payments. [HTML] [PDF]

The Board, having found that the Respondent violated Section 8(a)(1) of the Act by discharging Boston, ordered the Respondent to make him whole for any loss of earnings and other benefits by paying him the liquidated damages set forth in the noncompliance clause of the settlement agreement in the amount of $3600.

(Chairman Battista and Members Liebman and Schaumber participated.)

General Counsel filed motion for summary judgment Feb. 12, 2002.

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International Protective Services, Inc. (19-CA-26325, et al.; 339 NLRB No. 75) Torrance, CA July 15, 2003. The Board agreed with the administrative law judge that the Union's strike by security guards working at Federal buildings in Alaska was not protected by the Act, and affirmed (with one exception) his dismissal of all but one of the allegations that the Respondent violated Section 8(a)(1), (3), and (5) of the Act prior to and after the strike. In the reversal of the judge, Members Schaumber and Walsh found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with a requested copy of the Respondent's health and welfare and 401(k) plans applicable to unit employees and an accounting of all funds received and distributed for each unit employee. Chairman Battista would affirm the judge's dismissal of this allegation. No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(3) by delaying the rehire of employee Phillip Relich. [HTML] [PDF]

The judge found that the Respondent did not unlawfully fail to furnish the Union with the requested information, relying on the Respondent's belief that employees' 401(k) account information was confidential, that the account information was in the possession of the 401(k) plan administrator rather than the Respondent, and that the Union's delay in bargaining negotiations foreclosed discussion of this issue.

Members Schaumber and Walsh noted that the judge did not specifically pass on the Union's request for a copy of the plans, regarding which the Respondent made no claim of confidentiality or claim that the information was not in its possession and accordingly, they found that the Respondent failed to present any valid defense. They concluded also that the Respondent was not privileged to ignore the request for account information because it was not in its direct possession and that it was not the Union's delay or other bargaining conduct that prevented resolution of the request, but rather the "Respondent who never replied to the Union's request, thereby foreclosing any avenue of discussion and accommodation."

Chairman Battista, dissenting on this issue, concluded that the plan information was furnished to the Union. He noted the credited testimony of Respondent's president, Sam Karawia that "during the course of bargaining he provided [Union director] White with copies of the plans." Chairman Battista found that "the record clearly shows that, following its request for account information, the Union commenced a course of unlawful bargaining which suspended the Respondent's duty to bargain, including the duty to provide information."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Government Security Officers Local 46; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Anchorage, Jan. 11-14 and Feb. 1-4, 2000. Adm. Law Judge Gerald A. Wacknov issued his decision Sept. 12, 2000.

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The Kroger Co., d/b/a K.B. Specialty Foods Co. (25-CA-27730-1, et al.; 339 NLRB No. 88) Greensburg, IN July 16, 2003. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling employees that they cannot discuss the Union on company time, telling employees that they are subject to termination if they discuss the Union on company time, creating the impression that employees' union activities are under surveillance, and threatening employees with plant closure and relocation if employees select the Union as their collective-bargaining representative. [HTML] [PDF]

(Chairman Battista and Members Liebman and Acosta participated.)

Charges filed by Food & Commercial Workers Local 700; complaint alleged violation of Section 8(a)(1). Hearing at Greensburg, June 17-21, 2002. Adm. Law Judge Margaret M. Kern issued her decision Sept. 30, 2002.

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L.J. Logistics, Inc., a successor in interest to and/or alter ego of Preferred Unlimited, Inc. (13-CA-38854; 339 NLRB No. 84) Cierco, IL July 15, 2003. The Board granted the General Counsel's motion for summary based on the Respondent's failure to comply with the terms of a settlement agreement requiring the Respondent to make whole Christopher Charnot by paying him $6500 in backpay (the outstanding balance is $2700). It found the allegations of the reissued complaint are admitted as true and that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Christopher Charnot and refusing to reinstate him; and violated Section 8(a)(1) by threatening employees with unspecified reprisals because they engaged in union and/or protected concerted activities. [HTML] [PDF]

The Board decided that the backpay due Charnot should not be limited to the outstanding amount since the settlement agreement provided that, in the event of noncompliance, the Board could issue an Order "providing a full remedy for the violations so found as is customary to remedy such violations, not limited to provisions of this Settlement Agreement." Accordingly, it entered the "customary" remedies of reinstatement, full backpay, expungement of the Respondents' personnel records, and notice posting.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Teamsters Local 710; complaint alleged violation of Section 8(a) (1) and (3). General Counsel filed motion for summary judgment Feb. 25, 2002.

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Teamsters Local 896 (Anheuser-Busch, Inc.) (20-CB-11628-1; 339 NLRB No. 91) Los Angeles, CA July 16, 2003. Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(b)(1)(A) of the Act by threatening bargaining unit members at the Employer's Fairfield, CA brewery with internal union discipline if they report a fellow union member to management at a time when the parties' collective-bargaining agreement makes it the employees' responsibility to report safety and other rule violations to their supervisors. [HTML] [PDF]

The parties' collective-bargaining agreement provides that employees "have the responsibility to report to their supervisor, or other appropriate company representative, any unsafe conditions, practices, or violations of the company's safety regulations." This case involves two notices from the Union's business representative that were posted on the Union's bulletin board at the brewery in September and October 2001, which stated in part:

HAVE A PROBLEM WITH A UNION BROTHER OR SISTER,
CONTACT YOUR SHOP STEWARD OR THIS OFFICE.

One notice contained this additional language: "Remember: Going to management about a fellow Union member could leave you open to internal charges." The second notice contained similar language: "Remember: follow this direction to avoid any possibility of internal union charges."

The Board found that the Union's notices violated the employees' Section 7 rights in at least two respects: 1) the threatened discipline reasonably tends to restrain or coerce members from exercising their Section 7 rights to complain concertedly to management about safety violations, including those committed by a fellow member; and 2) the threats of internal discipline reasonably would compel union members to act in contravention of a collectively bargained for agreement. The Board rejected the Union's arguments that the notices do not tell members to refrain from going to management and that the notices were posted well before the 6-month period of Section 10(b).

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Anheuser-Busch; complaint alleged violation of Section 8(b) (1) (A). Hearing at San Francisco on May 23, 2002. Adm. Law Judge Clifford H. Anderson issued his decision Aug. 13, 2002.

* * *

American Armored Car, Ltd. (2-CA-33316, et al.; 336 NLRB No. 81) Elmsford, NY July 11, 2003. The Board considered the administrative law judge's findings that the Respondent unlawfully discharged employees Fernando Miranda, Leonard Miles, and John Verderber on September 27, October 17 and 19, 2000, respectively, because of their activities for the United Federation of Security Officers, Inc., and affirmed her unlawful discharge finding with regard to Miranda only. Chairman Battista did not decide whether the Respondent gave Miranda permission to be absent on September 26, 2000, finding that, assuming the Respondent did not give Miranda permission to be absent, its discharge of Miranda constituted disparate treatment relative to the discipline imposed on other employees for comparable misconduct. [HTML] [PDF]

The Board agreed with the judge that the General Counsel established a prima facie case that the union activities of Miles and Verderber were a motivating factor in the Respondent's decision to discharge them. It found however that the Respondent proved that it would have discharged the two employees even if they had not engaged in union activities for refusing to take a polygraph test as part of the Respondent's investigation into the loss of a bag containing $25,000 in cash. A customer notified the Respondent that one of the Respondent's crews had picked up the bag for delivery to the customer's bank and that the money had not been deposited in the bank. The Board noted that the Respondent's use of polygraphs to investigate the loss followed the standard industry practice and that Miles and Verderber had access to the missing money. Miles had signed for the missing $25,000 bag and he and Verderber worked on the truck that transported the missing bag immediately after Miles signed for it.

(Chairman Battista and Members Liebman and Acosta participated.)

Charges filed by the United Federation of Security Officers, Inc.; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, May 22-24, 2001. Adm. Law Judge Margaret M. Kern issued her decision Dec. 31, 2001.

* * *

Palagonia Bakery Co., Inc. (29-CA-23632, et al., 29-RC-9507; 339 NLRB No. 74) Brooklyn, NY July 10, 2003. In the absence of exceptions, the Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act and engaged in conduct that interfered with the election held in Case 29-RC-9507 by, among others, interrogating employees about their activities for Food & Commercial Workers Local 348-S, promising employees wage increases and other improved working conditions if they abandoned their support for the Union, threatening employees with plant closure if they supported or voted for the Union, and discharging employees because of their union activities. It also adopted the judge's recommendation overruling the Respondent's election objections. [HTML] [PDF]

The Board affirmed the judge's recommendation sustaining the challenges to the ballots of Uriel Londono and Patricia Palagonia and overruling the challenges to the ballots of Mario Arroyave, Leonard Pitter, Frank Sigismondi, Alexander Justi, and Gibbs Saintvil. It found no merit in the Union's exceptions to the judge's findings that Arroyave, Pitter, Sigismondi, Justi, and Saintvil are not statutory supervisors. Accordingly, the Board directed the Regional Director to open and count their ballots and to issue a revised tally of ballots and the appropriate certification. In the event the Union does not receive a majority of the valid votes counted, the Board ordered that the election be set aside and a new election ordered due to the Respondent's objectionable conduct.

(Chairman Battista and Members Liebman and Acosta participated.

Charges filed by Food & Commercial Workers Local 348-S; complaint alleged violation of Section 8(a)(1) and (3). Hearing held Feb. 28, March 2, 8, and 9, 2001. Adm. Law Judge Steven Fish issued his decision Nov. 2, 2001.

* * *

River City Elevator Co., Inc. (25-CA-27125-1, 25-RC-9901; 339 NLRB No. 82) Evansville, IN July 11, 2003. The Board, in this supplemental decision, vacated its earlier decision and order reported at 333 NLRB No. 67 (2001), reopened the underlying representation proceeding, Case 25-RC-9901, set aside the election, and remanded the case to the Regional Director for the purpose of conducting a second election. In the prior decision, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing the Union's request to bargain and to provide information following the Union's certification as exclusive representative and ordered the Respondent to recognize and bargain with the Elevator Constructors International. [HTML] [PDF]

The Respondent petitioned the Seventh Circuit for review of the Board's Order, arguing that the Board erred in overruling objections to the election that resulted in the Union's certification. The Board filed a cross-application for enforcement. On May 13, 2002, the court denied enforcement of the Board's Order, holding that the Union's preelection offer of mechanic's cards to all unit employees, whether or not they completed the requisite training, violated the dictates of NLRB v. Savair Mfg. Co., 414 U.S. (973) 270, NLRB v. River City Elevator Co., 289 F.3d at 1033. The court concluded: "In the instant case, where representation was decided by one vote and gifts of substantial value were offered by the Union as part of its campaign, we find that laboratory conditions did not exist."

On remand from the court, the Respondent argued that a second election should not be held without a new showing of interest. It contended that (1) the Union's objectionable conduct tainted the original showing of interest and has not been remedied, and (2) the original showing of interest is stale in light of the passage of time since the election and the turnover in the bargaining unit, where only two of the original seven employees remain.

After review of the record and the parties' statements of position, the Board wrote: "...we conclude that the most accurate, fair, and efficient way to resolve the question concerning representation originally raised in this case is simply to continue with the Board's practice of conducting another election without requiring a new showing of interest. This best permits the employees to choose whether they wish to organize or to refrain therefrom."

(Members Schaumber, Walsh, and Acosta participated.)

* * *

Saginaw Control and Engineering, Inc. (7-CA-43177(1), et al.; 339 NLRB No. 76) Saginaw, MI July 11, 2003. The Board affirmed the administrative law judge's findings, with a few exceptions and some different reasoning, that the Respondent engaged in misconduct that began during the Steelworkers 's organizing campaign and continued throughout the certification year, including unlawfully withdrawing recognition from the Union and other violations of Section 8(a)(1), (3) and (5) of the Act. It agreed that an antiunion petition signed by a majority of the unit employees, was tainted by the Respondent's numerous unremedied violations, that the Respondent cannot rely on the petition as a basis for withdrawing recognition, and that an affirmative bargaining order is warranted to remedy the unlawful withdrawal of recognition. [HTML] [PDF]

The judge also found the Respondent's withdrawal of recognition unlawful because the employee petition was signed during the Union's initial certification year. See Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002) (employer may not withdraw recognition based on an antiunion petition circulated and presented to the employer during the certification year). Chairman Battista and Member Schaumber did not pass on this rationale; Member Walsh agreed with the judge that the withdrawal of recognition was also unlawful under Chelsea.

The Board, in agreeing with the judge that the Respondent violated Section 8(a)(1) by issuing a letter to employees informing them that they were required to report for work regardless of a strike if they valued their employment, relied only on its finding that the letter effectively prohibited employees from striking and made a veiled threat that they would lose their jobs by doing so. It agreed, for the reasons stated by the judge, that the Respondent violated Section 8(a)(3) and (1) by giving employee Greg Kennedy a poor performance evaluation because of his union activity and issuing written discipline to employees Nick Herzberg, Wayne Tornberg, and Patrick Maziarz for talking.

Agreeing with the judge that the Respondent violated Section 8(a)(1) by asking Kennedy to remove prounion posters from his company locker, the Board noted that the Respondent discriminatorily removed union posters while allowing other, nonwork posters. Chairman Battista and Member Schaumber did not reach the issue whether, absent disparate treatment, the Respondent would have to show special circumstances for requiring removal of union posters on the locker. Member Walsh would find the violation for the additional reason that the Respondent failed to show special circumstances for requiring Kennedy to remove the union posters.

Contrary to the judge, the Board found that the Respondent, through its president and CEO, Fred May, did not violate Section 8(a)(1) by soliciting Patrick Maziarz to persuade other employees to vote against the Union in the June 8, 2000 election; and that the Respondent did not violate Section 8(a)(3) and (1) by denying overtime opportunities to Kennedy because of his union activity or Section 8(a)(5) and (1) by refusing to provide information on incidents of discipline for talking and copies of sample agreements "in the manufacturing sector" with a duration of less than 2 years. Member Walsh agreed with the judge that the Respondent violated Section 8(a)(5) and (1) by failing to provide the sample agreements.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Saginaw, Nov. 7-9, 2001 and Jan. 15-16, 2002. Adm. Law Judge Earl E. Shamwell Jr. issued his decision July 17, 2002.

* * *

West Penn Power Co. and the Potomac Edison Co. d/b/a Allegheny Power, et al., (6-CA-31003, et al.; 339 NLRB No. 77) Greensburg, PA July 11, 2003. The Board agreed with the administrative law judge's findings that the Respondent failed to adequately respond to information requests from the Union regarding outside contractors and the Itron/Honeywell subcontract in violation of Section 8(a)(5) and (1) of the Act, and that the Respondent did not unlawfully fail to provide information about foreign utilities and resource sharing employees working 10- hour days. It reversed the judge's findings that the Respondent unlawfully failed to respond timely to requests regarding meters, customers, and meter readers in Cumberland and Oakland, MD and employee Phil Cosner. The Board also disagreed with the judge's remedial order provision requiring the parties to bargain about the level of detail and time period of data to be provided and found instead that the appropriate remedy is to provide the information. [HTML] [PDF]

Member Walsh, dissenting in part, would find that the Respondent violated the Act by refusing to provide the Union with the investigative report involving Phil Cosner's altercation with another employee. He asserted that in determining whether an employer has met its burden, the first factor to be considered is whether the information sought is sensitive or confidential in nature. Detroit Edison Co. v. NLRB, 440 U.S. 301, 319-320 (1979); New Jersey Bell v. NLRB, 720 F.2d 789, 791 (3d Cir. 1983). He wrote: "The record in this case does not support finding that the investigative report contained information of a sensitive nature. Although the Respondent has asserted the confidential and sensitive nature of the data repeatedly, there is simply no evidence in the record supporting that claim."

While agreeing with his colleagues' decision in all other respects, Member Walsh found it unnecessary to pass on the issues of whether the Respondent violated Section 8(a)(5) by failing to timely provide (i) the survey on other utilities' pay rates for foreign utility work, and (ii) the Maryland meter readers information. He deemed the finding of such additional violations would be cumulative and would not affect the Order.

Chairman Battista and Member Schaumber disagreed with Member Walsh's assertion that the judge dismissed the allegation regarding Cosner solely on the grounds of non-relevance, saying "the record strongly suggests that the judge did consider the [Respondent's] confidentiality defense and accepted it." They added: "[T]he Respondent provided the investigative report to the judge. The judge reviewed it in camera. He determined that the Respondent's November 9, 2000 letter, which summarized the contents of the investigative report accommodated the Union's need for the information while preserving from disclosure the report itself."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Utility Workers Local 102; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, Jan. 30-31, 2001. Adm. Law Judge Jerry M. Hermele issued his decision May 10, 2001.

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