Report on Case Developments November to January 2005

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 05-03

July 8, 2005

TO:

All Division Heads, Regional Directors,

Officers-in-Charge, and Resident Officers

FROM:

Arthur F. Rosenfeld, Acting General Counsel

SUBJECT:

Report on Case Developments

November 2004 through January 2005

Attached is a report on case developments in the Office of the General Counsel

during the period November 2004 through January 2005.

/s/

A.F.R.

cc:

NLRBU

Released to the Public

MEMORANDUM GC 05-03

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REPORT OF THE GENERAL COUNSEL

This report covers selected cases of interest that were decided during the period

from November 2004 through January 2005. It discusses cases decided upon a

request for advice from a Regional Director or on appeal from a Regional Director's

dismissal of unfair labor practice charges. In addition, it summarizes cases in which the

General Counsel sought and obtained Board authorization to institute injunction

proceedings under Section 10(j) of the Act. This Report also discusses cases involving

some of the ethical issues that confront us in the administration of the Act.

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EMPLOYER INTERFERENCE WITH PROTECTED ACTIVITIES

UNION'S RIGHT OF ACCESS TO AN EMPLOYER'S EXTERIOR PREMISES IN

CALIFORNIA

This case presented questions regarding the effect of the D.C. Circuit's decision

in Waremart Foods d/b/a WinCo Foods, Inc. v. NLRB, 354 F.3d 870 (2004), on a

union's right of access to an employer's exterior premises in California. We concluded

that complaint should issue, absent settlement, alleging that the Employer violated §

8(a) (1) by threatening Union handbillers outside the Employer's premises because,

under current Board law applying California's Moscone Act (Cal.Civ.Proc.Code §527.3),

the Employer's property interests were insufficient to exclude the Union's peaceful

activity

exterior premises in California. We concluded

that complaint should issue, absent settlement, alleging that the Employer violated §

8(a) (1) by threatening Union handbillers outside the Employer's premises because,

under current Board law applying California's Moscone Act (Cal.Civ.Proc.Code §527.3),

the Employer's property interests were insufficient to exclude the Union's peaceful

activity. We authorized this complaint because it is the only way for the Board to

reconsider its view in light of Waremart. At the same time however, we authorized the

Region to argue to the Board that it should dismiss the complaint because the continued

validity of California's application of the Moscone Act is in question as a result of

Waremart.

The Employer operates a large chain of discount variety stores. Three of its

facilities, all of which were on property owned or exclusively controlled by the Employer,

were at issue in the case. The Union had a primary dispute with one of the Employer's

suppliers. On several occasions in early 2004, the Union handed out flyers criticizing

the quality of that supplier's products and urging consumers not to buy those products.

On each of those occasions, the Employer threatened to have the handbillers arrested

and/or summoned the police.

We concluded that a Section 8(a)(1) complaint should issue, absent settlement,

alleging that the Employer unlawfully threatened the Union handbillers with arrest at

each of the three stores where handbilling occurred. Despite its ownership and/or

exclusive control of each location and the modest, non-public nature of the premises,

the Employer could not lawfully exclude the handbillers because, under extant law, the

Board looks to the California courts' application of the Moscone Act to determine Union

access rights in California. The Board has viewed the Moscone Act as privileging all

peaceful labor conduct on private exterior premises

clusive control of each location and the modest, non-public nature of the premises,

the Employer could not lawfully exclude the handbillers because, under extant law, the

Board looks to the California courts' application of the Moscone Act to determine Union

access rights in California. The Board has viewed the Moscone Act as privileging all

peaceful labor conduct on private exterior premises.

We further concluded, however, that the Region should urge dismissal of the

complaint by the Board in light of the D.C. Circuit's decision in Waremart.

We initially concluded that none of the stores was the equivalent of a public

forum under Robins v. Pruneyard, 153 Cal.Rptr. 854 (1979), which would, under

California property law, have obligated the Employer to allow Union handbillers onto its

property. Thus, in contrast to the broad invitation to congregate and array of amenities

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available in such a forum, the Employer invited members of the public to its stores for

the sole purpose of purchasing discounted merchandise. However, there was an

arguable violation under extant Board law based on the rights of access set out in the

Moscone Act, as interpreted in Sears Roebuck & Co. v. San Diego District Council of

Carpenters, 158 Cal.Rptr. 370 (1979), cert. denied 447 U.S. 935 (1980). In Waremart,

337 NLRB 289 (2001), the Board applied the Moscone Act, which privileges all peaceful

labor conduct on private exterior premises, to hold that a stand-alone grocery store had

no right under California labor law to exclude union organizers engaged in consumer

handbilling from the parking lot and walkways adjacent to its store. The Board

specifically rejected employer contentions that the Moscone/Sears limitation on property

rights was preempted or invalid on Fourteenth Amendment equal protection and Fifth

Amendment taking grounds

at a stand-alone grocery store had

no right under California labor law to exclude union organizers engaged in consumer

handbilling from the parking lot and walkways adjacent to its store. The Board

specifically rejected employer contentions that the Moscone/Sears limitation on property

rights was preempted or invalid on Fourteenth Amendment equal protection and Fifth

Amendment taking grounds. Based upon that precedent, we authorized the Region

here to issue complaint alleging that the Employer had violated the Act by threatening to

eject Union handbillers from each of the stores’ exterior premises.

We further concluded, however, that the validity of that theory of violation had

been cast in doubt as a result of the D.C. Circuit's recent denial of enforcement in

Waremart, 354 F.3d 870 (D.C. Cir. 2004). Initially, the D.C. Circuit certified the issue of

the constitutionality of the Moscone Act to the California Supreme Court. When that

Court declined the certification, the D.C. Circuit independently construed California law

on review and concluded that California could not constitutionally accord labor activity

greater latitude for trespass than other expressive activity. Accordingly, because such

an interpretation in its view would constitute content-based regulation of speech in

violation of the First Amendment, the Waremart court concluded that California could

not constitutionally prohibit the employer from excluding union agents from the property;

accordingly the court denied enforcement of the Board's finding of a violation. Given the

clear federal constitutional policy, the D.C. Circuit concluded that if the meaning of the

Moscone Act came before the California Supreme Court again, that court either would

declare the statute unconstitutional or would construe it differently so as to avoid

unconstitutionality.

In light of the D.C. Circuit's decision in Waremart, we authorized complaint but

directed the Region to argue for Board dismissal of the complaint in this case

ircuit concluded that if the meaning of the

Moscone Act came before the California Supreme Court again, that court either would

declare the statute unconstitutional or would construe it differently so as to avoid

unconstitutionality.

In light of the D.C. Circuit's decision in Waremart, we authorized complaint but

directed the Region to argue for Board dismissal of the complaint in this case. Since

state law is determinative of employer property interests, it would not be appropriate to

find a violation based on denial of access where the history of the litigation and the

decision in Waremart indicates that state law regarding the property owner's right of

exclusion is unclear. In the absence of a clear, content-neutral state policy limiting the

rights of private property owners to exclude handbillers, the Board should not find such

conduct violative of the Act.

EMPLOYER ASSISTANCE

UNLAWFUL RECOGNITION BASED ON A PRIVATE ELECTION WHERE VOTES

CAST FOR UNION WERE LESS THAN MAJORITY OF EMPLOYEES IN BARGAINING

UNIT

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A series of cases involved whether the Employer unlawfully recognized the

Union, and the Union unlawfully accepted recognition, based on a private election

where the Union obtained a majority of votes cast, but the votes in favor of the union did

not amount to a majority of employees in the bargaining unit. We decided that the grant

and acceptance of recognition in this circumstance was unlawful.

The parties resolved a series of labor disputes throughout the Employer’s system

of facilities by entering into a comprehensive settlement agreement that included,

among other things, an agreement setting forth procedures for the Union to prove its

majority support at an Employer facility. The agreement regulates the parties’ conduct

during Union organizing campaigns at Employer facilities. In part, it establishes a

secret-ballot election process for determining if the Union has obtained majority status

at a particular facility

greement that included,

among other things, an agreement setting forth procedures for the Union to prove its

majority support at an Employer facility. The agreement regulates the parties’ conduct

during Union organizing campaigns at Employer facilities. In part, it establishes a

secret-ballot election process for determining if the Union has obtained majority status

at a particular facility. The agreement requires that the Employer recognize the Union if

"a majority of employees casting valid ballots vote to be represented" by the Union.

The Union invoked the agreement and held a private election during an

organizing campaign at one of the Employer’s facilities. Out of 242 eligible voters, 182

votes were cast. There were 93 votes for the Union, 85 against the Union, and 4 non-

determinative challenged ballots. The election officer certified the results. No

objections were filed to the election. Based on the certification, the Employer

recognized the Union.

We concluded that although the Union obtained a majority of votes cast in the

private election, the Employer could not lawfully recognize the Union, nor could the

Union accept that recognition, because the votes cast for the Union did not amount to a

majority of the bargaining unit.

An exclusive bargaining relationship between an employer and a union can be

established either through the Board’s election and certification procedures under

Section 9(a) of the Act, or through voluntary recognition based on a showing of majority

support. While the Board has long promoted voluntary recognition and bargaining (see,

e.g., San Clemente Publishing Corp., 167 NLRB 6, 8 (1967), enfd. 408 F.2d 367, 368

(9th Cir. 1969)), it has similarly recognized that Board-conducted elections -- under

laboratory conditions and under the supervision of a Board agent -- provide the most

reliable basis for determining whether employees desire representation by a particular

union. Dana Corp., 341 NLRB No. 150, slip op

ng (see,

e.g., San Clemente Publishing Corp., 167 NLRB 6, 8 (1967), enfd. 408 F.2d 367, 368

(9th Cir. 1969)), it has similarly recognized that Board-conducted elections -- under

laboratory conditions and under the supervision of a Board agent -- provide the most

reliable basis for determining whether employees desire representation by a particular

union. Dana Corp., 341 NLRB No. 150, slip op. at 1 (2004)(citing Linden Lumber v.

NLRB, 419 U.S. 301 (1974)). See also NLRB v. Gissel Packing Co., 395 U.S. 575, 602

(1969).

Because voluntary recognition provides no guarantee of laboratory conditions or

impartiality, the Board and the courts have long held employers and unions to a strict

showing of actual majority support when recognition is granted privately, rather than

based on a Board-conducted election. Thus, voluntary recognition of a minority union is

simply not allowed under the Act, despite a good-faith belief or seemingly reliable

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assertion of a union’s majority status. See Int’l Ladies Garment Workers Union

(Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 738-39 (1961); Intalco

Aluminum Corp., 169 NLRB 1034, 1034 (1968), enfd. in rel. part 417 F.2d 36 (9th Cir.

1969) (reliance on state agency certification); Sprain Brook Manor, 219 NLRB 809, 809-

811 (1975), enfd. 532 F.2d 877 (2d Cir. 1976) (reliance on arbitrator’s decision); Autodie

Int’l, Inc., 321 NLRB 688, 691 (1996)(reliance on informal private election).

Here, it is undisputed that the Union’s recognition was based on private election

results that do not establish majority support in the unit; the Union received only 93

votes in a 242-employee unit. We acknowledge that the private election may have

followed Board election procedures, including the Board’s "political majority rule”

(requiring a majority of ballots cast). However, this Board rule is premised on elements

that were lacking here, such as statutory safeguards, laboratory conditions, and Board-

agent supervision

he unit; the Union received only 93

votes in a 242-employee unit. We acknowledge that the private election may have

followed Board election procedures, including the Board’s "political majority rule”

(requiring a majority of ballots cast). However, this Board rule is premised on elements

that were lacking here, such as statutory safeguards, laboratory conditions, and Board-

agent supervision. The "political majority rule" of statutory elections has not been

extended to informal, private representation elections. Autodie Int’l, Inc., 321 NLRB at

691; Komatz Construction, Inc. v. NLRB, 458 F.2d 317, 322-23 (8th Cir. 1972). Simply

put, it was not a Board-supervised election conducted under Section 9 and cannot be

treated as such.

UNLAWFUL PRE-RECOGNITIONAL BARGAINING OVER MANDATORY TERMS AND

CONDITIONS OF EMPLOYMENT

Another case raised the issue whether an after-acquired facilities clause

contained in the parties' master contract privileged the Employer to bargain with the

Union over terms and conditions of employment covering a newly acquired facility

before the Union had demonstrated majority employee support at that facility. We

concluded that, without regard to the master contract's after-acquired facilities clause,

the Employer violated Section 8(a)(2) and the Union violated Section 8(b)(1)(A) by

engaging in unlawful pre-recognitional bargaining over mandatory terms and conditions

of employment, under the principles set forth in Majestic Weaving Co., 147 NLRB 859

ated majority employee support at that facility. We

concluded that, without regard to the master contract's after-acquired facilities clause,

the Employer violated Section 8(a)(2) and the Union violated Section 8(b)(1)(A) by

engaging in unlawful pre-recognitional bargaining over mandatory terms and conditions

of employment, under the principles set forth in Majestic Weaving Co., 147 NLRB 859

(1964), enf. denied on other grounds 355 F.2d 854 (2d Cir. 1966).

The parties had been signatory to a master contract that, among other things,

included an after-acquired facilities clause. Under that provision, the parties agreed that

“newly established or acquired operations shall be covered by this Agreement at such

time as a majority of employees in a bargaining unit comparable to the classifications

set forth herein designate, as evidenced through a card check, the Union as their

bargaining representative.”

The Employer subsequently won a contract to start work at a new location. Prior

to commencing operations, the Employer held three mandatory unpaid employee

meetings with Union officials. A Union representative told employees that the Union

had already negotiated wage rates and paid holidays, and he indicated that free health

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benefits that he stated were "in the bag." The Union representative further stated that

the parties were "still negotiating" over other topics, such as vacation and sick leave.

The Union subsequently solicited authorization cards from employees who attended the

meetings. The Employer began normal operations approximately three weeks later.

Soon afterward, the parties entered into a supplemental agreement concerning

economic terms applicable to employees at the new facility. Both the Employer and the

Union contend that pursuant to the master contract's after-acquired facilities clause, the

Employer lawfully recognized the Union only after it had obtained a card majority from

the workforce at the new facility

three weeks later.

Soon afterward, the parties entered into a supplemental agreement concerning

economic terms applicable to employees at the new facility. Both the Employer and the

Union contend that pursuant to the master contract's after-acquired facilities clause, the

Employer lawfully recognized the Union only after it had obtained a card majority from

the workforce at the new facility.

We decided to issue a Section 8(a)(2) and 8(b)(1)(A) complaint because the

parties had engaged in bargaining and had agreed on specific terms and conditions of

employment covering the Employer's new workforce before the Union had ever

obtained majority status in the new unit.

Section 9(a) guarantees employees freedom of choice in selecting a bargaining

representative. See, e.g., International Ladies’ Garment Workers’ Union (Bernhard-

Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 737 (1961). At the same time, Section 7

assures employees the right to bargain collectively through representatives of their own

choosing or to refrain from such activity. Ibid. Thus, an employer that recognizes and

negotiates a collective-bargaining agreement with a union that has yet to achieve

majority status among its employees unlawfully supports that union in violation of

Section 8(a)(2), and the union violates Section 8(b)(1)(A) by accepting that recognition.

See Bernhard-Altmann, 366 U.S. at 737-738; The Crossett Co., 140 NLRB 667, 669

such activity. Ibid. Thus, an employer that recognizes and

negotiates a collective-bargaining agreement with a union that has yet to achieve

majority status among its employees unlawfully supports that union in violation of

Section 8(a)(2), and the union violates Section 8(b)(1)(A) by accepting that recognition.

See Bernhard-Altmann, 366 U.S. at 737-738; The Crossett Co., 140 NLRB 667, 669

(1963).

In Majestic Weaving, the Board held that the employer violated the Act by

negotiating an agreement with a union before the union had become the majority

representative, even though the employer had conditioned executing the contract upon

the union’s subsequent demonstration of majority support. The Board found it

immaterial that the union had obtained majority support, since the conditional grant of

recognition took place before that support had been proven. 147 NLRB at 860.

In the present case, the evidence established that the parties negotiated and

even announced to employees the terms and conditions of employment that would

cover the new facility, prior to the Union’s having shown that it enjoyed majority

employee support. Since the Union did not demonstrably represent a majority of unit

employees when the parties bargained for and agreed to substantive terms and

conditions of employment, their conduct violated Sections 8(a)(2) and 8(b)(1)(A) of the

Act. The Board’s rationale in Houston Div. of the Kroger Co., 219 NLRB 388 (1975) is

inapplicable here, `because the parties prematurely negotiated over terms and

conditions of employment at the new facility, and did not simply apply their multi-store

existing single unit contract (as in Kroger) to those employees after the Union attained

valid majority status there. As a secondary argument, we further concluded that the

Houston Div. of the Kroger Co., 219 NLRB 388 (1975) is

inapplicable here, `because the parties prematurely negotiated over terms and

conditions of employment at the new facility, and did not simply apply their multi-store

existing single unit contract (as in Kroger) to those employees after the Union attained

valid majority status there. As a secondary argument, we further concluded that the

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Employer prematurely recognized the Union at a time when it was not yet engaged in

normal business operations. See Grocery Haulers, Inc., 315 NLRB 1312 (1995).

EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH

EMPLOYER REQUIREMENT THAT EMPLOYEES SIGN INDIVIDUAL ARBITRATION

AGREEMENTS

Two Section 8(a)(5) cases raised the issue of whether an employer could

unilaterally require employees to sign individual arbitration agreements that waive their

right to bring employment-related discrimination and other claims in a judicial forum.

We concluded in one case that, while the waiver of an employee’s right to bring

statutory claims to a judicial forum is not itself a mandatory subject of bargaining, on the

facts presented, that non-mandatory subject became so intertwined with mandatory

subjects—namely, dispute resolution, discrimination, and other conditions of

employment--that it became a mandatory subject of bargaining. In the other case, we

concluded that a more narrowly-drawn arbitration agreement was not a mandatory

subject of bargaining.

While the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 51

ory subject became so intertwined with mandatory

subjects—namely, dispute resolution, discrimination, and other conditions of

employment--that it became a mandatory subject of bargaining. In the other case, we

concluded that a more narrowly-drawn arbitration agreement was not a mandatory

subject of bargaining.

While the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36, 51

(1974), held that a collective bargaining representative could not waive an employee's

right of access to court, it subsequently held that the statutory right to resolve disputes

in a judicial forum could be waived by the individual. Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20 (1991). The Court also held that an employer could include a

mandatory arbitration provision as part of an employment contract, thus conditioning

employment on the employee’s acceptance of the arbitration agreement. Circuit City

Stores, Inc. v. Adams, 532 U.S. 105 (2001). Although the Court left unresolved the

issue of whether an employer must bargain with a union if the agreement is required of

employees represented by the union, the D.C. Circuit addressed the issue in Airline

Pilots Ass'n Int'l [ALPA] v. Northwest Airlines, Inc., 199 F.3d 477 (1999), judgment

vacated and reinstated en banc, 211 F.3d 1312 (D.C. Cir. 2000)(per curiam), cert.

denied, 531 U.S. 1011 (2000). Under the Railway Labor Act, the D.C. Circuit held that

parties should be obligated to bargain only over proposals on which both sides have

authority to offer and concede. Since a union has no authority to offer or concede an

individual's statutory right of access to the courts, the court concluded the right of an

employee to bring a statutory lawsuit cannot be a mandatory subject of bargaining.

The Board has considered whether individual contracts, in the form of releases

used to waive employees' rights to sue, are mandatory subjects of bargaining

concede. Since a union has no authority to offer or concede an

individual's statutory right of access to the courts, the court concluded the right of an

employee to bring a statutory lawsuit cannot be a mandatory subject of bargaining.

The Board has considered whether individual contracts, in the form of releases

used to waive employees' rights to sue, are mandatory subjects of bargaining. In

Borden, Inc., 279 NLRB 396 (1986), the Board held that whether such a release was a

mandatory subject of bargaining depended on whether the release, a permissive

subject of bargaining in isolation, exhibited interdependence with mandatory subjects of

bargaining. In that case, while bargaining over severance pay during shut down

negotiations, the employer insisted on a general release of all future claims by

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employees. The Board concluded that the employer’s demand for a general release

was not a mandatory subject because it was not sufficiently interdependent with the

subject of severance pay, given that the release was not part of the employer’s initial

severance pay proposal and that it was not added as a quid pro quo for any union

concession. In a more recent case, Regal Cinemas, Inc., 334 NLRB 304 (2001), enfd.

317 F.3d 300 (D.C. Cir. 2003), the Board found that a release linked to claims arising

out of permanent layoffs was proposed as a quid pro quo for severance pay, and was

therefore so intertwined with the mandatory subject of severance pay that the release

became a mandatory subject.

While we agreed that the fundamental holding in ALPA is correct, i.e., that the

waiver of an individual's right to sue on statutory claims of discrimination is not in and of

itself a mandatory subject of bargaining, we concluded that the union in ALPA should

have had a role in what constituted the structure and framework of the arbitration

agreement because it was part of or could have affected mandatory subjects of

bargaining

l holding in ALPA is correct, i.e., that the

waiver of an individual's right to sue on statutory claims of discrimination is not in and of

itself a mandatory subject of bargaining, we concluded that the union in ALPA should

have had a role in what constituted the structure and framework of the arbitration

agreement because it was part of or could have affected mandatory subjects of

bargaining. Applying that view, we noted that in the first case here, the Employer

implemented a “narrow” grievance-arbitration clause and a “broad” individual arbitration

agreement, which would arguably address non-statutory employee claims over non-

contractual terms and conditions of employment (including wrongful termination, failure

under federal or state law to provide wages or benefits, and breach of promise). Thus,

we concluded that the Union should have an opportunity to bargain with the employer

over the scope of the individual arbitration agreements since they served as a means of

resolving employee disputes over mandatory subjects of terms and conditions of

employment, albeit terms left unaddressed by the contract. In addition, as in ALPA, the

individual arbitration agreements would also affect the Section 7 rights of the employees

to concertedly utilize that arbitration procedure and have their common claims before a

single arbitrator rather than separate arbitration for each claim. Finally, the Union would

have an interest regarding such "procedural" issues as the filing requirements for a

grievance under the arbitration procedure, the timing for giving notice, and the amount

of fees required by the employees, since they would affect the unit.

In contrast, in the second case, we concluded that the possibility of the arbitration

agreement intertwining with the mandatory subjects of dispute resolution or elimination

of discrimination was eliminated or minimal

uirements for a

grievance under the arbitration procedure, the timing for giving notice, and the amount

of fees required by the employees, since they would affect the unit.

In contrast, in the second case, we concluded that the possibility of the arbitration

agreement intertwining with the mandatory subjects of dispute resolution or elimination

of discrimination was eliminated or minimal. This is because the scope of the individual

arbitration agreement was sufficiently narrow, and the scope of the grievance/arbitration

provision in the collective bargaining agreement sufficiently broad. Thus, the

contractual grievance provision not only covered all the terms of the collective-

bargaining agreement, but specifically stated that the provision also covered any other

employment matter claimed by an employee or the union, therefore covering all issues

of discrimination and other matters involving employees’ terms and conditions of

employment. Furthermore, the arbitration agreement addressed only statutory

discrimination claims that were not pursued exclusively through the contractual

grievance arbitration procedure, and claims for personal injury or property damage. The

arbitration agreement specifically stated that it was not intended to interfere with or alter

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any relationship between the employee and the union. Therefore, there was not a

sufficient nexus or interdependence between the non-mandatory waiving of the

employees’ ability to sue when using the arbitration agreement and mandatory subjects

of bargaining.

EMPLOYER REFUSAL TO PROVIDE UNION WITH INFORMATION REGARDING

STRIKE REPLACEMENTS BECAUSE OF STRIKERS’ PICKET LINE MISCONDUCT

EXAMINED UNDER "TOTALITY OF THE CIRCUMSTANCES" TEST

In another case, the Employer refused to provide the Union with information

regarding strike replacements, because of the strikers’ picket line misconduct

itration agreement and mandatory subjects

of bargaining.

EMPLOYER REFUSAL TO PROVIDE UNION WITH INFORMATION REGARDING

STRIKE REPLACEMENTS BECAUSE OF STRIKERS’ PICKET LINE MISCONDUCT

EXAMINED UNDER "TOTALITY OF THE CIRCUMSTANCES" TEST

In another case, the Employer refused to provide the Union with information

regarding strike replacements, because of the strikers’ picket line misconduct. We

decided to issue complaint and argue that the Employer violated the Act under both

current Board law, as well as under the law applied by some circuit courts taking into

account the "totality of the circumstances" in the case. We also decided to argue that

the Board should adopt the courts' "totality of the circumstances" test.

In 2003, the parties began negotiations for a collective-bargaining agreement.

On October 2, the Union began an economic strike. Shortly thereafter, the Employer

started hiring strike replacements.

Tempers flared at the picket lines with the arrival of the replacements. Strikers

and replacement workers frequently hurled insults and obscenities at each other. Most

of the insults were variations of the “scab”-calling common during strikes. There also

were vulgar references to sex acts and some racial and ethnic slurs and a handful of

threatening comments were also made. However, during the three month strike, there

were many days when the above conduct did not occur. There also were no incidents

of violence, such as fights or assaults, property damage, or bodily injury. The Employer

did not discipline or discharge any strikers for their picket line behavior. The Employer

also did not file Board charges nor contend that Union officials participated in, or

condoned, the verbal confrontations.

Shortly after the Employer began using strike replacements, the Union requested

a list of the replacement employees and their terms and conditions of employment

. The Employer

did not discipline or discharge any strikers for their picket line behavior. The Employer

also did not file Board charges nor contend that Union officials participated in, or

condoned, the verbal confrontations.

Shortly after the Employer began using strike replacements, the Union requested

a list of the replacement employees and their terms and conditions of employment. The

Employer refused to provide the names, contending that the picketers’ behavior raised

concerns over the harassment of replacements. The Union assured the Employer that

it was taking measures to ensure peaceful, lawful conduct.

In mid-December 2003, the Employer informed the Union that the replacement

employees, who had originally been hired as temporary replacements, had been

converted to permanent replacements. In response, the Union requested information

concerning the permanent replacements, such as contact information and any

employment documents. The Employer responded that it would need about two weeks

to compile this information.

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On December 29, the Union ended the strike and made an unconditional offer to

return to work on behalf of the strikers. The Employer refused to allow the strikers to

return on the grounds that they had been permanently replaced. On January 7, 2004,

the Employer declared a lockout of strikers and strike crossovers, but not of permanent

replacements.

The Employer never provided the Union with the requested information about the

permanent replacements. In late January, 2004, the Union repeated its request stating

that it needed the information to fulfill its representational role, including offering

assistance to terminated replacements over their terminations. The Union also

explained that it needed the information in order to verify the replacements’ status as

permanent or temporary replacements

ormation about the

permanent replacements. In late January, 2004, the Union repeated its request stating

that it needed the information to fulfill its representational role, including offering

assistance to terminated replacements over their terminations. The Union also

explained that it needed the information in order to verify the replacements’ status as

permanent or temporary replacements. The Employer again refused to provide any

identifying information, relying on the animosity exhibited to replacements during the

strike.

We decided that the Employer unlawfully refused to provide the requested

information under current Board law, as well as under the law of some circuit courts

involving the "totality of the circumstances." Finally, we decided to argue for the

adoption of the "totality of the circumstances" analysis.

Information about bargaining unit employees, including names and addresses, is

presumptively relevant to a union’s representational duties. The Board has repeatedly

found that similar information regarding strike replacements is also presumptively

relevant. Thus, under current Board law, information about replacements must be

provided unless the employer can establish a "clear and present danger" that the union

will misuse the information. An employer can establish that danger by showing that

replacements were subject to serious incidents of violence, such as property damage

and bodily injury, and the union has been implicated in the misconduct. See, e.g.,

Brown & Sharpe Mfg. Co., 299 NLRB 586, 590-91 (1990).

Some circuit courts have refused to follow the Board's approach to striker

replacement information. See, e.g., Metta Electric, 338 NLRB No. 161, slip op. at 6-7

wing that

replacements were subject to serious incidents of violence, such as property damage

and bodily injury, and the union has been implicated in the misconduct. See, e.g.,

Brown & Sharpe Mfg. Co., 299 NLRB 586, 590-91 (1990).

Some circuit courts have refused to follow the Board's approach to striker

replacement information. See, e.g., Metta Electric, 338 NLRB No. 161, slip op. at 6-7

(2003), enf. granted in part and denied in part, 360 F.3d 904 (8th Cir. 2004); Chicago

Tribune Co. v. NLRB (Chicago Tribune II), 79 F.3d 604, 607(7th Cir. 1996). These

courts have instead applied a balancing test based on the "totality of the

circumstances." Under this balancing approach, the courts consider the union’s actual

need for the information, the employer’s claim of harassment, confidentiality or privacy

concerns, the existence of alternative means for the union to achieve its goals, and the

employer’s offer of alternatives to providing the contested information. The Board’s

presumption of relevance does not fit within this balancing framework.

In the instant matter, the names, contact information, and employment

information of replacements still employed was presumptively relevant under Board law.

This information was relevant to the Union’s representation of striking employees and

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replacements who become part of the unit. It would enable the Union both to judge for

itself the permanent and temporary status of each replacement and to engage in

informed negotiations over strikers’ reinstatement rights and an end to the bargaining

dispute. Moreover, the Employer had not established a "clear and present danger" of

Union misuse. The Union’s strike was, as a whole, relatively peaceful. Although some

threatening comments were made, the bulk of the incidents involved no more than the

normal picket line name calling and verbal taunting. Over the course of a three-month

strike there was no violence

n end to the bargaining

dispute. Moreover, the Employer had not established a "clear and present danger" of

Union misuse. The Union’s strike was, as a whole, relatively peaceful. Although some

threatening comments were made, the bulk of the incidents involved no more than the

normal picket line name calling and verbal taunting. Over the course of a three-month

strike there was no violence. We also noted that the Employer did not discipline or

discharge any strikers for picket line misconduct.

We also decided that a violation exists under the "totality of the circumstances"

analysis. The Employer’s basis for refusing to provide the information was not sufficient

to outweigh the Union’s demonstrable need. Although there was confrontational

behavior on the picket line, the three-month strike was violence-free. Some of the

strikers arguably may have engaged in unprotected verbal harassment by racial and

ethnic slurs and some obscene sexual comments. However, the vast majority of the

verbal confrontations did not rise to this level, and some of this behavior was reciprocal.

We further noted that the Employer did not discipline or discharge any of the strikers for

their picket-line conduct, nor file any Board charge. There was also no evidence that

replacements requested confidential treatment of their contact information. More

importantly, there was no evidence that Union officials, who would have received the

replacements’ information, participated in or condoned the confrontational behavior. In

these circumstances, we decided that the privacy interests of the replacements did not

outweigh the Union’s real need for the information.

We also concluded that the courts' balancing analysis based on the totality of the

circumstances is a more appropriate way of evaluating information requests about strike

replacements

rmation, participated in or condoned the confrontational behavior. In

these circumstances, we decided that the privacy interests of the replacements did not

outweigh the Union’s real need for the information.

We also concluded that the courts' balancing analysis based on the totality of the

circumstances is a more appropriate way of evaluating information requests about strike

replacements. Even where the strike conduct does not establish a "danger" to

replacements, the animosity commonly displayed during labor disputes may raise

legitimate concerns about disclosure of replacements’ information. Moreover, the

union’s need for the information may vary depending on various factors, including

whether the replacements are permanent or temporary, whether there is a dispute

about their status, whether the strike has ended or is ongoing, whether the

replacements have become, or are likely to become, part of the bargaining unit. Also,

where there is a sufficient basis for the employer’s concern of harassment, alternative

modes of disclosure may adequately provide enough information for the union to fulfill

its representational role.

The Board’s current test does not take into consideration these relevant factors.

By relying on a presumption of relevance, the Board does not require the union to

establish a need for the information. Nor does it take into account concerns over

animosity or confrontations that fall short of showing a clear danger of misuse. For

these reasons, we decided to argue that the Board should reconsider its position and

adopt the courts’ "totality of the circumstances" test.

.

By relying on a presumption of relevance, the Board does not require the union to

establish a need for the information. Nor does it take into account concerns over

animosity or confrontations that fall short of showing a clear danger of misuse. For

these reasons, we decided to argue that the Board should reconsider its position and

adopt the courts’ "totality of the circumstances" test.

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EMPLOYER REFUSAL TO PROVIDE UNION WITH BARGAINING NOTES

One case involved an employer's refusal to provide a union with bargaining notes

which the union asserted were relevant to a pending arbitration. We decided that the

Employer lawfully refused to provide its bargaining notes because they were of dubious

relevance to the Union's pending arbitration, the Union's request for the bargaining

notes appeared to be merely a mechanism for unprivileged prearbitral discovery, and its

request raised serious questions of confidentiality for parties involved in a collective-

bargaining relationship.

The parties had a number of disputes concerning job classifications listed in an

appendix to their bargaining agreement, which provided that employees "may be placed

on any job in any work group within that classification without regard to seniority." The

Employer asserted that by this language, it had an unrestricted right to reassign

employees covered by the appendix. The Union asserted that when the parties had

agreed to this language, the Employer's negotiator had assured the Union that

employees in the appendix would only be moved for reasons of absenteeism, vacations,

and seasonal manning changes. The Union filed a grievance alleging that the

Employer’s reassignment of appendix employees at any time for any reason violated

this understanding reached during negotiations for the bargaining agreement. The

Union then requested copies of the Employer’s bargaining notes pertaining to the

bargaining agreement negotiations. The Employer refused to provide any of its

bargaining notes

hanges. The Union filed a grievance alleging that the

Employer’s reassignment of appendix employees at any time for any reason violated

this understanding reached during negotiations for the bargaining agreement. The

Union then requested copies of the Employer’s bargaining notes pertaining to the

bargaining agreement negotiations. The Employer refused to provide any of its

bargaining notes. The Employer argued that the notes were not relevant and also were

confidential because they contain the Employer's bargaining strategy.

We decided to dismiss the charge because the bargaining notes were of dubious

relevance, and the Union's request for them otherwise raised issues of prearbitral

discovery and confidentiality. An employer must provide union-requested information

that may prove relevant to contract negotiations, contract administration, whether to file

a grievance, whether to proceed to arbitration, and what position to take once a

grievance has been filed. See Jamaica Hospital, 297 NLRB 1001, 1002 (1990). Once

an arbitration has been initiated, however, a party may not use this duty to supply

information as a mechanism for unprivileged arbitral discovery. See, e.g., California

Nurses Assn., 326 NLRB 1362 (1998). Finally, the Supreme Court has held that a

union's interest in relevant information may not predominate when an employer asserts

a legitimate and substantial interest in maintaining confidentiality. Detroit Edison v.

NLRB, 440 U.S. 301 (1979).

The Union failed to demonstrate that the Employer’s bargaining notes met the

statutory standard of relevance. When the Union requested this information, it not only

had already decided to pursue its grievance to arbitration, it had already decided what

position to take, i.e., to rely on the existence of an alleged oral understanding. Since

y. Detroit Edison v.

NLRB, 440 U.S. 301 (1979).

The Union failed to demonstrate that the Employer’s bargaining notes met the

statutory standard of relevance. When the Union requested this information, it not only

had already decided to pursue its grievance to arbitration, it had already decided what

position to take, i.e., to rely on the existence of an alleged oral understanding. Since

- 14 -

the notes were of dubious relevance to the Union's grievance, the Union’s request for

them appeared to be directed at pre-arbitral discovery, and not within the scope of the

statutory duty to furnish information.

The Employer reasonably argued that its bargaining notes were confidential

because they contained the Employer's bargaining strategy. The interests of collective-

bargaining are furthered by the parties’ confidence that their good-faith bargaining

strategies and subjective reactions to negotiations can be memorialized without fear of

exposure. See Berbiglia, Inc., 233 NLRB 1476, 1495 (1977)(Board revoked subpoena

seeking union records of membership meetings which contained material regarding

pending negotiations). The Union's request for the Employer's bargaining notes

therefore raised serious questions of confidentiality that may well interfere with the

collective bargaining process.

In sum, where the relevance of the bargaining notes had not been clearly

demonstrated, and the Union's request for them appeared instead to be directed at pre-

arbitral discovery and also raised serious confidentiality concerns, we decided to

dismiss the charge.

UNION REFUSAL TO BARGAIN IN GOOD FAITH

UNION REFUSAL TO SUBMIT DRAFT AGREEMENT FOR RATIFICATION

In a case decided during this report period, we found that the Union violated

Section 8(b)(3) of the Act when it refused to submit a draft agreement to its membership

for a ratification vote.

The Union represented employees at a chain of grocery stores

s, we decided to

dismiss the charge.

UNION REFUSAL TO BARGAIN IN GOOD FAITH

UNION REFUSAL TO SUBMIT DRAFT AGREEMENT FOR RATIFICATION

In a case decided during this report period, we found that the Union violated

Section 8(b)(3) of the Act when it refused to submit a draft agreement to its membership

for a ratification vote.

The Union represented employees at a chain of grocery stores. The Employer

and the Union were unable to agree on a successor contract primarily because of the

Employer’s refusal to alter its proposal to withdraw from the Union’s Health and Welfare

Fund and to substitute its own health and pension fund. Even though they opposed the

Employer’s proposal in this regard, the Union’s negotiators agreed to present the

Employer’s final offer to the Union membership for a ratification vote. Pursuant to the

parties’ past practice, the Union prepared a final draft agreement incorporating the

parties’ mutual understanding and submitted it to the Employer for review. The Union

acknowledged that if there was ratification, it would execute a memorandum of

understanding incorporating the draft agreement.

Hours before the scheduled vote, the Employer’s attorney telephoned the

Union’s chief negotiator to discuss several modifications to the draft agreement. There

was a credibility conflict between the parties as to the scope of the modifications and

what, if any, impact they had on the substance of the draft agreement. The Employer

claimed that they were refinements or clarifications of prior understandings and were

related to non-substantive matters. The Union, however, claimed that the modifications

ral modifications to the draft agreement. There

was a credibility conflict between the parties as to the scope of the modifications and

what, if any, impact they had on the substance of the draft agreement. The Employer

claimed that they were refinements or clarifications of prior understandings and were

related to non-substantive matters. The Union, however, claimed that the modifications

- 15 -

were substantive and related to topics that were never discussed by the parties. The

Union took the position at this point that it needed further time to consider the changes

and to confer with legal counsel. No further discussions were held and the Union

cancelled the ratification vote.

After the vote was cancelled, the parties were unable to reach agreement on a

new contract. The Union began picketing the Employer’s stores and on the same day a

decertification petition was filed. The Employer subsequently withdrew recognition from

the Union and also made unilateral changes in health benefits and other terms of

employment. This conduct became the subject of a related Section 8(a)(5) and (1)

complaint.

Based on the above, we found that the weight of the evidence supported the

Employer’s position that the telephonic discussion between the Employer’s attorney and

the Union’s negotiator on the day of the scheduled ratification vote did not alter the

mutual understanding reached between the parties. The testimony of these individuals

indicated that a “meeting of the minds” existed concerning the terms of a successor

agreement that the Union would execute upon expected ratification by its membership.

The Union’s abrupt cancellation of the ratification votes was found to be a tactic

calculated to avoid its obligation to execute a successor agreement that it opposed

ed between the parties. The testimony of these individuals

indicated that a “meeting of the minds” existed concerning the terms of a successor

agreement that the Union would execute upon expected ratification by its membership.

The Union’s abrupt cancellation of the ratification votes was found to be a tactic

calculated to avoid its obligation to execute a successor agreement that it opposed.

The Employer’s desire to correct certain drafting errors and to clarify terms of the

agreed upon draft did not relieve the Union of its obligation to submit the draft

agreement to its membership for ratification, and upon ratification, to execute the

agreement.

- 16 -

UNION’S LAWFUL REFUSAL OF EMPLOYER’S REQUEST TO FURNISH RESULTS

OF EMPLOYEE SURVEY CONCERNING SENTIMENTS ABOUT UPCOMING

NEGOTIATIONS

In this case, we decided that the Union acted lawfully when it refused to provide

the results of employee surveys to the Employer because the release of the surveys

would interfere with the Union’s exclusive representation of its employees. Our decision

supports the collective bargaining process by protecting a union’s right to conduct

attitude surveys of those it represents, without fear that the surveyed information would

be disclosed to an employer.

During negotiations for a successor agreement, the Union proposed to change

seniority from departmental to divisional seniority. The Union asserted that its proposal

was supported by union members, as indicated by their responses to a survey

administered by the Union. The Union also cited the results of the survey to support its

proposals on two other issues. The Employer requested copies of the employee

surveys, arguing that the information was relevant because the Union had relied on the

surveys in making its bargaining proposals. The Union refused to provide the

information

mbers, as indicated by their responses to a survey

administered by the Union. The Union also cited the results of the survey to support its

proposals on two other issues. The Employer requested copies of the employee

surveys, arguing that the information was relevant because the Union had relied on the

surveys in making its bargaining proposals. The Union refused to provide the

information.

Since the Union relied on the employee surveys in proposing several bargaining

positions, consideration was given to whether the Union was obligated to provide the

Employer with those parts of the surveys that were relevant to its bargaining proposals.

We determined that the type of information the Union collected in the survey concerned

employee sentiment and not objective facts. Thus, we decided that disclosure of the

information to the Employer would interfere with the Union’s exclusive representation of

employees.

Parties to a collective bargaining agreement generally have a statutory obligation

to provide, upon request, information that is relevant to contract negotiations or the

administration of a collective bargaining agreement. NLRB v. Acme Industrial Co., 385

U.S. 432, 435-36 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-53 (1956); Howard

University, 290 NLRB 1006, 1007 (1988). A party need not rely solely on the other

party’s assertions as to the reason for its bargaining proposals and the other party is

obligated, if asked, to provide information it relies upon in advancing its bargaining

proposals. See Circuit-Wise, Inc., 306 NLRB 766 (1992), enfd., 992 F.2d 319 (2nd Cir.

1993). “Good-faith bargaining necessarily requires that claims made by either bargainer

should be honest claims . . . . If such an argument is important enough to present in the

give and take of bargaining, it is important enough to require some sort of proof of its

accuracy.” Truitt Mfg., 351 U.S. at 153

proposals. See Circuit-Wise, Inc., 306 NLRB 766 (1992), enfd., 992 F.2d 319 (2nd Cir.

1993). “Good-faith bargaining necessarily requires that claims made by either bargainer

should be honest claims . . . . If such an argument is important enough to present in the

give and take of bargaining, it is important enough to require some sort of proof of its

accuracy.” Truitt Mfg., 351 U.S. at 153.

However, information that pertains to employee sentiment on bargaining issues

need not be disclosed because it may undermine a party’s bargaining position. See

- 17 -

Obie Pacific, Inc., 196 NLRB 458, 458-459 (1972); Morgan Services, 336 NLRB 290

(2001). In Obie, the Board held that an employer violated the Act by polling its

employees to determine employee sentiment on the subjects to be discussed in

collective bargaining. See Id. at 458-459. The purpose of the employer’s poll was to

obtain employee opinions for later presentation to the union as a basis for obtaining a

revision in the parties’ contract clause. The Board found that the employer’s poll

impermissibly infringed on the union’s status as the employees’ exclusive bargaining

representative. Similarly, here, the employee survey results contain employee

sentiments that may indicate the Union’s bargaining strategy in negotiations, and

requiring disclosure of those results to the Employer would infringe upon the Union’s

status as bargaining representative and ultimately hinder collective bargaining. The

interests of collective bargaining are furthered by the parties’ confidence that their good-

faith bargaining strategies can be formulated without fear of exposure. Therefore, it was

concluded the Union had no obligation to furnish the Employer with the results of the

employee surveys

fringe upon the Union’s

status as bargaining representative and ultimately hinder collective bargaining. The

interests of collective bargaining are furthered by the parties’ confidence that their good-

faith bargaining strategies can be formulated without fear of exposure. Therefore, it was

concluded the Union had no obligation to furnish the Employer with the results of the

employee surveys.

This decision is consistent with the concerns for confidentiality in the bargaining

process, discussed previously in this report in connection with the case involving a

union’s request for an employer’s bargaining notes, to help it clarify a contract clause in

the parties’ agreement and to prepare for the arbitration of pending grievances

concerning that clause.

SECONDARY BOYCOTTS

UNLAWFUL SECONDARY PICKETING OF NEUTRAL EMPLOYER

In this case, we concluded that the Union engaged in unlawful secondary

picketing when it picketed a neutral employer at various jobsites. Contrary to the

Union’s contention, the evidence failed to establish a single employer relationship

between the primary employer and the picketed employer.

The Employer and Employer A are both in the business of construction material

testing and drilling. The Union represents some of the construction employees

employed by the Employer. The employees of Employer A are not represented by any

labor organization. The two companies have a common vice-president, who owns 2%

of the Employer and 49% of Employer A. In addition, Employer A has subcontracted

work to the Employer on several occasions, and on these occasions the Employer’s

employees receive direction and assignment of work from the supervisors of Employer

A.

The Union had a dispute with the Employer

t represented by any

labor organization. The two companies have a common vice-president, who owns 2%

of the Employer and 49% of Employer A. In addition, Employer A has subcontracted

work to the Employer on several occasions, and on these occasions the Employer’s

employees receive direction and assignment of work from the supervisors of Employer

A.

The Union had a dispute with the Employer. In furtherance of this dispute, the

Union began picketing Employer A’s jobsites with picket signs that stated that the Union

was on strike against the Employer and Employer A as a “single enterprise.” The

Employer had no employees on the jobsite at the time of the picketing.

- 18 -

We concluded that since the evidence did not establish a single employer

relationship between the companies, the Union violated Section 8(b)(4)(i)(ii)(B) of the

Act when it picketed neutral Employer A. Generally, the Board examines the following

four factors in determining whether separate businesses constitute a single employer:

(1) common ownership or financial control; (2) common management; (3) functional

interrelation of operations; and (4) centralized control of labor relations. Beverly

Enterprises, Inc., 341 NLRB No. 38, slip op. at 11 (2004), citing Radio & Television

Broadcast Technicians Local 1264 v. Broadcast Services of Mobile, 380 U.S. 255

(1965). The party claiming that two apparently separate entities are a single employer

(here, the Union) has the burden to demonstrate the existence of the above factors.

Boich Mining Co., 301 NLRB 872, 873 (1991), enf. denied on other grounds, 955 F.2d

431 (6th Cir. 1992); see also Service Employees Local 525 (General Maintenance Co.),

329 NLRB 638, 639 (1999). The factors most critical to single employer analyses are

financial and operational control of both companies, Polis Wallcovering, 323 NLRB 873,

880 (1997); and common control of labor relations. Beverly Enterprises, supra, 341

NLRB at slip op. 11, citing Parklane Hosiery Co., 203 NLRB 597 (1973)

1992); see also Service Employees Local 525 (General Maintenance Co.),

329 NLRB 638, 639 (1999). The factors most critical to single employer analyses are

financial and operational control of both companies, Polis Wallcovering, 323 NLRB 873,

880 (1997); and common control of labor relations. Beverly Enterprises, supra, 341

NLRB at slip op. 11, citing Parklane Hosiery Co., 203 NLRB 597 (1973). In analyzing

the control of labor relations, the Board looks at the actual control over the day-to-day

operations. Id.

In our case, we concluded that there was insufficient evidence to establish that

the Employer and Employer A constitute a single employer enterprise because there

was a lack of substantial evidence that there is common management, common

ownership or financial control, and centralized control over labor relations between the

two companies. In this regard, although there is a small overlap of ownership by the

vice-president of both companies, the evidence indicated that the vice-president did not

have any significant operational or financial control of either company. In addition, while

Employer A subcontracted for manpower and equipment from the Employer, the

evidence indicated that the subcontracting was done on an arm’s length basis.

Although Employer A’s supervisors were able to assign and direct the Employer’s

employees while they are performing subcontracted work at Employer A’s jobsites,

there was no evidence of common control over labor relations by either company

concerning the authority to hire, fire, or discipline employees. Under these

circumstances, the totality of evidence failed to establish a single employer enterprise.

Since the two companies did not constitute a single employer enterprise, there

was sufficient evidence to establish that the Union engaged in purely secondary

conduct in violation of Sections 8(b)(4)(i)(ii)(B) when it picketed at Employer A’s

jobsites

hire, fire, or discipline employees. Under these

circumstances, the totality of evidence failed to establish a single employer enterprise.

Since the two companies did not constitute a single employer enterprise, there

was sufficient evidence to establish that the Union engaged in purely secondary

conduct in violation of Sections 8(b)(4)(i)(ii)(B) when it picketed at Employer A’s

jobsites.

UNION’S ALLEGED AREA STANDARDS PICKETING UNLAWFUL WHERE

EMPLOYER’S COMPENSATION LEVELS SATISFIED GENERAL PREVAILING

WAGE RATES AND DAVIS-BACON ACT PROVISION

In another case, we concluded that a Union engaged in unlawful conduct when it

picketed a landscape Employer’s jobsites with area standards picket signs. We found

- 19 -

that the Union’s area standards claim was pretextual and that evidence established that

the picketing was actually motivated by secondary and recognitional objectives. There

was no basis for the Union’s assertion that the Employer was not meeting area

standards because at the time it initiated picketing, the Union was aware that the

Employer's compensation levels were consistent with all but a few landscape employers

in the area and that the Employer was in compliance with the provisions of the Davis-

Bacon Act.

The Employer was one of 15 landscape construction contractors that were

members of an Association. The Association had a current collective bargaining

agreement with Union A covering its landscape plantsmen, truck drivers, mechanics

and helpers. (The Association had a collective bargaining agreement with a

predecessor union representing these employees prior to 2004.) In addition to the 15

members of the Association, numerous other landscape contractors operating within the

jurisdiction of the Union have adopted the terms of the agreement with Union A. The

Union also represents landscape construction workers and has collective bargaining

agreements with landscape contractors

agreement with a

predecessor union representing these employees prior to 2004.) In addition to the 15

members of the Association, numerous other landscape contractors operating within the

jurisdiction of the Union have adopted the terms of the agreement with Union A. The

Union also represents landscape construction workers and has collective bargaining

agreements with landscape contractors.

In 2002, the Union had approached the Association that represented the

Employer about representing landscape employees and had indicated a contract wage

range. Thereafter, the Union sent a letter to all area contractors bound by Union

agreements asserting that the listed members of the Association (including the

Employer) did not have contracts with the Union and did not pay "prevailing landscape

wages" as certified by the state. The Union identified two companies as having Union

contracts and paying prevailing wages. The Union also indicated that it was reserving

the right to notify the public that the listed companies were not paying prevailing

landscape wages and benefits. The Union also asserted its position that its labor

contracts required that landscape work only be performed by the two landscape

contractors that had signed agreements with the Union.

Subsequently, the Union lost a Board-conducted election and a different union

was certified as the representative of landscape employees employed by Association

members. The other union and the Association entered into a collective bargaining

agreement, which was also adopted by numerous other area landscape employers.

Landscape employees working for Association employers were paid “grandfathered

wages” based on an agreement between the predecessor union and the Association.

Several months after the Union lost the election, the Employer began working as

a landscape subcontractor on a federally funded project subject to the requirements of

the Davis-Bacon Act

pted by numerous other area landscape employers.

Landscape employees working for Association employers were paid “grandfathered

wages” based on an agreement between the predecessor union and the Association.

Several months after the Union lost the election, the Employer began working as

a landscape subcontractor on a federally funded project subject to the requirements of

the Davis-Bacon Act. The Union investigated the wage rates paid and learned that the

employees were paid pursuant to the Association agreement and that the rate met the

requirements of Davis-Bacon. These rates, while apparently conforming to Davis-

Bacon requirements, nonetheless did not match the Union-Association contractual

wage rate. The Union commenced picketing with area standards signs. The

- 20 -

Employer’s employees, along with other employees, honored the picket line, which

remained up until the Employer was removed from the site.

We decided that the Union’s pre-election letters established its secondary object

of having all landscape work performed by the two firms having Union contracts. We

further decided that the Board representation election that the Union lost established its

desire to represent the Employer’s employees. Notwithstanding its earlier conduct, the

Union asserted that the picketing was solely in support of an area standards objective.

However, the evidence indicated that prior to the initiation of picketing the Union was on

notice that the Employer was paying wages and benefits consistent with an Association

collective bargaining agreement to which most area employers were a party. The Union

had also received information that the Employer was in compliance with the

requirements of Davis-Bacon. The only Union basis for asserting that the Employer

was not paying area standards was that the Employer was paying wages and benefits

lower than those provided in the Union’s contract with two area employers

lective bargaining agreement to which most area employers were a party. The Union

had also received information that the Employer was in compliance with the

requirements of Davis-Bacon. The only Union basis for asserting that the Employer

was not paying area standards was that the Employer was paying wages and benefits

lower than those provided in the Union’s contract with two area employers. In these

circumstances, notwithstanding the hiatus between its earlier conduct and the picketing,

we concluded that the Union had not abandoned its unlawful objectives and limited itself

to lawful area standards picketing. Plumbers Local 290 (Streimer Sheet Metal Works),

323 NLRB 1101, 1113 (1997).

The area standards defense to allegations of unlawful picketing was established

in Calumet Contractors Assn., 133 NLRB 512 (1961). The Board provided an expanded

explanation of what would constitute legitimate area standards objectives in Local 741,

United Association of Journeymen (Keith Riggs Plumbing), 137 NLRB 1125 (1962).

There, noting the enactment of the Davis-Bacon Act relating to public contracts, the

Board acknowledged that, apart from an interest in organization and recognition, unions

have a legitimate interest “that employers meet prevailing pay scales and employee

benefits because otherwise employers paying less than prevailing wage scale would

ultimately undermine the area standards.” Id. at 1126. Thus, the Board would not find a

violation of 8(b)(4) where there was no independent evidence to controvert a picketing

union’s statement that it only wanted the employer to pay union scale and did not want

to bargain with the employer or organize its employees.

We did not view these Board decisions as supporting the lawfulness of picketing

where, as in our case, the objective was to cause an employer that was already paying

prevailing wages to pay higher wages

no independent evidence to controvert a picketing

union’s statement that it only wanted the employer to pay union scale and did not want

to bargain with the employer or organize its employees.

We did not view these Board decisions as supporting the lawfulness of picketing

where, as in our case, the objective was to cause an employer that was already paying

prevailing wages to pay higher wages. In reaching this decision, consideration was

given to cases indicating that a union may engage in lawful area standards picketing so

long as such picketing has an objective of protecting wages and benefits negotiated by

the picketing union. E.g., Sales Delivery Drivers, Local 296 (Alpha Beta Acme Markets,

Inc.), 205 NLRB 462, 469 (1973); Giant Food Markets, Inc., 241 NLRB 727, 728 (1979),

set aside on different issue at 633 F.2d 18 (6th Cir. 1980).

Under the literal language of Sales Delivery and Giant, the Union could argue

that it was picketing to protect the contractual benefits it had obtained from erosion by

employers that paid lower wages and benefits. However, notwithstanding language

- 21 -

used in the above cases, there appears to be no case in which the Board has held

picketing to be lawful in circumstances like those in this case, where the picketing union

has contractual rates that are higher than prevailing wage rates in the area. To permit

the Union to define area standards benefits as whatever the Union has secured in a

contract with any employer would disregard the plain meaning of the term area

standards. U.S. Postal Service, 302 NLRB 332, 334-5 (1991); United Food and

Commercial Workers (Visiting Nurse Health System), 336 NLRB 421, 425 (2001). The

plain meaning of the term “area standards” is illustrated by the frequency with which the

Board uses this term interchangeably with the term prevailing wages

contract with any employer would disregard the plain meaning of the term area

standards. U.S. Postal Service, 302 NLRB 332, 334-5 (1991); United Food and

Commercial Workers (Visiting Nurse Health System), 336 NLRB 421, 425 (2001). The

plain meaning of the term “area standards” is illustrated by the frequency with which the

Board uses this term interchangeably with the term prevailing wages. See Keith Riggs

Plumbing, supra; Local 107, International Hod Carriers (Texarkana Construction Co.),

138 NLRB 102 (1962); Local 701, IBEW, 255 NLRB 1157, 1158 (1981), enfd. 703 F.2d

501 (11th Cir. 1983), cert. denied 464 U.S. 950 (1983); Int’l Union of Operating

Engineers (Associated Engineers), 270 NLRB 1172, 1174 fn. 3 (1984).

REMEDIES

GENERAL COUNSEL SEEKS AWARD OF LITIGATION EXPENSES UNDER

THE "BAD FAITH" EXCEPTION TO THE AMERICAN RULE

In this case, we concluded that, because the Respondent fraudulently fabricated

its entire affirmative defense at the hearing, the Region should seek an award of the

General Counsel's litigation expenses under the "bad faith" exception to the American

Rule requiring litigants to bear their own litigation expenses.

An Administrative Law Judge issued a decision in this case dismissing the

allegation that Respondent unlawfully discharged its employee. The ALJ held that the

General Counsel had established a prima facie case that Respondent had unlawfully

discharged the discriminatee. However, the ALJ concluded that the Respondent had

presented a sufficient defense under Wright-Line, 252 NLRB 1083 (1980), enfd. 662

F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), by establishing that it would

have terminated him for violating its attendance policy even in the absence of any

protected activity

cie case that Respondent had unlawfully

discharged the discriminatee. However, the ALJ concluded that the Respondent had

presented a sufficient defense under Wright-Line, 252 NLRB 1083 (1980), enfd. 662

F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), by establishing that it would

have terminated him for violating its attendance policy even in the absence of any

protected activity.

At the initial hearing in this case, Respondent had introduced a large number of

attendance records to establish that it had treated the employee the same as any other

individual who had been absent from work without prior approval or proper

documentation. The ALJ credited the testimony of the Respondent’s owner and

timekeeper that these records were maintained in the proper course of Respondent’s

business operations and accurately reflected its absentee policy. However, after the

hearing closed, the Region learned from the timekeeper that Respondent had used

entirely falsified attendance records as evidence at the hearing. The timekeeper stated

that she and the owner had altered Respondent’s attendance records to make it appear

- 22 -

that other employees had received discipline consistent with that given to the

discriminatee. We moved to reopen the hearing.

At the reopened hearing, Respondent contended that it reviewed its attendance

records from time to time to ensure that its attendance policy was consistently applied,

and that the timekeeper’s participation in changing attendance documents prior to the

initial hearing was merely a part of Respondent's normal review process. The Region

argued that the Respondent fraudulently fabricated the attendance documents and that

the ALJ should find the alleged violations.

We concluded that the Region should seek an award of the General Counsel's

litigation expenses because of Respondent's bad faith conduct in fraudulently

fabricating its entire defense in this case

s merely a part of Respondent's normal review process. The Region

argued that the Respondent fraudulently fabricated the attendance documents and that

the ALJ should find the alleged violations.

We concluded that the Region should seek an award of the General Counsel's

litigation expenses because of Respondent's bad faith conduct in fraudulently

fabricating its entire defense in this case.

The Board has long held that it has the authority to award litigations expenses

where a respondent engages in "frivolous litigation" before the Board. Tiidee Products,

Inc., 194 NLRB 1234 (1972) enf. as modified 502 F.2d 349 (D.C. Cir. 1974), cert. den.

417 U.S. 921 (1974), 421 U.S. 991 (1975). The Board recently held that it may award

litigation expenses, under Section 10(c) of the Act, where a respondent offers a

frivolous defense, or otherwise exhibits "bad faith" in the unfair labor practice litigation.

Frontier Hotel & Casino, 318 NLRB 857 (1995), enf. den. in pertinent part sub nom.

Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir 1997). The D.C. Circuit Court of

Appeals denied enforcement, holding that under then-recent Supreme Court decisions

the Board lacks the requisite statutory authority under Section 10(c) to award litigation

expenses. However, the D.C. Circuit left open the question of whether the Board may

award litigation expenses pursuant to the Board's "inherent authority" to control its own

proceedings under the "bad faith" exception to the American Rule. Unbelievable, Inc.,

supra, 118 F.3d at 800-806.

In Lake Holiday Manor, 325 NLRB 469 (1998), the Board ordered reimbursement

of the General Counsel's litigation costs and attorney fees citing the Board's "inherent

authority" to protect its own proceedings

expenses pursuant to the Board's "inherent authority" to control its own

proceedings under the "bad faith" exception to the American Rule. Unbelievable, Inc.,

supra, 118 F.3d at 800-806.

In Lake Holiday Manor, 325 NLRB 469 (1998), the Board ordered reimbursement

of the General Counsel's litigation costs and attorney fees citing the Board's "inherent

authority" to protect its own proceedings. The Board noted that respondent had

rejected a second settlement agreement for a "capricious" reason “primarily directed

simply at delay of the litigation,” and had later moved for a postponement of a

rescheduled hearing due to substitution of new counsel, even though the ALJ had

specifically approved prior counsel's withdrawal on the condition that it not impact the

rescheduled hearing date. Id. at 470.

Federal courts have also awarded litigation expenses under their "inherent

authority" in circumstances similar to those in the instant case. In Chambers v. NASCO,

501 U.S. 32 (1991), the district court ordered defendant Chambers to pay plaintiff's

attorney fees because of Chambers' bad faith in initially attempting to deprive the court

of jurisdiction by means of a fraudulent trust and deed conveyance, and in later filing

false and frivolous pleadings. The Supreme Court upheld the award because

- 23 -

defendant's "entire course of conduct throughout the lawsuit evidenced bad faith and an

attempt to perpetrate a fraud on the court . . ." Id. at 51.

The "bad faith" exception has also been applied to a meritless defense based

upon a fabricated document. In Ostanto v. Telewide, 880 F.2d 642 (2d Cir. 1989),

plaintiff sued for fraud and breach of contract over its licensing of movie films from

defendant. The district court awarded the plaintiff full attorney fees because it "found an

exhibit to be fraudulent and a defense to be unfounded." Id. at 651

aith" exception has also been applied to a meritless defense based

upon a fabricated document. In Ostanto v. Telewide, 880 F.2d 642 (2d Cir. 1989),

plaintiff sued for fraud and breach of contract over its licensing of movie films from

defendant. The district court awarded the plaintiff full attorney fees because it "found an

exhibit to be fraudulent and a defense to be unfounded." Id. at 651. The Second Circuit

Court of Appeals noted that not all of plaintiffs' attorney fees "resulted from the meritless

defense and fabricated document" and that "[o]nly those fees attributable to the

offensive conduct can be awarded." Ibid. The Circuit Court thus remanded the case for

the district court to decide what portion of the plaintiff's attorney fees resulted from the

bad faith conduct.

The Respondent here used a panoply of fraudulently altered documents to assert

a meritless defense. Respondent's conduct was comparable to the fraudulent

documents and false, frivolous pleadings in Chambers v. NASCO, and constituted a

similar attempt to "perpetrate a fraud" upon the Board. Respondent's conduct was even

more egregious than the defendant's conduct in Ostanto v. Telewide because

Respondent here fraudulently fabricated its entire defense. Thus, under these

circumstances, we concluded that the Region should seek an award of the General

Counsel’s litigation expenses.

SUMMARY EXCERPTS OF ETHICS ISSUES

New York’s Version of Rule 4.2

Issue:

The Region was investigating charges alleging that the Employer violated the Act

by “spot checking” emergency medical technicians in the field, eliminating clock-in pay,

changing disciplinary procedures, and eliminating Christmas bonuses, all in retaliation

for union activity. The Region wanted to interview two emergency medical technicians

ex parte, and inquired about the effects of a pending R-case proceeding.

The Union had filed a petition to represent a unit of the Employer’s emergency

medical technicians

icians in the field, eliminating clock-in pay,

changing disciplinary procedures, and eliminating Christmas bonuses, all in retaliation

for union activity. The Region wanted to interview two emergency medical technicians

ex parte, and inquired about the effects of a pending R-case proceeding.

The Union had filed a petition to represent a unit of the Employer’s emergency

medical technicians. At the R-Case hearing the Employer contended that five of the

approximately 29 employees in the petitioned-for unit are Sec. 2(11) supervisors. The

RD found to the contrary, and the Employer filed a Request for Review that was

pending when the Region wanted to conduct the investigatory interviews.

The two emergency medical technicians the Region wanted to interview ex parte

were among the five found not to be statutory supervisors. The Region believed that

neither of them were actors in the alleged unlawful conduct.

Determination:

- 24 -

The Region was instructed to interview the emergency medical technicians ex

parte, but not to elicit or obtain information that might be protected by the Employer’s

attorney-client privilege. Two considerations entered into our determination.

First, the Region’s position was that the emergency medical technicians were not

supervisors and were not actors in the alleged unlawful conduct. Although the

Employer continued to urge its contrary position by filing a Request for Review, the

Board had not yet acted on that Request at the time the Region wanted to interview the

witnesses ex parte. The RD’s decision is the authoritative determination regarding the

witness’s status until there is a decision to the contrary

upervisors and were not actors in the alleged unlawful conduct. Although the

Employer continued to urge its contrary position by filing a Request for Review, the

Board had not yet acted on that Request at the time the Region wanted to interview the

witnesses ex parte. The RD’s decision is the authoritative determination regarding the

witness’s status until there is a decision to the contrary.

Second, even if the emergency medical technicians are supervisors, they do not

fall within New York’s version of Rule 4.2, which provides that “[d]uring the course of the

representation of a client a lawyer shall not (1) Communicate or cause another to

communicate on the subject of the representation with a party the lawyer knows to be

represented by a lawyer in that matter unless the lawyer has the prior consent of the

lawyer representing such other party or is authorized by law to do so.” N.Y. Code of

Professional Responsibility Rule 7-104.

In Niesig v. Team 1, 76 N.Y. 2d 363 (1990), the court adopted the following

standard to determine whether an individual is a “party” within the meaning of this rule:

The test that best balances the competing interests, and incorporates the

most desirable elements of the other approaches, is one that defines

“party” to include corporate employees whose acts or omissions in the

matter under inquiry are binding on the corporation (in effect, the

corporation’s ‘alter egos’) or imputed to the corporation for purposes of its

liability, or employees implementing the advice of counsel. All other

employees may be interviewed informally. Id. at 374.

The Court made clear that witnesses will be deemed parties when they

have “speaking authority” for the organization, and thus “have the legal power to

bind the [organization] in the matter” at issue. Id. On the other hand, the test

permits direct access to employees who were merely witnesses to an event for

which the corporate employer is being sued. Id. at 375. See Gilbert v

d. at 374.

The Court made clear that witnesses will be deemed parties when they

have “speaking authority” for the organization, and thus “have the legal power to

bind the [organization] in the matter” at issue. Id. On the other hand, the test

permits direct access to employees who were merely witnesses to an event for

which the corporate employer is being sued. Id. at 375. See Gilbert v. State of

New York, 662 N.Y.S.2d 989, 992-993 (1997) (in motorist’s action against state

for injuries allegedly caused by icy road, department of transportation employee

who had no responsibility regarding maintenance of the portion of road where

accident occurred was fact witness as to road conditions and was not a “party”

under Niesig).

The Region did not believe that the witnesses were actors in any of the

alleged unlawful conduct. In addition, there is no indication that they could speak

for and bind the Company in this case or implement the advice of counsel.

- 25 -

Accordingly, even if they are statutory supervisors, they would not fall within New

York’s version of Rule 4.2.

Washington’s Version of Rule 4.2

Issue:

The Region was investigating a charge alleging that the Company unlawfully

discharged an employee in retaliation for her union organizing activities. A Company

supervisor came forward voluntarily, and offered to give the Region relevant information

about the Company’s union animus. This individual is one of five “supervisors” who

report to the department head who in turn reports to the head of the facility where the

Company provides contract guard service. He works in a different department than the

charging party, and was not alleged to have committed any unfair labor practices.

Determination:

The Region was instructed that it could interview the witness ex parte, but should

not solicit or obtain attorney-client privileged information.

In Wright v

eports to the head of the facility where the

Company provides contract guard service. He works in a different department than the

charging party, and was not alleged to have committed any unfair labor practices.

Determination:

The Region was instructed that it could interview the witness ex parte, but should

not solicit or obtain attorney-client privileged information.

In Wright v. Group Health Hospital, 103 Wash.2d 192, (1984), the court held that

current employees are considered “parties” for purposes of Washington’s “skip counsel”

rule only if they have “managing authority sufficient to give them the right to speak for,

and bind, the corporation.” The court further explained that those with

managing/speaking authority "are ultimately responsible for managing the entity's

operations," and that they are “the multi-person entity’s alter ego - they can speak and

act for the entity and can settle controversies on its behalf." Id. at 201-202 (quotation

omitted). Those in this category are at a fairly high managerial level. See Young v.

Group Health Coop., 85 Wash.2d 332, 338 (1975) (doctor had "speaking authority" for

hospital); Griffiths v. Big Bear Stores, Inc., 55 Wash.2d 243, 247 (1959) (supermarket

manager had "speaking authority"); Kadiak Fisheries Co. v. Murphy Diesel Co., 70

Wash.2d 153, 162-163 (1967) (maintenance manager for commercial fishing company

did not have "speaking authority"). As to current employees not in this category, the

court held that they could be interviewed if they witnessed the events, or even if their

acts or omissions caused the events in dispute. Id. at 200.

Although Wright was decided under the predecessor to Washington’s present

Rule 4.2, that case was cited and discussed in an article by the state’s Chief

Disciplinary Counsel, entitled Ethics and the Law: Communicating with Represented

Persons (February 2000)

hey could be interviewed if they witnessed the events, or even if their

acts or omissions caused the events in dispute. Id. at 200.

Although Wright was decided under the predecessor to Washington’s present

Rule 4.2, that case was cited and discussed in an article by the state’s Chief

Disciplinary Counsel, entitled Ethics and the Law: Communicating with Represented

Persons (February 2000). That article, which is available on the State Bar’s Web Cite

(www.wsba.org/barnews/), describes Wright as "Washington's leading no-contact case."

The witness in this case was not a managing/speaking agent within the skip

counsel rule’s protection. Even though the witness was a supervisor, he is not a high-

level manager; there are two levels of management above him. In addition, the witness

did not have supervisory responsibilities respecting the Charging Party, and did not

- 26 -

even work in the Charging Party’s former department. For all these reasons, the

Region could contact him ex parte under Washington’s ethics rules.

SECTION 10(j) AUTHORIZATIONS

During the three month period from November 1, 2004 through January 31,

2005, the Board authorized a total of five (5) Section 10(j) proceedings. Most of the

cases fell within factual patterns set forth in General Counsel Memoranda 01-03, 98-10,

89-4, 84-7, and 79-77. See also NLRB Section 10(j) Manual (September 2002), Section

2.1, “Categories of Section 10(j) Cases.”

One case involving an Employer’s refusal to deal with an incumbent Union was

somewhat unusual and therefore warrants special discussion.

The employees in a large, multi-location bargaining unit overwhelmingly

reaffirmed their support of the long-term incumbent Union in a Board-conducted

election. Thereafter, both before and after a successful union affiliation vote to merge

with a larger union, the Employer repeatedly tried to undermine the Union

umbent Union was

somewhat unusual and therefore warrants special discussion.

The employees in a large, multi-location bargaining unit overwhelmingly

reaffirmed their support of the long-term incumbent Union in a Board-conducted

election. Thereafter, both before and after a successful union affiliation vote to merge

with a larger union, the Employer repeatedly tried to undermine the Union. First, the

Employer unilaterally imposed new restrictions on the Union’s previously unrestricted

right of access to the Employer’s facilities. Historically, the Union’s primary method of

communication with unit employees was through store visitations. Next, the Employer

refused to recognize and deal with the Union after the affiliation with the larger union.

As part of that refusal, the Employer failed to provide the Union with basic information

necessary for collective bargaining and communication with the unit, specifically the

names, home addresses and telephone numbers of the unit employees. There was

evidence that, as a result of the Employer’s violations, fewer grievances had been filed

by employees and the Union. Before the Board authorized Section 10(j) relief, the

Administrative Law Judge issued a favorable decision sustaining the complaint

allegations. Specifically, the ALJ found that the union affiliation vote was proper under

NLRA standards and that the affiliated Union remained the Section 9(a) representative

of the unit employees.

The Board concluded that Section 10(j) relief was necessary in this case to

preserve and protect the affiliated Union’s status as the incumbent Section 9(a)

bargaining representative in this unit. The Employer’s denial of Union access to unit

employees at the Employer’s facilities and refusal to provide presumptively relevant

information were preventing the Union from communicating with the employees it

represents

t Section 10(j) relief was necessary in this case to

preserve and protect the affiliated Union’s status as the incumbent Section 9(a)

bargaining representative in this unit. The Employer’s denial of Union access to unit

employees at the Employer’s facilities and refusal to provide presumptively relevant

information were preventing the Union from communicating with the employees it

represents. Given the historically large turnover among unit employees, the Employer’s

unfair labor practices predictably would cause irreparable erosion of employee support

for the affiliated Union. Absent injunctive relief, the incumbent union would be unable to

properly commence new collective-bargaining negotiations after the Board order issues

in due course. The Board directed the Region to seek, inter alia, an injunction that

granted the Union an affirmative bargaining order, its historical unrestricted right of

access to the Employer’s facilities, and the requested necessary and relevant

- 27 -

information concerning the unit employees. This case is currently pending in the district

court.

The five cases authorized by the Board fell within the following categories as

described in General Counsel Memoranda 01-03, 98-10, 89-4, 84-7 and 79-77:

- 28 -

Category

Number of Cases

In Category

Results

1. Interference with

organizational

campaign

(no majority)

1

Case is pending.

2. Interference with

organizational

campaign

(majority)

21

Won one case; one

case settled before

petition.

3. Subcontracting or

other change to

avoid bargaining

obligation

0

- - -

4. Withdrawal of

recognition from

incumbent

1

Case is pending.

5. Undermining of

bargaining

representative

0

- - -

6. Minority union

recognition

0

- - -

7. Successor refusal

to recognize and

bargain

0

- - -

8. Conduct during

bargaining

negotiations

1

Case is pending

ore

petition.

3. Subcontracting or

other change to

avoid bargaining

obligation

0

- - -

4. Withdrawal of

recognition from

incumbent

1

Case is pending.

5. Undermining of

bargaining

representative

0

- - -

6. Minority union

recognition

0

- - -

7. Successor refusal

to recognize and

bargain

0

- - -

8. Conduct during

bargaining

negotiations

1

Case is pending.

Category

Number of Cases

Results

1 A majority of the Board in one of the cases did not authorize seeking an

interim bargaining order consistent with NLRB v. Gissel Packing Co., 395 U.S.

575 (1969).

- 29 -

In Category

9. Mass picketing and

violence

0

- - -

10. Notice

requirements for

strikes and

picketing

(8(d) and 8(g))

0

- - -

11. Refusal to permit

protected activity

on property

0

- - -

12. Union coercion to

achieve unlawful

object

0

- - -

13. Interference with

access to Board

processes

0

- - -

14. Segregating assets

0

- - -

15. Miscellaneous

0

- - -