Report on Case Developments April thru August 06

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OFFICE OF THE GENERAL COUNSEL

MEMORANDUM GC 07-02

December 15, 2006

To:

All Division Heads, Regional Directors,

Officers-in-Charge, and Resident Officers

From:

Ronald Meisburg, General Counsel

SUBJECT: Report on Case Developments

April through August 2006

Attached is a report on case developments in the

Office of the General Counsel during the period April

through August 2006.

/s/

R.M.

cc: NLRBU

Released to the Public

MEMORANDUM GC 07-02

REPORT OF THE GENERAL COUNSEL

In this report, I have selected cases of interest that

were decided during the period from April through August

2006. This report discusses cases which were 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.

_____________/s/___________

Ronald Meisburg

General Counsel

EMPLOYER INTERFERENCE WITH PROTECTED ACTIVITIES

Employer unlawfully reprimanded an employee whose use of

offensive language, including a vow to "have his pound of

flesh," in an e-mail to management did not lose the

protection of Section 7

One interesting case during this four-month period

involved whether the Employer lawfully disciplined an

employee because he used insulting, critical language,

including an alleged threat, in an e-mail to the Employer

criticizing a recently negotiated bargaining agreement.

We first determined that the alleged threat in the

employee's e-mail, the Shakespeare quotation "I shall have

my pound of flesh", is generally used as an idiomatic

expression as an intent to collect a debt or obligation

rather than as a threat of physical violence

al language,

including an alleged threat, in an e-mail to the Employer

criticizing a recently negotiated bargaining agreement.

We first determined that the alleged threat in the

employee's e-mail, the Shakespeare quotation "I shall have

my pound of flesh", is generally used as an idiomatic

expression as an intent to collect a debt or obligation

rather than as a threat of physical violence. We then

decided that the employee used this quotation idiomatically

as a lawful statement of intent to continue legal

proceedings to the fullest extent. The Employer therefore

unlawfully imposed discipline because notwithstanding using

other intemperate language, the employee's e-mail did not

lose its status as a protected protest of the parties'

bargaining agreement under Atlantic Steel Co., 245 NLRB 814

(1979).

The Employer was an orchestra employing basic

orchestra members and also rotators, who were the first

musicians offered temporary work when a basic orchestra

member was temporarily absent. One of the rotators had

been involved in several grievances filed over the

Employer's refusal to fill permanent orchestra vacancies

with rotators. This employee also had filed an age

discrimination suit because of the Employer's method of

filling permanent orchestra vacancies.

During bargaining for a successor bargaining

agreement, the Employer's general manager and attorney

proposed that rotators would become permanent members of

the orchestra upon the occurrence of vacancies. The Union

agreed to this proposal which would also have resolved all

outstanding disputes regarding the hiring of rotators,

including the rotator employee's lawsuit. The Employer's

representative then consulted the Music Staff which refused

to agree because it did not wish to abandon its practice of

conducting open auditions to fill orchestra vacancies. The

Employer informed the Union and the rotator employee that

the proposal had been rejected.

ved all

outstanding disputes regarding the hiring of rotators,

including the rotator employee's lawsuit. The Employer's

representative then consulted the Music Staff which refused

to agree because it did not wish to abandon its practice of

conducting open auditions to fill orchestra vacancies. The

Employer informed the Union and the rotator employee that

the proposal had been rejected.

The parties continued to bargain and eventually agreed

upon a contract that did not change the Employer's hiring

practice. The rotator employee sent an e-mail to the

Employer complaining about the new contract in which he

criticized the Employer for having withdrawn from the

tentative rotator hiring agreement, called its general

manager and attorney "liars" and "fools," and concluded: "I

may not win in Court, but rest assured 'I shall have my

pound of flesh.'" The Employer issued a written reprimand

to the employee because it considered the “pound of flesh”

remark to be threatening.

The quotation "I shall have my pound of flesh" comes

from Shakespeare’s play "The Merchant of Venice," where the

moneylender Shylock demands that Antonio provide the "pound

of flesh" that Antonio had promised Shylock for not timely

repaying his debt. In the play, the statement constitutes

a threat of literal physical violence and even death.

However, the phrase "pound of flesh" over time has become

an English idiom for a threat to collect a debt. For

example, "People who cruelly or unreasonably insist on

their rights are said to be demanding their 'pound of

flesh.'" The New Dictionary of Cultural Literacy, Third

Edition, (2002). Idiomatic expressions that do not connote

a threat of literal physical violence and even death.

However, the phrase "pound of flesh" over time has become

an English idiom for a threat to collect a debt. For

example, "People who cruelly or unreasonably insist on

their rights are said to be demanding their 'pound of

flesh.'" The New Dictionary of Cultural Literacy, Third

Edition, (2002). Idiomatic expressions that do not connote

violence generally do not constitute unprotected conduct

under the Act. See AT&T Broadband, 335 NLRB 63, 69

("marked man" an idiomatic expression suggesting that

individual would be subject to the loathing of fellow

workers for disloyalty, not a threat of death or harm).

We decided that the employee had not used this

quotation as a literal threat of physical violence. The

context of the employee's use of the phrase instead

indicated that he intended its idiomatic meaning, i.e.,

vindication of his legal rights to the fullest extent

possible.

The employee used the phrase in the context of

complaining about the Employer's having withdrawn from the

tentative agreement to hire rotators. The Employer's

withdrawal from that agreement necessarily meant that

pending grievances, and the employee's lawsuit, would

continue, namely, whether successful or not, the employee

intended to have his day in court.

In considering whether an employee’s alleged

misconduct is sufficiently egregious to remove it from the

protection of the Act, the Board examines the following

ire rotators. The Employer's

withdrawal from that agreement necessarily meant that

pending grievances, and the employee's lawsuit, would

continue, namely, whether successful or not, the employee

intended to have his day in court.

In considering whether an employee’s alleged

misconduct is sufficiently egregious to remove it from the

protection of the Act, the Board examines the following

factors: (1) the place of the discussion; (2) the subject

matter of the discussion; (3) the nature of the outburst;

and (4) whether the outburst was, in any way, provoked by

an employer’s unfair labor practice. Atlantic Steel Co.,

245 NLRB at 816. Because the rotator employee was

otherwise engaged in protected concerted activity when he

forwarded his e-mail, with copies to the bargaining

committee members, discussing the merits of the recently

negotiated contract, application of the Atlantic Steel

factors was considered to be appropriate.

We decided that the "location" and subject matter of

the e-mail statements weighed in favor of the Act's

protection because of their clearly protected topics (a

grievance, a lawsuit and dissatisfaction with the

contract). Although the employee's e-mail was a written

document as opposed to a spontaneous oral outburst, there

is no indication that the statement was made maliciously.

The e-mail contained no profanity or obscenity and in

context, the language was, at worst, intemperate. Finally,

although the employee's e-mail was not provoked by any

Employer unfair labor practices, the first three factors

all weighed so strongly in favor of the Act's protection

ent as opposed to a spontaneous oral outburst, there

is no indication that the statement was made maliciously.

The e-mail contained no profanity or obscenity and in

context, the language was, at worst, intemperate. Finally,

although the employee's e-mail was not provoked by any

Employer unfair labor practices, the first three factors

all weighed so strongly in favor of the Act's protection

that we decided that the e-mail was protected in its

entirety.

Employer lawfully denied offsite employee Union organizers

access to exterior non-work areas at its remote oil

pipeline pump stations

One case addressed whether the Employer violated

Section 8(a)(1) by denying offsite employee/Union

organizers access to exterior non-work areas within the

security perimeters of its remote oil pipeline pump

stations.

We concluded that the Employer acted lawfully in

denying access because, under the standard established in

Tri-County Medical Center, 222 NLRB 1089, 1089 (1976),

employers are required to grant offsite employees access

only to exterior non-work areas, and there were no such

areas within the security perimeters. We noted that the

Board has applied Tri-County principles to offsite

employees in Hillhaven Highland House, 336 NLRB 646, 648

(2001), enfd. sub nom. First Healthcare Corp. v. NLRB, 344

F.3d 523 (6th Cir. 2003), and ITT Industries, 341 NLRB 937

(2004), enfd. 413 F.3d 64 (D.C. Cir. 2005). In those

cases, the Board determined that although employers have a

heightened property interest with regard to offsite as

Board has applied Tri-County principles to offsite

employees in Hillhaven Highland House, 336 NLRB 646, 648

(2001), enfd. sub nom. First Healthcare Corp. v. NLRB, 344

F.3d 523 (6th Cir. 2003), and ITT Industries, 341 NLRB 937

(2004), enfd. 413 F.3d 64 (D.C. Cir. 2005). In those

cases, the Board determined that although employers have a

heightened property interest with regard to offsite as

opposed to onsite off-duty employees, absent sufficient

business justification, the Section 7 access right of

offsite employees is a primary, non-derivative right that

will generally outweigh those property interests.

The Employer in this case readily granted offsite

employee-organizers access to parking lots located outside

the security perimeters at each of the pump stations, but

refused to permit them to meet with pump station employees

inside the security perimeters. The evidence supported the

Employer's contention that the entire area within each pump

station's security perimeter was a work area. To be sure,

there were employee living quarters within this area that

technically were not work areas. Nonetheless, there were

no places outside the living quarters, yet within the

security perimeters, that were equivalent to the parking

lots, sidewalks, gates, and other exterior non-work areas

to which the Board under Tri-County will permit access.

Thus, the pump stations were enormous installations that

could be traversed by vehicles only along uniquely laid

out, informal and unpaved traffic patterns, rather than by

a formally laid out internal system of roads and walkways.

Thus, even an offsite employee would have been on

unfamiliar ground and no better able to navigate another

which the Board under Tri-County will permit access.

Thus, the pump stations were enormous installations that

could be traversed by vehicles only along uniquely laid

out, informal and unpaved traffic patterns, rather than by

a formally laid out internal system of roads and walkways.

Thus, even an offsite employee would have been on

unfamiliar ground and no better able to navigate another

pump station than a stranger. Accordingly, in the absence

of any identifiable Tri-County exterior non-work areas

within the security perimeters, we concluded that there was

no basis for granting offsite employee organizers access to

the pump station compounds under Hillhaven or ITT.

Finally, we rejected the argument that in the absence

of any exterior non-work areas within the security

perimeters, the Employer should have been required to admit

the offsite employee organizers to the interior of the

living quarters in order to effectuate their Section 7

right to communicate with the onsite pump station employees

and the onsite employees' statutory right to receive that

organizational message. Such a contention would depart

from the balance struck between employee Section 7 and

employer property interests under Tri-County and

Hillhaven/ITT, and would constitute a novel extension of

existing Board law. Further, even if such an extension

would be appropriate, we viewed this case as a particularly

poor vehicle for arguing such an extension. First, the

Employer apparently plans to modernize its operations by

operating unmanned pump stations remotely from a

centralized facility. Second, the Union has an alternate

means of communication (from outside the security

ion of

existing Board law. Further, even if such an extension

would be appropriate, we viewed this case as a particularly

poor vehicle for arguing such an extension. First, the

Employer apparently plans to modernize its operations by

operating unmanned pump stations remotely from a

centralized facility. Second, the Union has an alternate

means of communication (from outside the security

perimeter) which lessened the impact on Section 7 rights of

a lack of access within the security perimeter.

Employer's offer of money in exchange for testimony

interfered with the employees' Section 7 right to decide

whether to participate as witnesses in government

proceedings

In this case, we concluded that the Employer

unlawfully attempted to taint Board processes by offering

witnesses money to testify in a Board proceeding. In the

circumstances presented, we found that by offering

witnesses money to testify, the Employer interfered with

the individuals’ right to decide for themselves whether

they wished voluntarily to cooperate in a Board hearing,

and thereby impeded the Board's process in violation of

Section 8(a)(1) of the Act.

The Region issued a complaint alleging that the

Employer refused to hire 13 named employees in order to

avoid its bargaining obligation as a successor. After the

issuance of complaint, an Employer agent approached three

of the employees named in the complaint and allegedly

offered them amounts between $5,000 and $15,000 to provide

testimony or write a statement in support of the Employer.

Region issued a complaint alleging that the

Employer refused to hire 13 named employees in order to

avoid its bargaining obligation as a successor. After the

issuance of complaint, an Employer agent approached three

of the employees named in the complaint and allegedly

offered them amounts between $5,000 and $15,000 to provide

testimony or write a statement in support of the Employer.

Section 7’s protections include the right to act in

concert with others in providing evidence in workplace

disputes and the right to decline voluntarily to support

one side or the other in the dispute. See, GHR Energy

Corp., 294 NLRB 1011, 1014 (1989), affd. mem. 924 F.2d 1055

(5th Cir. 1991); Teamsters Local 439 (University of the

Pacific), 324 NLRB 1096, 1098 (1997), enfd. 175 F.3d 1173

(9th Cir 1999). We concluded that offering witnesses

excessive payments to testify interfered with their freedom

to decide for themselves whether to voluntarily participate

in the resolution of a dispute in their workplace.

The circumstances here were similar to those in

Victor’s Café 52, Inc., 338 NLRB 753 (2002), a compliance

case. There, an offer to pay an individual to testify in a

Board proceeding on behalf of a party in the hearing was

grounds for excluding witness testimony and disqualifying a

discriminatee from back pay. The Board found that an offer

of payment for testimony that was far in excess of what

might be justified as compensation for a witness’ time or

expenses was an attempt to influence and manipulate a

witness in a Board proceeding. Id. at 755. The amounts

offered to the discriminatees here were similarly

unreasonably large.

tness testimony and disqualifying a

discriminatee from back pay. The Board found that an offer

of payment for testimony that was far in excess of what

might be justified as compensation for a witness’ time or

expenses was an attempt to influence and manipulate a

witness in a Board proceeding. Id. at 755. The amounts

offered to the discriminatees here were similarly

unreasonably large.

We concluded that the offer of payment to the

witnesses not only interfered with the Board’s processes,

but also interfered with the free choice of the employees

to decide for themselves whether they wished to provide

evidence voluntarily in a workplace dispute. We also

relied on Cherry Hills Textiles, Inc., 309 NLRB 889 (1992),

enfd. 7 F.3d 221 (2d Cir. 1993). There, attempts to

persuade a witness either to provide false testimony or to

refrain from testifying in a Board hearing constituted

interference with the individual’s right to freely decide

to cooperate in a Board proceeding.

Employer lawfully requested discovery of communications

between named class action plaintiffs and the Union

One case during this period presented the question of

whether Employers in a state court lawsuit violated Section

8(a)(1) of the Act by seeking through discovery information

that involved Section 7 activities. In this case, several

employees had filed class action wage hour lawsuits against

several employers in their industry. The class action

plaintiffs were represented by the same law firm that

represents a Union trying to organize the employees of

these employers. The Union had been actively involved in

of the Act by seeking through discovery information

that involved Section 7 activities. In this case, several

employees had filed class action wage hour lawsuits against

several employers in their industry. The class action

plaintiffs were represented by the same law firm that

represents a Union trying to organize the employees of

these employers. The Union had been actively involved in

investigating the claims underlying the class action and

was funding the litigation.

The defendant Employers suspected that the Union was

"driving" the litigation, and they were considering moving

the court to disqualify the plaintiff employees' law firm

based on a conflict of interest by virtue of its

representing both the plaintiff employees in the class and,

in other matters, the Union. They commenced discovery on

this issue and the plaintiffs' attorneys filed objections

to many of the requests on the ground that they infringed

upon employees' Section 7 rights.

The judge granted the motion in relevant part. As to

the argument that the discovery requests infringe on

employees' Section 7 rights, the judge ruled that Section 7

does not insulate the plaintiffs from the discovery of

communications regarding the lawsuit. The judge stated

that some of the evidence requested in discovery was

essential to prove or disprove the claim of the Union's

conflict of interest and that any incidental infringement

on Section 7 interests would be outweighed by the need to

determine whether there exists a conflict of interest.

oes not insulate the plaintiffs from the discovery of

communications regarding the lawsuit. The judge stated

that some of the evidence requested in discovery was

essential to prove or disprove the claim of the Union's

conflict of interest and that any incidental infringement

on Section 7 interests would be outweighed by the need to

determine whether there exists a conflict of interest.

We concluded that the information sought was relevant

to determining whether class counsel should be removed due

to a conflict of interest, and the Employers' interest in

obtaining the information outweighed any harm to employees'

Section 7 rights.

In deciding this case, we acknowledged that when an

employer pursues in discovery information regarding Section

7 activity, the Board must consider whether the employer's

constitutional interest in access to the courts and its

legitimate use of legal proceedings in pursuit of those

claims justifies the employer's actions. That inquiry

turns in part on the relevance of the information sought to

the matter at issue in the lawsuit. See Maritz

Communications Co., 274 NLRB 200 (1985); Wright Electric,

Inc., 327 NLRB 1194 (1999), enfd. 200 F.3d 1162 (8th Cir.

2000); and Guess?, Inc., 339 NLRB 432 (2003). In Guess,

the Board announced a three-step analysis for determining

whether questions that pertain to employees' protected

concerted activities are permissible when propounded during

discovery in a civil proceeding. Specifically, (1) the

questioning must be relevant; (2) it must not have an

"illegal objective;" and (3) the employer's interest in

00); and Guess?, Inc., 339 NLRB 432 (2003). In Guess,

the Board announced a three-step analysis for determining

whether questions that pertain to employees' protected

concerted activities are permissible when propounded during

discovery in a civil proceeding. Specifically, (1) the

questioning must be relevant; (2) it must not have an

"illegal objective;" and (3) the employer's interest in

obtaining the information must outweigh the employees'

Section 7 confidentiality interests. 339 NLRB at 434.

Applying Guess, we first concluded that the

information sought by the Employers in the instant case was

relevant. Each of the discovery requests at issue

concerned factors relevant to whether there was a conflict

of interest between class counsel and the named plaintiffs.

These are valid areas of inquiry relevant to the

appropriateness of class certification. See, e.g., Kamean

v. Teamsters Local 363, 109 F.R.D. 391 (S.D.N.Y. 1986).

Further, the judge, in ruling on the motion to compel

discovery, found that the information was essential to the

issue of conflict of interests, and that the circumstances

raised a serious question of whether class counsel should

be disqualified, warranting further discovery.

We then assumed, as the Board did in Guess, that the

requests did not have an "illegal objective" and, applying

the balancing prong of the Guess test, we concluded that

the Employers' interest in the information outweighed any

potential harm to employees’ Section 7 rights. In this

regard, the employees about whom information was sought

were named plaintiffs who had made known their ties to the

hen assumed, as the Board did in Guess, that the

requests did not have an "illegal objective" and, applying

the balancing prong of the Guess test, we concluded that

the Employers' interest in the information outweighed any

potential harm to employees’ Section 7 rights. In this

regard, the employees about whom information was sought

were named plaintiffs who had made known their ties to the

Union. Given this, any infringement on employees'

confidentiality interests would be minimal at most. In

contrast, the Employers' interest in the requested

information was critical to determining whether the alleged

conflict of interest rendered the class action

inappropriate. The judge found the discovery was narrowly

tailored to that purpose.

We therefore concluded that the discovery requests did

not violate Section 8(a)(1) because the Employers'

substantial need for the requested information outweighed

any potential harm to employees’ Section 7 rights.

However, in so doing, we noted serious concerns as to

whether the balancing test articulated in Guess should be

applied at any stage of a reasonably-based lawsuit in light

of BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).

We also noted that it is unclear whether "illegal

objective", as the Board apparently defined it in prior

discovery cases, would pass muster under the Supreme

Court's holding in BE & K. However, since there was no

violation under existing Board precedent, we decided that

this case did not present an appropriate vehicle to have

the Board to clarify those issues.

B, 536 U.S. 516 (2002).

We also noted that it is unclear whether "illegal

objective", as the Board apparently defined it in prior

discovery cases, would pass muster under the Supreme

Court's holding in BE & K. However, since there was no

violation under existing Board precedent, we decided that

this case did not present an appropriate vehicle to have

the Board to clarify those issues.

RECOGNITION OF MINORITY UNION

Premature Recognition of Union Following Relocation and a

Reasonably Certain Expected Large Increase in Workforce

In another case, we concluded that the Employer

violated Section 8(a)(2) and (3) of the Act by recognizing

Union A and entering into an agreement with a union

security clause because at the time of recognition, the

Employer had not hired a substantial and representative

complement of employees. We also found that Union A

violated Section 8(b)(1)(A) and 8(b)(2) by accepting

recognition and entering into the agreement containing a

union security clause.

Prior to the recognition of Union A, the Employer

operated four facilities and Union B represented

approximately 540 employees in a multi-facility unit. In

2001, the Employer acquired another company that

manufactured the same type of products as the Employer’s

other four facilities. Union A represented the

approximately 83 unit employees at this newly acquired

fifth facility.

In August 2004, Union A and the Employer negotiated a

successor agreement pursuant to which the Employer agreed

to recognize Union A as the representative of the unit

employees at a sixth facility not yet opened. Later that

month, the Employer closed the newly acquired fifth

facility represented by Union A and offered the employees

jobs at the new sixth facility. That offer was accepted by

70 of the 80 employees then working

yer negotiated a

successor agreement pursuant to which the Employer agreed

to recognize Union A as the representative of the unit

employees at a sixth facility not yet opened. Later that

month, the Employer closed the newly acquired fifth

facility represented by Union A and offered the employees

jobs at the new sixth facility. That offer was accepted by

70 of the 80 employees then working. When that sixth

facility finally opened in November 2004, the Employer

treated Union A as the bargaining representative and

applied its August 2004 collective-bargaining agreement

with Union A to the employees.

The sixth facility had almost 450,000 square feet of

space while the fifth facility had only 50,000 square feet.

The four facilities represented by Union B collectively had

about 600,000 square feet of space. When the sixth

facility opened, the Employer decided in the near future

the work in the other four facilities would be relocated

there, although it claimed that the timing of the closures

of the other facilities had not then been set. The

Employer closed the first of the four facilities at the end

of December and two of the remaining three other facilities

represented by Union B were closed in the summer of 2005.

The Employer intended to hire 200 to 500 new full-time

bargaining unit employees at the sixth facility within the

next two years, based upon business conditions. The

Employer decided not to offer transfers to the employees in

the four facilities but instead to consider them if they

applied as new employees at the sixth facility.

At the time the sixth facility opened, 84 unit

employees were employed there. One month later, 216 unit

employees were employed and the employees transferred from

the fifth facility represented only 39% of the workforce.

By January 2005, there were 296 employees working at the

sixth facility and the original Union A-represented

employee complement had slipped to only 28% of the

workforce

At the time the sixth facility opened, 84 unit

employees were employed there. One month later, 216 unit

employees were employed and the employees transferred from

the fifth facility represented only 39% of the workforce.

By January 2005, there were 296 employees working at the

sixth facility and the original Union A-represented

employee complement had slipped to only 28% of the

workforce. All new hires were subject to the union

security clause after 30 days.

We determined that the sixth facility did not

constitute the mere relocation of the fifth facility

represented by Union A, since it appeared that the Employer

also intended to consolidate and relocate work from the

Union B facilities to the sixth facility. The Employer

acquired space far in excess of the needs of the work

formerly performed at the fifth facility represented by

Union A. The Employer admittedly planned to close the

remaining four Union B represented units and knew that at

some point, work from those facilities would be relocated

to the sixth facility. Both the size of the sixth facility

and the expansion of the workforce in two months to nearly

three times the size when operations began undermined the

Employer’s argument that it was privileged to grant

recognition to Union A. An employer violates Section

8(a)(2) if it recognizes a union at a time when it expects

that the unit will expand in the immediate future and is

able to predict that expansion with a “reasonable

certainty.” O-J Transport Co., 333 NLRB 1381, 1389 (2001)

(the employer prematurely recognized a unit of employees

when the representative complement expanded more than 10-

fold practically overnight).

In this case, it was clear that the Employer intended

to hire new employees through ads, hiring services, etc

he immediate future and is

able to predict that expansion with a “reasonable

certainty.” O-J Transport Co., 333 NLRB 1381, 1389 (2001)

(the employer prematurely recognized a unit of employees

when the representative complement expanded more than 10-

fold practically overnight).

In this case, it was clear that the Employer intended

to hire new employees through ads, hiring services, etc.

The quick hiring of many new employees did not reflect a

natural, gradual expansion of operations, but rather was

consistent with a finding that the Employer knew at the

outset that its original employee complement was only the

start-up force and would not remain a majority of the

workforce very long.

In these circumstances, we concluded that the Employer

recognized Union A, and Union A accepted recognition,

prematurely. The rights of the newly hired employees to

select or reject a bargaining representative were violated

by the recognition of the Union A based on the desires of

less than 30% of the employee complement a mere two months

after recognition. The appropriate point in time for

measuring when the Employer employed a substantial

percentage of the new work force was not on the date the

new facility opened, but rather on the date when the

workforce was representative of the full complement planned

by the Employer for the intended actual operation. Cf.

Harte & Co., 278 NLRB 947, 949 (1986) (appropriate point in

time to measure whether a substantial percentage of the new

work force is composed of transferees was when employer’s

relocation process was substantially complete). This did

not occur here until at least January, when the Employer

employed 296 employees at the sixth facility.

EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH

on. Cf.

Harte & Co., 278 NLRB 947, 949 (1986) (appropriate point in

time to measure whether a substantial percentage of the new

work force is composed of transferees was when employer’s

relocation process was substantially complete). This did

not occur here until at least January, when the Employer

employed 296 employees at the sixth facility.

EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH

Parties' Memorandum of Agreement Did Not Privilege the

Employer’s Unilateral Changes

Another interesting case involved whether the

Employer, a major daily newspaper, violated Section 8(a)(5)

when it unilaterally assigned to its newsroom employees the

development of original content for its website. In June

2005, the Employer instructed some of its newsroom

employees to interact with readers online using a variety

of interactive online technologies, including conducting

real-time Q & A “chats” with readers and developing

“podcasts,” by which on-line readers could access

specially-produced editorial content. The Employer argued

that an expired 1995 Agreement with the Union privileged it

to assign this work unilaterally, even though that

agreement had simply resulted in the creation of an online

reproduction of the newspaper, rather than the creation of

original editorial content under the more recent

interactive technologies. We decided that a “contract

interpretation” analysis of the Agreement established that

the parties had never intended that the Employer could

assign newsroom employees the task of producing original

and exclusive material for the Employer's website.

nline

reproduction of the newspaper, rather than the creation of

original editorial content under the more recent

interactive technologies. We decided that a “contract

interpretation” analysis of the Agreement established that

the parties had never intended that the Employer could

assign newsroom employees the task of producing original

and exclusive material for the Employer's website.

We have taken the position that in unilateral change

implementation cases involving a claim of contractual

privilege, the Board should modify its current "clear and

unmistakable" waiver standard in favor of simply

interpreting the parties' agreement. This approach would

avoid conflicts with circuit courts that apply a "contract

coverage" analysis, and would also clarify the Board's

occasionally inconsistently applied contractual waiver

standard. In engaging in contract interpretation, the

Board should take into account all relevant factors,

including: (1) the wording of the proffered sections of the

agreement at issue; (2) the parties' past practices; (3)

the relevant bargaining history; and (4) an interpretation

of any other provisions in any bilateral agreement or

arrangement that may shed light on the parties' agreement

concerning the change at issue.

All of these factors led us to conclude that the

Employer unlawfully assigned this work to unit employees

without bargaining. First, the Agreement’s language

indicated that it was not intended to cover the changes

made by the Employer's new online initiative. Second, the

past practice under the Agreement, namely the development

of a website in 1995 that merely reproduced the print

ssue.

All of these factors led us to conclude that the

Employer unlawfully assigned this work to unit employees

without bargaining. First, the Agreement’s language

indicated that it was not intended to cover the changes

made by the Employer's new online initiative. Second, the

past practice under the Agreement, namely the development

of a website in 1995 that merely reproduced the print

newspaper, did not contain exclusive or original content

encompassed by the Employer’s current initiative. Third,

the parties' bargaining history indicated that the

Agreement was never intended to privilege the Employer to

assign newsroom employees to produce original and exclusive

online material for its website. Finally, no other contract

provisions or bilateral arrangements shed light on the

parties' Agreement. Accordingly, we decided that the

factors traditionally relied on by the Board and courts

when interpreting collective-bargaining agreements

established that the Agreement was never intended to allow

the Employer to unilaterally assign newsroom employees the

work of producing original and exclusive content for its

website.

The Employer did not violate Section 8(a)(1) or (5) by

refusing to recognize and bargain with the Union as the

minority bargaining representative only for its members

In a significant case during this period, we concluded

that an employer has no statutory obligation to recognize

and bargain with a union seeking to bargain as a minority

representative for its members only. This conclusion was

based on the language of the NLRA, its legislative history,

and Board and Supreme Court decisions interpreting the Act,

all of which underscore that the statutory obligation to

cant case during this period, we concluded

that an employer has no statutory obligation to recognize

and bargain with a union seeking to bargain as a minority

representative for its members only. This conclusion was

based on the language of the NLRA, its legislative history,

and Board and Supreme Court decisions interpreting the Act,

all of which underscore that the statutory obligation to

bargain is fundamentally grounded on the principle of

majority rule.

An employee “Council” was formed as an affiliate of a

major International Union. The Council did not represent a

majority of employees in any appropriate bargaining unit,

but consisted of a number of dues-paying members employed

by the Employer. The Council requested that the Employer

bargain with it over several matters, and the Employer at

all times refused. The Union filed a charge alleging that

the Employer violated Section 8(a)(1) and/or (5). The

theory of the charge was based on the conclusions of

Professor Charles Morris' book, The Blue Eagle at Work,

that an employer's refusal to recognize a members-only

union violates the Act.

The Union’s first argument was that general principles

of statutory construction obligate an employer to bargain

on a members-only basis. The Union asserted that Section 7

broadly protects the right of all employees, organized and

unorganized, to engage in collective bargaining, and

therefore an employer's refusal to recognize and bargain

with a minority union on a members-only basis constitutes

interference with that right in violation of Section

8(a)(1). Furthermore, it argued that the Act's only

on a members-only basis. The Union asserted that Section 7

broadly protects the right of all employees, organized and

unorganized, to engage in collective bargaining, and

therefore an employer's refusal to recognize and bargain

with a minority union on a members-only basis constitutes

interference with that right in violation of Section

8(a)(1). Furthermore, it argued that the Act's only

limitation of the broad bargaining right guaranteed by

Section 7 is Section 9(a) which, it contended, is

applicable only after a union attains exclusive majority

status.

Second, the Union argued that the legislative history

of the Act supports minority union bargaining. It claimed

that members-only minority bargaining historically was not

only commonplace, but mandated under the National

Industrial Recovery Act (NIRA), the precursor to the Act.

We first concluded that the statutory language,

legislative history, and cases interpreting them clearly

demonstrate that the drafters of the National Labor

Relations Act envisioned a policy of "encouraging the

practice and procedure of collective bargaining" firmly

based on the principle of majority rule. When Congress

enacted Section 9(a), which sets forth the majority rule,

it explicitly rejected other forms of representation,

including plural and proportional representation, which

were permitted under Section 7(a) of the NIRA. Statements

by the Act’s sponsors show that they did not intend to

require employee representation by minority-supported

unions because it could not lead to a working system of

collective bargaining. Congressional reports on the Act

it explicitly rejected other forms of representation,

including plural and proportional representation, which

were permitted under Section 7(a) of the NIRA. Statements

by the Act’s sponsors show that they did not intend to

require employee representation by minority-supported

unions because it could not lead to a working system of

collective bargaining. Congressional reports on the Act

also recognized the impracticality of a system that could

result in an employer having to bargain with several

minority-supported unions representing different segments

of the same unit of employees. These reports demonstrate

that Congress understood that minority union bargaining

would undermine the potential for meaningful collective

bargaining.

In directing the Region to dismiss the charge, we also

relied on Board and Supreme Court constructions of the Act

demonstrating that the duty to bargain is based on majority

rule. In the early enforcement of the Act, the Board held

that an employer may recognize and bargain with a minority,

members-only union, as long as the employer does not extend

that union exclusive status. Consolidated Edison Co. of

New York, 4 NLRB 71, 110 (1937), enfd. 95 F.2d 390 (2d

Cir.), modified on other grounds 305 U.S. 197 (1938).

However, nothing in the statutory language, legislative

history of the Act, or decisions interpreting the Act,

establish an employer's duty to do so.

Furthermore, the Board has never construed Section

8(a)(5) as operating independently from Section 9(a). The

Board will therefore not find a Section 8(a)(5) violation

for refusing to bargain, and will not issue a bargaining

197 (1938).

However, nothing in the statutory language, legislative

history of the Act, or decisions interpreting the Act,

establish an employer's duty to do so.

Furthermore, the Board has never construed Section

8(a)(5) as operating independently from Section 9(a). The

Board will therefore not find a Section 8(a)(5) violation

for refusing to bargain, and will not issue a bargaining

order, where a members-only union is not the majority

representative.

We also addressed the Union’s contention that even if

Section 8(a)(5) does not mandate minority bargaining, such

an obligation is found in Sections 7 and 8(a)(1). We

acknowledged that a bargaining order can be premised on

Section 8(a)(1) in addition to Section 8(a)(5). However,

as with Section 8(a)(5), the union's majority status is a

prerequisite to the issuance of a Section 8(a)(1)

bargaining order.

In sum, we rejected the Union’s argument based on the

language of the statute, the legislative history, and

distinctions of well-settled Board and Court cases. Nor

did we view this as an open issue for the Board. Rather,

the statutory language, the legislative history, and Board

and Supreme Court decisions interpreting the Act all

mandate the conclusion that an employer is not required to

bargain with a union seeking to bargain as a minority

representative for its members.

UNION REFUSAL TO BARGAIN IN GOOD FAITH

Union Arguably Misrepresented the True Status of the

Pension Fund at the Bargaining Table

We concluded that a Section 8(b)(3) complaint alleging

bad faith bargaining was warranted in a case in which the

Union, through its president, misrepresented the true

status of its pension fund at the bargaining table.

During negotiations for a successor contract, a

primary issue was whether the Employer would continue to

participate in the Union’s multi-employer pension plan

ng Table

We concluded that a Section 8(b)(3) complaint alleging

bad faith bargaining was warranted in a case in which the

Union, through its president, misrepresented the true

status of its pension fund at the bargaining table.

During negotiations for a successor contract, a

primary issue was whether the Employer would continue to

participate in the Union’s multi-employer pension plan.

During the second bargaining session, the Employer’s

negotiator submitted a written inquiry to the Union

regarding the solvency of the Union’s pension plan,

including whether the fund was underfunded. According to

the Employer, the Union president, who was also a plan

trustee, stated that the plan was not underfunded and the

Employer did not have to worry about withdrawal liability.

As a result, the Employer agreed to continue participating

in the plan and subsequently signed a new collective-

bargaining agreement. After signing the contract, the

Employer learned that the plan was, and had been,

underfunded when bargaining occurred.

We determined that the Union president possessed the

information requested by the Employer but misrepresented

the facts in order to get the contract signed. The Union

president was a trustee of the fund and had been present at

trustee meetings held prior to negotiations during which

withdrawal liability figures had been set and she also had

access to the plan’s annual report. Moreover, fund

administrators had signed a Department of Labor form

showing that the plan was underfunded just one week before

the Union president provided the Employer with the

information at the negotiation session.

We concluded that the Union had a duty to make

truthful representations at the bargaining table and that

the Union’s failure to do so amounted to bad faith

bargaining in violation of Section 8(b)(3) of the Act. A

union’s duty to provide accurate information pursuant to

Section 8(b)(3) is parallel to the duty of an employer

under Section 8(a)(5)

information at the negotiation session.

We concluded that the Union had a duty to make

truthful representations at the bargaining table and that

the Union’s failure to do so amounted to bad faith

bargaining in violation of Section 8(b)(3) of the Act. A

union’s duty to provide accurate information pursuant to

Section 8(b)(3) is parallel to the duty of an employer

under Section 8(a)(5). See California Nurses Association,

326 NLRB 1362 (1998); Plasterers Local 346 (A.G. Brawner

Plastering, Inc.), 273 NLRB 1143, 1144 (1984). The Board

has held that a material fraudulent misrepresentation

during negotiations violates a party’s duty to bargain in

good faith. See Waymouth Farms, 324 NLRB 960, 961-62

(1997), enfd. in pertinent part 172 F.3d 598 (8th Cir.

1999) (employer misrepresented its intentions about plans

to relocate its business).

With respect to the remedy, we noted that because the

plan calculates withdrawal liability at the end of its

fiscal year, there was no evidence that the Employer’s

withdrawal liability was affected by the Union’s bad faith

bargaining. Further, there was uncertainty as to what, if

any, liability the Employer would incur should it withdraw

when the current contract expires; and a rescission order

might adversely impact employees who had retired since the

current contract was executed. Therefore, we decided not

to seek rescission of the contract or a make-whole remedy

for the Employer.

SECONDARY BOYCOTTS AND/OR AGREEMENTS

Whether a Hotel and a Labor Coalition, Acting as a

Customer in a Commercial Transaction Rather Than Solely as

a Labor Organization, Violated Section 8(e)

In a unique and novel set of facts, we decided to

dismiss, absent withdrawal, a Section 8(e) charge regarding

a labor federation’s commercial contract with a hotel to

host a convention, where the contract provided that the

hotel would not take deliveries for 30 days from a beer

as a

Customer in a Commercial Transaction Rather Than Solely as

a Labor Organization, Violated Section 8(e)

In a unique and novel set of facts, we decided to

dismiss, absent withdrawal, a Section 8(e) charge regarding

a labor federation’s commercial contract with a hotel to

host a convention, where the contract provided that the

hotel would not take deliveries for 30 days from a beer

distributor involved in a labor dispute. We determined

that the particular facts of the case made it an

inappropriate vehicle with which to present the Board with

difficult and novel legal issues as to: (1) whether the

interim labor federation was a Section 2(5) labor

organization; and (2) even if it was, whether in enacting

Section 8(e), Congress was concerned about commercial

contracts entered into by a labor organization acting as a

consumer of services rather than in connection with any

employee representational capacity.

The federation was formed in June 2005 by several

international labor organizations, and scheduled a founding

convention in St. Louis during September 2005, where it

became a “coalition” and ratified a constitution. The

federation had entered into a commercial contract with a

hotel to host the convention; one provision of that

contract was that the hotel agreed not to accept deliveries

for 30 days from a beer distributor involved in a primary

contract dispute with a local union. The 30 days were to

cover the 8-day period when the federation and two other

labor groups were holding conventions at the hotel, and

were intended to avoid the labor groups facing any

ambulatory picketing when the distributor was making

contract was that the hotel agreed not to accept deliveries

for 30 days from a beer distributor involved in a primary

contract dispute with a local union. The 30 days were to

cover the 8-day period when the federation and two other

labor groups were holding conventions at the hotel, and

were intended to avoid the labor groups facing any

ambulatory picketing when the distributor was making

deliveries to the hotel. The hotel stockpiled product from

the distributor prior to the 30 days.

We initially concluded that although the 30-day

contractual cessation of deliveries might arguably fall

within the literal proscription of Section 8(e), it was

unclear whether Congress intended to prohibit commercial

agreements between a labor organization acting as a

consumer of goods or services and the provider of such good

and services, where part of such an agreement was that the

provider would boycott a primary employer. Despite the

"sweeping" language of Section 8(e) the Supreme Court had

recognized an exception in holding agreements to preserve

bargaining unit work to be lawful, and finding that Section

8(e) paralleled Section 8(b)(4). National Woodwork Mfrs.

Assn v. NLRB, 386 U.S. 612 (1967). We also noted that

Section 8(b)(4) does not bar requests to neutral employers

to cease doing business with primary employers, NLRB v.

Servette, Inc., 377 U.S. 46 (1964), and that groups that

are not Section 2(5) labor organizations are free to enter

into commercial contracts accommodating interests,

including boycotts, similar to that of the federation.

Further, we noted that although the 30-day duration of the

delivery ban exceeded the actual time the labor groups were

ease doing business with primary employers, NLRB v.

Servette, Inc., 377 U.S. 46 (1964), and that groups that

are not Section 2(5) labor organizations are free to enter

into commercial contracts accommodating interests,

including boycotts, similar to that of the federation.

Further, we noted that although the 30-day duration of the

delivery ban exceeded the actual time the labor groups were

holding their conventions, it was not an agreement to ban

deliveries for the duration of the local union’s primary

dispute.

In addition to those Section 8(e) considerations, the

facts presented an unusual situation where the federation

was not clearly a "traditional" labor organization but was

a short-lived, transitional group not aimed at directly

representing employees. The existence of the federation,

the entity that signed the commercial contract with the

hotel, ceased at the convention. While the federation was

arguably a Section 2(5) labor organization, resolving that

question would only add to the complexity of the Section

8(e) issues. In all the circumstances, we concluded that

the case was not an appropriate vehicle in which to present

the Section 8(e) issue to the Board.

SECTION 10(b)

Six-Month Limitations Proviso to Section 10(b) Was Tolled

with Respect to an Allegation That the Employer Unlawfully

Sponsored a Decertification Effort Where the Employer's

Assistance Was Covert until It Was Revealed to an Employee

We concluded in this unusual case that the six-month

limitations proviso to Section 10(b) of the Act was tolled

with respect to an allegation that the Employer covertly

imitations Proviso to Section 10(b) Was Tolled

with Respect to an Allegation That the Employer Unlawfully

Sponsored a Decertification Effort Where the Employer's

Assistance Was Covert until It Was Revealed to an Employee

We concluded in this unusual case that the six-month

limitations proviso to Section 10(b) of the Act was tolled

with respect to an allegation that the Employer covertly

sponsored a decertification effort more than 18 months

prior to the Union’s filing of the charge. A replacement

employee approached the Union in May 2005 with information

that the Employer, in December 2003 or January 2004, had

covertly encouraged and aided three replacement employees,

including him, to engage in a decertification effort among

the replacement employees during a lockout of Union-

represented employees. We concluded that the Charging

Party Union would have been unable to discover sufficient

facts within the original limitations period to have gained

either actual or constructive notice of a violation. The

Employer carefully concealed the facts necessary to

establish a violation from everyone except the three

employees directly involved in sponsoring the

decertification campaign. Under these circumstances, we

remanded this case to the Regional Director for a decision

on the merits of the allegation.

When the parties’ most recent collective-bargaining

agreement expired in September 2003, the Union began an

economic strike in support of its bargaining demands. The

Employer immediately began hiring permanent replacements

for the approximately 85 strikers and announced an economic

cumstances, we

remanded this case to the Regional Director for a decision

on the merits of the allegation.

When the parties’ most recent collective-bargaining

agreement expired in September 2003, the Union began an

economic strike in support of its bargaining demands. The

Employer immediately began hiring permanent replacements

for the approximately 85 strikers and announced an economic

lockout in January 2004, which has continued to date. No

strikers were recalled.

In May 2005, a former replacement employee voluntarily

approached the Union and described for the first time the

circumstances surrounding the Employer’s covert sponsorship

of a decertification petition. He told the Union that the

Employer had summoned two other employees and himself to a

meeting in late December 2003 or early January 2004 to

initiate a decertification effort among the replacement

employees. The Employer gave the employees written

guidelines on how to decertify the Union. The Employer

also cautioned the three employees to keep the Employer’s

sponsorship of the decertification effort a secret and to

destroy the written guidelines after they became familiar

with the contents. The employee further reported to the

Union that the Employer gave the three employees a master

list of employees to enable them to solicit signatures on a

decertification petition, and also provided them with

sheets of paper with a typed heading, “I Do Not Want the

Union.” The employee told the Union that the Employer

threatened the three replacement employees that if they did

not get signatures on the petition, they could lose their

jobs.

mployer gave the three employees a master

list of employees to enable them to solicit signatures on a

decertification petition, and also provided them with

sheets of paper with a typed heading, “I Do Not Want the

Union.” The employee told the Union that the Employer

threatened the three replacement employees that if they did

not get signatures on the petition, they could lose their

jobs.

We decided that because of the deliberate secrecy on

the part of the Employer to keep its involvement in the

decertification effort hidden from the Union, as described

by the former replacement employee, it was impossible for

the Union to have gained either actual or constructive

knowledge of the alleged violations within the Section

10(b) period. We concluded that no degree of due diligence

on the part of the Union could have reasonably led it to

discover the Employer’s covert sponsorship of the

decertification petition inasmuch as the Employer’s

strategy from the outset, as described by the former

replacement employee, was to keep it hidden from the Union.

The Board recognizes that a charging party must have

knowledge of the facts necessary to support a present, ripe

unfair labor practice charge, and that unconfirmed

suspicion does not fulfill this requirement. Esmark, Inc.

v. NLRB, 887 F.2d 739, 745 (7th Cir. 1989). A union is not

required to predict the future as a situation gradually

unfolds and as facts that establish actual notice manifest

themselves. Leach Corporation, 312 NLRB 990 (1993), enfd.

54 F.3d 802 (D.C. Cir. 1995). As the Board found in R.G.

Burns Electric, 326 NLRB 440, 441 (1998), a union’s “mere

not fulfill this requirement. Esmark, Inc.

v. NLRB, 887 F.2d 739, 745 (7th Cir. 1989). A union is not

required to predict the future as a situation gradually

unfolds and as facts that establish actual notice manifest

themselves. Leach Corporation, 312 NLRB 990 (1993), enfd.

54 F.3d 802 (D.C. Cir. 1995). As the Board found in R.G.

Burns Electric, 326 NLRB 440, 441 (1998), a union’s “mere

suspicion” of a violation outside of the limitations period

is not tantamount to constructive notice sufficient to give

the union the “clear and unequivocal” notice required to

trigger the running of the Section 10(b) period.

In our case, the Union did not have actual notice of a

violation within the Section 10(b) period because there was

no evidence that anyone made the Union aware of the

Employer’s alleged involvement in the decertification

effort. Nor could the Union be charged with constructive

notice of a violation such as to bar the tolling of Section

10(b) because it had no means by which it could have

reasonably discovered the allegedly covert nature of the

decertification effort. The only individuals privy to the

allegedly covert actions were the employer officials and

the three non-Union employees promoting the petition. The

other replacements who supported the petition presumably

had no knowledge of the Employer’s involvement. Thus, even

if the Union had tried to discover the origins of the

petition, its efforts would have been fruitless.

tification effort. The only individuals privy to the

allegedly covert actions were the employer officials and

the three non-Union employees promoting the petition. The

other replacements who supported the petition presumably

had no knowledge of the Employer’s involvement. Thus, even

if the Union had tried to discover the origins of the

petition, its efforts would have been fruitless.

REMEDIES

Under General Counsel Memorandum 06-05, It Was Appropriate

to Seek Specific Affirmative Remedies in Addition to

Traditional Remedies to Adequately Protect Collective

Bargaining During the Initial Year of the Parties'

Bargaining Relationship in Two Cases

In two cases, we considered what specific types of

"special remedies" were appropriate to seek given the

number and types of violations in situations where a union,

either through an initial certification or a successor

employer situation, was negotiating for an initial

collective-bargaining agreement.

In one case, the employer had taken over a cleaning

contract as a Burns successor (NLRB v. Burns Int’l Security

Services, 406 U.S. 272 (1972)) for a unit of five

employees. The employer initially rejected outright the

union’s demand for bargaining. After agreeing to an

informal settlement of a Section 8(a)(5) charge, requiring

the employer to post a notice and to recognize and bargain

with the union, the employer again refused to bargain.

We decided that seeking affirmative remedies requiring

notice reading and periodic bargaining status reports was

warranted given the employer’s disregard of its obligations

under the settlement agreement and its ongoing refusal to

bargain. See Betra Mfg. Co., 233 NLRB 1126, 1126-27

a notice and to recognize and bargain

with the union, the employer again refused to bargain.

We decided that seeking affirmative remedies requiring

notice reading and periodic bargaining status reports was

warranted given the employer’s disregard of its obligations

under the settlement agreement and its ongoing refusal to

bargain. See Betra Mfg. Co., 233 NLRB 1126, 1126-27

(1977), enfd. 624 F.2d 192 (9th Cir. 1980) (table), cert.

denied 450 U.S. 996 (1981) (special remedies warranted

where employer continued to bargain in bad faith in breach

of 8(a)(5) settlement agreement). Notice reading ensures

both that employees learn about their statutory rights, and

that they gain assurance from a high level employer

representative or alternatively a government official that

an employer will respect those rights. United States

Service Industries, 319 NLRB 231, 232 (1995), enfd. mem.

107 F.3d 923 (D.C. Cir. 1997) (quoting J.P. Stevens & Co.

v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969)) ("the public

reading of the notice is an 'effective but moderate way to

let in a warming wind of information, and more important,

reassurance.'"). Given that the employer had already

posted and disregarded a traditional Board notice, we

concluded that the notice to be read and posted should

contain special language modeled on the Board’s notice in

Betra Mfg. Co., 233 NLRB at 1128, acknowledging the

employer’s failure to comply with the previous posting.

Given the employer’s obdurate refusal to meet and

bargain with the union, we further concluded that periodic

ady

posted and disregarded a traditional Board notice, we

concluded that the notice to be read and posted should

contain special language modeled on the Board’s notice in

Betra Mfg. Co., 233 NLRB at 1128, acknowledging the

employer’s failure to comply with the previous posting.

Given the employer’s obdurate refusal to meet and

bargain with the union, we further concluded that periodic

reports on the status of bargaining were necessary to

ensure that good-faith bargaining takes place, and

authorized the Region to seek an affirmative order

requiring the employer to provide, upon the Regional

Director’s requests “made at reasonable intervals,” reports

on the progress of the parties’ negotiations. See, e.g.,

Harowe Servo Controls, 250 NLRB 958, 964, 1123-24 (1980).

In the second case, the union was certified to

represent a unit of approximately 10 of the employer’s

drivers. The parties met for 11 bargaining sessions over

13 months; halfway through that period, there was a two-day

strike supported by all but one unit employee. A complaint

issued alleging, among other things, that the employer

violated Section 8(a)(3) by implementing, and then

rescinding, a substantial hourly wage increase; violated

Section 8(a)(5) after the strike by unilaterally changing

its past practices of assigning drivers to a specific truck

each day and allowing drivers to take company truck keys

and cell phones home with them; and violated Section

8(a)(1) by telling employees they could not discuss the

strike with customers. It also violated Section 8(a)(5) by

delaying in responding to union requests for bargaining

dates, by cancelling bargaining dates, and by not making

ast practices of assigning drivers to a specific truck

each day and allowing drivers to take company truck keys

and cell phones home with them; and violated Section

8(a)(1) by telling employees they could not discuss the

strike with customers. It also violated Section 8(a)(5) by

delaying in responding to union requests for bargaining

dates, by cancelling bargaining dates, and by not making

itself available for bargaining at reasonable intervals,

and by engaging in bad faith bargaining by insisting on

proposals that would leave employees with fewer rights than

they would have without a contract, i.e., insisting on

proposals that would give the employer the right to make

unilateral changes in subcontracting and hours of work and

that would provide for arbitration only at the employer's

option, along with a no-strike clause.

We agreed that seeking an extension of the union’s

certification year was appropriate under Mar-Jac Poultry

Co., 136 NLRB 785 (1962). We also decided that seeking

certain other “special remedies” before the Board was

appropriate. Thus, because of the employer’s failure to

meet and bargain in good faith as shown by its various

delays in responding to union requests for bargaining,

cancellation of bargaining sessions, and by not making

itself available for bargaining at reasonable intervals, a

remedy affirmatively requiring the employer to meet and

bargain reasonably often and for reasonably long periods of

time would be appropriate, as would requiring the employer

to report in writing on the progress of bargaining to the

Regional Director upon his requests made at reasonable

intervals. Harowe Servo Controls, 250 NLRB at 1123-25.

ailable for bargaining at reasonable intervals, a

remedy affirmatively requiring the employer to meet and

bargain reasonably often and for reasonably long periods of

time would be appropriate, as would requiring the employer

to report in writing on the progress of bargaining to the

Regional Director upon his requests made at reasonable

intervals. Harowe Servo Controls, 250 NLRB at 1123-25.

We further concluded that instead of a possible

affirmative requirement that the employer withdraw certain

of its bargaining proposals, the appropriate remedy would

be to seek a specific provision requiring the employer to

cease and desist from in any manner engaging in surface

bargaining or bad faith bargaining, specifically by

offering bargaining proposals that would interfere with the

employees’ exercise of Section 7 rights and that would

reserve to the employer complete control over the terms and

conditions of employment of its employees, while providing

to the union no effective means to redress grievances.

Target Rock Corp., 324 NLRB 373, 375 (1997)(order para.

1(d)), enfd. 172 F.3d 921 (D.C. Cir. 1998) (table).

SECTION 10(j) AUTHORIZATIONS

During the three month period from April 1 through

June 30, 2006, the Board authorized a total of six Section

10(j) proceedings. Most of the cases fell within factual

patterns set forth in General Counsel Memoranda 06-02, 01-

03, 98-10, 89-4, 84-7, and 79-77.1 Two cases were somewhat

unusual and therefore warrant special discussion.

The first case involved a union organizing campaign

among 85 non-professional employees of a nursing home. The

Union won a Board election to which the Employer filed

timely objections. An administrative law judge overruled

all the objections and recommended that the Union be

certified

-10, 89-4, 84-7, and 79-77.1 Two cases were somewhat

unusual and therefore warrant special discussion.

The first case involved a union organizing campaign

among 85 non-professional employees of a nursing home. The

Union won a Board election to which the Employer filed

timely objections. An administrative law judge overruled

all the objections and recommended that the Union be

certified. While the objections were pending before the

Board, the Employer allegedly engaged in serious unfair

labor practices, including threats, an across-the-board

wage increase, the discriminatory discharge of two

employees, the warning of one employee, and the reduction

of work hours of three employees. There also was

substantial evidence that these violations had a chilling

impact on employee support for the Union. There was lower

attendance at Union meetings; employees no longer dealt

with the Union’s organizer; and employees were afraid of

being terminated if they continued to support the Union.

The Board concluded that Section 10(j) proceedings were

warranted to protect the potential status of the Union as

the certified bargaining representative from irreparable

1 See also NLRB Section 10(j) Manual (September 2002),

Section 2.1, “Categories of Section 10(j) Cases.”

harm during Board litigation. The district court granted

an injunction in this case.

The second case involved a recidivist employer with a

record of numerous violations established in court-enforced

Board decisions. In one of these decisions, the Board

found that, shortly after the Union election victory and

continuing through the parties' initial negotiations, the

Employer unilaterally reduced the size of the bargaining

unit by increasing its use of staffing agency employees

while not hiring new employees into the unit. Thus, by

attrition, the unit was reduced from about 40 employees to

decisions. In one of these decisions, the Board

found that, shortly after the Union election victory and

continuing through the parties' initial negotiations, the

Employer unilaterally reduced the size of the bargaining

unit by increasing its use of staffing agency employees

while not hiring new employees into the unit. Thus, by

attrition, the unit was reduced from about 40 employees to

6. The Board and appellate court ordered restoration of

the unit to its pre-violation size, but left for compliance

a determination of the exact ratio of unit employees to

staffing agency employees. After the unit was nearly

eliminated, the Employer withdrew recognition from the

Union based on asserted loss of support that occurred while

there were numerous unremedied violations. Based on this

withdrawal of recognition, the Board sought a contempt

order in the appellate court for violating the bargaining

order in the test-of-certification case.

The Region then issued a compliance specification

seeking a 12 to 1 ratio of unit employees to staffing

agency employees in order to restore the unit. The

supplemental compliance proceeding would result in another

Board judgment that is entitled to protection under Section

10(j) while the matter is pending before the Board. Based

on the issuance of the compliance specification, the Board

determined that Section 10(j) proceedings were necessary to

restore the unit and to protect the efficacy of the

bargaining order being sought in the contempt proceeding. A

district court granted an injunction in this case.

The six cases authorized by the Board fell within the

following categories as described in General Counsel

Memoranda 06-02, 01-03, 98-10, 89-4, 84-7 and 79-77: