Alan Ritchey, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 2012

359 N.L.R.B. 396 (N.L.R.B. 2012)

396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

359 NLRB No. 40
Alan Ritchey, Inc. and Warehouse Union Local 6,
International Longshore and Warehouse Union,
AFL–CIO. Cases 32–CA–018149, 32–CA–
018459, 32–CA–018526, 32–CA–018601, and 32–
CA–018693
December 14, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The central question posed by this case is one the
Board has never adequately addressed in its broader doc-
trinal context under Section 8(a)(5) of the National Labor
Relations Act: whether an employer whose employees
are represented by a union must bargain with the union
before imposing discretionary discipline on a unit em-
ployee.
1
This question will usually arise only during the
period after the union has become the employees’ bar-
gaining representative, but before the parties have agreed
upon a first contract, and only if the parties have not
agreed upon an interim grievance procedure. We hold
today that, like other terms and conditions of employ-
ment, discretionary discipline is a mandatory subject of
bargaining and that employers may not impose certain
types of discipline unilaterally. Nevertheless, based on
the unique nature of discipline and the practical needs of
employers, the bargaining obligation we impose is more
limited than that applicable to other terms and conditions
of employment.
2
We will apply today’s holding prospec-
tively.

1 Member Hayes is recused from participating in this case, and he
took no part in the consideration or disposition of this case.
2 On April 19, 2002, Administrative Law Judge Burton Litvack is-
sued the attached decision. In addition to the exceptions and briefs
filed by the parties, amicus briefs were filed by the Employers Associa-
tion of the Northeast and by LPA, Inc., both urging reversal of the
judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) of the
Act by failing to provide the Union with notice and an opportunity to
bargain before imposing discipline on individual employees. A third
amicus brief urging affirmance of the judge’s finding in this regard was
filed jointly by the AFL–CIO; the American Postal Workers Union,
AFL–CIO; and the Newspaper Guild-CWA, AFL–CIO. The Charging
Party filed a brief in response to LPA’s amicus brief. Sec. I of this
decision addresses this issue in depth. Sec. II of this decision addresses
the other issues before the Board on exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
On September 25, 2009, the two sitting members of the Board issued
a Decision and Order in this proceeding, which is reported at 354
NLRB 628 (2009). Thereafter, the Charging Party filed a petition for
review in the United States Court of Appeals for the Ninth Circuit. On
June 17, 2010, the Supreme Court issued its decision in New Process
Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Sec. 3(b) of the
Act, in order to exercise the delegated authority of the Board, a delegee
group of at least three members must be maintained. Thereafter, the
Background
The United States Postal Service (USPS) contracts
with the Respondent for, among other things, the inspec-
tion and repair of nonmotorized mail-handling equip-
ment. The Respondent performs these services at several
facilities, including, as pertinent here, its Richmond, Cal-
ifornia facility, which it opened in August 1999, and
where it employed approximately 250 employees at all
relevant times. On April 13, 2000,
3
a majority of the
Respondent’s employees in an appropriate bargaining
unit voted in favor of representation by Warehouse Un-
ion Local 6, International Longshore and Warehouse
Union.
The General Counsel alleged that, following the em-
ployees’ selection of the Union as their bargaining repre-
sentative, the Respondent committed multiple violations
of Section 8(a)(5), (3), and (1) of the Act. No exceptions
were filed to the judge’s dismissal of a number of these
allegations.
4

I. THE DISCRETIONARY IMPOSITION
OF DISCIPLINE
As stated above, the primary question raised in this
case is whether an employer has a duty to bargain before
unilaterally disciplining individual employees, when the
employer does not alter broad, preexisting standards of
conduct but exercises discretion over whether and how to
discipline individuals. The issue arises in this case, as it
typically will, after the employees voted to be represent-
ed by the Union, but before the parties entered into a
collective-bargaining agreement or other binding agree-
ment governing discipline.

court of appeals remanded this case for further proceedings consistent
with the Supreme Court’s decision.
In the two-member decision, the Board severed and remanded to the
judge the question of whether the Respondent made a change in the
enforcement of its efficiency standard and in the sanctions for failing to
meet that standard that constituted a substantial and material change in
terms and conditions of employment sufficient to require pre-
implementation bargaining with the Union. We adopt and incorporate
by reference only that portion of the two-member decision severing and
remanding the above-specified question. On February 4, 2010, the
judge issued a supplemental decision and recommended Order conclud-
ing that no such change in enforcement had occurred. On April 27,
2010, the Board adopted the judge’s supplemental decision in the ab-
sence of exceptions.
We adopt the judge’s finding, for the reasons stated in his initial de-
cision, that the Respondent did not violate Sec. 8(a)(3) in its enforce-
ment of its efficiency standards.
3 All dates are in 2000, unless otherwise indicated.
4 In addition, on July 18, 2003, the Board approved the parties’ joint
motion to remand a portion of the case to the Regional Director for
approval of settlement and partial withdrawal of charges concerning the
judge’s finding that the Respondent violated Sec. 8(a)(5) by reducing
the work hours of mechanics in the container repair department.
ALAN RITCHEY, INC. 397

The Board has held in a variety of other contexts that
once employees choose to be represented, an employer
may not continue to act unilaterally with respect to terms
and conditions of employment—even where it has previ-
ously done so routinely or at regularly scheduled inter-
vals. If the employer has exercised and continues to ex-
ercise discretion in regard to the unilateral change at is-
sue, e.g., the amount of annual wage increases, it must
first bargain with the union over the discretionary aspect.
See, e.g., Oneita Knitting Mills, 205 NLRB 500 (1973).
The Board has never clearly and adequately explained
whether (and, if so, to what extent) this established doc-
trine applies to the unilateral discipline of individual em-
ployees. We now conclude that it does, and that an em-
ployer must provide its employees’ bargaining repre-
sentative notice and the opportunity to bargain with it in
good faith before exercising its discretion to impose cer-
tain discipline on individual employees, absent a binding
agreement with the union providing for a process, such
as a grievance-arbitration system, to resolve such dis-
putes. Nevertheless, because we apply this rule prospec-
tively only, we find, contrary to the judge, that the Re-
spondent did not violate Section 8(a)(5) and (1) when it
refused to bargain with the Union over certain discipli-
nary actions here.
A. Facts and Judge’s Decision
The Respondent imposed the discipline at issue for ab-
senteeism, insubordination, threatening behavior, and the
failure to meet efficiency standards. The sanctions
ranged from a formal warning to discharge, and were
imposed pursuant to the Respondent’s five-step progres-
sive disciplinary system—consisting of counseling, ver-
bal warning, written warning, suspension, and termina-
tion—which had been in effect since the Respondent
began operations at the Richmond facility in August
1999.
Prior to the arrival of the Union on the scene, the Re-
spondent maintained various efficiency standards and
guidelines. On January 18, 2000, new Plant Manager
David Williams announced that inspectors would be ex-
pected to achieve a minimum performance level of 80
percent of the USPS’s efficiency standard.
5
From the

5 According to Williams, based on extensive time studies, USPS es-
tablished Standards of Work setting the expected inspection rates for
the various sizes and types of mailbags, trays, sleeves, and lids. R.
Exh. 7 lists the USPS processing standards for 18 different items, rang-
ing from inspecting 130 “#1 canvas mailbags” per hour to inspecting
706 small plastic trays per hour. Williams testified that the Respond-
ent’s contract with USPS required the Respondent to attain at least 95-
percent compliance with the USPS efficiency standards overall in order
to receive the compensation set in the contract. By setting a minimum
April 13 union election to the end of September, the Re-
spondent issued performance-related discipline to ap-
proximately 41 inspectors, consisting of 22 verbal warn-
ings, 29 written warnings, 22 suspensions, and 14 dis-
charges. The Respondent also maintained absenteeism
standards pursuant to which a specific number of unex-
cused absences resulted in a specific level of discipline.
For any 12-month period, the rule prescribed the follow-
ing disciplinary actions: 2 to 4 unexcused absences,
counseling; 5 or 6, verbal warning; 7 or 8, written warn-
ing; 9 or 10, suspension; and 11 or more, termination. In
addition, the Respondent maintained an employee hand-
book containing general rules of conduct enforceable by
discipline. “[I]nsubordination (refusal to follow man-
agement’s instructions)” was among the handbook’s ex-
amples of inappropriate conduct or behavior, “for which
corrective counseling or other disciplinary action, includ-
ing termination, may be taken.” In a separate section
addressing violence and weapons, the handbook “ex-
pressly prohibit[ed] acts or threats of violence by or
against any employee” and stated that the Respondent
“may immediately terminate the employment of any em-
ployee who threatens or engages in any act of violence.”
The Respondent’s progressive disciplinary system ap-
plied to all four causes of discipline at issue here except,
possibly, to discharge for threatening behavior. Never-
theless, in all four areas, the Respondent admitted that it
exercised its discretion in deciding whether to impose
discipline and what form of discipline to impose. In-
deed, the handbook expressly reserved to the Respondent
the right to exercise discretion in the enforcement of its
policies, stating in its introductory section that violations
of the handbook’s policies and procedures, or reasonable
suspicion of such violations, “may result in disciplinary
action,” but that “[f]rom time to time, situations may
arise which warrant consideration and flexibility on the
part of management.” In discussing the progressive dis-
ciplinary system, the handbook expressly reiterated, and
arguably enlarged, the Respondent’s discretion in the
application of the system, stating:
. . . . [I]n certain circumstances, and at management’s
sole discretion, it may be necessary to impose an ac-
tion, up to and including termination of employment,
without prior notice or counseling and without pro-
gressing through each stage of the disciplinary guide-
lines. Determination of appropriate action will be

efficiency standard of 80 percent for all employees while expecting
many inspectors to achieve higher efficiencies, Williams intended the
inspectors to reach an overall efficiency standard above 80 percent,
and, by subsequently increasing the minimum efficiency standard, to
meet or exceed the USPS standards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

398
made on a case-by-case basis based on the nature and
severity of the occurrence. [Emphasis added.]
The Respondent’s witnesses admitted that discretion
was exercised in making the disciplinary decisions at
issue. With regard to the Respondent’s enforcement of
its efficiency standards, Plant Manager Williams
acknowledged that application of the performance stand-
ards was not “hard and fast,” stating: “You reviewed
each employee and just dealt with the circumstances . . .
[;] nothing in life is ever straight numbers.” Williams
testified regarding three inspectors who were treated le-
niently when their performance fell short: Francis
Young, because her husband died; Amelia Santos, be-
cause she was unable to work consecutive days in a par-
ticular position; and Anita Benjamin, because she
worked in a low-volume area where it was difficult to
maintain rhythm.
6

The Respondent similarly exercised discretion in ap-
plying the attendance guidelines. Two employees with
nine unexcused absences each were given a verbal warn-
ing and a written warning, respectively. An employee
with 62 unexcused absences received a verbal warning,
while another with 10 unexcused absences was dis-
charged. Again, Williams acknowledged that discretion
was exercised in applying the absenteeism guidelines,
testifying that “every single case is going to be different
based on the circumstances . . . [;] there is always discre-
tion involved.” Human Resources Manager Brandee
Chorro agreed that “we use discretion,” adding that she
has “never come across any attendance policy that has
been set in stone and so rigid without using some type of
discretion.”
The Respondent’s discharge of LaTachianna Pontiflet
for insubordination on May 31 and of Mandrell Miller
for threatening behavior on October 13 were also admit-
tedly exercises of discretion. Regarding inappropriate
conduct such as insubordination, the Respondent’s em-
ployee handbook stated that “[t]he nature and severity of
an offense will be considered in determining disciplinary
action to be taken.” Consistent with the handbook, Wil-
liams testified that there was “discretion in the insubor-
dination policy as to whether an employee was terminat-
ed or not.” Chorro agreed that there was “discretion as to
. . . insubordination,” but she also testified that threaten-

6 Although Williams’ testimony indicated that USPS had extensive
control over the work that the Respondent’s employees performed and
the overall pace at which they were required to perform it, USPS did
not control the means by which the Respondent achieved the required
overall efficiency. Williams expressly acknowledged that USPS had no
input regarding any discipline of the Respondent’s employees.
ing behavior was “usually grounds for termination.”
7

Nonetheless, as stated above, the employee handbook
provided that the Respondent may immediately terminate
an employee who engages in threatening conduct, and it
further reserved for the Respondent the discretion wheth-
er to involve law enforcement in relation to any particu-
lar violation of the policy.
8

On May 26, the Union notified the Respondent by let-
ter that it was protesting the Respondent’s unilateral dis-
ciplinary actions. In the letter, the Union stated that the
Respondent was required by law to afford the Union
“prior notice, and an opportunity to bargain, before tak-
ing disciplinary action against bargaining unit employ-
ees.” The Respondent, however, did not provide the Un-
ion with notice or an opportunity to bargain about any of
the disciplinary actions at issue.
The General Counsel argued that each act of discipline
was a unilateral change because it did not represent an
automatic execution of established policy (e.g., a stand-
ard wage increase on the anniversary of an employee’s
employment). The judge agreed with the General Coun-
sel, finding that the Respondent violated Section 8(a)(5)
and (1) of the Act by failing to notify the Union and af-
ford it an opportunity to bargain before disciplining in-
spectors for failing to meet minimum efficiency stand-
ards, disciplining employees for absenteeism, and dis-
charging employees Pontiflet (for insubordination) and
Miller (for threatening behavior).
9
The judge relied
heavily on the Board’s decision in Washoe Medical Cen-
ter, Inc., 337 NLRB 202 (2001). The Respondent ex-
cepted to the judge’s decision.
B. Discipline Unquestionably Works a Change in Em-
ployees’ Terms and Conditions of Employment
In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme
Court approved the Board’s determination that an em-
ployer violates Section 8(a)(5) of the Act by making uni-
lateral changes to represented employees’ terms and con-
ditions of employment. Katz held that such a change “is

7 Although Chorro testified that employees’ threats against cowork-
ers or supervisors were usually grounds for immediate discharge, the
judge found that the decision to terminate involved “some determina-
tion as to the severity of [the] threatening behavior” and, thus, also
involved discretion. We add that discretion is also exercised in classi-
fying particular actions or statements as threats.
8 Regarding threats and violence, the handbook stated, “[t]he Com-
pany may take additional action against employees and nonemployees
who engage in such behavior, such as notifying the police or other law
enforcement personnel and prosecuting violators of this policy to the
maximum extent of the law.”
9 Although the complaint alleged both decision and effects bargain-
ing violations, the judge addressed and found a decision bargaining
violation only. The General Counsel did not except to the judge’s
failure to make a finding regarding effects bargaining. Thus, the issue
is not before us.
ALAN RITCHEY, INC. 399

a circumvention of the duty to negotiate which frustrates
the objectives of Section 8(a)(5) much as does a flat re-
fusal” to bargain. Id. at 743 (footnote omitted).
10

In the present case, all parties agree that the imposition
of discipline on individual employees that alters their
terms or conditions of employment implicates the duty to
bargain if it is unconstrained by preexisting employer
policies or practices. That conclusion flows easily from
the terms of the Act and established precedent. When an
employee is terminated—whether for lack of work, mis-
conduct, or other reasons—the termination is unques-
tionably a change in the employee’s terms of employ-
ment. As the Board has held:
Under Sections 8(a)(5) and 8(d),[
11
] it is unlawful for
an employer to refuse to bargain with respect to manda-
tory subjects of bargaining. Fibreboard Paper Prod-
ucts v. NLRB, 379 U.S. 203, 209–210 (1964). Termi-
nation of employment constitutes such a mandatory
subject.
N.K. Parker Transport, Inc., 332 NLRB 547, 551
(2000).
12
Similarly, when an employee is demoted or
suspended without pay, the action represents a change in
terms and conditions of employment. See, e.g., Pillsbury
Chemical Co., 317 NLRB 261, 261 fn. 2 (1995) (holding
that employee’s demotion and substantial wage reduction
“rendered [employee’s working] conditions so difficult
or unpleasant” that constructive discharge was demon-
strated).
13
Finally, in Carpenters Local 1031, 321 NLRB
30 (1996), the Board held that the suggestion in some
prior Board decisions that “a change in terms or condi-
tions of employment affecting only one employee does

10 The Supreme Court in Katz therefore agreed with the Board that
the employer acted unlawfully when, during bargaining with a newly
certified union, it made unilateral changes to its sick leave policy and to
its processes for granting both automatic and merit-based wage increas-
es. Id. at 744–747.
11 Sec. 8(d) describes the conduct required of an employer and its
employees’ bargaining representative pursuant to the obligation to
“bargain collectively.”
12 See also NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1090 (7th
Cir. 1987) (“Laying off workers works a dramatic change in their work-
ing conditions” and thus “[l]ayoffs are not a management prerogative
[but] a mandatory subject of collective bargaining”); Ryder Distribution
Resources, 302 NLRB 76, 90 (1991) (“A grievance about a discharge is
clearly a mandatory subject of bargaining.”).
13 Significantly, the Board in Pillsbury Chemical also held, contrary
to the judge, that the employer had violated Sec. 8(a)(5) by informing
the demoted employee of the demotion and layoff decision without first
providing the union notice and an opportunity to bargain over the deci-
sion and its effects. Id. at 261–262.
Cf. Falcon Wheel Division L.L.C., 338 NLRB 576 (2002) (holding
that the layoff of one employee was a material, substantial, and signifi-
cant change). A suspension would affect an employee in much the
same way that a temporary layoff would, if not more so.
not constitute a violation of Section 8(a)(5) . . . is errone-
ous as a matter of law,” and the Board overruled all such
prior cases. Id. at 32.
Not every unilateral change that affects terms and con-
ditions of employment triggers the duty to bargain. Ra-
ther, the Board asks “whether the changes had a materi-
al, substantial, and significant impact on the employees’
terms and conditions of employment.” Toledo Blade
Co., 343 NLRB 385, 387 (2004) (emphasis added). This
test is a pragmatic one, designed to avoid imposing a
bargaining requirement in situations where bargaining is
unlikely to produce a different result and, corresponding-
ly, where unilateral action is unlikely to suggest to em-
ployees that the union is ineffectual or to precipitate a
labor dispute. We draw on this basic principle, adjusted
to fit the present context, today. Disciplinary actions
such as suspension, demotion, and discharge plainly have
an inevitable and immediate impact on employees’ ten-
ure, status, or earnings. Requiring bargaining before
these sanctions are imposed is appropriate, as we will
explain, because of this impact on the employee and be-
cause of the harm caused to the union’s effectiveness as
the employees’ representative if bargaining is postponed.
Just as plainly, however, other actions that may neverthe-
less be referred to as discipline and that are rightly
viewed as bargainable, such as oral and written warnings,
have a lesser impact on employees, viewed as of the time
when action is taken and assuming that they do not them-
selves automatically result in additional discipline based
on an employer’s progressive disciplinary system. Bar-
gaining over these lesser sanctions—which is required
insofar as they have a “material, substantial, and signifi-
cant impact” on terms and conditions of employment—
may properly be deferred until after they are imposed.
14

14 We recognize that warnings may in certain cases demonstrate su-
pervisory authority to discipline or to effectively recommend discipline.
See, e.g., Pacific Coast M.S. Industries, 355 NLRB 1422, 1425 fn. 23
(2010). In assessing supervisory status, however, our concern is with
what the issuance of warnings reflects about the authority of the indi-
vidual imposing the discipline over other employees, not with the warn-
ing’s immediate effect on the terms and conditions of the employee
receiving it. Further, nothing in the distinction we draw for the specific
purpose at issue in this case suggests that a bargaining representative
would not have a right to obtain information concerning warnings and
similar personnel actions under the broad relevance standard applicable
to information requests.
In short, we do not intend to suggest that the distinction we draw
here among types of discipline for purposes of a preimposition duty to
bargain modifies Board precedents in any other context in which disci-
pline is relevant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

400
C. The Board has Consistently Held that Discretionary
Changes in Terms and Conditions of Employment Can-
not be Unilateral
The Board has recognized that an employer’s obliga-
tion to maintain the status quo sometimes entails an obli-
gation to make changes in terms and conditions of em-
ployment, when those changes are an established part of
the status quo. Thus, if an employer has an established
practice of granting employees a 1-percent increase in
wages on the anniversary of their hire date, an employer
not only does not violate its duty to bargain by making
that change unilaterally, it violates its duty if it fails to do
so. Southeastern Michigan Gas Co., 198 NLRB 1221
(1972), affd. 485 F.2d 1239 (6th Cir. 1973); see also
NLRB v. Dothan Eagle, 434 F.2d 93, 98 (5th Cir. 1970)
(“The cases make it crystal clear that the vice involved in
both the unlawful increase situation and the unlawful
refusal to increase situation is that the employer has
changed the existing conditions of employment. It is this
change which is prohibited and which forms the basis of
the unfair labor practice charge.”). A corollary to this
rule, however, is that an employer must always bargain
over the discretionary aspect of the change in question.
Oneita Knitting Mills, 205 NLRB 500 (1973), illus-
trates this proposition. There, the Board held that an
employer violated Section 8(a)(5) by unilaterally grant-
ing merit wage increases to represented employees, even
though it had a past practice of granting such increases.
The Board explained:
An employer with a past history of a merit increase
program neither may discontinue that program (as we
found in Southeastern Michigan [supra]) nor may he
any longer continue to unilaterally exercise his discre-
tion with respect to such increases, once an exclusive
bargaining agent is selected. N.L.R.B. v. Katz, 3[69]
U.S. 736 (1962). What is required is a maintenance of
preexisting practices, i.e., the general outline of the
program, however the implementation of that program
(to the extent that discretion has existed in determining
the amounts or timing of the increases), becomes a
matter as to which the bargaining agent is entitled to be
consulted.
Id. at 500. Katz itself involved an employer’s grant of
merit increases that were “in no sense automatic, but
were informed by a large measure of discretion.” NLRB
v. Katz, 369 U.S. at 746.
In the decades since Katz and Oneita Knitting, across a
range of terms and conditions of employment, the Board
has applied the principle that even regular and recurring
changes by an employer constitute unilateral action when
the employer maintains discretion in relation to the na-
ture or extent of the changes. In Washoe Medical Cen-
ter, which the judge relied on here, the Board applied
Oneita Knitting and concluded that an employer’s “sub-
stantial degree of discretion” in placing newly hired em-
ployees into quartiles within their positions’ wage rang-
es, based on subjective judgments, required the employer
to bargain with the union before implementing the wage
rates. 337 NLRB at 202. As discussed in detail below,
the Board majority in Washoe expressly rejected the dis-
sent’s contention that there was no duty to bargain be-
cause “the [r]espondent’s policy and procedure for set-
ting initial wage rates entails the consistent application of
uniform standards and, thus, curtails its exercise of dis-
cretion.” Id. In Eugene Iovine, 328 NLRB 294 (1999),
the Board held that an employer’s recurring unilateral
reductions in employees’ hours of work were discretion-
ary and therefore required bargaining: “there was no
reasonable certainty as to the timing and criteria for a
reduction in employee hours; rather, the employer’s dis-
cretion to decide whether to reduce employee hours ap-
pear[ed] to be unlimited.” Id. at 294 (internal quotations
omitted). In Adair Standish Corp., 292 NLRB 890 fn. 1
(1989), enfd. in relevant part 912 F.2d 854 (6th Cir.
1990), the Board required an employer to bargain regard-
ing economically motivated layoffs, when the owner
selected the employees to be laid off based, not on sen-
iority, but on his own judgment of their ability. In so
holding, the Board rejected the employer’s argument that
its failure to bargain was permissible “because of its past
practice of instituting economic layoffs due to lack of
work.” The Board held that the employer’s practice be-
fore its employees were represented did not provide a
defense and that once the union represented the employ-
ees, “the [r]espondent could no longer continue unilater-
ally to exercise its discretion with respect to layoffs.”
15

15 Reviewing courts have similarly concluded that discretionary de-
cisions are subject to bargaining. See Garment Workers Local 512 v.
NLRB (Felbro, Inc.), 795 F.2d 705, 711 (9th Cir. 1986) (rejecting em-
ployer’s defense that unilateral economic layoffs were “in accordance
with its established practice” and thus were lawful; the court held that,
even assuming that economic layoffs are not inherently discretionary,
the employer’s “layoff procedure was ad hoc and highly discretionary:
before layoff, decisions were made whether to transfer employees to a
busier department, to implement a permanent or part-week layoff, and
to follow seniority or other methods in selecting the employee to lay
off”), abrogated on other grounds by Hoffman Plastic Compounds, 535
U.S. 137 (2002); NLRB v. Allis-Chalmers Corp., 601 F.2d 870, 875–
876 (5th Cir. 1979) (the court, rejecting employer’s “conten[tion] that
the [wage] increases were in compliance with a periodic survey of
wages and benefits and were, therefore, not subject to bargaining,”
found “the increases were not automatic, in that Allis-Chalmers exer-
cised considerable discretion in determining the timing and amount.
Therefore, the union could properly demand bargaining.”).
ALAN RITCHEY, INC. 401

As explained above, discipline may alter core compo-
nents of employees’ terms and conditions of employ-
ment. Moreover, as the Board held in Daily News of Los
Angeles, “the Katz doctrine . . . neither distinguishes
among the various terms and conditions of employment
on which an employer takes unilateral action nor does it
discriminate on the basis of the nature of a particular
unilateral act.” Daily News of Los Angeles, 315 NLRB
1236, 1238 (1994), enfd. 73 F.3d 406 (D.C. Cir. 1996).
Consistency with these precedents and their underlying
principles demands that we apply the Oneita Knitting
approach to require bargaining before discretionary dis-
cipline (in the form of a suspension, demotion, discharge,
or analogous sanction) is imposed, just as we do in cases
involving discretionary layoffs, wage changes, and other
changes in core terms or conditions of employment,
where bargaining is required before an employer’s deci-
sion is implemented. Accordingly, where an employer’s
disciplinary system is fixed as to the broad standards for
determining whether a violation has occurred, but discre-
tionary as to whether or what type of discipline will be
imposed in particular circumstances, we hold that an
employer must maintain the fixed aspects of the disci-
pline system and bargain with the union over the discre-
tionary aspects (if any), e.g., whether to impose disci-
pline in individual cases and, if so, the type of discipline
to impose. The duty to bargain is triggered before a sus-
pension, demotion, discharge, or analogous sanction is
imposed, but after imposition for lesser sanctions, such
as oral or written warnings.
This conclusion is strongly supported by the Board’s
reasoning in Washoe, cited by the judge in this case. In
Washoe, the Board affirmed the judge’s dismissal of
8(a)(5) charges arising out of individual acts of disci-
pline, stating:
We affirm the judge’s recommended dismissal of the
allegation that the Respondent unlawfully failed to bar-
gain before-the-fact, i.e., before the planned imposition
of specific discipline on particular employees. The rec-
ord does not establish that the Union at any time sought
to engage in such before-the-fact bargaining.
But the Board expressly declined to rely on the alterna-
tive rationale articulated by the judge, a rationale that
parallels that offered by the Respondent here.
In light of the Board’s holding in Oneita Knitting Mills
. . . we reject the judge’s comment . . . that “[I]t is not
sufficient that the General Counsel show only some ex-
ercise of discretion to prove the alleged violation; the
General Counsel must also demonstrate that imposition
of discipline constituted a change in Respondent’s poli-
cies and procedures.” [Footnote omitted.]
Id. at. 202 fn. 1.
In fact, the Washoe Board applied the holding in
Oneita Knitting not only to reject the judge’s suggestion
that the employer had no duty to bargain over individual
acts of discipline absent a change in its disciplinary poli-
cies, but also to reject a parallel argument concerning the
assignment of initial wage rates to new employees. The
Board stated:
the issue is not whether the Respondent unilaterally
discontinued its practice of establishing discretionary
starting wage rates for newly hired employees based on
numerous criteria. Rather, the issue is whether the Re-
spondent failed to provide the Union with advance no-
tice and an opportunity to bargain about the implemen-
tation of these discretionary wage rates, as required by
Oneita, supra.
. . . .
[The employer’s] judgments [in selecting and
weighting the criteria on which it rated new employees]
are necessarily subjective, as it is unlikely that any two
applicants or employees will be precisely comparable.
It is this substantial degree of discretion, as well as the
unavoidable exercise of such discretion each time the
Respondent establishes a wage rate for a new employ-
ee, that requires the Respondent to bargain with the Un-
ion, pursuant to the Board’s holding in Oneita.
Id. at 202. That statement, albeit dicta, expressly rejected
the basis for dismissing the allegations advanced by the
Respondent here.
Amici argue, however, that the Board held in Fresno
Bee, 337 NLRB 1161 (2002), that an employer has no
preimposition duty to bargain over discretionary disci-
pline. There, the Board, without comment, affirmed a
judge’s dismissal of 8(a)(5) charges arising out of the
imposition of individual discipline. The General Coun-
sel, drawing on the principles and precedent that we dis-
cuss here, had argued that the employer “exercised con-
siderable discretion in disciplining in its employees and
is therefore required to bargain to impasse with the Un-
ion over each and every imposition of discipline.” 337
NLRB at 1186. The judge rejected this argument, but
her rationale for doing so misunderstood the Board’s
case law and failed to explain why discipline should be
treated as fundamentally different from other employer
unilateral changes in terms and conditions of employ-
ment.
As her decision reveals, the judge’s error was to con-
clude that because the employer had not changed its dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

402
ciplinary system, the imposition of discipline with respect
to individual employees, even if it involved the exercise
of discretion, did not amount to a unilateral change. The
judge recognized that the “discipline administered to unit
employees by [the employer] is, at least in part, discre-
tionary.” Id. at 1186. Nevertheless, the judge reasoned
that the “fact that the procedures reserve to [the employ-
er] a degree of discretion or that every conceivable disci-
plinary event is not specified, does not vitiate the system
as a past practice and policy.” Id. The General Counsel
had not contended that the employer’s “discipline poli-
cies were unilaterally altered,” and “[t]here was no evi-
dence that [the employer] did not apply its preexisting
employment rules or disciplinary system in determining
discipline.” Id. “Therefore,” the judge concluded, the
employer “made no unilateral change in terms and condi-
tions of employment when it applied discipline.” Id. at
1186–1187 (emphasis added).
Under our case law, the judge’s conclusion was a non
sequitur. As we have explained, the lesson of well-
established Board precedent is that the employer has both
a duty to maintain an existing policy governing terms
and conditions of employment and a duty to bargain over
discretionary applications of that policy. It was no an-
swer to the General Counsel’s argument in Fresno Bee,
then, to say that because the employer’s disciplinary pol-
icy had stayed the same, the employer had no duty to
bargain over discretionary disciplinary decisions. Nor
did it suffice to point out that the employer had bargained
over the discipline after it was imposed: the General
Counsel was arguing for a preimposition duty to bargain.
Id. at 1187.
As observed, the Fresno Bee Board simply adopted the
judge’s rationale. But that rationale—the only rationale
articulated—was demonstrably incorrect. In such cir-
cumstances, we decline to follow Fresno Bee. See Goya
Foods of Florida, 356 NLRB 1461, 1463 (2011) (“We
are not prepared mechanically to follow a precedent that
itself ignored prior decisions, without explanation.”). To
the extent Fresno Bee contradicts our conclusion here, it
is overruled.
16

Amicus LPA asserts that NLRB v. J. Weingarten, Inc.,
420 U.S. 251 (1975), in which the Supreme Court agreed
with the Board’s holding that an employee has a Section

16 In Pennsylvania State Corrections Officers Assn., 358 NLRB 108
(2012), the Board adopted without discussion a judge’s recommenda-
tion to dismiss the allegation that unit employees were discharged
without notice to their union or an opportunity to bargain. Although
the discharges at issue were not disciplinary, a portion of the judge’s
analysis relied on Fresno Bee. We do not, however, view Fresno Bee
as essential to the Board’s decision in Pennsylvania State Corrections,
in light of the judge’s unchallenged finding in that case that the union
received notice of the discharges but failed to request bargaining.
7 right to union representation in investigatory interviews
that the employee reasonably believes may lead to disci-
pline, precludes the bargaining obligation we impose
today. Properly understood, however, the rights and du-
ties adopted here are in harmony with those addressed by
Weingarten. In affirming the Board’s recognition of the
right to union representation in certain investigatory in-
terviews, the Court agreed with the Board’s qualification
that the employer had no obligation to bargain with the
union representative. Id. at 259–260. But the Board’s
representations and the Court’s ruling addressed the in-
vestigatory interview only.
17
That is, the limited right
confirmed in Weingarten applies only to an employer’s
investigation—an investigation that may or may not lead
to discipline affecting an employee’s terms and condi-
tions of employment—and arises only when the employ-
er seeks to interview the employee as part of such an
investigation. In other words, an investigation by itself is
not, and may not result in, a change in employees’ terms
and conditions of employment and thus does not impli-
cate discipline or Section 8(a)(5) of the Act.
Weingarten, which is grounded in Section 8(a)(1),
seeks to ensure that employers carrying out investiga-
tions do not restrain or coerce employees in the exercise
of their Section 7 rights to engage in concerted activity
for mutual aid and protection. An employee who seeks
her union representative’s assistance in responding to an
employer’s investigation that may lead to discipline is,
quite literally, engaging in “concerted activit[y] for the
purpose of . . . mutual aid or protection” under Section 7.
For this reason, the Weingarten right is held by the em-
ployee, not by the union. It must be asserted by the em-
ployee, not by a union representative, and it can be
waived by the employee. See, e.g., Appalachian Power
Co., 253 NLRB 931, 933 (1980). In contrast, the obliga-
tion to refrain from unilateral action regarding mandatory

17 See NLRB v. J. Weingarten, Inc., Brief for the Board, 1974 WL
186290 (U.S.). In a handful of pre-Weingarten decisions, too, the
Board referred to the absence of an obligation to bargain. See Mobil
Oil Corp., 196 NLRB 1052 (1972), enf. denied 482 F.2d 842 (7th Cir.
1973); Illinois Bell Telephone Co., 192 NLRB 834 (1971); Jacobe-
Pearson Ford, 172 NLRB 594 (1968). Like the Weingarten brief and
decision, however, those Board decisions addressed whether employees
have a right to union assistance at investigatory interviews, not whether
the union has a right to notice and an opportunity to bargain before the
employer implements its decision to impose discipline.
Further, the right that we adopt today does not conflict with the rep-
resentations in the Board’s Weingarten brief, in which “the Board
acknowledge[d] that the duty to bargain does not arise prior to the
employer’s decision to impose discipline.” Brief for the Board at 10
(emphasis added); see also id. at 15, 16. As explained elsewhere in this
decision, the duty to provide the union with notice and an opportunity
to bargain arises after the employer has decided to impose discipline,
but before actually imposing it.
ALAN RITCHEY, INC. 403

subjects of bargaining is grounded in Section 8(a)(5).
Moreover, the two rights arise at different points in time:
the Weingarten right arises during an investigation into
whether discipline is merited, while the right to bargain-
ing arises after such an investigation results in a decision
to impose discipline, but prior to its implementation.
Thus, although the Weingarten Court agreed with the
Board that an employer’s refusal to bargain with a union
in an investigatory meeting that may lead to discipline
does not violate Section 8(a)(1), the Court expressed no
view concerning whether the employer’s unilateral deci-
sion to discipline an employee violates Section 8(a)(5) by
denying the employees’ chosen representative the right
to participate in good-faith bargaining over mandatory
subjects of bargaining.
As stated above, it is our view that the well-established
Weingarten right and the bargaining obligation adopted
here work in conjunction to ensure that the participants’
rights are respected at each stage of the disciplinary pro-
cess. Thus, an employer with a represented work force
would have the following legal obligations:
As Weingarten established, the employer must permit
the union to be present at an investigatory interview with
an employee, should the employer decide to conduct one,
if the employee reasonably believes that the investigation
could lead to discipline and requests the union’s pres-
ence. The employer need not bargain with the union at
that interview, however. (As Weingarten further estab-
lished, if the employer is unwilling to allow the union to
be present at the investigatory interview, the employer
may forgo the interview.)
Under today’s decision, after the employer has decided
(with or without an investigatory interview) to impose
certain types of discipline, it must provide the union with
notice and an opportunity to bargain over the discretion-
ary aspects of its decision before proceeding to imple-
ment the decision. As explained below, at this stage, the
employer need not bargain to agreement or impasse, if it
does so afterward. In exigent circumstances, as defined,
the employer may act immediately, provided that,
promptly afterward, it provides the union with notice and
an opportunity to bargain about the disciplinary decision
and its effects. Finally, if the employer has properly im-
plemented its disciplinary decision without first reaching
agreement or impasse, the employer must bargain with
the union to agreement or impasse after imposing disci-
pline.
D. An Obligation to Bargain Prior to Imposing Disci-
pline will not be Unduly Burdensome for Employers
We recognize that an obligation to bargain prior to im-
posing discipline may, in some cases, delay the employ-
er’s action or change the decision that it would have
reached unilaterally. With regard to the latter, it is our
view that permitting the employee to address the pro-
posed discipline through his or her representative in bar-
gaining is likely to lead to a more accurate understanding
of the facts, a more even-handed and uniform application
of rules of conduct, often a better and fairer result, and a
result the employee is more able to accept. See First
National Maintenance Corp. v. NLRB, 452 U.S. 666, 668
(1981) (“The concept of mandatory bargaining is prem-
ised on the belief that collective discussions . . . will re-
sult in decisions that are better for both management and
labor and for society as a whole.”).
With regard to possible delay that a bargaining obliga-
tion may cause in implementing discipline, we do not
perceive that our decision today will unduly burden em-
ployers in that regard.
First, as explained above, the preimposition obligation
attaches only with regard to the discretionary aspects of
certain disciplinary actions that have an inevitable and
immediate impact on employees’ tenure, status, or earn-
ings, such as suspension, demotion, or discharge. Thus,
we expect that most warnings, corrective actions, coun-
selings, and the like will not require preimposition bar-
gaining, assuming they do not automatically result in
additional discipline, based on an employer’s progressive
disciplinary system, that itself would require such bar-
gaining.
Second, where the preimposition duty to bargain ex-
ists, the employer’s obligation is simply to provide the
union with notice and an opportunity to bargain before
discipline is imposed. This duty entails sufficient ad-
vance notice to the union to provide for meaningful dis-
cussion concerning the grounds for imposing discipline
in the particular case, as well as the grounds for the form
of discipline chosen, to the extent that this choice in-
volved an exercise of discretion. It will also entail
providing the union with relevant information, if a timely
request is made, under the Board’s established approach
to information requests. (Again, we note that, in this
context, the scope of the duty to provide information is
limited to information relevant to the subject of bargain-
ing: the discretionary aspects of the employer’s discipli-
nary policy.) The aim is to enable the union to effective-
ly represent employees by (for example) providing ex-
culpatory or mitigating information to the employer,
pointing out disparate treatment, or suggesting alterna-
tive courses of action. But the employer is not required
to bargain to agreement or impasse at this stage; rather, if
the parties have not reached agreement, the duty to bar-
gain continues after imposition. Moreover, the employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

404
has no duty to bargain over those aspects of its discipli-
nary decision that are consistent with past practice or
policy. Third, an employer may act unilaterally and im-
pose discipline without providing the union with notice
and an opportunity to bargain in any situation that pre-
sents exigent circumstances: that is, where an employer
has a reasonable, good-faith belief that an employee’s
continued presence on the job presents a serious, immi-
nent danger to the employer’s business or personnel.
18

The scope of such exigent circumstances is best defined
going forward, case-by-case, but it would surely encom-
pass situations where (for example) the employer reason-
ably and in good faith believes that an employee has en-
gaged in unlawful conduct, poses a significant risk of
exposing the employer to legal liability for his conduct,
or threatens safety, health, or security in or outside the
workplace. Thus, our holding today does not prevent an
employer from quickly removing an employee from the
workplace, limiting the employee’s access to coworkers
(consistent with its legal obligations) or equipment, or
taking other necessary actions to address exigent circum-
stances when they exist.
19

Finally, an employer need not await an overall impasse
in bargaining before imposing discipline, so long as it
exercises its discretion within existing standards. In
Stone Container Corp., 313 NLRB 336 (1993), the
Board held that the rule established in Bottom Line En-
terprises, 302 NLRB 373 (1991), enfd. sub nom. Master
Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir.
1994), barring an employer from making unilateral
changes in terms and conditions of employment during
bargaining prior to either agreement or an overall im-
passe in negotiations, does not prevent an employer from
maintaining a dynamic status quo with respect to “a dis-
crete event, such as an annually scheduled wage review
. . ., that simply happens to occur while contract negotia-
tions are in progress.” Stone Container, 313 NLRB at
336. In such cases, the Board has held that an employer
satisfies its obligation to bargain if it maintains the status
quo as to the timing of and criteria for making the dis-
crete, regularly scheduled decisions and gives the union
“reasonable advance notice and an opportunity to bar-

18 The Board has developed an analogous approach to the duty to
bargain over other issues where economic exigencies exist. See RBE
Electronics of S.D., 320 NLRB 80 (1995); Bottom Line Enterprises,
302 NLRB 373 (1991), enfd. mem. 15 F.3d 1087 (9th Cir. 1994).
19 In the circumstances described, an employer could suspend an
employee pending investigation, as many employers already do. An
employer who takes such action should promptly notify the union of its
action and the basis for it and bargain over the suspension after the fact,
as well as bargain with the union regarding any subsequent disciplinary
decisions resulting from the employer’s investigation.
gain” over the discretionary application of those criteria.
Neighborhood House Assn., 347 NLRB 553, 554 (2006).
The Board has not, however, specified exactly what
the extent of the bargaining obligation is under Stone
Container. In fact, twice since Stone Container, the
Board has expressly found it unnecessary to reach the
question of whether the employer must bargain to
agreement or impasse over the discrete matter at issue
before acting unilaterally. St. Mary’s Hospital of Blue
Springs, 346 NLRB 776, 776 fn. 4 (2006); Saint-Gobain
Abrasives, Inc., 343 NLRB 542, 542 fn. 3 (2004), enfd.
426 F.3d 455 (1st Cir. 2005). Here, we again find it un-
necessary to resolve that question in the typical Stone
Container situation involving “a discrete event scheduled
to occur during bargaining.” Neighborhood House, 347
NLRB at 554. In such cases, because the discrete event,
such as an annual wage adjustment, is regularly sched-
uled, both parties are well aware of it in advance, and it
would not be unduly burdensome to require bargaining to
agreement or impasse on the discrete issue prior to uni-
lateral action. See, e.g., id. at 554 fn. 6 (explaining that
in TXU Electric Co., 343 NLRB 1404 (2004), the Board
applied Stone Container “where a discrete event occurs
every year at a given time”).
Although discipline represents a “discrete event . . .
that simply happens to occur while contract negotiations
are in progress,” it is neither regularly scheduled nor, in
fact, scheduled in any manner. Considering the practi-
calities of this unique circumstance, we hold that so long
as the employer continues to apply existing standards and
procedures for discipline, the employer’s duty is simply
to bargain over the discretionary aspect of the discipline,
in accord with today’s decision. After fulfilling its pre-
imposition duties as described above, the employer may
act, but must continue to bargain concerning its action,
including the possibility of rescinding it, until reaching
agreement or impasse. Cf. Daily News of Los Angeles,
315 NLRB at 1244 fn. 2 (concurring opinion) (asserting
that Stone Container would allow employer, after giving
the union notice and an opportunity to bargain, to im-
plement its proposal on the discrete issue without reach-
ing impasse even on the discrete issue, but noting that,
“[o]f course, absent impasse, the employer may have to
continue bargaining after implementation, and such bar-
gaining could include demands for retroactive applica-
tion of any agreement ultimately reached”). We believe
such a rule appropriately defines the statutory duty to
bargain in good faith concerning all terms and conditions
ALAN RITCHEY, INC. 405

of employment in this area critical to both employers and
employees.
20

Thus, the narrow scope of the bargaining obligation
and the limited nature of the duty to bargain will not im-
pede an employer’s ability to effectively manage its
workforce. For example, in a workplace where the em-
ployer has an established practice of disciplining em-
ployees for absenteeism, the decision to impose disci-
pline for such conduct will not give rise to an obligation
to bargain over whether absenteeism is generally an ap-
propriate grounds for discipline. Instead, bargaining will
be limited to the specific case at hand: e.g., whether the
employee actually was absent and merited discipline
under the established practice. Similarly, if the employer
consistently suspends employees for absenteeism, but the
length of the suspension is discretionary, bargaining will
be limited to that issue (assuming the fact of absenteeism
is not contested). Our expectation is that, when bounded
by past practice and policy, bargaining over the limited
topics that implicate employer discretion will yield expe-
ditious results, and that it will, in fact, be the norm that
parties will reach agreement before the necessity of test-
ing the limits of the preimposition bargaining period. If
our expectation proves inaccurate, any infringement on
the employer’s ability to effectuate its desired discipline
will be limited (as we have made clear), because we im-
pose no duty to bargain to impasse prior to imposing
discipline.
To hold otherwise, and permit employers to exercise
unilateral discretion over discipline after employees se-
lect a representative—i.e., to proceed with business as
usual despite the fact that the employees have chosen to
be represented—would demonstrate to employees that
the Act and the Board’s processes implementing it are
ineffectual, and would render the union (typically, newly
certified) that purportedly represents the employees im-
potent. Employees covered by the Act attain union rep-
resentation only after participating in a government-
sanctioned process and only if a majority desires repre-
sentation. We appreciate that they do not lightly under-
take that process and exercise their free choice. If, after
employees follow this path, their chosen representative
can lawfully be denied the opportunity to represent them,
especially in such a critical context as significant disci-
plinary action, the employees might reasonably conclude
that their statutory rights are illusory. In addition, as

20 An employer seeking a safe harbor regarding its duty to bargain
before imposing discipline may negotiate with the union an interim
grievance procedure that would permit the employer to act first fol-
lowed by a grievance and, potentially, arbitration, as is typical in most
complete collective-bargaining agreements.
Judge Posner explained in a case involving unilateral
layoffs after the union was certified but before a first
contract was executed:
The rule that requires an employer to negotiate with the
union before changing the working conditions in the
bargaining unit is intended to prevent the employer
from undermining the union by taking steps which
suggest to the workers that it is powerless to protect
them. Of course, if the change is authorized by the col-
lective bargaining agreement, it is not in derogation of
the union and is not an unfair labor practice. But there
was no agreement here. Laying off workers works a
dramatic change in their working conditions (to say the
least), and if the company lays them off without con-
sulting with the union and without having agreed to
procedures for layoffs in a collective bargaining
agreement it sends a dramatic signal of the union’s im-
potence.
NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1090 (7th
Cir. 1987) (citations omitted). An employer’s unilateral
exercise of discretion in imposing serious discipline
without first giving the union notice and an opportunity
to bargain would send employees the same signal as the
imposition of unilateral layoffs.
Acknowledging that discretion is inherent—and per-
haps unavoidable—in many kinds of discipline does not
alter the conclusion that a bargaining obligation attaches
to the exercise of such discretion. Granting merit in-
creases, as in Katz, Oneita Knitting, and subsequent cas-
es, is also inherently discretionary, as are many decisions
regarding economic layoffs.
21
Nonetheless, we require
bargaining over those inherently discretionary decisions.
The inevitability of discretion in most decisions to disci-
pline does not support treating it differently from other
forms of unilateral change; indeed, it makes bargaining
over disciplinary actions that much more critical.
E. Application to this Case
We have no difficulty here in finding that the disci-
pline at issue was discretionary. Nevertheless, for rea-
sons we will explain, we have determined not to apply
today’s holding retroactively. As a result, we reverse the
discretionary discipline violations found by the judge,
and dismiss the corresponding allegations of the com-
plaint.
1. The discipline at issue was discretionary
The fact that the Respondent has disciplined employ-
ees in the past pursuant to a progressive disciplinary pol-

21 See, e.g., Garment Workers Local 512 (Felbro, Inc.) v. NLRB,
795 F.2d at 711.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

406
icy for broadly defined offenses does not establish a suf-
ficiently nondiscretionary past practice privileging what
would otherwise clearly be unilateral changes in the in-
dividual employees’ terms and conditions of employ-
ment.
22
Moreover, as discussed above, the Respondent
admitted that it exercised discretion in its choices of
whether and how severely to discipline employees for
particular violations. As the judge found, the Respond-
ent reserves the right to determine what types of employ-
ee misconduct warrant disciplinary action and the “nature
and severity of an offense”; for certain types of miscon-
duct, the Respondent reserves the right, at its “sole dis-
cretion,” to impose discipline without progressing
through each stage of its stated disciplinary procedure.
The Respondent’s plant manager and human resources
manager both testified that discretion was exercised in
disciplining individual employees.
23
In sum, the record
compels a finding that the Respondent’s imposition of
the discipline at issue here was discretionary.
2. Retroactive application to the instant case
is inappropriate
“The Board’s usual practice is to apply all new policies
and standards to all pending cases in whatever stage.
The propriety of retroactive application, however, is de-
termined by balancing any ill effects of retroactivity
against the mischief of producing a result which is con-
trary to a statutory design or to legal and equitable prin-
ciples.” Levitz Furniture Co. of the Pacific, 333 NLRB
717, 729 (2001) (quotations omitted). Put differently, we
apply new rules and other changes prospectively where
retroactive application would cause “manifest injustice.”
SNE Enterprises, 344 NLRB 673, 673 (2005). As the
Board has explained,
In determining whether the retroactive application of a
Board decision will cause manifest injustice, the Board
will consider the reliance of the parties on preexisting
law, the effect of retroactivity on accomplishment of
the purposes of the Act, and any particular injustice
arising from retroactive application.
Id. (citations omitted); see also Allied Mechanical Ser-
vices, 356 NLRB 2 (2010) (incorporating by reference
352 NLRB 662 (2008)), enfd. 668 F.3d 758 (D.C. Cir.
2012). Although the issue here is a close one, we believe

22 See Eugene Iovine, 328 NLRB 294, 294 (1999) (employer’s fail-
ure to establish consistent past practice prevented it from demonstrating
that practice had not changed). Cf. Toledo Blade, supra (holding that
change from uniform rule on when discipline is to be imposed to case-
by-case—i.e., discretionary—determination was mandatory subject of
bargaining).
23 Williams and Chorro acknowledged that discretion played a role
in the discharges of employee Miller and employee Pontiflet.
that the controlling factors weigh against retroactive ap-
plication.
The discipline at issue here predated the Board’s 2002
decision in Fresno Bee, supra, which held (incorrectly,
we have concluded) that there is no preimposition duty to
bargain over discretionary discipline. The Respondent,
then, could not have relied on Fresno Bee in acting uni-
laterally. That said, at the relevant time, Board precedent
did not speak clearly and directly to the issue—indeed, it
was essentially silent. The issue, in other words, was not
one that seems to have been raised before and certainly
not one that was widely recognized. To that extent, it
would not have been unreasonable for the Respondent to
believe that it could decline to bargain with the Union
without committing an unfair labor practice.
We are not aware of any evidence that a practice of
preimposition bargaining over discipline has ever been
common in workplaces governed by the Act. In contrast,
postimposition bargaining, in the form of a grievance-
arbitration system, is commonplace. These practical
considerations persuade us that retroactive application of
our holding could well catch many employers by surprise
and, moreover, expose them to significant financial lia-
bility insofar as discharges and other disciplinary actions
that could trigger a backpay award are involved.
To be sure, we believe that today’s change in the law
is well-grounded in Board doctrine and better serves the
policies of the Act. Retroactivity, however, is not essen-
tial to achieving those benefits, and it may impose unex-
pected burdens on employers. For these reasons, we will
apply our holding only prospectively.
II. THE REMAINING ALLEGATIONS AT ISSUE
We agree with the judge, for the reasons he states, that
the Respondent violated Section 8(a)(5) and (1) by bar-
gaining in bad faith and dealing directly with employ-
ees.
24
We also agree with the judge, again for the rea-
sons he states, that the Respondent violated Section
8(a)(5) and (1) by unilaterally making the following
changes in employees’ terms and conditions of employ-
ment: implementing a new work rule deeming leave
from work an unexcused absence if taken with less than
one week’s prior notice; changing the work shift and
working hours of the unit inventory clerk; implementing
a plan to hire temporary employees directly rather than
through temporary employment agencies and paying
temporary employees at a different rate for performing

24 As to the direct dealing violation, we agree with the judge that the
Respondent violated Sec. 8(a)(5) by polling employees and discussing
with them a reduction in force in the container repair department, and
by offering employees triple pay for working on Memorial Day if they
worked the previous Saturday and did not miss any days of work the
following week. See sec. IV.J.3 and IV.J.4 of the judge’s decision.
ALAN RITCHEY, INC. 407

bargaining-unit work; and changing the shift times for
the first-shift processing department employees during
the Memorial Day holiday.
We agree only in part with the judge’s finding that the
Respondent violated Section 8(a)(5) and (1) when it uni-
laterally reduced the number of nonworking holidays.
The contract between the Respondent and USPS gives
USPS the right to change any contract term at its discre-
tion. On April 18, the USPS modified its contract with
the Respondent to change Memorial Day and Labor Day
from nonworking to working holidays. As a result, the
Respondent eliminated Memorial Day and Labor Day as
nonworking holidays without affording the Union notice
and an opportunity to bargain over either the decision or
its effects. We agree with the judge that the Respondent
breached its duty to bargain with the Union over the ef-
fects of the holiday reduction. As to the decision, how-
ever, we reverse the judge’s finding of a violation. The
Respondent’s hands were tied by USPS’s contract modi-
fication, and thus the Respondent was not obligated to
bargain over the decision. Long Island Day Care Ser-
vices, 303 NLRB 112, 117 (1991) (finding no violation
because “there was nothing of substance to bargain
about” due to the respondent’s “total lack of discretion”
over a federally subsidized wage increase).
We also agree, but only in part, with the judge’s find-
ings concerning the Respondent’s rule prohibiting union
talk. The complaint alleged that the Respondent violated
Section 8(a)(1), (3), and (5) by implementing the rule.
The judge found that the Respondent unilaterally prom-
ulgated the rule in violation of Section 8(a)(5) and that it
discriminatorily enforced the rule in violation of Section
8(a)(3) and (1). We agree with the judge, for the reasons
he states, that the Respondent’s promulgation of the rule
violated Section 8(a)(5). We also find that promulgation
and enforcement of the rule, which prohibited employees
from discussing the Union or union-related matters dur-
ing worktime while allowing all other topics of conversa-
tion except racial slurs, constituted an independent viola-
tion of Section 8(a)(1). See Jensen Enterprises, 339
NLRB 877, 878 (2003) (finding violation in a general
ban on discussion of all union-related topics during
working time). There is no evidence, however, that the
Respondent disciplined any employees for violating the
rule. Thus, we will dismiss the 8(a)(3) allegation.
We dismiss the allegation that the Respondent violated
Section 8(a)(5) and (1) by changing welder Kevin
Lynch’s work assignments. These assignments were
consistent with past practice. The record establishes that
Lynch had been experiencing an excessive amount of
down time. On June 6, Lynch was asked to perform con-
tainer repair mechanic work when he had no welding
work to do. The record indicates that Lynch previously
had performed such work. Moreover, his written job
description stated that “[o]ther duties may be assigned”
in addition to the enumerated “[e]ssential [d]uties and
responsibilities” of his welder classification. In these
circumstances, we find that the assignment was not a
unilateral change. See Outboard Marine Corp., 307
NLRB 1333, 1338–1339 (1992) (finding no substantial
and material change in practice of having employees
available to fill a variety of positions on the plant floor
where employees acknowledged same practice existed
before), enfd. mem. 9 F.3d 113 (7th Cir. 1993).
ORDER
25

The National Labor Relations Board orders that Alan
Ritchey, Inc., Richmond, California, its officers, agents,
successors and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from discussing the Union
or union-related matters during working time, when there
is no such prohibition as to conversations about any other
subjects.
(b) Failing or refusing to recognize and bargain in
good faith with Warehouse Union Local 6, International
Longshore and Warehouse Union, AFL–CIO (the Union)
as the exclusive collective-bargaining representative of
the employees in the bargaining unit, by insisting, as a
condition precedent to resuming face-to-face collective
bargaining, that the Union provide it with a complete
contract proposal, including all economic items; by de-

25 We modify the judge’s recommended Order to conform to the viola-
tions found and in accordance with the Board’s standard remedial lan-
guage. We substitute a new notice in accordance with our decision in
Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d
534 (6th Cir. 2004), and we modify the judge’s recommended Order to
provide for the posting of the notice in accord with J. Picini Flooring,
356 NLRB 11 (2010). In accordance with our decision in Kentucky
River Medical Center, 356 NLRB 6 (2010), we modify the judge’s
remedy by requiring that backpay and any other monetary awards shall
be paid with interest compounded on a daily basis. In the remedy sec-
tion of his decision, the judge recommended a 10-month extension of
the certification year, but he omitted from his recommended Order
language giving effect to this remedy. We grant the General Counsel’s
exception and the Charging Party’s cross exception concerning the
judge’s inadvertent omission, and we modify the recommended Order
accordingly. In addition, the judge recommended that the notice be
posted in Spanish as well as English. The judge did not explain the
basis for his recommendation, however, and we find no support in the
record for a finding that a substantial number of the Respondent’s em-
ployees have limited English proficiency. Accordingly, we reject the
judge’s recommendation for bilingual notice posting. See Windsor
Convalescent Center of North Long Beach, 351 NLRB 975, 989 fn. 61
(2007), enfd. in relevant part sub nom. S & F Market Street Healthcare,
LLC v. NLRB, 570 F.3d 354 (D.C. Cir. 2009).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

408
laying the appointment of a substitute authorized bar-
gaining representative; and by demanding to meet at an
unreasonable location for bargaining.
(c) Undermining the Union as the bargaining repre-
sentative of its employees by bypassing the Union and
dealing directly with its employees in an appropriate bar-
gaining unit concerning wages, hours, or other terms and
conditions of employment.
(d) Changing the terms and conditions of employment
of its unit employees without first notifying the Union
and giving it an opportunity to bargain.
(e) Failing or refusing to bargain collectively and in
good faith with the Union concerning the effects result-
ing from the elimination of Memorial Day and Labor
Day as nonworking holidays.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the work rule prohibiting employees from
discussing the Union or union-related matters during
working time.
(b) On request by the Union, rescind the following uni-
lateral changes: (i) the work rule mandating that leave
would count as an unexcused absence if taken without at
least one week’s prior notice; (ii) changes in shift times
for the first-shift processing department employees dur-
ing Memorial Day weekend; (iii) changes in the work
shift and the working hours of the unit inventory clerk;
and (iv) hiring temporary employees directly rather than
through temporary employment agencies and paying
them at a different hourly rate than bargaining-unit em-
ployees for performing bargaining-unit work.
(c) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time warehouse, pro-
cessing, container repair, and quality and data depart-
ments employees, including inspectors, material han-
dlers, banders, stretch wrappers, receivers, loaders, un-
loaders, forklift operators, tray repair operators, logistic
clerks, yard drivers, mechanics, welders, repair parts
inventory clerks, quality auditors, palletized quality au-
ditors—initial inspectors, and final inspectors em-
ployed by Respondent at its Richmond, California fa-
cility; excluding all employees performing work duties
at Respondent’s facility who are provided to Respond-
ent by temporary placement or employment agencies,
outside contractor employees, office clerical employ-
ees, janitors, managers, supervisors, acting supervisors,
confidential employees, professional employees, data
analysts, plant maintenance leads, guards, and supervi-
sors as defined by the Act.
The Union’s certification is extended ten months from
the date the Respondent begins to comply with this Or-
der.
(d) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the bargaining unit described above.
(e) On request, bargain with the Union in good faith
concerning the effects of the elimination of Memorial
Day and Labor Day as nonworking holidays.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Richmond, California, copies of the at-
tached notice marked “Appendix.”
26
Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 32, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 2000.

26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ALAN RITCHEY, INC. 409

(h) Within 21 days after service by the Region, file
with the Regional Director for Region 32 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT prohibit you from discussing the Union
or union-related matters during working time, when there
is no such prohibition as to conversations about any other
subjects.
WE WILL NOT fail or refuse to recognize and bargain in
good faith with Warehouse Union Local 6, International
Longshore and Warehouse Union, AFL–CIO (the Union)
as the exclusive collective-bargaining representative of
our bargaining-unit employees by insisting, as a condi-
tion for resuming face-to-face collective bargaining, that
the Union provide us with a complete contract proposal,
including all economic items; by delaying the appoint-
ment of a substitute authorized bargaining representative;
or by demanding to meet at an unreasonable location for
bargaining.
WE WILL NOT undermine the Union as the bargaining
representative of our employees by bypassing the Union
and dealing directly with our unit employees concerning
wages, hours, or other terms and conditions of employ-
ment.
WE WILL NOT change the terms and conditions of em-
ployment of our unit employees without first notifying
the Union and giving it an opportunity to bargain.
WE WILL NOT fail or refuse to bargain collectively and
in good faith with the Union concerning the effects re-
sulting from the elimination of Memorial Day and Labor
Day as nonworking holidays.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the work rule prohibiting you from
discussing the Union or union-related matters during
working time.
WE WILL, on the Union’s request, rescind the follow-
ing unilateral changes: (i) the work rule mandating that
leave would count as an unexcused absence if taken
without at least one week’s prior notice; (ii) changes in
shift times for the first-shift processing department em-
ployees during Memorial Day weekend; (iii) changes in
the work shift and the working hours of the unit invento-
ry clerk; and (iv) hiring temporary employees directly
rather than through temporary employment agencies and
paying them at a different hourly rate than bargaining-
unit employees for performing bargaining-unit work.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time warehouse, pro-
cessing, container repair, and quality and data depart-
ments employees, including inspectors, material han-
dlers, banders, stretch wrappers, receivers, loaders, un-
loaders, forklift operators, tray repair operators, logistic
clerks, yard drivers, mechanics, welders, repair parts
inventory clerks, quality auditors, palletized quality au-
ditors—initial inspectors, and final inspectors em-
ployed by Respondent at its Richmond, California fa-
cility; excluding all employees performing work duties
at Respondent’s facility who are provided to Respond-
ent by temporary placement or employment agencies,
outside contractor employees, office clerical employ-
ees, janitors, managers, supervisors, acting supervisors,
confidential employees, professional employees, data
analysts, plant maintenance leads, guards, and supervi-
sors as defined by the Act.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the bargaining unit described
above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

410
WE WILL, on request, bargain with the Union in good
faith concerning the effects of the elimination of Memo-
rial Day and Labor Day as nonworking holidays.
ALAN RITCHEY, INC.
Jo Ellen Marcotte, Esq. and Thomas Bell, Esq., for the General
Counsel.
Paul L. Myers, Esq. and Bruce A. Griggs, Esq. (Strasburger &
Price), of Dallas and Austin, Texas, respectively, appearing
on behalf of Respondent.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The original
and amended unfair labor practice charges in Case 32–CA–
18149 were filed by Warehouse Union Local 6, International
Longshore and Warehouse Union, AFL–CIO (the Union), on
May 11 and June 9, 2000, respectively. On November 6, 2000,
after an investigation, based upon said unfair labor practice
charges, the Acting Regional Director for Region 32 of the
National Labor Relations Board (the Board) issued an amended
complaint, alleging that Alan Ritchey, Inc. (Respondent) had
engaged in, and is continuing to engage in, unfair labor practic-
es within the meaning of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act).1 On December 7,
2000, after an investigation, based upon the original and
amended unfair labor practice charges in Case 32–CA–18459,
filed by the Union on September 25 and October 16, 2000,
respectively, and the unfair labor practice charge in Case 32–
CA–18526, filed by the Union on October 25, 2000, the Acting
Regional Director for Region 32 of the Board issued a consoli-
dated complaint, alleging that Respondent had engaged in, and
is continuing to engage in, unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the Act.2 The origi-
nal and amended unfair labor practice charges in Case 32–CA–
18601 were filed by the Union on November 30, 2000, and

1 Subsequent to issuing the amended complaint, on February 6,
2001, the Acting Regional Director issued an amendment to it. Then,
during the hearing, counsel for the General Counsel was granted per-
mission to amend the amended complaint, adding an additional par.
10(m).
2 In their posthearing brief, counsel for Respondent argue that, inas-
much as the allegation of par. 18 of the consolidated complaint does not
contain the words, “. . . Respondent thereby has been engaging in unfair
labor practices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section (6) and (7) of the Act,” Respondent has
been denied due process and fair notice of the allegations against it and,
therefore, no findings can be made against it on this allegation. How-
ever, the failure to include the above language appears to have been a
mere typographical error, and the paragraph does allege that Respond-
ent “. . . has failed and refused and is continuing to fail and refuse to
bargain collectively and in good faith with the representative of it em-
ployees . . .”—the sine quo non of an alleged violation of Sec. 8(a)(1)
and (5) of the Act. Moreover, given that they addressed the alleged
violations of said section of the Act in their brief, it can hardly be found
that Respondent or its counsel did not completely comprehend the
gravamen of the allegation. Accordingly, as I believe counsel for Re-
spondent has mistakenly elevated form over substance, I find no merit
to their contention.
January 4, 2001, respectively, and, on February 6, 2001, after
an investigation, based upon the unfair labor practice charges,
the Acting Regional Director for Region 32 of the Board issued
a complaint, alleging that Respondent had engaged in, and is
continuing to engage in, unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act. The unfair labor prac-
tice charge in Case 32–CA–18693 was filed by the Union on
January 31, 2001; after an investigation, based upon the unfair
labor practice charge, on February 22, 2001, the Regional Di-
rector for Region 32 of the Board issued a complaint, alleging
that Respondent had engaged in, and is continuing to engage in,
acts and conduct violative of Section 8(a)(1) and (5) of the Act.
Respondent timely filed answers to the amended complaint in
Case 32–CA–18149, the consolidated complaint in Cases 32–
CA–18459 and 32–CA–18526, the complaint in Case 32–CA–
18601, and the complaint in Case 32–CA–18693, essentially
denying the commission of any of the alleged unfair labor prac-
tices. Pursuant to notices of hearing, these matters came to trial
before the above-named judge on February 20 through 23, 26,
through 28, and March 19, 2001, in Oakland, California. Dur-
ing the trial, all parties were afforded the opportunity to exam-
ine and to cross-examine witnesses, to offer into the record any
relevant documentary evidence, to argue legal positions orally,
and to file posthearing briefs. Counsel for the General Counsel
and counsel for Respondent each filed a posthearing brief, and
said documents have been carefully considered. Accordingly,
based upon the entire record herein, including the posthearing
briefs and my observation of the testimonial demeanor of each
witness, I issue the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a State of Texas corpora-
tion, with an office and place of business located in Richmond,
California, has been engaged in the business of inspecting,
repairing, and storing mail transport equipment for the United
States Postal Service (USPS). During the 12-month periods
immediately preceding issuance of each of the complaints here-
in, in the normal course and conduct of its above-described
business operations, Respondent purchased goods and products
valued in excess of $50,000 directly from suppliers located
outside the State of California. Respondent admits that, at all
times material, it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
In the amended complaint in Case 32–CA–18149, the Gen-
eral Counsel alleges that Respondent engaged in acts and con-
duct violative of Section 8(a)(1) of the Act by telling an em-
ployee she could not participate in protected concerted activi-
ties. Further, the General Counsel alleges that Respondent
engaged in acts and conduct violative of Section 8(a)(1), (3),
and (5) of the Act by, since May 21, 2000, promulgating and
ALAN RITCHEY, INC. 411

discriminately enforcing a no-talking rule.3 Moreover, the
General Counsel alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1), (3), and (5) of the Act by,
since April 13, 2000, more harshly enforcing the efficiency
standard for inspectors and by subjecting 41 named inspectors
to progressive discipline, including termination, for failing to
meet its efficiency standards because they engaged in activities
in support of the Union and without initially bargaining with
the Union.4 Finally, the General Counsel alleges that Respond-
ent engaged in acts and conduct violative of Section 8(a)(1) and
(5) of the Act by, unilaterally and without affording the Union
notice and an opportunity to bargain, requiring that its employ-
ees in the processing department wear safety glasses, imple-
menting a safety ticket program whereby employees would be
progressively disciplined for violating safety rules, reducing the
number of nonworking holidays from six to four through the
elimination of Labor Day and Memorial Day, implementing a
rule requiring that the first-shift inspectors finish the second
shift’s work, from May 22 through 30, 2000, changing the start
time for employees in the first-shift mailbag section of the pro-
cessing department from 6 to 4 a.m., through a memo dated
June 6, 2000, setting forth more onerous plant objectives, im-
plementing more onerous working assignments for welder Kev-
in Lynch, on or about June 18 promulgating more stringent
discipline standards and procedures and more onerous objec-
tives for the completion of work, informing employees that
they would receive an unexcused absence if they failed to pro-
vide 1 week’s notice, informing employees that they were re-
quired to work on their regularly scheduled days off Friday,
July 7, and Saturday, July 8, 2000, and changing the worktime
of employees who worked in the processing department on the
first shift;5 by, since April 13, 2000, subjecting 67 employees to

3 The amended complaint alleges that employees, Christy Jackson,
Latachianna Pontiflet, and Cheryl Robinson were terminated because of
their activities in support of the Union in violation of Sec. 8(a)(1) and
(3) of the Act. However, at the hearing, each testified that she was
terminated for reasons other than not meeting Respondent’s minimum
efficiency standard and, inasmuch as counsel for the General Counsel
offered no evidence that Respondent possessed any knowledge of the
union activities of the each of the alleged discriminatees or that Re-
spondent harbored any specific unlawful animus toward any of them
and as there existed no nexus between the alleged discriminatees’ activ-
ities in support of the Union and their discharges, I granted counsel for
Respondent’s motion to dismiss the allegations. I shall adhere to my
ruling at the trial.
4 Of the 41 named employees, the General Counsel alleges that the
discipline of 15 violated only Sec. 8(a)(1) and (5) of the Act. These
include employees Jackson, Pontiflet, and Robinson. With regard to
employee Robinson, while it is true that the second amendment to the
amended complaint in Case 32–CA–16149 appears to exclude her from
the alleged violations of the above section of the Act, the record as a
whole makes it quite clear that such was an oversight and that counsel
for the General Counsel meant to continue to include her name in the
amended complaint. Therefore, I have not considered her name to have
been amended out of the amended complaint par. 10(l).
5 The amended complaint sets forth these alleged unlawful unilateral
changes as violations of Sec. 8(a)(1), (3), and (5) of the Act; however,
in its second amendment to the amended complaint, the General Coun-
progressive discipline, including termination, for violating its
absenteeism policy without initially giving notice to and offer-
ing the Union an opportunity to bargain; and by bypassing the
Union and dealing directly with bargaining unit employees by
polling the first-shift mailbag section of the processing depart-
ment about whether they wanted their start time changed for
receiving overtime and by offering to pay employees triple time
for working on May 26, 2000 (Memorial Day), if they volun-
teered to work on May 27 and did not miss any days through
June 2.
In the consolidated complaint in Cases 32–CA–18459 and
32–CA–18526, the General Counsel alleges that Respondent
engaged in acts and conduct violative of Section 8(a)(1) and (5)
of the Act by, during collective bargaining with the Union,
insisting, as a condition for continuing the negotiations, that the
Union provide a complete contract proposal which included all
economic and noneconomic items and failing and refusing to
meet at any time or place for negotiations; by subjecting two
employees to progressive discipline, including termination,
without initially giving notice to and offering to bargain with
the Union; and bypassing the Union and dealing directly with
bargaining unit employees by asking container repair depart-
ment mechanics to sign a memo agreeing to the changes to their
job duties. Further, the General Counsel alleges that Respond-
ent engaged in acts and conduct violative of Section 8(a)(1),
(3), and (5) of the Act by changing the job duties of its mechan-
ics in the container repair department, changing the shift and
number of hours worked of its bargaining unit inventory clerk,
beginning stricter enforcement of its efficiency rating standard
for container repair department mechanics, and announcing that
there would be layoffs of container repair department employ-
ees and what the criteria for selection would be.6 Finally, the
General Counsel alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1), (3), and (5) of the Act by
subjecting two employee to progressive discipline because of
their activities in support of the Union and without offering the
Union an opportunity to bargain. In the complaint in Case 32–
CA–18601, the General Counsel alleges that Respondent en-
gaged in acts and conduct violative of Section 8(a)(1) and (5) of
the Act by, unilaterally without notice to or bargaining with the
Union, offering its employees an accident/disability insurance

sel seemingly limited the alleged violations of Sec. 8(a)(1) and (3) of
the Act to pars. 10(a)(i) and (l)(1) through (7), (9), through 26, and (28)
through (31). That this view is correct is seen from the fact that, in
their posthearing brief, counsel for the General Counsel argue that the
asserted unlawful unilateral changes were only violative of Sec. 8(a)(1)
and (5) of the Act. Accordingly, I view the alleged unilateral changes
as only violative of the latter section of the Act.
6 While these acts and conduct are alleged as violative of Sec.
8(a)(3) of the Act, as with the allegations in the amended complaint in
Case 32–CA–18149, in their posthearing brief, counsel for the General
Counsel treat the alleged unlawful acts and conduct as unilateral chang-
es violative of Sec. 8(a)(1) and (5) of the Act and fail to ascribe any
unlawful animus to Respondent in engaging in any of them. In these
circumstances, as with the alleged unlawful unilateral changes in Case
32–CA–18149, I have likewise considered the alleged unilateral chang-
es only as violations of Sec. 8(a)(1) and (5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

412
policy, reducing the number of daily hours worked by mechan-
ics in its container repair department, and directly hiring and
employing temporary employees to perform the work of bar-
gaining unit employees and paying them wages and benefits
different than those paid to bargaining unit employees and by
issuing progressive discipline, including termination, to em-
ployee Marcell Spain without initially giving notice to and
offering to bargain with the Union. In the complaint in Case
32–CA–18693, the General Counsel alleges that Respondent
engaged in acts and conduct violative of Section 8(a)(1) and (5)
of the Act by meeting directly with bargaining unit employees
on two occasions and soliciting their views concerning upcom-
ing subjects of bargaining with the Union including soliciting
their views concerning how reduction-of-work issues could be
handled.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The record establishes that Respondent is a privately-owned
State of Texas corporation; that an individual named Alan
Ritchey, whose office is located in Valley View, Texas, is the
majority shareholder in the corporation and its president and
chief operating officer; that James Craig Brown is the vice
president and general counsel of the corporation; that Respond-
ent’s principal business is as a contractor to the USPS for
highway mail transportation and the operation of mail transport
equipment service centers7 (service centers), at which Re-
spondent inspects, repairs, and stores the nonmotorized equip-
ment,8 with which the USPS handles the mail at its postal ser-
vice facilities and on its mail transportation vehicles. At its
Richmond, California9 service center, which opened in August
1999 and which is the facility at issue herein, David Williams
was the plant manager, the highest management position at the
facility, from December 5, 1999, through January 2001;10 Re-
spondent employs approximately 250 workers, who work in
five separate departments on three shifts;11 and, at all times
material herein, June Rivera and John Medina have been the
first- and second-shift managers. Pursuant to a petition for a
representation election, filed by the Union on February 29,
2000, on April 13, 2000, agents of the Board conducted a rep-

7 There are 23 such facilities located throughout the United States,
with each operated by a private company. Respondent operates six
such sites located in Springfield, Massachusetts; Long Island, New
York; Philadelphia, Pennsylvania; Minneapolis, Minnesota; Seattle,
Washington; and Richmond, California.
8 The post office equipment includes cardboard, nylon, plastic, and
denim mailbags, mail trays, lids, and sleeves, which fit over the trays,
and rolling carts, which include shopping cart type containers, rigid
wire containers, and large containers with shelves.
9 Richmond, California, is located near Oakland and across the bay
from San Francisco.
10 Respondent employed at least two plant managers at the Rich-
mond, California service center prior to hiring Williams. They were
terminated because the USPS was dissatisfied with the amount of work,
which had been processed by Respondent at this facility.
11 While Respondent nominally keeps the plant open for three work
shifts, the bulk of the work force is divided equally between the first
and second shifts, and it employs only a few warehousemen on the
third shift.
resentation election amongst the full-time and regular part-time
employees, who work in the warehouse, processing, container
repair, and quality and data departments at Respondent’s Rich-
mond service center, including all inspectors, material handlers,
stretch wrappers, receivers, loaders, unloaders, forklift opera-
tors, logistic clerks, yard drivers, mechanics, welders, repair
parts inventory clerks, quality auditors—palletized quality audi-
tors, initial inspectors, and final inspectors,12 and a majority of
the employees voted in favor of representation by the Union.13
As a result, on April 21, the Board certified the Union as the
representative for purposes of collective bargaining of Re-
spondent’s employees in the above-described appropriate unit.
The record further establishes that the USPS, pursuant to its
contract with Respondent, punctiliously monitors and controls
all aspects of Respondent’s operations, including worker
productivity,14 at its six service centers to the extent that the
USPS has reserved to itself the right to unilaterally change any
term of its contractual relationship with Respondent.
B. Respondent’s Alleged Unlawful Disciplining of
Employees for Failing to Work at Its Minimum
Efficiency Levels
The amended complaint in Case 32–CA–18149 alleges that,
since April 13, 2000, Respondent has unlawfully enforced its
efficiency standards for inspectors and unlawfully disciplined
inspectors15 for failing to work at its minimum efficiency lev-
els. The record reveals that the USPS constantly monitors the
productivity of the 23 mail transport equipment service cen-
ters;16 that, prior to contracting out the operation of the service

12 Among other individuals, specifically excluded from the voting
unit were employees, “. . . performing work duties at Respondent’s
facility who are provided to Respondent by temporary placement or
employment agencies.”
13 Of the 268 eligible voters, 160 cast ballots in favor of the Union
and 4 cast ballots in favor of Teamsters Local 315. Eighty-two em-
ployees cast ballots against both labor organizations.
14 According to David Williams, for every job in a service center, the
USPS has published a statement of work,” . . . tell[ing] you every single
thing you have to do, and it describes step by step how you have to do
it.”
15 Respondent employs approximately 120 inspectors in its pro-
cessing department; they are divided equally between the first and
second shifts.
16 Plant Manager Williams testified that, for the first 20 weeks of a
new service center’s operations, the USPS pays a 30-percent premium
over the normal rates—“They knew it was going to take a while to get
[our] rhythm down and they paid you a higher rate to do the exact same
work [when, they determined, you were at] full operating capacity [at]
week 21.” According to Williams, the USPS deemed Respondent’s
Richmond, California facility to be at full operating capacity in early
January, and there was no more time to be inefficient and continue
being profitable.
Williams further testified that, in order to be in compliance with
USPS-mandated productivity levels, Respondent’s Richmond, Califor-
nia facility “. . . was supposed to be at 95 percent effectiveness or
above, because the [USPS] had a guaranteed minimum to [Ritchey], if
we ever ran out of work, the USPS guaranteed us . . . x dollars a week,
as long as our plant [operated at the 95 percent efficiency level]. . . .”
He added that, upon being hired, he noted that the service center’s
efficiency level “. . . was . . . running about 65 percent effective on an
ALAN RITCHEY, INC. 413

centers to private companies, the USPS operated one such facil-
ity in North Carolina; and that, in order to ascertain the produc-
tivity of inspectors,17 who are employed in the processing de-
partment,18 it accumulated data and devised formulas for de-
termining the “normal amount” of inspections the employees
should perform over a given amount of time while examining
different products—the so-called efficiency standards. Accord-
ing to David Williams, the USPS expects that inspectors at each
of the 23 privately operated service centers, including those
employed by Respondent at its Richmond, California facility,
work at a rate equal to 100 percent of the efficiency standard
for a particular product.19 He testified that, since August
1999,20 as early as their date of hire, employees, classified as
inspectors, have been inculcated with the efficiency rate at
which Respondent expects them to be working and with the
importance of continuing to maintain this standard; that, after
he became plant manager, initially during meetings with all
employees on the first two shifts on January 18, 2000, and sub-
sequently, perhaps, in a memo to employees,21 he announced
that, no matter the product, all inspectors would be expected to
be working at a minimum efficiency level of 80 percent of the
USPS efficiency standard;22 and that, on a daily basis, pro-

overall basis” or approximately 30 percent below the guaranteed mini-
mum.
17 These employees scrutinize the various types of mailbags for tears
or rips or the mail trays, lids or sleeves for holes or cracks. Inspectors
are assigned to either product.
18 Inspectors, along with mechanics, who work in the container re-
pair department, comprise the so-called rated positions in a service
center. Unlike inspectors, who are not required to repair the products,
which they determine to have rips, tears, holes, or cracks, the mechan-
ics examine and, if necessary, repair the rolling containers, which they
initially inspect.
19 The USPS designed computer programs, pursuant to which each
inspector is responsible for imputing his or her raw production figures,
for determining the efficiency levels of the rated employees on a daily
basis.
20 There is scant record evidence as to the efficiency level at which
inspectors were required to be working prior to Williams hire. Brandee
Chorro, Respondent’s human resources manager, who has been em-
ployed at the Richmond facility since April 1999, failed to testify on
the subject. Employee warning notices for the time period prior to
December 1999 refer to 75-, 80-, and 85-percent efficiency levels.
21 During cross-examination, Williams admitted that no sign-in sheet
was maintained at the employee meetings. With regard to whether
anything was placed in writing regarding the 80-percent efficiency
level, he said, “I put out a memo at some point about it, but that was
verbally discussed every single day. So it wasn’t something we gave
them in writing.” As to the memo, Williams recalled issuing it “some-
time just after I did the meetings” but then averred, “I don’t have it any
longer.”
22 Originally, Williams announced that the minimum efficiency level
for inspectors of trays, sleeves, and lids would be 85 percent; however,
he subsequently decided that all inspectors should have the identical
minimum efficiency rate of 80 percent.
Williams testified that, during the January 18 employee meetings, he
also informed the mechanics in the container repair department, the
other rated position, they were required to work at a minimum efficien-
cy level of 100 percent of the efficiency standard for mechanics, which
was established by the USPS. Contradicting Respondent’s plant man-
cessing department supervisors consistently informed inspec-
tors regarding the efficiency level at which they were working
and, if below the 80-percent level, prodded them to increase
their efficiency.23 While alleged discriminatee Michelle
Mayse, who was hired by Respondent as an inspector in No-
vember 1999 and who normally inspected the sleeves, which fit
over mail trays, specifically denied being informed, upon her
hire, that she was expected to meet an efficiency standard while
working, she corroborated Williams, recalling she heard from
him a month after her hire about the existence of an efficiency
standard for inspectors. According to Mayse, the plant manag-
er told her “that we had to meet a certain percentage of 80 per-
cent,” and that “we couldn’t go anything below 80 percent or
disciplinary action would be taken.”24 (Emphasis added.)
Asked if she ever was told what her 100-percent efficiency
level was, Mayse replied, “That’s what we were trying to find
out. . . . there’s different products and there’s different stand-
ards for different products . . . ,” and “. . . we were unaware of
what the standard . . . was . . . on different products.” Contra-
dicting Mayse on this point, Williams testified that the 100-
percent efficiency standards “were taped” on the work tables
“. . . so people could see the standard associated with all the
different products.” He added that “. . . we would print out . . .
on a daily basis, where peoples’ work was at and counsel them
whether they were below standard . . . . So every single day . . .

ager, Edward Grissom, a mechanic in the container repair department at
Respondent’s Richmond facility and a member of the Union’s employ-
ee bargaining committee, testified that, when he was hired, nothing was
said about a minimum efficiency level but that “. . . later on they ex-
pected us to do 80 percent.” Grissom added that he became aware of
the 80-percent figure in September 1999 and that the mechanics’ mini-
mum efficiency level remained the same until the publication of a
memo, GC Exh. 4, “a number of weeks” after the election but prior to
July 4, 2000, with the memo establishing the mechanics’ minimum
efficiency level at 120 percent. Then, several months later, he became
aware that Respondent had established another minimum efficiency
level for container repair mechanics—100 percent. In this regard,
Grissom testified that two mechanics, Dale May and Tyrone Sparkman,
were disciplined by Respondent in October 2000 for low efficiency,
and Respondent admits that each received a verbal warning in that
month. As to Sparkman, his counseling report, the content of which,
Grissom testified, was what he heard, states that his efficiency was
below 100 percent. Concerning May, Grissom, who was present dur-
ing the counseling session, their supervisor, George Jordan, told May
“. . . that his efficiency was unacceptable. . . . It was just too low . . . .
[Jordan] asked . . . if he was having a problem, could he help him and
. . . bring it up.” In the consolidated complaint in Cases 32–CA–
018459 and 32–CA–018526, the General Counsel alleges that both
disciplinary acts were violative of Sec. 8(a)(1), (3), and (5) of the Act.
23 Williams testified that, during his January 18 meetings with the
inspectors, he told them that an efficiency rate of 80 percent was “the
minimum level” and that they actually had to reach a 100-percent level
and, if possible, above on a weekly basis.
24 Mayse testified that David Williams arrived at the plant in De-
cember 1999 and pointed out the existence of efficiency standards to
the employees—“He said there were percentages that had to be met by
each of the inspectors. . . . [The inspectors] had to meet an 80 percent
standard.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

414
the supervisors would take . . . the numbers from the day before
. . . and talk to each person . . . .”
There is no dispute that, prior to the bargaining unit employ-
ees’ selection of the Union as their representative for purposes
of collective bargaining on April 13 and thereafter, Respondent
subjected inspectors, who were not performing at satisfactory
and/or minimum efficiency levels and who had failed to re-
spond to the prodding of their supervisors by improving their
job performance, to discipline,25 including termination, pursu-
ant to its progressive disciplinary procedure.26 Thus, according
to Respondent’s employee handbook, which is given to all new
hires at its Richmond, California service center, Respondent
utilizes a progressive disciplinary procedure for most types of
employee performance or behavioral problems, including “fail-
ure to meet production or quality standards,” with such disci-
pline to employees ranging from verbal counselings through
verbal warnings, written warnings, suspensions, and possible
termination.27 With regard to enforcing this discipline, Plant
Manager Williams testified that “[b]asically when we put the
new numbers in place what we told people is that we would
always look at a four-week average before we disciplined
them.”28 Further, asked if there were situations when no disci-

25 While not disputing the extensive documentary evidence of verbal
and written warnings given to employees for failing to perform at man-
dated efficiency levels prior to the election, counsel for the General
Counsel presented Michelle Mayse, who testified that it was not until
“after the election” that she heard of actual discipline for inspectors,
who failed to meet Respondent’s minimum efficiency standard.
26 Such discipline predated Respondent’s hiring of David Williams
as the plant manager for its Richmond, California service center.
27 Respondent’s employee discipline documents are called “employ-
ee counseling reports.” On the documents, there is no space for verbal
warnings. Therefore, I shall consider a written report of a verbal coun-
seling as constituting a verbal warning.
Respondent reserves the right to determine what types of employee
misconduct warrant disciplinary action and the “nature and severity of
an offense,” and, for certain types of misconduct, Respondent reserves
the right, at its “sole discretion,” to discipline without progressing
through each stage of the disciplinary procedure. Moreover, “a deci-
sion by [Respondent] not to enforce any policy or practice . . . is not
intended to prevent and does not restrict [Respondent’s] right to insist
on strict adherence to the policy or practice in the future.”
28 Contrary to Williams’ assertion as to when he informed bargaining
unit inspectors about the need for compiling a 4-week average efficien-
cy rating, in his testimony, regarding what he said to employees during
his January 18 meetings, under direct examination by counsel for the
General Counsel and, later, under direct examination by counsel for
Respondent, Williams failed to mention telling them about the compila-
tion of such an average prior to the imposition of any discipline. Fur-
ther, Williams did not recall ever discussing the necessity of a 4-week
average prior to discipline in any memo to Respondent’s employees.
Moreover, Michelle Mayse testified that she first learned how Re-
spondent would calculate an inspector’s 80-percent efficiency level
during a conversation with Williams on May 27. “I . . . asked him to
put something in writing, stating” the efficiency standard for all inspec-
tors was 80 percent. “He was kind of upset” and said “. . . basically
you had four weeks to be at [the minimum efficiency level]. Anything
below, then they call you in and they can discipline you. . . . depending
on the circumstances of the individual . . . .”
Asked why a 4-week average was used, Williams said, “. . . you just
want to make sure you have time for all the work to wash through the
pline was given even though an employee did not meet the
required efficiency level, Williams replied, “I’m sure there
were. [It was] hard to get the consistency . . . when I was hired,
I had a bunch of supervisors who were new, and you’re kind of
working on multiple . . . tasks, and as your trying to get your
supervisors to do things consistently, they also fall off the boat
. . . .” Asked whether employee discipline depends upon the
surrounding circumstances, Williams answered, “. . . when you
know someone’s working the low volume area, or you know
someone’s doing something else, you’re always going to look
and say . . . there’s this exception.” He added that “absolutely”
circumstances are taken into consideration before disciplining
for low efficiency—“. . . nothing in life is ever straight num-
bers.” For example, according to Williams, notwithstanding
low efficiency, no discipline was given to a woman, who was
having “issues” related to her husband, who was dying of can-
cer, or to employee Amelia Santos, who wasn’t able to work
longer than 3 or 4 days in a position and, thus, was unable to
get her job “rhythm down,” or to employees used in “low vol-
ume” areas. Also, workers going from inspecting mailbags to
inspecting trays, sleeves, and lids was not a difficult transition
for efficiency rating purposes, “but to go from [trays, sleeves,
and lids]to bags was difficult,” and in the latter circumstance,
“. . . we’d give them some time. We’d retrain them, wouldn’t
hold them accountable.” Similarly, inspectors, who are utilized
to train new employees, and inspectors, who work in low vol-
ume areas, are given special consideration, and new inspectors,
after training, are not held responsible for even having any
efficiency for the initial 4 weeks. “They [have] four weeks to
kind of get up to speed.”
In arguing that Respondent more harshly enforced its effi-
ciency levels subsequent to the April 13 election, counsel for
the General Counsel point to the discipline, which was imposed
by Respondent upon Daryl Johnson, who, despite consistently
lower than 80-percent average weekly efficiency since the se-
cond week in January, was not disciplined for his low efficien-
cy level until April 10, 3 days prior to the election.29 On that
date, according to Johnson, June Rivera, the day-shift manager,
called him into her office and “. . . she explained to me that I
could be doing . . . better than what I had been doing according
to what the efficiency level was. . . . She explained to me then
that I needed to be at 85 percent . . . and could I bring my num-
bers up . . . . I said I would do my best. . . .” Rivera added that
their conversation should not be considered to be discipline but
asked Johnson to execute an acknowledgement of their conver-
sation. Ten days later, 3 days after the election, after his effi-
ciency average had risen from 45.31 percent to 60.58 percent,
Rivera called Johnson into her office, and “she explained to me

system. . . . The reality is we don’t always control the amount of work
that comes . . . through. And then you want to give a person adequate
time to adjust. . . . And you want to look at long-term trend versus a
short-term trend.” Williams added that he announced this adjustment
period during his January 18 meetings with employees.
29 R. Exh. 38 establishes that Johnson’s weekly efficiency average
was above 80 percent only once between the week ending January 7,
2000, and the week ending April 7, 2000. Thus, for the week of Febru-
ary 18, Johnson’s efficiency was 116.77 percent. Other than that week,
his efficiency average never rose above 73.99 percent.
ALAN RITCHEY, INC. 415

that I needed to bring my numbers up or that I would be facing
suspension and/or termination. . . .” The alleged discriminatee
explained that he had never received training for the inspector
position and that he was doing the best he could. Thereupon,
Rivera analogized Johnson’s job performance to money, saying
Respondent was paying him a dollar for 43 cents worth of
work, and concluded by again warning he faced suspension or
termination if he failed to improve. Approximately 10 days
later, Johnson testified, Rivera called him into her office and
said that there had been “a mix-up” and that his minimum effi-
ciency number was 80 percent.30 Thereafter, on April 25,31
Johnson was suspended from work for 3 days because his effi-
ciency “was not up to par. . . .” Johnson protested that he had
never been given a target date to be at 80-percent efficiency and
thought it “absurd” for Respondent to expect his numbers to
rise precipitously. After 3 days, he returned to work; however,
on May 8, Rivera again called him to her office, and, on this
occasion, informed Johnson he was being discharged.32 Bran-
dee Chorro, the human resources manager, was present and said
that, over the prior month, Johnson’s efficiency average had
risen no higher than to 62 or 63 percent over a 4-week evalua-
tion period33 and that such was “unacceptable” to Respondent.
Similarly, counsel points to the disciplining of LaTachianna
Pontiflet, who had been hired by Respondent as an inspector on
November 17, 1999. A month later, John Medina gave her a
verbal warning for “low efficiency” and noted that she would
“need to be at 70%.” Five days after the election, on April 18,
2000, June Rivera called Pontiflet into her office, gave her a
second verbal warning because her average weekly efficiency
level for the preceding 5-week period had been 70 percent, and
said Pontiflet had to increase her average weekly efficiency
level to 80 percent. Pontiflet asked why she had to be at 80
percent when Medina told her 70 percent, and “ . . . [Rivera]
said that on her shift, she would like it to be 80 percent . . . and
I was not meeting the requirement.” On May 2, Rivera gave
Pontiflet a written warning because her average efficiency level
for the preceding week had been 57.8 percent, and, 2 weeks
later, Pontiflet received a 3-day suspension. On this latter oc-
casion, May 16, Rivera informed Pontiflet that she “. . . was
still not maintaining the 80 percent;” that her average efficiency
level for the prior week had been 75.15 percent and that her 4-
week average efficiency level had been 76.26 percent. Pon-
tiflet, who testified, “[T]his was my first time knowing what
this was about,” complained that she was being punished for a
time period for which she had already received discipline.
Counsel for the General Counsel argue that Respondent’s
own disciplinary records demonstrate a “marked contrast” be-

30 This conversation occurred a day or two after an employee meet-
ing during which Johnson complained to Williams about his counseling
by Rivera and handed the plant manager a copy of what he executed on
April 10.
31 His average efficiency for the weeks of April 21 and 28 had been
57.82 percent and 60.97 percent, respectively.
32 Johnson’s average efficiency for the weeks of May 12 and 19 were
68.41 percent and 66.16 percent, respectively.
33 Johnson protested that he had known nothing about a 4-week
evaluation period.
tween how it disciplined employees for low efficiency prior to
the election and how it did so subsequent to the bargaining unit
employees’ selection of the Union as their bargaining repre-
sentative. At the outset, during the period, August 1999
through April 12, 2000, Respondent subjected in excess of 50
different bargaining unit inspectors to a total of 68 verbal warn-
ings, 20 written warnings, 4 suspensions, and 1 termination for
failure to achieve acceptable efficiency rates34 and, during the
period, April 13 through September 2000, Respondent subject-
ed 41 different bargaining unit inspectors to a total of 22 verbal
warnings, 29 written warnings, 22 suspensions, and 14 termina-
tions35 for failure to achieve minimum efficiency levels. Fur-
ther, analysis of the “corrective action” required and the
“timeframe[s]” for such in the only counseling report for No-
vember 1999 and the December 1999 employee counseling
reports, which begin on the day before Williams became plant
manager, reveal that Respondent normally permitted employ-
ees, who received verbal warnings for low efficiency, to in-
crease their efficiency levels gradually and to different final
levels. For example, employee Vincent Stroud was required to
reach a 75-percent efficiency level by increasing his efficiency
5 percent each week; employee Joseph Fullwood was required
to be at a 50-percent efficiency level the following week and,
thereafter, to increase his efficiency 5 percent each week until
he reached 80-percent efficiency; with no efficiency goal estab-
lished, eight other employees were expected to be at a 50-
percent efficiency level the following week and to raise their
levels by 5 percent each subsequent week; employee Lowe
Shakesnider was expected to be at a 55-percent efficiency level
and to increase his efficiency 5 percent thereafter; several em-
ployees were expected to raise their efficiency levels 10 percent
each week until they reached a 100-percent efficiency level;

34 If one concentrates only on the period between January 18, the day
upon which Williams assertedly announced to the inspectors that they
were required to maintain, as a minimum, an efficiency level of 80
percent, and April 13, Respondent issued seven verbal warnings, three
written warnings, three suspensions, and one termination. As will be
discussed infra, there exists specific record evidence only as to the
efficiency of six inspectors during the 3-month period prior to the elec-
tion.
35 Other than the discharge of Demone Anderson, which I shall dis-
cuss infra, other alleged discriminatory discharges appear to be in ac-
cord with Respondent’s disciplinary policy for low efficiency. Thus,
George Booker received a verbal warning for low efficiency and
“standing around and not working” on May 14, 2000, a written warning
for continued low efficiency 2 weeks later, a 3-day suspension a week
later, and, on June 18, he was terminated for low efficiency and poor
attendance. John Chatman received a verbal warning for low efficiency
on January 15, 2000, a written warning for low efficiency on May 28, a
3-day suspension on June 4, and he was terminated on June 15 based
upon a 4-week average efficiency of 74. 47 percent. After receiving
verbal and written warnings for low efficiency, Sheila McFarland was
suspended for 3 days on August 28, 2000, based upon a 4-week effi-
ciency level average below 80 percent, and, for continued low efficien-
cy, she was terminated on September 22. On April 17, 2000, Melvin
Rucker received a verbal warning for low efficiency based upon a 4-
week average below 80 percent. He was suspended for 3 days on April
26 for continued low efficiency and discharged 19 days later.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

416
employee Sheila Jackson was required to be at a 50-percent
efficiency level the following week and, thereafter, show
“steady improvement until she reached a 75- to 85-percent
efficiency level; and another employee, Lynette Groom, was
required to be at a 60-percent efficiency level the following
week and “needs to improve” each week to a 75- to 85-percent
efficiency level. Likewise, even after Plant Manager Williams
imposed the 80-percent minimum efficiency level for inspec-
tors, in January 2000, employee John Chatman received a ver-
bal warning for low efficiency and was required to raise his
efficiency level to only 70 percent, and, in February, employees
Lynette Groom and Joseph Fullwood received suspensions for
continued low efficiency but were only required to increase
their efficiency levels to 70 percent. Similarly, on the day be-
fore the election, April 12, employee Jemina Morris received a
warning notice for low efficiency and was given 2 weeks to
increase her efficiency level to 80 percent. In contrast, except
for a verbal warning given to employee Melvin Rucker on
April 17, each act of discipline, given by Respondent to bar-
gaining unit inspectors, subsequent to the election, requires the
employee to achieve an 80-percent efficiency level, without
permitting the inspector to gradually increase his or her per-
centage, or face further discipline.
Next, counsel for the General Counsel asserts that there are
several inspectors, who, prior to the election, were not disci-
plined by Respondent even though they consistently failed to
achieve an 80-percent efficiency level but who were first disci-
plined for failing to do so after the election. Thus, while he was
initially disciplined for low efficiency on April 10, 2000, em-
ployee Daryl Johnson averaged in excess of the 80-percent
minimum efficiency level for a week just once during the first 3
months 2000.36 Next, while inspector Kylandria Thomas failed
to average an 80-percent efficiency level for any week in Feb-
ruary or March,37 Respondent did not discipline her with a ver-
bal warning for low efficiency38 until 4 days after the election,
and she was required to be at the 80-percent level the following
week. Counsel next point to inspector Bettina Lawrence.
However, while she likewise received a verbal warning on
April 17 for low efficiency based upon the preceding 5-week
period, it is questionable whether she deserved discipline for
low efficiency during the period January through April 13.
Thus, she achieved weekly average efficiency levels above 80
percent during the first and third weeks of February and the
first 2 weeks of March 2000. Finally, as examples, counsel
points to two other inspectors, Wyla Torres and Francis Young.
Neither was disciplined for low efficiency during the first 3
months of 2000 notwithstanding that Torres achieved an aver-

36 During the week of February 18, 2000, Johnson’s efficiency aver-
age was in excess of 110 percent.
37 Thomas did average over 80-percent efficiency for 2 weeks in
January 2000.
38 This was based upon the 5-week period immediately preceding the
date of the warning notice. Thus, it encompassed 3 weeks in March
and 2 weeks in April.
age efficiency of over 80 percent just once39 or that Young did
so just twice.40 `
Next, counsel for the General Counsel argue that, subsequent
to the election, Respondent enforced its policies in an incon-
sistent manner. Thus, they assert, while David Williams main-
tained that Respondent did not hold new inspector employees to
the 80-percent minimum efficiency level for their first 4 weeks
in a rated position, such was not the case for employees after
the election. In this regard, they point to employee Demone
Anderson, who, according to Paul Tuazon, Respondent’s quali-
ty control and data manager, first moved into a rated (inspector)
position on June 8, 2000. Nevertheless, according to Respond-
ent’s disciplinary records, just 11 days later, on June 19, he
received a verbal warning for “low efficiency” and was re-
quired to be at 80-percent efficiency the following week. Then
11 days after this initial warning, on June 30, Respondent sub-
jected him to a written warning for not achieving an 80-percent
efficiency average for the week of June 25. Two weeks later,
Anderson was suspended for 3 days for continuing to average
“low efficiency” levels, and, finally, on August 6, Respondent
discharged him—2 months after moving him into a rated posi-
tion. Similarly, Respondent first moved employee Monique
Dudley into a rated (inspector) position on April 7, and, on May
17, issued her a verbal warning for failing to average a weekly
80-percent efficiency level for the 4-week period commencing
April 17—just 10 days after Dudley began working as an in-
spector. Then, a week later, Respondent issued her a written
warning for low efficiency, taking into account basically the
same 4-week period. As a third example, counsel cite to Yuseff
Ivey. He was hired by Respondent on April 19, 2000, and Re-
spondent first moved him into a rated (inspector) position on
May 1. Ivey was issued a verbal warning for low efficiency on
May 28 and, a week later, on June 5, was issued a written warn-
ing for low efficiency.
Counsel for the General Counsel next examine plant manag-
er Williams’ asserted practice of only disciplining inspectors
for low efficiency if they failed to average an 80-percent effi-
ciency level for a 4-week period and contend that its postelec-
tion discipline was contrary to the stated practice. In this re-
gard, the discipline, to which Respondent subjected inspectors
Donika Dotson, Jacqueline Greer, and Maggie Hales, did not
result from measurements of the efficiency of each over a 4-
week period. Further, counsel contends that, rather than for 4
weeks, after verbal warnings, supervisors were requiring disci-
plined inspectors to maintain an 80-percent efficiency average
each week. Thus, Demone Anderson’s suspension notice states
that, thereafter, “each week Demone’s efficiency needs to be at
80%;” Donika Dotson’s suspension notice states that she “. . .
needs to maintain weekly efficiency of 80%. . . . each and every

39 There is no record evidence that Torres was ever disciplined by
Respondent for low efficiency.
40 As mentioned above, Plant Manager Williams testified that Re-
spondent did utilize discretion in subjecting employees to discipline for
low efficiency, citing to an inspector, whose husband was dying from
cancer. According to Williams, the employee was Francis Young, “and
we kind of cut her some slack a couple of times. . . . Her husband did
eventually die and we cut her a little bit of slack after that.”
ALAN RITCHEY, INC. 417

week;” Monique Dudley’s verbal warning notice and written
warning notice require that she maintain an 80-percent efficien-
cy level “each” and “every” week; Jacqueline Greer’s suspen-
sion notice requires that she maintain 80-percent efficiency
“each and every week;” Maggie Hales’ verbal warning requires
her to be at or better than 80-percent efficiency “each week;”
Patricia Hales’ written warning demands that she maintain an
80-percent efficiency rate on a “weekly basis;” Ebony Mou-
ton’s suspension notice requires that she be at 80-percent effi-
ciency “each day;” Yolanda Stevens’ suspension notice re-
quires her to be at 80-percent efficiency on a “weekly basis;”
Kylandria Thomas’ written warning requires her to be at 80-
percent efficiency on a “weekly” basis; Jemina Morris’ written
warning notice states that she must be at 80-percent efficiency
“each week;” and Paulette Hicks’ verbal warning requires that
she maintain an 80-percent efficiency level “each and every
week.” However, counsel’s contention fails to take into con-
sideration Williams’ testimony that an inspector’s 4-week effi-
ciency average was utilized only to assess the propriety of ini-
tial discipline. Further, the foregoing constitute “corrective
actions” and “resolutions” for the employees’ low efficiency
levels.
Counsel for the General Counsel next assert that, subsequent
to the election, there are numerous instances in which only
short intervals of time elapsed between levels of discipline,
effectively punishing employees “two and three times” for the
same periods of low productivity. Thus, employee Melvin
Rucker received a verbal warning on April 17, 2000, based on
low productivity, and, 9 days later on April 26, he was sus-
pended. Similarly, employee Yolanda Stevens received a ver-
bal warning on April 14, 2000, for low productivity. She next
received a written warning on May 9 for low productivity, a
suspension on May 23, and, 13 days later, on June 5, her termi-
nation. Also, Latachianna Pontiflet received a verbal warning
for low efficiency on April 18, 2000. Two weeks later, on May
2, she received a written warning, and, 2 weeks after that, on
May 16, she received a suspension for continued low produc-
tivity, in part, based upon the same time period for which she
received the written warning. Likewise, On May 28, 2000,
inspector John Chatman received a written warning for low
productivity; 7 days later, on June 4, he was suspended; and, 11
days later, on June 15, Respondent discharged him for low
efficiency based upon the preceding 4-week period. Also,
Monique Dudley received a verbal warning on May 17, and she
received a written warning 6 days later for low efficiency, es-
sentially based upon the same period of time. Finally, regard-
ing inspectors Misty Machado and Ardell Shelfo, the former
was given a verbal warning for low efficiency on May 28,
2000, and, 14 days later, on June 11, a written warning, and
Respondent gave Shelfo a verbal warning for low efficiency on
June 23, 2000,41 a written warning 7 days later on June 30, and
a suspension for continued low efficiency 10 days later on June
10. Other than for Shelfo, I note that the initial discipline for

41 There is no indication on the warning notice whether, prior to issu-
ing the discipline, Respondent bothered to observe the employee’s
efficiency over a 4-week period.
the above inspectors was assessed only after Respondent de-
termined that, over a 4-week period, the average efficiency
level for each employee was below 80 percent.
In the amended complaint in Case 32–CA–18149, the Gen-
eral Counsel alleges that, subsequent to the election, Respond-
ent disciplined its inspectors for not working at or above its
minimum efficiency level without notice to the Union of each
instance of proposed discipline or affording it an opportunity to
bargain, and, in their posthearing brief, counsel for the General
Counsel contend that “it is undisputed that Respondent never
afforded the Union an opportunity to bargain about the effi-
ciency standard or the disciplinary procedure associated with
it.” In this regard, in a letter, dated May 26, 2000, Alfredo
Flotte, a union representative, and John Lopes, a business
agent, wrote to David Williams, protesting certain “unlawful
actions,” which had been allegedly committed by Respondent.
In their letter, Flotte and Lopes wrote that “the law . . . requires
the Company to provide [the Union] with prior notice, and an
opportunity to bargain, before taking disciplinary action against
bargaining unit employees” and that “. . . the company has
recently terminated, suspended or otherwise disciplined numer-
ous . . . bargaining unit members without affording prior notice
and a reasonable opportunity to bargain over the proposed ac-
tion to the Union” and specifically demanded that Respondent
“. . . immediately rescind all terminations, suspensions, verbal
or written warnings or other disciplinary actions which have
been taken against bargaining unit members by the company
since the April 13th election . . . .”42 During cross-examination,
David Williams conceded that, prior to disciplining, including,
terminating employees for various offenses, such as low effi-
ciency and attendance, he never gave notice to the Union.43
However, he added, “It was explained to me . . . . That the only
time I needed to negotiate or bring the Union in is if we were
going to investigate a person” or “[any time] that you were
going to do a change . . . ” meaning “if I wasn’t going to
change how I did business.”44 On this latter point, Williams
testified that inspectors had been disciplined for not working at
Respondent’s efficiency levels prior to the election and contin-
ued to be disciplined for this reason after the election and that

42 In a letter, dated December 27, 2000, to Williams, Lopes referred
to his May 26 letter, stating “we also demanded prior notice of any
proposed disciplinary action against unit employees.”
43 Williams testified that he did occasionally inform the Union about
potential “attendance issues,” involving members of the employees’
bargaining committee so that union officials could speak to the em-
ployees and avoid discipline. Also, according to Williams, there was
one instance of an employee, who believed she was about to be dis-
charged for attendance problems and who went to the Union to seek
assistance. A union official subsequently spoke to him, but “the actual
event happened.”
44 Williams testified, “There was a couple of instances where we had
conversations about discipline prior to it taking place. . . . regarding a
couple of the [bargaining committee representatives. . . . And some of
those people were having attendance issues, and some of those people
were having performance issues.” According to Williams, he tele-
phoned union representatives and alerted them that these people were
having problems.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

418
there was never any change in Respondent’s practice in this
regard.
While Respondent does not dispute the content of its em-
ployee counseling reports or that inspectors were, in fact, disci-
plined subsequent to the election or, indeed, that it failed to
notify the Union of each incidence of discipline and offer to
bargain before imposing such on each employee, David Wil-
liams testified that, when he began in December 1999, plant
efficiency was “sixty-five to 70 percent overall plantwide,” that
he desired the efficiency level to be “ninety-five to 97 percent
minimum,” and that his target was over 100 percent. He added
that, during his plantwide meetings on January 18, 2000,45 he
informed all rated employees that inspectors in the entire pro-
cessing department were expected thereafter to be working at a
minimum efficiency level of 80 percent and mechanics in the
container repair department were expected to be working at a
minimum 100-percent efficiency level and that, during his ten-
ure as plant manager, these efficiency levels never changed.
Williams further testified that, prior to hiring him as plant man-
ager at the Richmond facility, Respondent had imposed pro-
gressive discipline on employees for not working at a minimum
efficiency level; that, upon being hired, he continued to author-
ize the same degrees of discipline for poor performance;46 that
such discipline continued after the election; that the discipline
system always remained the same; and that, as discussed above,
the same discretionary standards for imposing discipline were
utilized prior to and subsequent to the election.
As set forth above, the General Counsel alleges that Re-
spondent engaged in acts and conduct, violative of Section
8(a)(1), (3), and (5) of the Act, by, subsequent to the April 13,
2000 representation election, disciplining 41 named bargaining
unit employees, classified as inspectors, for failing to work at
its minimum efficiency levels. I note that, of the foregoing
individuals, Respondent is alleged to have disciplined 26 in
violation of Section 8(a)(1) and (3) of the Act and that the Gen-
eral Counsel contends that, by the incidents of discipline, Re-
spondent more harshly enforced its efficiency standard for in-
spectors in order to retaliate against the employees for having
selected the Union as their representative for purposes of col-
lective bargaining.47 In this regard, traditional Board law is

45 There is no record evidence as to why Williams waited over 5
weeks to implement new minimum efficiency levels for inspectors and
for mechanics.
46 As described above, the record establishes that, during December
1999, Respondent subjected inspectors to no fewer than 53 verbal
warnings, 14 written warnings, and 1 suspension for low efficiency and
that, during the next 3 months, presumably after David Williams real-
ized the need for increasing plantwide efficiency, fewer than 10 em-
ployees received discipline for low efficiency. Respondent’s plant
manager offered the following explanation for this marked dropoff of
discipline—“[It was] hard to get the consistency . . . when I was hired, I
had a bunch of supervisors who were new, and you’re kind of working
on multiple . . . tasks, and as you’re trying to get your supervisors to do
things consistently, they also fall off the boat.”
47 Concerning the credibility of the witnesses, I was particularly im-
pressed with the testimonial demeanor of Michelle Mayse and Daryl
Johnson, each of whom appeared to be candidly recounting his/her
version of the events at issue herein. On the other hand, David Wil-
liams impressed me as testifying in a disingenuous manner as to several
well settled. Thus, as explained by the Board in Naomi Knit-
ting Plant, 328 NLRB 1279, 1281 (1999), pursuant to Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1981), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), in order to establish a violation under Section 8(a)(1)
and (3) of the Act, the General Counsel must prove, by a pre-
ponderance of the evidence, that antiunion animus was a moti-
vating factor in Respondent’s conduct. Once the showing has
been made, the burden shifts to Respondent to demonstrate that
the same action would have taken place in the absence of or
notwithstanding the employees’ activities in support of the
Union. To sustain his initial burden, that of persuading the
Board that Respondent acted out of antiunion animus, the Gen-
eral Counsel must show (1) that the employees were engaged in
activities in support of the Union; (2) that Respondent was
aware of or suspected the employees’ involvement in activities
in support of the Union; and (3) that the employees’ activities
in support of the Union were a substantial or motivating factor
for Respondent’s actions. Such motive may be demonstrated
by circumstantial evidence as well as by direct evidence and is
a factual issue. FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942
(4th Cir. 1995), enfg. 314 NLRB 1169 (1994). Four points are
relevant to the foregoing analytical approach. First, in conclud-
ing that the General Counsel has established a prima facie
showing of unlawful animus, the Board will not quantitatively
analyze the effect of the unlawful motive. The evidence of
such is sufficient to make the acts and conduct, at issue, viola-
tive of the Act. Wright Line, supra at 1069 fn. 4. Second, once
the burden has shifted to Respondent, the crucial inquiry is not
whether Respondent could have engaged in its alleged unlawful
acts but, rather, whether Respondent would have done so in the
absence of the alleged discriminatees’ support for the Union.
Structural Composites Industries, 304 NLRB 729 (1991); File-
ne’s Basement Store, 299 NLRB 183 (1990). Third, pretextual
discharge cases should be viewed as those in which “. . . the
defense of business justification is wholly without merit”
(Wright Line, supra at 1089 fn. 5), and the “burden shifting”
analysis of Wright Line need not be utilized. Arthur Anderson
& Co., 291 NLRB 39 (1998). Finally, regarding the latter
point, “it is . . . well settled . . . when a respondent’s stated mo-
tive for its actions are found to be false, the circumstances war-
rant the inference that the true motive is an unlawful one that
the respondent desires to conceal.” Flour Daniel, Inc., 304

points, including assertedly informing inspectors during meetings on
January 18 that, in order to determine the propriety of initial discipline,
their efficiency levels would be averaged over a 4-week period and
informing the container repair mechanics that their minimum efficiency
level would be 100 percent, and I shall only rely upon his version of
events when corroborated by more credible witnesses or other record
evidence and when uncontroverted. Thus, given corroboration by
Mayse and the record as a whole, I specifically credit Williams on two
points—that, in December or January, he informed bargaining unit
inspectors that, thereafter, Respondent would expect them to be work-
ing at a minimum efficiency level of 80 percent and that, while not
announced to employees, in order to determine the propriety of initial
discipline, Respondent’s practice was, in fact, to measure efficiency
over a 4-week period.
ALAN RITCHEY, INC. 419

NLRB 970, 970 (1991); Shattuck Den Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966).
Herein, there is no record evidence that any of the 26 alleged
discriminatees were sympathetic towards the Union, engaged in
any activities in support of the Union, urged others to support
the Union, or voted for the Union in the April 13 representation
election. Further, of course, other than general knowledge of
the result of the election, there exists no record evidence that
Respondent knew or suspected that any of the alleged discrimi-
natees were sympathetic towards the Union, voted for the Un-
ion, or engaged in activities in support of the Union. Moreover,
there exists no direct evidence, such as statements or comments
by supervisors or managers, suggesting Respondent harbored
unlawful animus against any of its employees and no direct
evidence establishing any nexus between the alleged discipli-
nary acts against employees and any union activity in which
they may have engaged. Nevertheless, in their posthearing
brief, citing ACTIV Industries, 277 NLRB 356 fn. 3 (1985),
counsel contend that, under the General Counsel’s theory for
the alleged violations of Section 8(a)(1) and (3) of the Act, “. . .
it is not necessary to show a correlation between each alleged
discriminatee’s activities in support of the Union and his or her
discipline. Rather, it must be established that [Respondent’s
efficiency standard] was more harshly enforced in retaliation
for the outcome of the election.” Once such has been estab-
lished, counsel further contend, the General Counsel has made
the requisite prima facie showing of unlawful animus, required
under Wright Line. Although unstated, counsel contend that the
instant fact matrix is comparable to those in Board decisions
involving alleged unlawful mass discharges and that the identi-
cal analytical approach be utilized. Thus, in the cited ACTIV
Industries, supra, just 9 days after the commencement of a un-
ion organizing campaign about which the plant manager was
aware, the respondent terminated more than one-third of its
work force. The plant manager also was aware that three other
employees were union activists but the company president did
not permit their discharges. In selecting the discriminatees for
discharge, the respondent apparently was unaware of the pro-
union or antiunion sympathies of any of the discriminatees. In
affirming the administrative law judge’s decision that the dis-
charges had been in violation of Section 8(a)(1) and (3) of the
Act, the Board “. . . emphasize[d] that it is the [r]espondent’s
mass discharge, and not its selection of employees for the dis-
charge, that is unlawful. Accordingly, the General Counsel was
not required to show a correlation between union activity and
his or her discharge. . . . Instead, the General Counsel’s burden
was to establish that the mass discharge was ordered to dis-
courage union activities or in retaliation for the protected con-
certed activities of some.” Id. at fn. 3. Significantly, the Board
found direct evidence of such unlawful motivation in the ad-
mission of a supervisor, which was overheard by another em-
ployee, that the union was the reason for the discharges—a
statement, which the Board found violative of Section 8(a)(1)
of the Act.48 Thus, as both the Board and the courts have not-

48 In addition, the Board found two instances of unlawful interroga-
tion.
ed, in the context of a mass discharge or similar acts against
employees, analysis as to whether the General Counsel has
proven a prima facie violation of the Act focuses “. . . upon an
employer’s motive in [acting against] its employees rather than
upon the antiunion or prounion status of particular employees.”
Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d
1175, 1180 (6th Cir. 1985), enfg. 269 NLRB 756 (1984); Guille
Steel Products Co., 303 NLRB 537 fn. 1 (1991).
Other mass discharge cases, upon which counsel for the
General Counsel rely, similarly concentrate upon the employ-
er’s motivation rather than upon the discriminatees’ union ac-
tivities and the employer’s knowledge of each discriminatee’s
said acts. Thus, in Hyatt Regency Memphis, 296 NLRB 259
(1989), as herein, the General Counsel alleged that, subsequent
to a representation election and in retaliation for the union’s
successful election, the respondent more stringently enforced a
work rule and unlawfully discharged several employees for
assertedly violating it. Finding that, after the election, the re-
spondent disciplined employees for violating the work rule, for
which, prior to the election, no employees had been discharged
or otherwise disciplined for violating, and that, prior to the
election, the respondent had unlawfully threatened to enforce
its work rule more stringently if the union were elected, without
determining whether each discriminatee had engaged in union
activities and whether respondent suspected or was aware of
such, the Board concluded that the General Counsel had met its
Wright Line burden of proof, establishing that the respondent
was unlawfully motivated in discharging the discriminatees.
Likewise, in J. T. Slocomb Co., 314 NLRB 231 (1994), the
respondent obtained knowledge of a union organizing cam-
paign amongst its employees and, during the following week,
laid off 11 employees. In finding that the layoffs were de-
signed to chill the employees’ organizational drive without
regard to each of the discriminatees’ particular union activities
or sympathies, in addition to noting that their timing established
the respondent’s unlawful animus, the administrative law judge
relied upon a statement by the respondent’s president, which
the Board later found violative of Section 8(a)(1) of the Act,
that “. . . he would get rid of the bastards who were bringing the
company down . . . .”49 Also, in Guille Steel Products Co.,
supra, shortly after a union began handbilling employees out-
side a plant’s gates, over a 2-week period and, upon becoming
aware that employees were accepting handbills, the respondent
terminated in excess of 30 employees without regard to any
discriminatee’s union sympathies. Notwithstanding the lack of
direct evidence of union animus, the Board adopted an adminis-
trative law judge’s finding that the terminations were unlawful
based upon their timing, employer threats of discharge, em-
ployer coercive interrogations of employees, and the employ-
er’s surveillance of the handbilling. Finally, in Birch Run
Welding, supra, there existed no direct evidence of union ani-
mus. In concluding that the respondent unlawfully laid off 13

49 In their posthearing brief, counsel for the General Counsel wrong-
ly assert that “. . . there is an absence here of any 8(a)(1) statements to
establish union animus” and that there is an “. . . absence of direct
evidence of animus.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

420
employees in general retaliation against its entire employee
complement’s demonstration of support for a union and without
regard to the union sympathies of individual discriminatees, the
Board inferred unlawful motivation from antiunion statements
by the plant manager, from the immediate availability of work
for the laid-off employees, from the layoff of employees de-
spite unfinished work, from the layoff of an employee, who had
just been given a raise in pay and whose job had recently been
assured by respondent, and from the respondent’s departure
from its past practice by informing laid-off employees to seek
jobs elsewhere.
Analysis of the above-five decisions discloses that the Board
relied upon animus statements or acts separate from the alleged
unlawful acts themselves from which to find either direct evi-
dence of or to warrant inferences of the existence of unlawful
animus. The difficulty with the latter, of course, concerns the
quality of the observable facts and events. Put another way, the
more amorphous or problematic the facts are, the likelihood of
mere speculation, rather than inference, increases. Herein,
counsel for the General Counsel seek to infer that Respondent
retaliated against its employees for selecting the Union as their
bargaining representative by more stringently enforcing its
efficiency standards against its inspectors. However, absent
clear statements of animus or unlawful acts and conduct from
which to draw an inference, in order to demonstrate that the
discipline to which Respondent subjected its inspectors for low
efficiency after the election was harsher than prior to the elec-
tion, counsel for the General Counsel rely solely upon an analy-
sis of Respondent’s disciplinary records,50 which, I believe, are
rather ambiguous.
In this regard, there does exist record evidence that, subse-
quent to the election, unlike prior to it, Respondent no longer
permitted employees to gradually increase their efficiency lev-
els to the 80-percent minimum level; that, subsequent to the
election, contrary to David Williams’ asserted practice, inspec-
tors were disciplined for low efficiency after working fewer
than 4 weeks in the rated position; that, subsequent to the elec-
tion, after initial warnings, rather than measuring over new 4-
week periods, Respondent’s managers required disciplined
inspectors to maintain 80-percent efficiency levels for as little
as 1-week periods or be subjected to additional discipline; and
that, subsequent to the election, there were instances in which
only short intervals of time elapsed between levels of discipline
for some inspectors. However, a review of Respondent’s disci-
plinary notices for low efficiency corroborates David Williams’
testimony that Respondent only considered an inspector’s aver-
age efficiency level over a 4-week period in determining the
need for initial discipline; therefore, I see nothing nefarious
about the short-term corrective actions, which Respondent re-
quires of inspectors before imposing additional discipline upon
inspectors, who fail to maintain efficiency levels of, at least, 80
percent, or any indicia of unlawful animus from Respondent’s
imposition of additional discipline upon inspectors for contin-

50 This distinguishes the instant matters from Hyatt Regency Mem-
phis, supra, in which the Board found direct evidence of unlawful ani-
mus from “. . . Respondent’s threats to enforce its rules more stringent-
ly if the Union were elected.” Id. at 263.
ued failure to maintain the 80-percent minimum efficiency
level over shorter periods than 4 weeks or from the short peri-
ods between levels of discipline after an initial verbal warning.
While counsel further purports to find a disparity between the
number of disciplinary actions, which were given to inspectors
during the 3 months immediately preceding and subsequent to
the election, in order to argue that Respondent issued signifi-
cantly more discipline to employees subsequent to the election
than before, the contention rests upon a self-serving selection of
time periods for comparison,51 and consideration of the entire
period of the Richmond service center’s operations (August
1999 through the fall of 2000) discloses that more employees
were disciplined for low efficiency prior to the election than
subsequent to it and Respondent subjected inspectors to more
total disciplinary actions for low efficiency prior to the election.
Further, while counsel pointed to several inspectors (Daryl
Johnson, Kylandria Thomas, Bettina Lawrence, Wyla Torres,
and Francis Young) who, during the 3-1/2-month period prior
to the election, consistently failed to achieve an 80-percent
efficiency level but were never subjected to discipline, Law-
rence, in fact, achieved the 80-percent efficiency level in 4 of
the weeks and Young, according to the uncontroverted testimo-
ny of Williams, was “cut . . . some slack” due to the death of
her husband from cancer during this time period. Also, while
Respondent did, in fact, terminate more inspectors for low effi-
ciency subsequent to the election than before, close scrutiny of
the counseling reports discloses that, in each instance, Re-
spondent closely adhered to its progressive discipline policy,
and the low efficiency levels of each inspector are well docu-
mented and uncontroverted.
Based upon the foregoing, while it might be argued that, to a
degree, Respondent more stringently enforced its efficiency
policy against its inspectors in the processing department after
the election, the issue, of course, is whether such occurred to
such an extent so as to warrant the inference that Respondent
thereby engaged in retaliation against the employees because
they selected the Union as their bargaining representative.
Bluntly put, given what I believe to be the inherent ambiguity
extant in Respondent’s disciplinary records and the lack of
corroborative evidence, I do not believe the state of the record
permits or warrants drawing such an inference. Accordingly,
either under a traditional Write Line analysis, as there exists no
record evidence of the alleged discriminatees’ union sympa-
thies or activities, no direct or circumstantial record evidence to
suggest Respondent knew or suspected that any of the alleged
discriminatees was sympathetic towards the Union, had en-
gaged in any activities in support of the Union, or voted in fa-
vor of it, and no direct evidence of union animus or acts and
conduct from which to infer union animus, or under a mass

51 While Williams’ explanation for the low number of disciplinary
notices for the 3 months preceding the election is not credible, given
that the record contains evidence regarding the average efficiency lev-
els of just six inspectors over this time period and that Respondent
utilized its discretion in determining whether to discipline inspectors
for low efficiency, it would be mere speculation to find that others
should have been, but were not, disciplined or to draw an inference of
unlawful motivation. News Journal Co., 331 NLRB 1331 fn. 1 (2000).
ALAN RITCHEY, INC. 421

discharge-type analysis, as there is no direct evidence of unlaw-
ful animus or acts and conduct from which to draw such an
inference, I do not believe the General Counsel has met its
burden of proof by establishing a prima facie showing of that
Respondent was unlawfully motivated in disciplining the al-
leged discriminatees subsequent to the election. Therefore, I
shall recommend dismissal of the alleged violations of Section
8(a)(1) and (3) of the Act pertaining to paragraphs 10(a)(1) and
(l) of the amended complaint in Case 32–CA–18149.52
With regard to whether Respondent’s above-described disci-
plining of inspectors for low productivity subsequent to the
April 13, 2000 election was in violation of Section 8(a)(1) and
(5) of the Act, counsel for the General Counsel set forth two
theories for the allegations. Pursuant to their initial theory,
counsel argue that “. . . prior to the election, Respondent al-
lowed employees to gradually improve their efficiency, did not
require employees to consistently maintain an 80% rating, and
did not consistently enforce the standard. The post election
enforcement, however, constituted a change in that the employ-
ees were required to consistently maintain no less than an 80%
rating or face discipline and/or discharge. Thus, the pre-
election lax enforcement became an established term and con-
dition of employment that Respondent could not change to one
of strict enforcement without notice to the Union and giving it
an opportunity to bargain about it . . . .” Therefore, counsel
assert, any discipline of employees for low efficiency resulting
from this unlawful unilateral change was likewise violative of
Section 8(a)(1) and (5) of the Act. Two cases are cited in sup-
port—Hyatt Regency Memphis, supra, and Celotex Corp., 259
NLRB 1186 (1982). In Hyatt Regency Memphis, as stated
above, the Board concluded that the respondent had discrimi-
nately enforced its work rule more stringently after a union
victory in a representation election than it had prior to the elec-
tion, finding that, few, if any, employees had been disciplined
prior to the election but that, at least, 12 employees had been
discharged for violating the rule after the election. In other
words, the respondent “. . . went from a system of lax, sporadic
enforcement into one of stringent enforcement,” and the Board
concluded that this fact represented a change in the employees’
terms and conditions of employment over which the respondent
has an obligation to bargain.” Id. at 263. Likewise, in Celotex
Corp., during the entire year prior to a representation election,
the respondent had issued a total of 11 employee warnings with
half being based upon absenteeism-tardiness; in the first 6
months subsequent to the election, the respondent’s warnings to
employees had increased to 49 with half being for absenteeism-
tardiness. The Board concluded that this postelection “flurry”
constituted the respondent’s unilateral institution and pursuit of
a policy of stricter enforcement of its employees’ work rules in
violation of Section 8(a)(1) and (5) of the Act.
Having carefully considered counsel for the General Coun-
sel’s contentions, I believe that their arguments are seriously

52 For the reasons, discussed above, I shall likewise recommend dis-
missal of the alleged violations of Sec. 8(a)(1) and (3) of the Act per-
taining to pars. 11(e)(1) and (2) of the consolidated complaint in Cases
32–CA–018459 and 32–CA–018526.
flawed and that the cited decisions are inapposite. Both Hyatt
Regency Memphis and Celotex Corp. essentially involve em-
ployers subjecting their employees to more frequent discipline
for violations of work rules subsequent to union victories in
representation elections than for violations of the same work
rules prior to the said elections, and the bargaining obligations
flowed from the prior lax enforcement, which became, in the
Board’s view, terms and conditions of employment. In con-
trast, the instant matter does not involve lax enforcement of a
work rule prior to the April 13 election and more stringent en-
forcement thereafter; rather, more inspectors received discipline
for not working at Respondent’s minimum efficiency level
prior to the election than subsequent to it, and Respondent is-
sued more total disciplinary actions prior to the election. Fur-
ther, the asserted change from past practice herein concerns the
“corrective actions,” which Respondent required its inspectors
to undertake in order to avoid receiving further discipline for
low efficiency, and, indeed, subsequent to the election, unlike
prior to the election, Respondent no longer permitted employ-
ees to gradually raise their efficiency levels to the required
level. However, Respondent’s acts and conduct do not repre-
sent any basic change in the efficiency policy itself,53 which has
been in effect since the Richmond service center commenced
operations, nor in Respondent’s enforcement mechanism
through its progressive discipline system. Thus, unlike Hyatt
Regency Memphis and Celotex Corp., in which lax enforcement
of work rules, in effect, became the term and condition of em-
ployment, while the corrective actions, which Respondent de-
manded of inspectors subsequent to the election, reflected more
stringent minimum efficiency requirements for them to avoid
incurring additional discipline, its practice remained un-
changed—employees had been disciplined for low efficiency
prior to the election and continued to be subjected to discipline
for low efficiency after the election. Accordingly, contrary to
the General Counsel, I do not believe the fact that, subsequent
to the election, Respondent required inspectors, who received
verbal and written warnings, to immediately increase their effi-
ciency levels to 80 percent or face further discipline, represent-
ed a change in the employees’ terms and conditions of em-
ployment so as to have required notice to the Union and bar-
gaining upon request prior to each act of alleged unlawful dis-
cipline herein. Trading Port, Inc., 224 NLRB 980, 983 (1976);
Wabash Transformer Corp., 215 NLRB 546 (1974).54

53 The policy is, of course, that employees work at a minimum effi-
ciency level. It is true, through December 1999, Respondent did not
have a consistent minimum efficiency level. However, as corroborated
by Michelle Mayse, I credit Plant Manager Williams that he imple-
mented a minimum efficiency level for inspectors of 80 percent in
January 2000. Thus, the 80-percent minimum efficiency level, at
which inspectors were required to work after the election, did not repre-
sent a change from that which existed prior to the election.
54 A contrary result is mandated with regard to the paragraphs in the
consolidated complaint in Cases 32–CA–018459 and 32–CA–018526
pertaining to Respondent’s alleged stricter enforcement of its efficiency
levels for container repair mechanics and to the verbal warnings given
to mechanics Tyrone Sparkman and Dale May in October 2000. It
appears that Sparkman and May were disciplined for not achieving
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

422
With regard to the General Counsel’s second theory, under-
lying the alleged violations of Section 8(a)(1) and (5) of the
Act, counsel argue that, inasmuch as Respondent’s managers
utilize discretion in determining whether inspectors should be
disciplined for failing to work at its minimum efficiency levels,
upon the Union’s victory in the April 13 election, Respondent
became obligated to give notice to the Union and to afford it an
opportunity to bargain prior to subjecting any inspector to such
discipline under its progressive disciplinary procedure. As
Respondent failed do so, counsel contend, each act of discipline
against employees, subsequent to April 13, 2000, was violative
of Section 8(a)(1) and (5) of the Act. In this regard, there is no
dispute that, prior to disciplining an inspector for low efficien-
cy, a shift manager will take into account whether the employ-
ee’s performance has been adversely affected by an illness to a
member of his/her family, whether the inspector is a new em-
ployee, whether the employee had transferred from inspecting
trays, sleeves, and lids to inspecting mailbags or transferred
from a nonrated position, whether the inspector had been uti-
lized to train new employees, or whether the inspector is work-
ing in a low volume area. Pursuant to this theory for the al-
leged violation of Section 8(a)(1) and (5) of the Act, according
to counsel, “the critical element . . . is Respondent’s exercise of
substantial discretion which creates uncertainty and is tanta-
mount to a change requiring bargaining. The fact that Re-
spondent exercises discretion in determining whether and what
discipline is warranted imposes upon it the duty to notify and
bargain with the Union before applying its discretionary policy.
The important fact is not whether Respondent was continuing a
past practice but that its past practice was discretionary.”
In support of its theory for the violation, counsel rely upon
several decisions in which the Board has held that, once em-
ployees select a labor organization to represent them, their em-
ployer’s discretionary actions become subject to a bargaining

minimum efficiency levels of 100 percent. Edward Grissom, who is
currently employed by Respondent as a container repair mechanic and
whose demeanor was that of an honest witness, testified that an 80-
percent minimum efficiency level for mechanics had been in effect
since September 1999 and that at no time prior to the election had he
been informed of a change. I credit his testimony and do not rely upon
the uncorroborated testimony of Plant Manager Williams that he an-
nounced the 100-percent minimum efficiency level for container repair
mechanics at an employee meeting in January 2000. Clearly, then, the
100-percent efficiency level, implemented against mechanics in Octo-
ber 2000, represented stricter enforcement of, and a change in, the
minimum efficiency level at which mechanics in the container repair
department were required to work. Further, as failure to work at the
minimum level might well have subjected employees to discipline, the
higher minimum efficiency level constituted a material change in the
terms and conditions of employment of bargaining unit employees,
over which Respondent was required to have given prior notice to the
Union and afforded it an opportunity to bargain upon request. Accord-
ingly, as the higher minimum efficiency level was implemented as a
result of an unlawful unilateral change, the discipline imposed against
May and Sparkman in May and for not working at the 100-percent
minimum efficiency level was violative of Sec. 8(a)(1) and (5) of the
Act. Pepsi-Cola Bottling Co., 315 NLRB 882 (1994). However, ab-
sent evidence of unlawful animus, I shall recommend dismissal of the
alleged violations of Sec. 8(a)(1) and (3) of the Act.
obligation notwithstanding the existence of a past practice. For
example, with regard to the implementation of a merit raise
program to the extent that implementation involves discretion
in determining the amounts or timing of the increases, the
Board has held that this “. . . is a matter as to which the bar-
gaining agent is entitled to be consulted.” Colorado-Ute Elec-
tric Assn., 295 NLEB 607, 608 (1989); Oneita Knitting Mills,
Inc., 205 NLRB 500 fn. 1 (1973). Likewise, in Garret Flexible
Products, 276 NLRB 704 (1985), the employer did not have an
established past practice regarding the payment of insurance
premium increases. Instead, it exercised substantial discretion
in allocating the increases between itself and its employees. In
these circumstances, the employer “. . . was obligated to notify
and bargain with the union before passing on the entire premi-
um increase to the employees . . . .” Id. at fn. 1. Further, in
Adair Standish Corp., 292 NLRB 890 (1989), an employer had
a past practice of implementing discretionary layoffs. The
Board held that, inasmuch as its employees had selected a un-
ion as their bargaining representative, the employer could no
longer lay off employees without bargaining with the union.
Id. at fn. 1. Counsel place their greatest reliance upon two re-
cent decisions of the Board. First, in Eugene Iovine, Inc., 328
NLRB 294 (1999), finding that the respondent’s unilateral re-
duction of its employees’ hours of work constituted a violation
of Section 8(a)(1) and (5) of the Act, the Board noted, initially,
that the respondent had failed to establish a past practice and,
next, that, given there was no “reasonable certainty” as to the
timing or criteria, the respondent’s decision to reduce its em-
ployees’ hours of work involved significant “management dis-
cretion.” The Board then stated that it “. . . and the courts have
consistently held . . . such discretionary acts are . . . ‘precisely
the type of action over which an employer must bargain with a
newly certified union.’”55 Next, in Tim Foley Plumbing Ser-
vice, 332 NLRB 1432 (2000), the employer’s agent informed
employees that, if the union won the election, he would caution
his client not to give loans to employees without bargaining
with the union. According to the Board, given the respondent’s
“substantial discretion” as to when and whether to make loans
to employees, the agent’s statement was true and not unlawful.
Id. at fn. 1.
Contrary to counsel for the General Counsel, counsel for Re-
spondent argue that the former’s reliance upon Eugene Iovine,
supra, is misplaced, for, unlike herein, the Board found that no
past practice existed for the respondent’s unilateral reduction of
employees’ hours of work and that, as opposed to the Board’s
finding in the cited decision, Respondent’s disciplinary policy
for low efficiency is “predictable and clear” and has been ap-
plied in same manner after the election as prior to it. Counsel
for Respondent further argue that Eugene Iovine does not deal
with discretionary discipline; that the Board has never required
bargaining in the context of discipline; and that to require bar-
gaining over each and every instance of discipline would “. . .
remove Respondent’s ability to manage its business.” In the
latter regard, they point out that, while the frequency of bar-
gaining over raises in pay or layoffs may be on an annual or

55 As examples, the Board listed only discretionary wage increases
and discretionary layoffs.
ALAN RITCHEY, INC. 423

semi-annual occurrence, bargaining over efficiency discipline
may be required on a daily basis56 and that it is far easier to
draft pay raise or layoff policies which do not involve discre-
tion than to formulate a disciplinary policy, which does not
involve a degree of discretion. In support of their arguments,
counsel rely upon two Board decisions, both of which involve
efficiency standards and neither of which has been overruled—
Wabash Transformer Corp., supra, and Trading Port, Inc.,
supra. In the former, the Board considered the respondent’s
imposition of discharge as a penalty for failure to meet its effi-
ciency standards. In finding no bargaining obligation existed,
the Board noted that the respondent did not promulgate new
efficiency rules or standards and that the efficiency standards
predated the union’s organizing campaign and concluded that
discharge was merely one means of enforcing the preexisting
efficiency standards and was implicit in the existence of any
such standard. In Trading Port, without bargaining with the
union which represented its employees, the respondent, who
had a past practice of measuring its employees’ productivity,
installed a timing device as a more scientific means of doing so.
Noting that, as in Wabash Transformer, “. . . the respondent’s
action did not entail the publication of new rules or revisions to
published standards, nor were new penalties imposed for low
productivity,” the Board concluded that “. . . management ac-
tivity in this area, when exercised on the basis of purely discre-
tionary considerations, failing to conflict with plant practices
openly evident from published standards . . . and which impos-
es no new form of discipline . . . is perfectly legitimate as pecu-
liar to the general supervisorial function.” (Emphasis added.)
Id. at 983. Further, Trading Port was discussed, by the Board,
in Bath Iron Works Corp., 302 NLRB 898 (1991), as support
for the proposition that “when changes in existing plant rules
. . . constitute merely particularization of, or delineations of
means for carrying out, an established rule or practice, they
may in many instances be deemed not to constitute a ‘material,
substantial, and significant’ change.” Specifically, the Board
stated, in Trading Port, while the employer had tightened the
application of existing disciplinary sanctions, “. . . the standards
themselves and the sanctions remained the same as before; thus
the employer had made no significant, substantive change in
the status quo and had no obligation to bargain over the mat-
ter.” Id. at 901.
I find merit to this theory, proffered by counsel for the Gen-
eral Counsel, for the alleged violations of Section 8(a)(1) and
(5) of the Act for the following reasons. At the outset, Board
law is clear that disciplinary policies and procedures and em-
ployee discharges constitute mandatory subjects of bargaining.
N. K. Parker Transport, Inc., 332 NLRB 547, 550 (2000);
Honda of Hayward, 314 NLRB 443, 448–450 (1994); Optica
Lee Borinquen, Inc., 307 NLRB 705, 717 (1992); Ryder Distri-
bution Services, 302 NLRB 76, 90 (1991); Venture Packaging,
Inc., 294 NLRB 544, 557 (1989); Migali Industries, 285 NLRB

56 Counsel for the General Counsel counter this, arguing that the Un-
ion might not desire to engage in bargaining over all instances of disci-
pline but that it is entitled to notice and the opportunity to decide
whether bargaining is appropriate and warranted.
820, 621 (1987). Further, “work rules that could be grounds for
discipline are mandatory subjects of bargaining,” and “. . . their
constituent penalties should not be artificially severed from
[them] for purposes of collective bargaining under the Act.”
Praxair, Inc., 317 NLRB 435, 436 (1195); Peerless Publica-
tions, 283 NLRB 334, 334 (1987). Recently, in Washoe Medi-
cal Center, Inc., 337 NLRB 202 (2001), the Board was con-
fronted with fact and legal issues closely congruent to those
herein involved. Thus, subsequent to a union ballot victory in a
representation election, without prior notice to or affording the
union an opportunity to bargain, utilizing its discretion, the
respondent imposed discipline, ranging from oral warnings to
discharges, upon numerous bargaining unit employees. Ulti-
mately, upon receiving notice, the union failed to request bar-
gaining over any of the instances of discipline. As herein, rely-
ing upon Eugene Iovine, Inc., supra, the counsel for the General
Counsel argued that, as the respondent exercised its discretion
in subjecting employees to discipline and as employee disci-
pline is a mandatory subject of bargaining, it was obligated to
have given the union notice and afforded it an opportunity to
bargain prior to every instance of discipline. The administra-
tive law judge rejected the General Counsel’s theory and dis-
missed the alleged unfair labor practice, stating that it was not
sufficient for the General Counsel merely to show some exer-
cise of discretion; rather, the General Counsel must establish
“. . . that the imposition of discipline constituted a change in
respondent’s policies and procedures.” The Board affirmed the
administrative judge’s ruling. However, citing its Oneita Knit-
ting Mills, supra, decision and concluding that the significant
issue in cases, involving an employer’s obligation to bargain
over discretionary actions, is not whether the employer unilat-
erally discontinued to adhere to the same discretionary criteria
or unilaterally discontinued its practice of relying upon its dis-
cretion at all but, rather, “. . . whether the [employer] failed to
provide the union with advance notice and an opportunity to
bargain about the implementation of [the discretionary acts]
. . . ,” the Board rejected the administrative law judge’s conclu-
sion regarding the necessity of a “change” for finding a viola-
tion of Section 8(a)(1) and (5) of the Act. Washoe Medical
Center, supra at 202 and fn. 1. Instead, in affirming the admin-
istrative law judge that the employer did not unlawfully fail to
bargain “before-the-fact” (before planning to impose “specific
discipline on particular employees”), the Board merely noted
“the record does not establish that the union at any time sought
to engage in such before-the-fact bargaining. Id. Further, in so
concluding, the Board failed to discuss the continuing efficacy
of its Wabash Transformer, supra, and Trading Port, supra,
decisions.
In my view, the crux of the Board’s holing in Washoe Medi-
cal Center, supra, is that, unlike discretionary pay raises or
discretionary layoffs, in which situations the Board places the
burden upon the employer to give prior notice to a labor organ-
ization, in discretionary discipline situations, the Board will
place the burden upon the labor organization to make a “before-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

424
the-fact” demand for bargaining,57 and, if such a demand is
made, the employer is obligated to give prior notice to and
afford the labor organization an opportunity to bargain prior to
subjecting employees to discretionary discipline.58 Thus, I
believe that the critical inquiry herein is whether, after the elec-
tion, prior to Respondent’s imposition, upon its bargaining unit
employees, of each act of alleged unlawful discipline for low
efficiency, the Union ever informed Respondent that it desired
to bargain over the imposition of such discipline. Inasmuch as
this query must be answered affirmatively, the instant fact ma-
trix is distinguishable from Washoe Medical Center and, unlike
in that matter, unfair labor practices must be found. In this
regard, I find that Alfredo Flotte’s and John Lopes’ above-
described letter to Respondent, dated May 26, constituted a
demand upon the latter to bargain prior to any further discre-
tionary disciplining of employees for low efficiency. I further
find that, by its failure to give the Union prior notice of em-
ployee discipline subsequent to the date of the Union’s bargain-
ing demand, Respondent, in effect, ignored it. As stated above,
plant rules constitute mandatory subjects of bargaining and
discretionary discipline given to employees for violating such
rules may not be separated from them; therefore each act of
alleged unlawful discipline herein, not limited to the discharg-
es, likewise constituted a mandatory subject of bargaining.59 In
these circumstances,60 I believe that, subsequent to May 26,
inasmuch as Respondent continued to issue discretionary disci-
pline to bargaining unit employees for low efficiency levels
without giving prior notice to the Union and affording it an
opportunity to bargain, each alleged act of unlawful discipline
subsequent to May 26 must be considered violative of Section
8(a)(1) and (5) of the Act,61 and I so find.62

57 I can see no reason for this distinction other than that the Board
deems failing to bargain prior to discretionary pay raises and discre-
tionary layoffs as being inherently disruptive of a bargaining relation-
ship; while, as, in most instances, time is of the essence, requiring an
employer to give prior notice and an opportunity to bargain to a labor
organization each time it desires to discipline an employee would be
disruptive of the employer’s ability to effectively manage its work
force.
58 I am troubled by the Board’s failure to discuss the continuing effi-
cacy of Wabash Transformer, supra, and Trading Port, supra. Howev-
er, I believe the wording of the footnote in Washoe Medical Center
leaves me no choice but to conclude as I have.
59 Counsel for the General Counsel failed to cite any decisions of the
Board, nor have I been able to find any, ruling that disciplinary acts,
such as warning notices and suspensions, are mandatory subjects of
bargaining; however, given that discipline, in general is, it seems clear
that they are, and I so find.
60 While it might be argued that Respondent could not have antici-
pated any obligation to bargain prior to Washoe Medical Center, I
believe that it acted at its peril in blatantly ignoring the Union’s demand
for bargaining prior to imposing discipline.
61 As the Union’s bargaining demand was made after Respondent
began imposing postelection discipline upon employees for low effi-
ciency, I view Washoe Medical Center as privileging such acts of dis-
cipline prior to May 26. Consequently, Respondent did not commit any
unfair labor practices regarding the acts.
62 These acts include the post-May 26 verbal and written warnings
given to employees Demone Anderson, George Booker, John Chatman,
Donika Dotson, Yuseff Ivey, Sheila Jackson, Shirley Lawson, Kevin
C. The Discharges of Employees Latachianna Pontiflet,
Cheryl Robinson, and Christy Jackson
The amended complaint in Case 32–CA–018149 alleges that
employees LaTachianna Pontiflet, Cheryl Robinson, and Chris-
ty Jackson were terminated in violation of Section 8(a)(1) and
(5) of the Act. In these regards, the record establishes that
Cheryl Robinson worked as an unloader for Respondent on the
second shift; that her son was the victim of a murder in January
2000 and, as a result, she missed work for a month; that Robin-
son returned to work in February; that, subsequent to returning,
she experienced difficulty in concentrating upon her job and
spent significant amounts of time leaving her workstation and
going to the bathroom in order to cry; and that, as a result of her
inability to work, John Medina gave her permission to take a 3-
month leave of absence conditioned upon her obtaining a doc-
tor’s excuse. The record further discloses that, on May 24,
Brandee Chorro telephoned Robinson and asked her to come to
the Richmond facility; and that 2 days later, on May 26, Robin-
son came to Respondent’s facility and Chorro handed her a
discharge letter, dated May 25, which stated, “Due to circum-
stances in your life, your attendance has been well below stand-
ard. . . . You have been absent from work since . . . March 21,
2000, Since that time there has been no communication be-
tween you and your supervisor or manager. Therefore, your
employment with Alan Ritchey, Inc. has been terminated effec-
tive . . . May 25, 2000.” As to Latachianna Pontiflet, the record
reveals that she worked as an inspector for Respondent; on May
31, 2000, after returning to work following a suspension for
continued low efficiency, she engaged in a confrontation with
her shift manager, June Rivera, regarding instructions for her
job assignment; that, during the argument, Rivera accused Pon-
tiflet of becoming insubordinate and refusing to follow instruc-
tions; that, as a result, Rivera ordered her to clock out and to
immediately leave the facility; and that, later in the day, she
telephoned the facility and David Williams informed her she
had been terminated for insubordination. The record discloses
that Christy Jackson worked for Respondent as an inspector and
that, on May 1, 2000, according to her, while on a break, she
engaged in a conversation with other employees during which,
after she complained about being demoted to inspecting mail-
bags, another employee said, “Why don’t you have some of
your biker friends . . . come down here” and she responded by
grabbing the sleeve of her Harley-Davidson sweat shirt and
saying, “. . . don’t you think they would all know it was me.”

Lynch, Misty Machado, Sheila McFarland, Sydney Peete, Ardell
Shelfo, Euy Souksamphana, Lonnie Spann, Jemina Morris, Paulette
Hicks, Toni Bertrand, David Patterson, and Dale May; the post-May 26
suspensions of employees Demone Anderson, George Booker, John
Chatman, Jacquelyn Greer, Marietta Haywood, Sheila Jackson, Sheila
McFarland, Ardell Shelfo, Ebony Mouton, Monique Dudley, Donika
Dotson, Paulette Hicks, Linda Martinez, Toni Bertrand, Candace Mint-
er, and Tina Bowman; and the post-May 26 discharges of employees
Demone Anderson, George Booker, John Chatman, Daryl Johnson,
Sheila McFarland, Ardell Shelfo, Yolanda Stevens, and Marian How-
ard.
I shall recommend dismissal of the remainder of the alleged unlaw-
ful employee disciplines for low efficiency in par. 10(l) of the amended
complaint in Case 32–CA–018149.
ALAN RITCHEY, INC. 425

Shortly after the conclusion of the break period, John Medina
called Jackson into his office and informed her she was being
discharged based upon reports from two individuals that she
had threatened him, saying, “. . . that my boyfriend was going
to come down here and beat them up . . . .” Jackson denied it,
but Median said she was terminated because he could not “tol-
erate” threats being made against him. As set forth above, on
May 26, the Union demanded that Respondent afford it an op-
portunity to bargain prior to imposing any discipline against
bargaining unit employees.
While there is no direct evidence on the point, I believe Re-
spondent must have exercised some degree of discretion in
deciding to terminate each individual. Thus, I agree with coun-
sel for the General Counsel that, in determining whether Pon-
tiflet acted insubordinately, and, in determining whether Jack-
son’s threat should have been viewed as serious, Respondent’s
managers must have utilized some discretion in reaching their
discharge decisions. Further, with regard to Robinson, as dis-
cussed in detail infra, Respondent exercised much discretion in
determining whether the poor attendance of bargaining unit
employees warranted discipline. As set forth above, discharges
of employees are mandatory subjects of bargaining. Pursuant
to the Board’s decision in Washoe Medical Center, supra, Re-
spondent was free to issue discretionary discipline, including
discharge, to employees for violating its work rules unless and
until the Union demanded to bargain prior to the imposition of
such discipline. I have found that, on May 26, 2000, the Union
made such a demand upon Respondent to bargain. Thereafter, I
believe, Respondent was obligated to give notice to the Union
each time it issued discretionary discipline to an employee and
to afford the Union an opportunity to bargain over the disci-
pline, and there is no dispute, of course, that Respondent ig-
nored the Union’s bargaining demand. Inasmuch as Jackson
was discharged on May 1 and as Robinson’s discharge was
effective May 25, I do not believe Respondent was obligated to
have given the Union prior notice of either discharge or to have
afforded the Union an opportunity to bargain. Accordingly, I
shall recommend that paragraph 10(l) of the amended com-
plaint in Case 32–CA–018149 be dismissed as to both individ-
uals. However, as to Pontiflet, the record discloses that she was
terminated on May 31 subsequent to the Union’s before-the-
fact bargaining demand. Respondent was obligated to have
given the Union prior notice of its decision to terminate her,
and, by discharging her without giving such notice to the Union
or affording it an opportunity to bargain, Respondent acted in
violation of Section 8(a)(1) and (5) of the Act, and I so find.
D. Respondent’s Alleged Unlawful Disciplining of
Employees Relating to Absenteeism
In paragraph 10(m) of the amended complaint in Case 32–
CA–18149, the General Counsel alleges that, since the date of
the election, April 13, 2000, Respondent violated Section
8(a)(1) and (5) of the Act by subjecting 67 bargaining unit em-
ployees to discipline, pursuant to its progressive disciplinary
procedure, for violating its absenteeism policy.63 Under the
“Attendance and Punctuality” section of Respondent’s employ-
ee handbook, employees are informed that, if they are absent
for more than 2 days without notice to Respondent, they will be
considered as having “voluntarily resigned” their jobs and that,
for any absences of three or more continuous days, they must
provide a health provider’s statement, setting forth the nature of
the illness or condition. Further, Respondent’s excessive ab-
senteeism guidelines provide the following discipline for unex-
cused absences over a 12-month period—2 to 4 require a verbal
counseling; 5 to 6 require a verbal warning; 7 to 8 require a
written warning; 9 to 10 require a suspension; and 11 or more
require termination. Brandee Chorro, Respondent’s human
resources manager at its Richmond service center, testified that,
for the entire time it has operated the facility, prior to and sub-
sequent to the April 13, 2000 election, Respondent has disci-
plined, and continues to discipline, employees for violating its
absenteeism policy in the manner set forth above and that nei-
ther its excessive absenteeism policy nor the progressive disci-
plinary policy attendant to it changed subsequent to the elec-
tion. Finally, the record establishes that, at no time subsequent
to Flotte’s and Lopes’ above-described bargaining demand
letter, dated May 26, has Respondent given notice to the Union
and offered to bargain prior to imposing discipline upon bar-
gaining unit employees for violating its absenteeism policy.
There is also no dispute that Respondent’s managers exercise
discretion in deciding whether to discipline employees for vio-
lations of its absenteeism policy. Thus, asked if the discipli-
nary policy for unexcused absences was always enforced, Da-
vid Williams averred, “It’s not a matter of strictly followed, I
mean every single case is going to be different based on the
circumstances. . . . there is always discretion involved . . . .”64
Further, when asked if the imposition of progressive discipline
is simply mechanically imposed or whether managers exercise
discretion in doing so, Chorro responded, “It is based upon a
number of occurrences. . . . And the guidelines . . . are very
wide frame, and also would depend upon the time frame,” and,
as to whether an employee is automatically terminated after his
or her 11th unexcused absence in a 12-month period, she re-
plied that, “if the counseling report said the next occurrence,
[the employee] would be [discharged], depending on the situa-
tion . . . . we use discretion . . . because [it may be something
the employee can’t help]. And so, we go within the guideline.”
Finally, Chorro added, “I’ve never come across any attendance
policy that has been set in stone and so rigid without using
some type of discretion,” and Respondent’s use of discretion
has never changed. Moreover, Respondent’s own employee
counseling reports, involving discipline for excessive unex-
cused absences, disclose that it did not always impose disci-

63 Likewise, the complaint in Case 32–CA–018601 alleges that Re-
spondent violated Sec. 8(a)(1) and (5) of the Act by disciplining and
terminating employee Marcell Spain without notice to or affording the
Union an opportunity to bargain. GC Exhs. 79(a) through (c) disclose
that Respondent subjected Spain to discipline, including termination,
for reasons relating to its absenteeism policy.
64 Williams said this was the same before and after the election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

426
pline according to the above guidelines. For example, two
employees each had nine instances of unexcused absences since
January 2000; rather than suspensions, one was given a verbal
warning and the other a written warning. Also, after the elec-
tion, rather than termination, an employee was merely issued a
verbal warning after no less than 62 unexcused absences, and
another employee was terminated after just 10 unexcused ab-
sences.
Counsel for the General Counsel’s theory for Respondent’s
alleged violation of Section 8(a)(1) and (5) of the Act, with
regard to its disciplinary policy as applied to unexcused ab-
sences, is the same as urged for its disciplinary policy, concern-
ing low efficiency. Thus, what is critical is Respondent’s ad-
mitted exercise of discretion in determining whether to impose
discipline and the severity of the discipline imposed—“. . . such
creates uncertainty and is tantamount to a change requiring
bargaining,” and “the important fact is not whether Respondent
was continuing a past practice but that its past practice was
discretionary.” For the reasons discussed above, I find merit to
counsel’s contentions. Thus, in accord with Washoe Medical
Center, supra, the crucial inquiry herein is whether, after the
election, prior to Respondent’s imposition, upon its bargaining
unit employees, of each act of alleged unlawful discipline for
violation of its excessive absenteeism policy, the Union ever
informed Respondent that it desired to bargain over the imposi-
tion of such discipline. In this regard, of course, Flotte’s and
Lopes’ May 26 letter constituted such a demand, and the undis-
puted record evidence is that Respondent ignored this letter and
continued to impose discipline for employee violations of its
absenteeism policy without prior notice to the Union. I believe
that Respondent’s plant rule, regarding excessive absenteeism,
constitutes a mandatory subject of bargaining as do the various
stages of progressive discipline attendant to said policy. There-
fore, as, on May 26, the Union demanded to bargain prior to
Respondent’s further imposition of discipline upon bargaining
unit employees and as Respondent ignored said demand, each
act of discretionary discipline against bargaining unit employ-
ees for excessive absenteeism subsequent to said date must be
considered to be an unfair labor practice violative of Section
8(a)(1) and (5) of the Act, and I so find.65

65 These include the verbal and written warnings to employees Wil-
burt Harris (Nov. 21, 2000), Lowe Shakesnider (June 16, 2000),
Shawndale Quilter, Marcel Robinson, Monika Pone, Ebony Mouton,
Tina Bowman, Karen Moore, Laverne Abner, Toni Bertrand, Jessica
Carrzosa, Joanne Carter, Fredrick Clement, Jose Garcia, Paulette Hicks,
Michelle Mayse, Beverly Bowman, Kelvin Lett, Sheila McFarland,
Mandrell Miller, Cornelia Bizzell, Curt Voilase, Dorsetta Johnson,
Donika Dotson, Wynona Crump, Jesse Tate, Willie Roberts, William
Dishman, Luther Jacobs, Michael Ellison, Jamilah Stewart, Lester
McGlottin, LaKeysha Johnson, Michael Allen, Latosha Green, Jona-
than Prater, Michelle Foster, Lawona Taylor, Jurina Phea, Janice Jack-
son, Isahel Ochoa, Johnson Ronalt, Candace Minter, Samuel Williams,
Timothy White, Angela Prudhomme, Jacqueline McIntosh, Damon
Futch, Sharon Eddings, Jacqueline Roberts, Diane Breaux, Phillip
Allen, Eric Farrell, Jose Garcia, Curt Vallare, LaQuita Green, LaKesha
Evans, Heather Dalton, Dee Dee Yancey, and Marcell Spain; the sus-
pension to employee Latosha Green, and the terminations of employees
Lowe Shakesnider, Merdia Fort, Theodore Hagaman, Shawndale Quilt-
er, Michelle Mayse, Armando Leapheart, and Marcell Spain.
E. The Alleged Unlawful Disciplining of Employees
Mandrell Miller and Dante Clement
The consolidated complaint in Cases 32–CA–018459 and
32–CA–018526 alleges that Respondent violated Section
8(a)(1) and (5) of the Act by disciplining and eventually termi-
nating employees Mandrell Miller and Dante Clement without
notice to and affording the Union an opportunity to bargain
over the discipline and terminations. Respondent admits that it
discharged employee Miller on October 13, 2000. According
to David Williams, Miller, an inspector, was terminated “. . .
for the episode of threatening behavior and improper behavior
toward another employee.”66 While testifying during direct
examination that he discussed Miller’s discharge with an offi-
cial of the Union, during cross-examination, Respondent’s plant
manager admitted, that the conversation occurred subsequent to
the employee’s termination and stated he could not recall any
such conversation prior to discharging Miller. Brandee Chorro
testified that, since August 1999, Respondent has had a policy
pertaining to threats by employees against coworkers or super-
visors and that, rather than enforced by Respondent’s progres-
sive discipline system, such conduct is usually grounds for
immediate discharge.67 With regard to employee Clement,
while Respondent admits verbally warning him on May 23 and
26, 2000, suspending him on May 27, and discharging him on
July 18, there exists no record evidence as to Respondent’s
reasons for disciplining68 and, ultimately, discharging the em-
ployee.69 Further, there is no record evidence that Respondent
gave notice to the Union or afforded the Union an opportunity
to bargain over the discharge of Miller or over any of the disci-
pline, including the termination, to which Clement was subject-
ed.
Mandrell Miller was terminated on October 13. As I have
previously observed, given that there must have been some
determination as to the severity of his threatening behavior, I
believe Respondent certainly exercised some degree of discre-
tion in terminating employee Miller. Accordingly, for the rea-
sons discussed above, as, on May 26, the Union demanded to
bargain prior to each act of discipline, as Respondent ignored
the Union’s demand and failed to give such notice to the Union,
and as a discharge is a mandatory subject of bargaining, I find

I shall recommend dismissal of the remaining allegations of par.
10(m) of the amended complaint in Case 32–CA–108149.
66 In their posthearing brief, without citing any record evidence,
counsel for the General Counsel conjure a reason for the employee’s
discharge. I have found nothing in the record to substantiate counsel’s
assertion and will make no such finding.
67 As discussed above, employee Christy Jackson was immediately
terminated after an alleged threat. The record establishes that two other
employees, Sheila Schaffer and Latasha Reed, were immediately termi-
nated on November 5 and December 6, 1999, respectively, for threats
to others—a threat to a coworker by Schaffer and a threat to a supervi-
sor by Reed.
68 There is no record evidence that the discipline, to which Clement
was subjected, was related to the reason for his termination.
69 In their posthearing brief, without citation to any evidence in the
record, counsel for the General Counsel conjure a reason for Respond-
ent’s disciplining of Clement. In the absence of record evidence. I
have not made any such finding as to the reason for his discharge.
ALAN RITCHEY, INC. 427

the termination of Miller to have been violative of Section
8(a)(1) and (5) of the Act. However, with regard to Dante
Clement, while Respondent concedes that it warned, suspended
and, ultimately, discharged him, there is no record evidence as
to Respondent’s rationale for doing so and, in particular,
whether managers exercised any discretion in discharging him.
In the absence of such record evidence, while there is no con-
tention that Respondent gave prior notice to the Union of its
decision to terminate Clement, I am unable to conclude that
Respondent was, in fact, obligated to have done so and shall
recommend that paragraph 11(e)(5) of the consolidated com-
plaint be dismissed.
F. Respondent’s Alleged Promulgation and
Discriminatory Enforcement of a No-Talking Rule
In the amended complaint in Case 32–CA–018149, the Gen-
eral Counsel alleges that Respondent engaged in acts and con-
duct violative of Section 8(a)(1), (3), and (5) of the Act by
promulgating and discriminately enforcing a no-talking rule, In
this regard, former employee, Michelle Mayse, who was on the
bargaining unit employees’ negotiating committee and, as such,
often discussed employee-related matters with David Williams,
testified that, one day, at the end of May 2000, she was walking
to Williams’ office when she encountered another employee,
Maggie Hales, who informed Mayse that, during no more than
a 2-minute meeting, she had just been discharged by Respond-
ent and that, while doing so, Respondent had neither permitted
her to speak nor allowed her to have a union representative
present.70 The two were in the reception area of the Richmond
facility, and, while they spoke, Williams approached “. . . and
told me that I was out of my work area . . . . And he . . . asked
me again where are you at right now, and I told him I was away
from my work station. And he said that it wasn’t a threat . . .
but he was concerned for my job and that I had to abide by the
same rules as all the other employees, and that we’re not to talk
about any union activities or anything about the Union other
than lunch time, break time or before or after hours. . . . I . . .
told him that I . . . took this position to help the people and . . .
to assist them. And that it wasn’t fair for me not to be able to
assist them.” As it was obvious to him that Mayse was speak-
ing about Maggie Hales, Williams replied that “. . . his decision
was pre-determined for Maggie and that there was no represen-
tation.” Mayse further testified that employees always had
been permitted to speak about nonwork-related topics while
working. She added that, subsequent to the election, she over-
heard supervisors making union-related comments in work
areas.
Williams confirmed that he had a conversation with Mayse
shortly after he terminated Maggie Hales. Asked if he invoked
any no-talking rule that day, Williams replied, “We repeatedly
found Michelle outside her work area talking with people. And
we told Michelle that she was welcome to do surveys at lunch

70 On the latter point, there is no evidence that, prior to being termi-
nated, Hales approached Mayse about accompanying her to a meeting,
and Mayse herself couldn’t have attended the Hales discharge meet-
ing—“I was with another individual.”
or at break or she could punch out. . . . But when people were
on the clock and on direct hours she and everybody else . . .
needed to be concentrating on their work.” Williams specifi-
cally denied telling Mayse not to discuss union matters. Final-
ly, as to talking while working, Williams, who stated that he
eliminated a no-talking rule when he arrived at the facility,
testified some of Respondent’s work is “repetitious” and “bor-
ing,” and “. . . you’re welcome to talk, just don’t let your talk-
ing interfere with your work or somebody else’s. . . .” He add-
ed that the only prohibitions concerned racial slurs and that “no
talking in that kind of plant is counterproductive.”
As stated above, Michelle Mayse impressed me as being a
frank and veracious witness. In contrast, Williams’ demeanor,
while testifying, was that of a duplicitous witness, one not wor-
thy of belief except where corroborated by others. According-
ly, I shall rely upon Mayse’s version of their conversation and
find that, upon encountering Mayse and Hales in the reception
area of the facility, Williams questioned Mayse as to why she
was not at her workstation and, after impliedly threatening her
with termination, said she was subject to the same rules as are
other employees and was forbidden to discuss union activities
or any other union-related matters other than during breaktimes,
lunch, or before and after work. I further find that, given Wil-
liams’ explicit admission, Respondent previously had no gen-
eral prohibition against employees talking during worktime.
There is no evidence that Respondent informed the Union prior
to imposing its prohibition against speaking about the Union
during working time upon Mayse. In my view, this constituted
a work rule, which markedly differed from Respondent’s enun-
ciated practice, and the General Counsel contends that Wil-
liam’s promulgation of this rule constituted an unlawful unilat-
eral change. Board law, regarding employer work rules such as
herein involved, is quite clear:

Employer work rules, and particularly those which can
lead to disciplinary actions, constitute mandatory subjects
of bargaining. As such, the general rule is that an employ-
er may not, without violating the Act, make or change
work rules without notifying a union which represents its
employees and giving it an opportunity to bargain.

Randolph Children’s Home, 309 NLRB 341, 343 and fn. 3
(1992); Southern Florida Hotel Assn., 245 NLRB 561 (1979).
Accordingly, noting that Williams impliedly threatened Mayse
with discipline for engaging in conversations about the Union
during worktime, I find that Respondent’s unilateral imposition
of the above-new work rule was violative of Section 8(a)(1)
and (5) of the Act. Pepsi-Cola Bottling Co., supra at 895.
Moreover, counsel for the General Counsel contends that, by
promulgating this rule, Respondent also engaged in conduct
violative of Section 8(a)(1) and (3) of the Act. I agree. The
record evidence establishes that, since January 2000, Respond-
ent had enforced no restrictions against bargaining unit em-
ployees talking while working or regarding the subjects of their
conversations—other than racial slurs. “Enforcing a rule which
prohibits discussion of the Union . . . where there has been no
enforcement of restrictions on other subjects . . . is discrimina-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

428
tory and violates Section 8(a)(1) and (3) of the Act,” and I so
find herein. Hertz Corp., 316 NLRB 672, 687 (1995).71
G. Respondent’s Alleged Unlawful Bad Faith
During Collective Bargaining
In the consolidated complaint in Cases 32–CA–018459 and
32–CA–18526, the General Counsel alleges that Respondent
engaged in acts and conduct, violative of Section 8(a)(1) and
(5) of the Act, by insisting, as a condition for continuing nego-
tiations, that the Union provide a complete contract proposal
which included all economic and noneconomic terms, and by
failing and refusing to meet at any time or place for negotia-
tions; and by engaging in overall bad-faith bargaining. In these
regards, there is no dispute that, after an exchange of letters
between John Lopes, a business agent for the Union and James
Craig Brown, Respondent and the Union held their first negoti-
ating session for an initial collective-bargaining agreement on
June 6, 2000, at the Union’s hall in Oakland, California. Pre-
sent for the Union were Lopes, Alfredo Flotte, an organizer,
and five employees, who comprised the employees’ negotiating
committee, and present for Respondent were Alan Ritchey,
Brown, David Williams, Brandee Chorro, and Richard Stroup.
Lopes and Ritchey were the “lead” negotiators for the parties;
the bargaining session lasted for approximately 2-1/2 hours;
and neither any written contract proposals were exchanged nor
any agreements were reached during the meeting, with Brown
characterizing it as “kind of a waste of time.” As to what was
said,72 Lopes testified that, at the outset, Respondent submitted
all the information, which the Union had requested prior to the
meeting, to the latter’s representatives. Then, “Mr. Ritchey
explained his business and how he got into this agreement”
with the USPS. Next, Lopes and Ritchey discussed how the
negotiations would proceed, with Lopes suggesting that the
parties reach “tentative agreements” and with Ritchey object-
ing, stating “. . . they didn’t want to sign off on . . . individual
pages or articles. They wanted to negotiate a complete contract

71 The General Counsel also alleges that Respondent engaged in
conduct violative of Sec. 8(a)(!) of the Act by not permitting Mayse to
attend the meeting, during which Maggie Hales was terminated, as the
latter’s designated representative. Counsel for the General Counsel cite
no Board or court decisions in support of the allegation. Assuming that
Respondent, in fact, failed to permit Mayse to attend the meeting at
which Hales was terminated—something I doubt occurred as Mayse
admits she was with another employee at the time, I find no violation of
the Act. Thus, in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the
Supreme Court held that an employer violates Sec. 8(a)(!) of the Act by
denying an employee’s request that a union representative by present
during an investigatory interview, which, the employee believes, may
result in discipline. Herein, the Hales discharge interview lasted no
more than 2 minutes, and Williams told Mayse that the decision had
been predetermined. Thus, the meeting, at which Hales was terminat-
ed, appears to have been a discharge interview rather than an investiga-
tory interview, and an employer is not required to permit union repre-
sentation during the imposition of previously decided upon discipline.
LIR-USA Mfg. Co., 306 NLRB 298, 305 (1992). Therefore, I shall
recommend that par. 9(a) of the amended complaint in Case 32–CA–
018149 be dismissed.
72 Notwithstanding that several individuals, who attended the meet-
ing, testified at the trial, only Lopes and Brown testified as to what
occurred.
first.” He further testified that, as the bargaining session con-
cluded, “. . . I asked [Ritchey] if we could calendar some dates”
for future meetings, and Ritchey replied “. . . that he wasn’t
really sure because Craig Brown was going to be married
[soon] . . . and . . . he wasn’t really sure how long Craig was
going to be gone after that, and when Brown got back . . . he
would be contacting us to calendar some dates.” According to
Lopes, this was his initial meeting with Ritchey and the others,
and “. . . we were . . . comfortable with that . . . .” Asked if
there was discussion about contract proposals, Lopes said,
“Craig Brown had asked me if I could have written proposals,
and I said, yes. . . . He said he wanted a complete proposal, and
I said I think I could do that, if all the information we have is
correct.” Asked if Brown explained what he meant by a com-
plete contract, Lopes responded, “Well, like everything, you
know, the costs of health and welfare . . . .” He then conceded
“I understood” a complete agreement included wages.73 During
cross-examination, Lopes added that he agreed to provide this
“complete” proposal to Respondent within 2 weeks. Brown
testified, “Towards the end of the meeting, there was a discus-
sion concerning . . . the non-productivity [of the meeting],”
with “. . . Mr. Ritchey [expressing] . . . disappointment that we
weren’t able to make any . . . headway . . . . Mr. Ritchey ex-
pressed a desire to have a contract with the Union within three
or four negotiating sessions,” and “we wanted a complete pro-
posal in order to do that. And Mr. Lopes agreed. Said that he
will have that within two weeks. . . . I guarantee were the words
that he used. That he would have that in two weeks.”74 Asked,
by Respondent’s counsel, was there any discussion about
whether there would be further face-to-face meetings either
before or after that proposal was presented, Brown replied,
“Yes. In the course of the same conversation . . . Ritchey stated
that he didn’t want to have another meeting like we had now
and that we wouldn’t be able to get anything done until we had
their complete proposal.”75 However, Brown was unable to

73 During cross-examination, Lopes agreed that the inclusion of
wages was stressed by Brown.
74 As to what was to be included in this “complete” proposal, accord-
ing to Brown, Lopes “. . . said I will send you our standard proposal
and then he asked if we wanted management rights included in that. . . .
And then he said, I can assure you the first two things . . . in that pro-
posal are wages and our pension plan.” Lopes failed to deny this testi-
mony.
75 Asked why it was critical that the Union submit a complete pro-
posal, Brown averred, “Well, the importance was . . . the amount of . . .
executive time and the people we were bringing to the table, since we
were committing that time and that effort . . . in the time frame that we
wanted to talk to the Union, we needed to have everything in front of
us. Because when we sit down at the table . . . we had no idea . . . what
was going to be talked about . . . or what issue is going to . . . a trade off
here for something over there.” Brown testified it was critical to Re-
spondent that the Union’s contract proposal contain wages and pension
proposals as these were “the most critical, the most important” pro-
posals, those having “the biggest impact . . . on our business” and,
rather than bargaining noneconomic issues first, “I think we envisioned
a combined negotiations where there would be non-economic and eco-
nomic . . . items.” During cross-examination, Brown said what precipi-
tated Respondent’s desire to have a complete proposal was Lopes’
attitude at the bargaining session—he used profanity and “. . . we were
ALAN RITCHEY, INC. 429

recall Lopes’ reply, averring “. . . it was all in the same conver-
sation of you’ll have your proposal within two weeks, and we’ll
meet after that.”76 Lopes specifically denied agreeing there
would be no further negotiations until the Union submitted its
complete contract proposal to Respondent.
Notwithstanding Lopes’ admitted commitment to do so, the
Union failed to furnish a “complete” contract proposal to Re-
spondent within the next 2 weeks. Nevertheless, on June 22,
Lopes wrote a letter to Brown in which he provided dates in
July—the 18 through the 21st—on which he would be available
to resume contract negotiations. Alan Ritchey replied with a
letter, dated June 25, in which he stated Brown would be “out
of the office” until July 10 and he (Ritchey) would be away “on
business” July 19 through 21 and would be unavailable on July
18 for bargaining. Next, on July 21, Brown wrote to Lopes
regarding the latter’s requests to David Williams for available
meeting dates and noted:77

At our initial meeting on June 6th, you promised to
provide a complete “contract package” to us within two
weeks. It was agreed that no further negotiation sessions
would be held until after you provided the proposal. To
date, we have not received your proposal. Per our agree-
ment, we will be happy to discuss future meeting dates
once we receive the promised proposal and have had an
opportunity for review.

Finally,78 on August 3, 2000, along with a cover letter, in which
Roberto Flotte Jr., its president, demanded the resumption of
collective bargaining “as soon as possible” and suggested dates
later during August, the Union finally submitted its initial pro-
posed collective-bargaining agreement to Respondent. Two
weeks later, by letter dated August 16, Brown responded, stat-
ing that he had been out of his office the previous week, that he
would be unavailable on the bargaining dates suggested by the
Union, and that the “length” of the Union’s proposed agree-
ment necessitated time in which to “decipher,review, and con-

immediately told we’re not here to talk about anything. We just wanted
to get you to the table.”
76 Later, Brown reiterated that Ritchey said he did not want to meet
again until he had a complete proposal and that, while he could not
recall Lopes’ “verbatim exact words,” it was “. . . very clear . . . what
we were looking for and what they were agreeing to.”
According to Brown, the Postal Workers Union represents Respond-
ent’s employees at its Springfield, Massachusetts facility, and, as of
June 2001, the parties had, at least, one bargaining session. While the
union eventually presented a complete contract proposal, including
wages, to Respondent, Brown was certain the proposal had not been
submitted prior to the initial bargaining session and conceded there was
no agreement not to bargain until Respondent had the proposed collec-
tive-bargaining agreement. Brown added that, as of February 2001, the
parties remained “far apart” on economic and noneconomic items.
77 Lopes asserted he heard nothing from Respondent during July ei-
ther verbally or in writing.
78 During cross-examination, Lopes testified that, while he heard
nothing from Respondent about the resumption of bargaining, he would
have been unavailable during July—“I believe I was in negotiations
with Volvo” and “the ball was taken from me by the president of our
local.”
sider” it and to draft counterproposals and noting the absence of
wage rates from the contract proposal.
Perusal of General Counsel’s Exhibit 30, the Union’s initial
contract proposal,79 does, indeed, disclose the absence of wage
rates. In explanation, Lopes testified that “we wanted to double
check the wage determination and . . . we wanted more infor-
mation . . . and we were waiting on our own copy of the wage
determination for the area” from the United States Department
of Labor and that the International was responsible for obtain-
ing all wage information and the Union had not, as yet, re-
ceived that information. Also, union officials were concerned
“. . . that some of the information that we were getting from the
employees was . . . incorrect.” In this regard, according to
Lopes, some employees reported to union representatives that
managers told them “by the contract with the government,”
they “. . . would only get wage increases every other year . . . ,”
and the Union believed raises were, in fact, “optional” every
year and not mandated on an every other year basis. Finally,
Lopes pointed out that, other than wages, “ninety-nine percent
of the contract” was amenable to negotiations immediately and
that the Union was not obligated to have mentioned in the cover
letter, which accompanied General Counsel’s Exhibit 30, the
absence of wage rates from the proposed contract.
The Union heard nothing further from Respondent until re-
ceipt of a letter, dated September 5, to Roberto Flotte from
Brown in which the latter wrote:

At our initial meeting in June of this year, John Lopes
expressly and unambiguously agreed to provide a com-
plete contract proposal package to Alan Ritchey, Inc. with-
in two weeks. He further agreed that no further negotia-
tion sessions would be scheduled before the complete pro-
posal was forwarded. To date, more than three months
later, we still have not received the contract proposal as
promised by Mr. Lopes. We expect the ILWU to honor
the agreement made by Mr. Lopes. We will be happy to
discuss negotiation dates once this is done.

Three days later, on September 8,80 Flotte responded, in writ-
ing, to Brown, terming the contents of Brown’s September 5
letter “silly” and accusing Respondent’s general counsel of
“stretching the truth.”81 Also, Flotte referred to General Coun-
sel’s Exhibit 30, stating, “. . . I mailed you a complete contract
proposal with wages and pension to be proposed at a later date”
and then accused Respondent of engaging in “a stall tactic in
order to frustrate the bargaining unit and to bust the Union.”

79 Lopes testified that he and Roberto Flotte worked together on pre-
paring the proposed collective-bargaining agreement and that both
believed it was not necessary to include a wage proposal as there was
“. . . still information that we were getting.”
80 On September 6, clearly not in response to Brown’s September 5
letter, Roberto Flotte wrote to Brown, stating that he would be available
for the resumption of contract negotiations on any date in September.
81 Notwithstanding Flotte’s comments, Brown denied that anyone
form the Union ever, verbally or in writing, specifically disputed the
contents of his September 5 letter to Flotte. John Lopes conceded he
had no knowledge of any letter from the Union to Respondent, specifi-
cally refuting Brown’s statements in his September 5 letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

430
Brown responded to Flotte by letter dated September 13.
Brown reiterated that “. . . Lopes agreed to provide a complete
contract proposal within two weeks of our initial meeting” and
“over three months later we are still awaiting the promised
complete proposal.” He also noted that, in his September 8
letter, Flotte conceded that the agreed upon “complete” pro-
posal had not yet been submitted to Respondent. Brown con-
cluded, stating Respondent remained willing to resume negotia-
tions upon its receipt and review of the Union’s promised
“complete” contract proposal.
Five days later, on September 18, the Union’s attorney wrote
a 4-page letter to Brown, requesting “. . . information concern-
ing the Company’s compliance with the wage and fringe bene-
fit requirements of the Service Contractor Act (SCA).” In de-
tailing his requests, the attorney noted “in order to formulate
appropriate wage proposals for employees in the various job
classifications at the Richmond facility, Local 6 must first de-
termine whether those employees are currently being paid at the
minimum rate legally required by the SCA and the applicable
[Department of Labor] determinations.” On September 22,
Brown replied, in writing, to the Union’s attorney, noting “I
trust you will find the enclosed information useful . . . so that
[the Union] complete their proposals to us. Although more
than three months have passed since Local 6’s self-imposed
deadline for furnishing us a complete proposal, we continue to
look forward to receiving the proposal so that negotiations can
move forward.” That same day, Roberto Flotte wrote to
Brown, stating that he was responding to the latter’s September
13 letter. In his letter, Flotte noted that the contract proposal,
which the Union submitted to Respondent on August 3, “. . .
cover[ed] everything except wage rates and pension contribu-
tions. We are unable at this point in time to present meaningful
proposals on those issues because the wage and benefit infor-
mation you gave us in June is incomplete and outdated.” Flotte
next noted his attorney’s information request and stated, after
Respondent provided the Union with “adequate” information,
the latter would give Respondent proposals on wages and pen-
sion increases. Then, Flotte stated that there was nothing to
prevent the parties “. . . from bargaining now over the Union’s
numerous other contract proposals . . . ;” that “there will be
plenty for us to do;” and that Respondent’s failure and refusal
to meet and discuss the other issues “suggests an absence of
good faith.” Flotte concluded by requesting that Respondent
agree to meet and bargain over the Union’s proposed initial
collective-bargaining agreement. On September 26, the Un-
ion’s attorney wrote to Brown, essentially reiterating Flotte’s
demand for bargaining and stating, “[W]e see no reason why
the Company cannot meet with the Union immediately to dis-
cuss the numerous other proposals it submitted on August 3,
2000.” The attorney noted that “bargaining over non-economic
issues prior to the submission of wage proposals is common
labor relations practices in most industries.”
Pursuant to its agreement at the initial June bargaining ses-
sion, the Union finally submitted its wage and pension pro-
posals to Respondent on November 15 in a letter from Lopes to
Brown. On wages, the Union simply requested $2-per-hour
increases added to all classifications for each year of a 3-year
agreement, and, on the pension plan, the Union demanded that
Respondent contribute $3 per hour for each bargaining unit
employee. Lopes concluded by requesting Brown to contact
the Union in order to schedule bargaining. However, 2 weeks
later, on December 1, Brown wrote the following letter to
Lopes:82

I am in receipt of your correspondence finally setting
forth your wage and pension proposals and requesting that
we contact your office to schedule further negotiations.
Unfortunately, we do not have any proposed dates at this
time. Mr. Ritchey is scheduled to undergo heart surgery
on December 6, 2000. While we expect him to recover
quickly and completely, we will not have an accurate pic-
ture of his recovery time until after December 6th. We
will, however, propose future dates once the picture is
more complete.83

On December 19, Brown again wrote to Lopes, reporting that
Ritchey was at home and recovering quickly from his surgery,
that he was expected to return to his normal work duties within
3 weeks, but that “unfortunately, his doctors have forbid him to
travel for the next six to eight weeks. In the interim and to
move the process along, Mr. Ritchey welcomes you and your
representatives to conduct negotiations at our corporate offices
in Valley View, Texas.” On December 22, evidently not yet in
receipt of Brown’s December 18 letter, Lopes wrote to the for-
mer:

On December 1, 2000 you wrote to indicating that the
Company was unable to schedule any bargaining because
Mr. Ritchey was undergoing heart surgery . . . and availa-
bility would not be known until some unspecified time af-
ter that date. I have not heard anything further from you.
We have been trying to get a meeting with you to
commence contract negotiations for over 6 months. The
Company first refused to meet until Local 6 had submitted
a full set of wage proposals. Now that we have submitted
wage proposals, you are still dragging your feet. While
we sympathize with Mr. Ritchey’s health problems, we are
not willing to delay bargaining indefinitely while he re-
covers from surgery. Surely, you or some other repre-
sentative of the Company can conduct the negotiations in
his place. . . .

It is unclear whether such was precipitated by Lopes’ letter,
but, at some point following his surgery, Ritchey appointed his
son Robby to be the lead negotiator in bargaining with the Un-
ion, and the parties eventually resumed bargaining for an initial
contract on January 18, 2001.84

82 As to his 2-week delay in responding to Lopes, Brown noted “. . .
that was during Thanksgiving and the open heart surgery of Mr.
Ritchey.”
83 Brown testified that Ritchey planned to attend all bargaining ses-
sions and would have “ultimate” approval of any negotiated collective-
bargaining agreement.
84 While, between August 3, 2000, and January 17, 2001, no contract
bargaining occurred between the parties, there were meetings between
John Lopes and David Williams regarding such matters as employees’
uniforms and staffing in the container repair department.
ALAN RITCHEY, INC. 431

The General Counsel’s contention that the foregoing fact
matrix establishes that Respondent failed and refused to bargain
in good faith with the Union in violation of Section 8(a)(1) and
(5) of the Act has two aspects—Respondent insisted, as a con-
dition for continuing negotiations, that the Union provide a
complete contract proposal which included all economic and
noneconomic terms and has failed and refused to meet at any
time or place for the negotiations. In this regard, in his letter,
dated July 21, 2000, to John Lopes and his letter, dated Sep-
tember 5, 2000, to Roberto Flotte, Respondent’s general coun-
sel, James Craig Brown, asserted that, at the parties’ June 6,
2000 bargaining session, which was the parties’ commence-
ment of negotiations on their initial collective-bargaining
agreement, John Lopes consciously agreed that no further nego-
tiations would be scheduled before the Union submitted a
“complete” contract proposal to Respondent. In this regard, I
credit the forthright testimony of Lopes that, during the June 6
bargaining session, at most, he agreed to provide a “complete”
contract proposal to Respondent within 2 weeks after the meet-
ing and that he never explicitly agreed there would be no fur-
ther negotiations until he did so.85 Moreover, in his June 25
letter, to Lopes, regarding the latter’s request for available
meeting dates, rather than raising the business agent’s purport-
ed commitment as a reason for refusing to meet, Alan Ritchey,
to whom Lopes had been speaking during the June 6 meeting,
merely mentioned his and Brown’s unavailability on the sug-
gested dates. In these circumstances, noting that the Union
presented Respondent with a comprehensive contract proposal,
with the exception of wage rates and a pension contribution
amount, on August 3, I find, as alleged, that, in his July 21 and
September 5 letters, rather than describing a commitment by
the Union’s business agent,86 Brown actually imposed a gratui-
tous and baseless condition precedent for continuing initial
contract negotiations with the Union—no further bargaining
until Respondent received a “complete” contract proposal, in-
cluding all economic terms, from the Union—and that, in fact,
from August 3, the date upon which the Union mailed its con-
tract proposal to Respondent, through November 15, the date
upon which Lopes transmitted to Brown the Union’s proposed
contractual wage and pension contribution amounts, based
upon this condition precedent, Respondent repulsed each and
every demand from the Union that the parties meet for the pur-
pose of resuming collective bargaining for an initial agreement.
I further find that, notwithstanding having the required “com-

85 Nothing in Brown’s account of what purportedly was said during
the meeting corroborates his assertions in his subsequent letters to
Lopes and Flotte. Thus, if believed, he quoted Alan Ritchey as merely
expressing a desire to conclude the negotiations after only three or four
bargaining sessions, as expressing his frustration with what occurred at
the June 6 session, and as saying there would be no progress until the
Union submitted its “complete” proposal. Further, whatever Lopes
assertedly said in response to indicate agreement, Brown could not
recall.
86 Contrary to Respondent’s counsels’ contention that no union agent
specifically contradicted Brown, I note that the Union’s president,
Roberto Flotte, termed Brown’s statements “silly” and accused him of
“stretching the truth.”
plete” contract proposal from the Union, from November 15
through the end of December, Respondent continued to refuse
to meet and bargain with the Union, raising pretentious objec-
tions to the Union’s demands. Thus, 2 weeks after receiving
the latter proposals, while failing to name a substitute lead ne-
gotiator, Brown wrote to Lopes that, inasmuch as Ritchey was
scheduled to undergo heart surgery, Respondent would not be
available for negotiations with Respondent, and, approximately
3 weeks later, continuing to fail to name a replacement, Brown
again wrote to Lopes, asserting that Ritchey was recuperating
but would be unavailable for 3 weeks and that thereafter, while
unable to travel for several more weeks, Ritchey would be will-
ing to meet with union representatives in Texas. Finally, only
after Lopes again demanded that Respondent meet and bargain
and appoint a substitute for Ritchey did Respondent appoint
Ritchey’s son to act as lead negotiator and agree to again meet
and bargain with the Union.
Based upon the foregoing, I find merit in the position of
counsel for the General Counsel that Respondent’s continuing
refusal to meet with representatives of the Union between Au-
gust 3, 2000, and January 17, 2001, constituted a failure and
refusal to bargain in good faith.
The Board has long held “it is elementary that collective
bargaining is most effectively carried out by personal meetings
and conferences of the parties at the bargaining table. Indeed,
the Act imposes this duty to meet.” U.S. Cold Storage Corp.,
96 NLRB 1108, 1108 (1951), enfd. 203 F.2d 924 (5th Cir.
1953); Twin City Concrete, Inc., 317 NLRB 1313, 1314 (1995);
Chemung Contracting Corp., 291 NLRB 773, 774 an fn. 3
(1988); Fountain Lodge, Inc., 269 NLRB 674, 674 (1984).
Further, an employer’s obligation to meet and bargain with the
labor organization, which is the bargaining representative of its
employees, is not satisfied by inviting or demanding written
proposals in advance of any face-to-face negotiations. 203 F.2d
at 928. This principle is especially true in cases where “. . . the
parties had not yet begun the bargaining process through which
proposals would have been subjected to the give-and-take of
negotiations.” Holiday Inn Downtown-New Haven, 300 NLRB
774, 775 (1990). Moreover, an employer’s obligation to bar-
gain in good faith includes a duty to make its authorized repre-
sentative available for negotiations at reasonable times and
places. Nursing Center at Vineland, 318 NLRB 901, 905
(1995).87 Herein, Respondent’s acts and conduct conform to
what the Board found unlawful in the above and like cases.
In defense, counsel for Respondent argue that their client
was, at all times, prepared to bargain upon receipt of a contract
proposal, which included wages and benefits—as promised by
the Union. While, it is true that, as wage rates and a pension
contribution amount were not included, the proposed contract,
which Respondent received on or about August 3, 2000, from
the Union, failed to comport with John Lopes’ commitment to

87 While Sec. 8(d) of the Act simply requires bargaining at “reasona-
ble times,” the Board has found an employer’s proposal for bargaining
at a particular location to be a factor in considering whether it has met
its obligations under the above section of the Act. Somerville Mills,
308 NLRB 425 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

432
provide a “complete” contract, the document clearly constituted
a comprehensive, proposed collective-bargaining agreement in
all other aspects.88 There were myriad items available for the
give-and-take of collective bargaining; Respondent’s ability to
prepare counterproposals or to make “trade-offs” seems hardly
to have been impaired; and it is quite common in collective
bargaining to negotiate noneconomic items prior to considering
economic ones. In my view, the Act required face-to-face ne-
gotiations between the parties at the point that Respondent re-
ceived General Counsel’s Exhibit 30, and Respondent patently
failed its obligation to bargain in good faith by insisting upon
receipt a “complete” contract before meeting and continuing its
initial contract negotiations with the Union. Further, while one
may sympathizes with Respondent’s plight, caused by Alan
Ritchey’s illness and resultant surgery, such must be balanced
against the Section 7 rights of the bargaining unit employees,
and, in the circumstances of this case, given its unlawful refusal
to meet and bargain with the Union, Respondent’s obligation
under Section 8(d) of the Act required considerably more than
delaying 6 weeks before appointing Ritchey’s son as his re-
placement and then proposing that contract negotiations take
place in Texas when its facility and employees were located in
northern California. Based upon the record as a whole, I con-
clude that, by insisting, as a precondition to face-to-face bar-
gaining, that the Union provide it with a “complete” contract
proposal and by delaying in the appointment of a substitute
authorized bargaining representative and refusing to meet at a
reasonable location, Respondent failed and refused to bargain
in good faith in violation of Section 8(a)(1) and (5) of the Act.
H. The Alleged Unlawful Unilateral Changes
1. Overview
I turn next to the allegations of the amended complaint in
Case 32–CA–018149, the consolidated complaint in Cases 32–
CA–018459 and 32–CA–018526, and the complaint in Case
32–CA–018601 that Respondent engaged in acts and conduct,
violative of Section 8(a)(1) and (5) of the Act, by unilaterally,
without giving the Union notice and affording it an opportunity
to bargain, changing the bargaining unit employees’ terms and
conditions of employment. It is, of course, well settled that an
employer violates the section of the Act by unilaterally impos-
ing new and different wages, hours, and other terms and condi-
tions of employment upon bargaining unit employees89 without

88 I do not mean to excuse the Union’s conduct in this case. Lopes
did make a commitment to Respondent on June 6, and the simplicity of
its November 15 wages and pension proposals demonstrates that a
“complete” contract proposal certainly could have been submitted to
Respondent on August 3.
89 In Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979), the Su-
preme Court defined the mandatory subjects of bargaining as those
matters which are “plainly germane to the ‘working environment’” and
“not among those ‘managerial decisions, which lie at the core of entre-
preneurial control.’” Normally, the mandatory subjects of bargaining
concern anything having to do with bargaining unit employees’ wages,
hours, or other terms and conditions of employment. Phelps Dodge
Mining Co., 308 NLRB 985, 999 (1992), enf. denied 22 F.3d 1493,
1496–1498 (10th Cir. 1994); Johnson-Bateman Co., 295 NLRB 180,
182 (1989).
first providing their collective-bargaining representative with
notice and a meaningful opportunity to bargain about the
change. NLRB v. Katz, 369 U.S. 736 (1962); Bryant & Stratton
Business Institute, 321 NLRB 1007 (1996); Mercy Hospital of
Buffalo, 311 NLRB 869, 873 (1993); Associated Services for
the Blind, 299 NLRB 1150, 1150–1151 (1990). However, it is
clear that not all unilateral changes in bargaining unit employ-
ees’ terms and conditions of employment constitute unfair labor
practices. Thus, to be found unlawful, the unilaterally imposed
change must be “. . . material, substantial, and . . . significant”
and must have a “real impact” on or be “a significant detriment
to” the employees or their working conditions. Outboard Ma-
rine Corp., 307 NLRB 1333, 1339 (1992); UNC Nuclear Indus-
tries, 268 NLRB 841, 847 (1984); Pacific Diesel Parts Co., 203
NLRB 820, 824 (1973); Coca Cola Bottling Works, Inc., 186
NLRB 1050, 1062 (1970), affd. sub nom. Retail, Wholesale
Union v. NLRB, 466 F.2d 380 (D.C. Cir. 1972). Further, an
employer’s obligation, under Section 8(a)(5) of the Act, to re-
frain from making unilateral changes in working conditions
commences at the time the labor organization, which represents
its employees, gains ballot victory in a representation election
(Lawrence Textile Shrinking Co., 235 NLRB 1178 (1978)),
and, as noted by the General Counsel, the Board has held that,
with limited exceptions, “. . . when, as here, the parties are
engaged in negotiations, an employer’s obligation to refrain
from unilateral changes extends beyond the mere duty to give
notice and an opportunity to bargain; it encompasses a duty to
refrain from implementation at all, unless and until an overall
impasse has been reached on bargaining for the agreement as a
whole.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
The limited exceptions are when, in response to an employer’s
diligent and earnest efforts to engage in bargaining, a labor
organization avoids or delays bargaining and when “economic
exigencies compel prompt action.” Id.
2. The required use of safety glasses
The General Counsel alleges that Respondent unlawfully
implemented a mandatory safety glasses policy for all bargain-
ing unit employees subsequent to the election without notice to
the Union or affording it an opportunity to bargain. Former
employee, Michelle Mayse, who was a member of the Rich-
mond service center’s bargaining unit employees’ bargaining
committee, testified, during direct examination, that she also
became a member of the facility’s safety committee90 in either
February or March 2000.91 Asked about a reference to “not

90 The Richmond facility’s safety committee is comprised of manag-
ers and bargaining unit employees, and, apparently, membership is
voluntary. The committee meets on a monthly basis and discusses and
takes action on “safety concerns” of management and employees.
Specifically, according to Mayse, “[W]e would discuss issues that we’d
seen on the floor that would help benefit safety management, and we
would bring it to Brandee Chorro’s attention. And everybody would
just discuss it, and then she would go over it with . . . the plant manag-
er.”
91 According to R. Exh. 11, the minutes for the January 12, 2000
safety committee meeting, Mayse became a volunteer member of the
committee for the period January through June 2000. However, she is
not noted as being present at the January 12 meeting.
ALAN RITCHEY, INC. 433

wearing safety glasses” while working as a safety violation on a
document, entitled “Safety Violation Tickets,” which, accord-
ing to Mayse, was published by Respondent some time “after
the election,” Mayse denied that this had always been Re-
spondent’s practice in the Richmond facility. Rather, she stated
that, previously, only welders and “some” mechanics had been
required to wear safety glasses while working. Then, “after the
election, they . . . informed us that we had to, it was mandated
for us to wear our safety glasses at all times on the floor , . . .”
Specifically, the new practice was instituted “within a week or
so” after the election; “Dave Williams . . . brought us all into
the lunch room and he . . . told us that we had to start wearing
safety glasses, and , if not . . . we would be issued violation
tickets and that there would be other [discipline including] ver-
bal warnings, written, suspensions, and terminations, depending
on how many violations you had.” Thereafter, safety glasses
were distributed, and employees were required to sign upon
receipt of their glasses. During cross-examination, Mayse re-
called that, at the February 9, 2000 safety committee meeting,
which she attended, the wearing of safety glasses was discussed
as a reaction to an employee, who suffered an eye injury while
working. “It was discussed that . . . it would be a good idea for
everybody . . . to wear glasses but not [to enforce] in the way
that they were enforcing it and taking disciplinary actions as far
as being terminated or suspended. That was never discussed.”
She denied that, at the above safety meeting, the issue was dis-
cussed as a “set policy” but admitted that safety glasses had
been ordered for all bargaining unit employees in March.
Plant manager Williams denied that the wearing of safety
glasses constituted a change from existing plant practice and
that, while such may have become mandatory for all employ-
ees, the policy was implemented prior to the election on April
13. “When I got there safety glasses were required in some
areas of the plant and in some job functions and not in other
areas of the plant and other job functions.” He testified that
some employees used this as an excuse not to wear them even
when required. “So, somewhere in the first part of April we
actually implemented a mandatory eye glass policy every-
where. But the actual decision was made prior to that. . . .” In
this regard, Williams stated that, in response to an eye injury,
suffered by a bargaining unit employee in January, at the
Richmond service center safety committee meeting on February
9, 2000, “we just made the decision to . . . put safety glasses on
everybody, keep everybody’s eyes safe.”92 Williams noted
that, given the time necessary for ordering the safety glasses,
Respondent was unable to implement the policy until April.
Thus, Respondent’s Exhibit 13, dated March 29, 2000, is an
invoice for the ordering, by Respondent, of 300 safety glasses
from a company located in San Leandro, California, and, con-
tradicting Mayse, Williams testified that the safety glasses were
actually distributed to bargaining unit employees on “about
April 5th, 6th, 7th. I did a meeting. It was about . . . eight to
ten days prior to the election date. . . . I remember . . . I literally

92 This decision is reflected in the minutes of the safety committee
meeting of February 9, which state the goal of implementing it in
March.
said in this meeting that it was probably not a wise decision on
my part to do it [then]. . . but I felt it was an issue that needed
to be addressed.” Moreover, the notes for the April 12 meeting
of the safety committee reflect that, under the topic of safety
glasses, which was termed an “old” topic, is the word “com-
pleted.” Finally, there is no contention that Respondent offered
to bargain with the Union prior to implementing its new safety
glasses policy.
There is no dispute that, requiring all bargaining unit em-
ployees to wear safety glasses at all times while working, con-
stituted a change from past practice. In assessing the respective
credibility of Michelle Mayse and David Williams, I have pre-
viously concluded that, in contrast to the latter, who appeared
to be a dishonest witness and, unless corroborated, not worthy
of reliance, Mayse impressed me as being a candid and a trust-
worthy witness. Therefore, I shall rely upon her version of
events and find that Respondent implemented its above-
described new work rule subsequent to the April 13 representa-
tion election. However, Williams testified that he announced
his decision to implement this new work rule at the safety
committee meeting in early February; his testimony, in this
regard, was corroborated by Mayse herself and by the minutes
of the meeting; and it would be utterly unreasonable to presume
that, prior to the election, Respondent would have ordered a
large supply of safety glasses from an outside vendor unless
Williams previously had decided to distribute them to all bar-
gaining unit employees. In these circumstances, I find that
David Williams made the decision to make the wearing of safe-
ty glasses by all bargaining unit employees mandatory over 2
months prior to the election and 3 weeks before the Union filed
its petition for an election. Accordingly, assuming, without
deciding, that Respondent’s new policy represented a material
change in the bargaining unit employees’ terms and conditions
of employment, inasmuch as “. . . [Williams’] decision was
made prior to the time the Respondent was obligated to bargain
with the Union,” Respondent did not violate Section 8(a)(1)
and (5) of the Act by failing to give notice to the Union prior to
implementing its new work rule, mandating the use of safety
glasses by all bargaining unit employees. Consolidated Print-
ers, 305 NLRB 1061 at fn. 2 (1992); Long Island Day Care
Services, 303 NLRB 112,114 (1991); Embossing Printers, 268
NLRB 710 at fn. 2 (1984). Therefore, I shall recommend dis-
missal of paragraph 10(a)(ii) of the amended complaint in Case
32–CA–018149.
3. The safety ticket program
The General Counsel alleges that Respondent unlawfully
implemented a safety ticket program in late April without no-
tice to or offering the Union an opportunity to bargain. In this
regard, former employee Mayse testified that she first became
aware of such a program through the posting of the aforemen-
tioned “Safety Violation Tickets” document “after the election”
in the lunchroom, in the employee breakroom, and by the
timeclock and that no such program had existed at the Rich-
mond facility prior to the posting of the memorandum. Accord-
ing to Mayse, under the announced policy, which did not be-
come effective until after the election, members of the safety
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

434
committee were to issue the safety tickets and, while on the
committee, she issued one such ticket. Plant Manager Williams
testified that “[this] was strictly a means to facilitate the issuing
of documentation on safety glasses violations and other safety
violations.” He added that Respondent had been having “some
difficulty” ensuring employees were wearing the safety glasses
at all times and asserted that the tickets were “almost like a gag
thing” designed to “get people to accept” wearing the glasses—
“. . . I issued [them] kind of like a parking ticket, trying to make
it seem that way.” Nevertheless, during cross-examination,
Williams conceded that the safety tickets were another form of
the existing disciplinary procedure and equated the tickets to
the issuance of a verbal warning—“It was the same process we
always had.”93 He testified further that the policy was imple-
mented “within four or five days of the safety glasses” and
prior to the election and that no new safety rules were imple-
mented with the tickets. Also, with regard to the safety ticket
program, analysis of the minutes of the April 12 safety commit-
tee meeting discloses that it was discussed as a new topic, with
implementation scheduled for late April. There is nothing in
the minutes as to when a final decision would be reached on
implementation of the program. Finally, there is no contention
that Respondent informed the Union of its decision to imple-
ment this program or that it afforded the Union an opportunity
to bargain over it.
Given the respective credibility of Mayse and Williams, I re-
ly upon the former as the more honest and persuasive witness.
Accordingly, I find that Respondent implemented its safety
ticket program subsequent to the date of the representation
election, April 13. Moreover, unlike the safety glasses policy,
there is no record evidence to establish that Respondent reached
its decision to implement its safety ticket program prior to the
election, and, as it was first discussed the day before the elec-
tion, it seems reasonable to conclude that the decision to im-
plement was, in fact, reached after the election. However, as
the program continued use of the existing disciplinary proce-
dure to enforce Respondent’s safety practices and as the safety
tickets themselves were the equivalent of a verbal warning, I do
not believe that implementation of this program represented a
material, substantial, or significant change from past practice or
had such an impact upon the working conditions of the bargain-
ing unit employees so as to require notice to the Union and
bargaining. Arguing to the contrary, counsel for the General
Counsel points to the fact that employees, who are on the safety
committee, are empowered, in the same manner as supervisors,
to give these to their coworkers. While true and presumably a
change from past practice, I fail to understand how this substan-
tially impacted upon any recipient’s terms and conditions of
employment. Thus, there is no evidence that receipt of a safety

93 According to Williams, Respondent’s disciplinary procedure had
always been utilized to enforce safety violations, and the safety tickets
were merely a “written difference” than past practice. Thus, “. . . be-
fore we would use the . . . employee counseling report [for]. . . safety
violations.” The safety ticket “. . . was just a little more concise vehicle
to talk about the safety issue.” Williams added that use of the safety
tickets did not represent any change in the discipline for a safety viola-
tion.
ticket from a coworker, instead of receipt of a verbal warning
from a supervisor, increased the seriousness of the safety viola-
tion, the severity of the discipline, or the repercussions there
from. Therefore, I do not believe that Respondent violated
Section 8(a)(1) and (5) of the Act by implementing its safety
ticket program without notice to the Union or affording it an
opportunity to bargain. Rust Craft Broadcasting of New York,
Inc., 225 NLRB 327, 327 (1975). Accordingly, I shall recom-
mend the dismissal of paragraph 10(b)(i) of the amended com-
plaint in Case 32–CA–18149.
4. Respondent’s elimination of Memorial Day and
Labor Day as nonworking holidays
The General Counsel contends that Respondent’s elimination
of Memorial Day and Labor Day as nonworking holidays,
thereby reducing the number of nonworking holidays from six
to four, without notice to the Union or affording it an oppor-
tunity to bargain constituted an unlawful unilateral change. In
this regard, former employee Mayse testified that she first be-
came aware of General Counsel’s Exhibit 10, a document enti-
tled “Holiday Update,” at the end of April 2000. The document,
which was posted throughout the plant, is signed by Brandee
Chorro and simply states that the number of “non-working”
holidays are being reduced to four; that these are Independence
Day, Thanksgiving Day, Christmas Day, and New Years Day;
and that “the deleted ‘non-working’ holidays are Memorial Day
& Labor Day.” Mayse added that employees were also told
their holidays had been reduced. Plant Manager Williams did
not dispute the fact that Respondent reduced the number of
nonworking holidays form six to four by eliminating Memorial
Day and Labor Day as such holidays. In Respondent’s defense,
he testified that, on or about April 18, 2000, he received a “con-
tract order modification” from the USPS, mandating a “modifi-
cation” in the contract, between Respondent and the USPS, to
reflect a reduction in the number of employees’ nonworking
holidays from six to four and naming Memorial Day and Labor
Day as the deleted nonworking holidays.94 As set forth above,
the USPS has the contractual right to change or modify any of
the terms of the contract at its discretion, and, according to
James Craig Brown, “[W]e would technically be in default of
our contract if we failed to incorporate or make the changes
they directed.” Brown added that, prior to the election, the
USPS made “numerous, numerous changes” to the contract and
that these were always implemented by Respondent. Finally,
Williams asserted that he gave notice to the Union of the
change in nonworking holidays—“I . . . left them a message
with the contract change when we got it,” and “. . . I know for a
fact that we had conversations with them to let them know it
was coming.”
At the outset, the number of nonworking holidays, which are
enjoyed by Respondent’s bargaining unit employees, clearly is
an integral part of their terms and conditions of employment
and constitutes a mandatory subject of bargaining. In my view,
Respondent’s elimination of two such holidays established a
material, substantial, and significant change, which required

94 With regard to Memorial Day, Respondent paid its bargaining unit
employees 8 hours holiday pay and double time for working that day.
ALAN RITCHEY, INC. 435

notice to and bargaining with the Union. Bryant & Stratton
Business Institute, supra at 1025. In this regard, as David Wil-
liams did not appear to be a particularly candid witness, I am
unable to credit his tenebrous assertions of either having left a
message with the Union or spoken to some unnamed Union
official about the elimination of the holidays and find that, prior
to publishing the notice, regarding the elimination of the two
nonworking holidays, Respondent failed to give notice to the
Union or afford it an opportunity to bargain. As a defense,
Respondent’s counsel posit the mandatory nature of the USPS
directive and Respondent’s obligation to abide by it. While this
may be true, I agree with counsel for the General Counsel that
Respondent certainly could have bargained with the Union over
the effects, including the compensation for employees, of the
elimination of the two nonworking holidays. Accordingly, I
find that Respondent violated Section 8(a)(1) and (5) of the Act
by failing and refusing to bargain with the Union over the elim-
ination of Memorial Day and Labor Day as nonworking holi-
days. Legal Aid Bureau, 319 NLRB 159, 168 (1995); Accurate
Dye Casting Co., 292 NLRB 982, 988–989 (1989); Saloon,
Inc., 247 NLRB 1105, 1108 (1980).
5. The work rule that first-shift inspectors finish the
work of second-shift inspectors
The General Counsel alleges that Respondent unlawfully
implemented a rule, requiring that first-shift inspectors finish
the work of inspectors on the second shift, without notice to the
Union or affording it an opportunity to bargain. In this regard,
former employee, Latachianna Pontiflet, whose job was as an
inspector on the first shift, testified that, on May 22, her super-
visor distributed a memo to her and other employees and that
the memo stated “. . . we have to start . . . finishing up the se-
cond shift’s pallets . . . .”95 According to the witness, prior to
receipt of the memo, while “. . . we did have some inspectors
who would just finish up a pallet and start another one from
scratch,” first-shift inspectors were not required to complete the
pallets of inspectors on the second shift. Further, she noted
that complying with the new work rule impacted on the job
performance of inspectors, for, in order for an inspector to
complete a partially completed pallet, an unloader was required
to locate the exact product, which was in the unfinished pallet.
This meant that the inspector would be “. . . just standing
around going on down time . . .” until the unloader placed the
exact product in the former’s work cage, and this directly im-
pacted upon his or her efficiency level.96 During cross-
examination, Pontiflet stated that, at the end of her shift, she
was required to complete a form, showing the total number of
pallets upon which she worked and how many remained in-
complete, and that the purpose of the form was for her to re-
ceive credit for an incomplete pallet. Also, asked if such was
always company policy to complete the prior shift’s incomplete

95 Counsel for the General Counsel failed to offer a copy of this doc-
ument into the record.
96 She was corroborated on this point by container repair mechanic,
Edward Grissom, who testified that, under Respondent’s system “down
time” is referred to as “indirect time” and an increase in this would
result in a lowered efficiency standard.
pallets, Pontiflet said, “no.” However, upon being confronted
with her pretrial affidavit, in which she stated that an incom-
plete pallet always “. . . was supposed to be finished by an in-
spector on the first shift,” she averred it “. . . was a glitch that I
overlooked.” Contrary to Pontiflet, Plant Manager Williams
testified that “it’s just almost impossible to end up finishing a
pallet exactly at the end of your day.” According to him, an
inspector is supposed to log the percentage of pallet remaining
to be filled, “and the next person is supposed to finish it. . . .
And then both people get credit for the pallet . . . .” Williams
further testified that, while the foregoing had been Respond-
ent’s policy since January 2000,97 from time to time, he was
required to remind bargaining unit employees of Respondent’s
policy as “it’s one of the problems with people, they’re hu-
man.” Also, Williams identified Respondent’s Exhibit 8, a
document entitled “Percentages of Pounds for Credit,” as a type
of “sheet that we made up to put around to help people keep
track of partial pallets.” Finally, Williams contradicted Pon-
tiflet as to the effect of “down time” upon efficiency—“If they
ran out of product, they would labor into down time and then
that time wouldn’t be held against them.”
With regard to the respective credibility of Pontiflet and Wil-
liams, I have previously discussed my impression that the latter
did not appear to be testifying in a truthful manner. Likewise, I
am also reluctant to rely upon the testimony of Pontiflet, whose
demeanor was not that of an honest witness and who was clear-
ly impeached by her pretrial affidavit.98 Therefore, contrary to
Pontiflet’s assertion, I believe that Respondent always had a
work rule, predating the election, of requiring first-shift inspec-
tors to complete the unfinished pallets of second-shift inspec-
tors and that the memorandum, which Pontiflet asserted she
was given, did not represent a change of past practice. Moreo-
ver, while, as set forth above, work rules are mandatory sub-
jects of bargaining, even assuming that the memorandum exist-
ed and established a new work policy, I do not believe that
requiring first-shift inspectors to finish incomplete pallets con-
stituted a significant detriment to the bargaining unit employees
or their terms and conditions of employment. Thus, while an
unwarranted increase in down time may impact upon an em-
ployee’s efficiency, as it makes no logical or practical sense
that Respondent would count down time, which is not the fault
of the inspector and results from the lack of identical product
with which to finish an incomplete pallet, as negatively impact-
ing upon an inspector’s efficiency, I credit Williams that Re-
spondent does not do so. In these circumstances, I find no mer-
it to the allegation that requiring first-shift inspectors to com-
plete unfinished pallets constituted an unlawful unilateral
change and shall recommend that paragraph 10(d) of the
amended complaint in Case 32–CA–018149 be dismissed.

97 He gave as the reasons for the policy—safety, efficiency, and en-
suring both inspectors received credit for the work.
98 Unlike, counsel for the General Counsel, I was not impressed with
her excuse for not correcting the “glitch” in her pretrial affidavit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

436
6. The change in the starting time for employees in the
first-shift mailbag section
The General Counsel alleges that Respondent unlawfully
unilaterally changed the starting time for first-shift employees
in the mailbag section of the processing department from 6 to 4
a.m. In this regard, former employee Mayse testified that, dur-
ing May 2000, she worked in the mailbag section of the pro-
cessing department and that the starting time for employees
working in the department, as well as all other bargaining unit
employees on the first shift, was 6 a.m. One day, at the end of
the month, according to Mayse, Shift Manager June Rivera held
a meeting with the employees in the mailbag section and said,
“. . . it was going to be a mandated overtime, that they had to
come in at 4:00 a.m. and work until 2:30 p.m.,” starting the
following day. Numerous employees, including single moth-
ers, complained that this change made it impossible for them to
find day care for their children. As a result, after the meeting,
Mayse approached Rivera and said there had not been sufficient
notice of the earlier starting time. Rivera replied that the over-
time “. . . was mandated and if anybody didn’t report at that
time they would be disciplined.” The next morning, one female
employee, who was unable to find day care for her children at
such an early hour, reported late for work and found a another
employee at her work station. Respondent moved her to a dif-
ferent job; Mayse complained that Respondent’s treatment of
the employee was not fair, and, after a few days, the employee
was returned to her normal job. During cross-examination,
Mayse said that the starting time change lasted for just 5 days,
and the mailbag employees’ shift starting time was changed
back to 6 a.m.. While Respondent offered no testimony to
controvert Mayse’s version of what occurred, counsel for Re-
spondent point to the testimony of container repair department
mechanic, Ed Grissom, who testified regarding a memo, dated
July 5, 2000, from the plant manager, requiring employees to
work the following weekend due to a 110-truck backlog and
making such work “mandatory.” Asked, during cross-
examination, whether the company policy before and after the
election was occasionally to require employees to work on their
days off when the backlog was high, Grissom replied, “. . . they
had been having mandatory overtime. This was mandatory
overtime.” He added that “they’ve always done it” and “this
isn’t a change” in policy.
As to whether Respondent gave notice to the Union and af-
forded it an opportunity to bargain over assignments of manda-
tory overtime, plant manager Williams testified that he “. . . had
a conversation with John Lopes about overtime in general,
about procedures we would use to call overtime, and the proce-
dures we would use to staff overtime. We agreed on those. As
to when this conversation occurred, Williams said that he could
not remember, but “. . . we had a fairly long conversation . . . .”
Later, after placing the conversation in May or June 2000, Wil-
liams recalled it occurred during a meeting “in my office,” and,
besides Lopes and him, “I believe that there was one other per-
son from the Union there.” While denying that any manage-
ment official of Respondent contacted him regarding a change
in shift starting times for employees in any departments in May
2000, despite being recalled as a rebuttal witness, Lopes failed
to deny Williams’ above-described testimony.
Mayse testified that, pursuant to assigning them mandatory
overtime, Respondent changed the shift starting time for its first
shift mailbag employees from 6 to 4 a.m.; employee Edward
Grissom testified that Respondent has a longstanding past prac-
tice, dating to prior to the election, of assigning employees to
work mandatory overtime; and David Williams was uncontro-
verted that he and John Lopes agreed on the procedures, which
Respondent would utilize in assigning mandatory overtime to
bargaining unit employees. In San Antonio Portland Cement
Co., 277 NLRB 309 (1985), the employer had a longstanding
mandatory overtime policy and implemented the practice,
without notice to its employees bargaining representative, after
becoming obligated to recognize and bargain with the labor
organization. The Board concluded that the employer’s actions
were not unlawful inasmuch as the mandatory overtime policy
predated the employer’s obligation to bargain with the union.
Id. at 313. Likewise, Respondent had a past practice, which
predated the April 13 representation election, of assigning
mandatory overtime when work backlog was high, and there is
no contention that Respondent deviated from it with regard to
assigning mandatory overtime to the mailbag employees at the
end of May.99 Accordingly, as it appears that Respondent and
the Union did meet and discuss the former’s practice of assign-
ing mandatory overtime and as Respondent’s actions did not
represent a change from past practice, I shall recommend dis-
missal of paragraph 10(e) of the amended complaint in Case
32–CA–018149.
7. Respondent sets forth more onerous plant objectives
for bargaining unit employees
The General Counsel alleges that, through a memorandum
published after the election, Respondent unlawfully published
new performance objectives for bargaining unit employees
without informing the Union or affording it an opportunity to
bargain. In this regard, container repair department mechanic,
Edward Grissom, who works on the swing shift, testified that,
some time after the election but prior to July 4, 2000, his de-
partment supervisor, George Jordan, “passed . . . down” a
memorandum, entitled “Plant Objectives,” to the mechanics in
his department. The document (GC Exh. 4) sets forth the effi-
ciency standard for inspectors, working on mailbags as being
“98%,” the efficiency standard for inspectors working on trays,
sleeves, and lids as being “118%,” and the efficiency standard
for container repair mechanics as being “120%.” As discussed,
at length above, the prior published efficiency standard for
inspectors was 80 percent, and Grissom testified that, as early
as September 1999, the efficiency standard for container repair
mechanics likewise had been set at 80 percent and, to his
knowledge, had never been changed. On General Counsel’s
Exhibit 4, the percentage number 120 percent is circled, and,

99 It is true that the Board has held that a unilateral change in the
starting time of a work shift constitutes a material and substantial
change in bargaining unit employees’ terms and conditions of employ-
ment and is unlawful. Blue Circle Cement Co., 319 NLRB 954 (1995).
However, in the decision, the Board specifically rejected the employ-
er’s defense that its change of starting times was justified by a
longstanding policy and found that the employer had no practice of
consistently implementing such a policy.
ALAN RITCHEY, INC. 437

according to Grissom, Jordan “underlined” the number “in front
of us . . . .” During cross-examination, asked if any container
repair mechanic had been disciplined for not performing at 120-
percent efficiency, Grissom replied, “They haven’t been disci-
plined for achieving 120 . . .” and, obviously referring to the
above-discussed disciplinary actions against mechanics, Dale
May and Tyrone Sparkman, added, “. . . they was disciplined
for under 100.”100 With regard to General Counsel’s Exhibit 4,
Plant Manager Williams testified that he prepared the document
and that “. . . it was just a reiteration of existing plant goals that
I was giving to the supervisors in a staff meeting.”101 He added
that the document was “a target,” designed to illustrate for the
supervisors where “. . . we needed to get” department by de-
partment. For example, according to Williams, for mailbag
inspectors “[the 98 percent efficiency level] represents the
overall average where we needed the mailbag area to be to get
our targets.” He specifically denied it represented a change in
anything, including minimum efficiency levels. As to Wil-
liams’ testimony, I note that, subsequent to the election, there is
no record evidence of discipline for an inspector for failing to
perform at a minimum efficiency level of higher than 80 per-
cent. Further, Williams himself testified that he set the mini-
mum efficiency level for mechanics at 100 percent and that
both May and Sparkman were disciplined for not performing at
this level.
While I have expressed my skepticism regarding the honesty
of David Williams, as the record evidence appears to corrobo-
rate him, I believe he must be credited with regard to the intent
of General Counsel’s Exhibit 4. Thus, there is no record evi-
dence that, since the April 13 election, any inspector was ever
disciplined for failing to perform at a minimum efficiency level
other than 80. Further, there is no record evidence that contain-
er repair mechanics were ever required to work at a 120-percent
minimum efficiency level. Rather, I have held that, in October,
Respondent unlawfully unilaterally implemented a 100-percent
minimum efficiency level for mechanics in disciplining em-
ployees May and Sparkman. Finally, I find support for Wil-
liams’ testimony from the written words on the document—
“our goal.” Accordingly, as I do not believe that the memoran-
dum, at issue, represented a change from past practice, I shall
recommend that paragraph 10(g) of the amended complaint in
Case 32–CA–018149 be dismissed.
8. More onerous work assignments for
welder, Kevin Lynch
The General Counsel alleges that Respondent unlawfully
implemented more onerous work assignments for its welder,
Kevin Lynch, without giving notice to the Union or affording it
an opportunity to bargain. In this regard, Edward Grissom
testified that he knows Lynch as a welder who works in the
container repair department; that, at Lynch’s request, he attend-

100 Specifically, Grissom said there was no mention of a 120-percent
efficiency standard at either the May or the Sparkman disciplinary
proceedings.
101 On this point, I note that the writing “Our Goal” appears at the
top of the document but that there is no record evidence as to who
wrote the words on the document.
ed a meeting between Lynch and two management officials
(John Medina, the shift manager, and Henry Holloway, a fore-
man) on or about June 6, 2000. According to Grissom, Medina
“. . . was wanting Kevin to repair a container when he didn’t
have any welding to do. . . . I said that . . . I figured there would
be plenty of welding to do. . . . And . . . he was a different job
classification.” To this, Medina said, “. . . he thought that if
there was work to be done, why [Lynch] ought to do the work.”
Grissom further testified that Lynch had no training as a me-
chanic, for which position Grissom and the other mechanics
participated in a 2-week training program; that Respondent’s
welders, such as Lynch, are “certified welders,” who must have
be so classified in order to be eligible for hire by Respondent;
and that welding is “. . . a different trade. A mechanic’s a me-
chanic . . . we’re using tools, and a welder has to use a welding
machine,” a machine, which is not utilized by mechanics. Dur-
ing cross-examination, Grissom denied that Lynch performed
any container repair work prior to June 6 but was contradicted
by his pretrial affidavit in which he stated that, prior to the
meeting, Lynch “helped” with repair work. Grissom then ad-
mitted this was true but said Lynch did this only “. . . when he
didn’t have any work . . . in his spare time, but it wasn’t man-
dated.” Finally, while Grissom maintained Lynch was not
trained for mechanic’s work, he conceded Lynch received on-
the-job type training in mechanic’s work.
David Williams testified with regard to Lynch that “his indi-
rect time was just out of control. His down time was . . . 50
percent or higher . . . which basically meant that for half his day
. . . he wasn’t doing anything” because “there wasn’t enough
work for him to weld . . . . and the supervisor wasn’t doing a
good job of moving him to other tasks. . . .” According to Wil-
liams, he determined Lynch had to be assigned to other jobs in
order to be “productive,” and “I talked with his supervisors to
remind them of our policy that [Lynch] needed to be working,
that was part of what he agreed to when he came to work.”
Williams admitted that Respondent informed Lynch it wanted
him to perform “mechanic’s work” and believed Lynch had
done such work for Respondent in the past. As support for its
position that it was justified in requesting Lynch to perform the
work of a mechanic, Williams pointed to a statement in the job
description for welding work, which Lynch signed upon being
hired by Respondent. Prior to listing a welder’s “essential du-
ties and responsibilities, the document states that “other duties
may be assigned.” Also, Williams testified that Lynch was
given discipline one day in June—“We had a day where I was
walking through departments and found him sitting in the parts
cage reading a newspaper with his feet kicked up on a desk.”
Williams added, Lynch “. . . was talked to about that . . . .”102
Finally, Respondent does not contend that it gave notice to the
Union nor afforded the Union an opportunity to bargain before
approaching Lynch about his job duties.
Analysis of the foregoing discloses no dispute as to what oc-
curred. Thus, Williams admitted that Respondent did request

102 Inasmuch as it appointed Lynch to be acting foreman over the se-
cond-shift container department in November 2000, Respondent could
not have been too concerned with Lynch’s job performance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

438
Lynch to perform container repair work when there was no
welding for him to do.103 Further, Williams believed Williams
had performed such work in the past, and Grissom admitted
that Lynch previously had done some container repair work in
his “spare time” when he had no welding work to do. Moreo-
ver, Williams did not dispute Grissom’s testimony that welding
is a highly specialized craft and that such work fundamentally
differs from container repair work. Having considered the
arguments of counsel, I believe that Respondent did, in fact,
engage in a change over which it should have given notice to
the Union and afforded it an opportunity to bargain. Thus,
given his specialized job duties as a welder, and as it had signif-
icant precedential value, I believe requiring Lynch to perform
container repair work constituted a significant change, affecting
his and other bargaining unit employees’ terms and conditions
of employment. While the wording of Lynch’s job description
may reasonably be construed as permitting Respondent to as-
sign him job duties other than those enumerated for a welder, I
agree with counsel for the General Counsel that such clearly
includes the element of discretion and is “‘precisely the type of
action over which an employer must bargain with a newly certi-
fied Union.’” Eugene Iovine, Inc., supra. Moreover, Respond-
ent’s actions sent “. . . the message to the employees that [it] set
an important term and condition of employment, thereby sug-
gesting the irrelevance of the employees’ collective-bargaining
representative.” Kurdzeil Iron of Wauseon, 327 NLRB 155,
155 (1998). In so concluding, I note that the problem involving
employee Lynch’s down time seems to have been longstanding,
not requiring an immediate solution, and clearly amenable to
collective bargaining before unilateral action. In these circum-
stances, I find that, by acting unilaterally without notice to the
Union or affording it an opportunity to bargain, Respondent
engaged in conduct violative of Section 8(a)(1) and (5) of the
Act.
9. More stringent discipline standards and procedures and
more onerous standards for the completion of work
The General Counsel alleges that, on or about June 18, 2000,
by orally promulgating more stringent disciplinary standards
and procedures, including progressive discipline, and more
onerous objectives for the completion of work, Respondent
unlawfully changed the terms and conditions of employment
for bargaining unit employees without giving prior notice to the
Union or affording it an opportunity to bargain. In this regard,
there is no dispute that, during a meeting with the second-shift
container repair department mechanics, John Medina distribut-
ed a document, entitled “Meeting Agenda—June 18, 2000.”
According to Edward Grissom, who attended the meeting, there
were two items, set forth in the document and discussed by
Medina, about which he had never been aware prior to the
meeting. Thus, under the topic, “What is Expected of Alan
Ritchey’s Second Shift Work Team,” is the phrase, “Container
repair will repair 19–21 units per shift,” and, under the topic,

103 Williams was uncontroverted that, prior to being requested to per-
form container repair work when having no welding work to do, Lynch
had an excessive amount of down time on the job and, in fact, had been
disciplined for reading a newspaper during worktime.
“Excessive Talking and Wandering Off Workstations during
Shift,” is the admonition, “Excessive talking and wandering off
workstations will not be tolerated and will be dealt with using
disciplinary action.” As to the former, Grissom testified that
preciously Respondent had utilized the efficiency standard in
describing worker productivity, and “. . . now . . . they’re ask-
ing for . . . raw numbers,” and, as to the latter, Grissom said,
“. . . this was the first time that had been said. They just hadn’t
mentioned it, it hadn’t been said. There hadn’t been any docu-
ment telling us not do this.” During cross-examination, while
continuing to deny Respondent had ever given the container
repair mechanics the “raw” number of containers they were to
repair per shift, Grissom admitted that management had previ-
ously informed the mechanics it should take them an “average
of 12 minutes” to repair a container and that, to determine the
number of units per shift to be completed by a mechanic, “. . .
you can add and subtract. You figure up the minutes that they
have . . . they had us so many minutes to do the hampers . . .
and so many minutes to do the OTRs, and you figure up that
over a period of eight hours and it comes out to that.” Further,
he was contradicted by his pretrial affidavit in which he stated
that, prior to June 18, mechanics were required to do 21.2 ham-
pers per shift and 17 over-the-road containers per shift. Upon
being confronted with these figures in his affidavit, Grissom
admitted he was aware of those numbers, “but there wasn’t any
. . . literature brought out about it.” As to the “excessive talk-
ing” work rule, during cross-examination, Grissom reiterated
“that is the first time I’ve seen it in writing, and . . . no one ever
said anything, it was never mentioned” but conceded he did not
mean that, prior to the election, employees were permitted to
wander away from their workstations and walk throughout the
plant or to engage in conversations which might affect produc-
tion. Regarding the June 18 document, David Williams de-
scribed it as a meeting agenda, which was prepared by John
Medina for the second-shift processing department. The plant
manager denied it represented any changes in company practic-
es or policies; rather “it just breaks down weekly targets into
shift targets.” Asked if any employees were ever disciplined
based upon anything in the document, Williams replied that
“people were disciplined for wandering away from their job
sites but that happened before [the document] and after. . . . I
mean [discipline] wasn’t predicated on [the memorandum].”
Finally, there is no contention that Respondent gave notice to
the Union or afforded it an opportunity to bargain before dis-
tributing the above document.
Concerning the alleged more onerous objectives for the
completion of work, while Grissom initially testified that Re-
spondent had previously always written and spoken about
productivity in terms of efficiency levels and that he had never
previously seen productivity discussed in terms of raw numbers
of items completed per shift, on the latter point, he was effec-
tively impeached by his pretrial affidavit and subsequently
admitted previously being aware of the “raw” production num-
bers. In these circumstances, I am unable to conclude that set-
ting forth their expected productivity in terms of units per shift
represented any change in the container repair employees’
terms and conditions of employment. The Board has held that
a written clarification which is “fully consistent” with the pre-
ALAN RITCHEY, INC. 439

existing policy does not represent a change about which an
employer is required to bargain with the labor organization
representing its employees. Allied Mechanical Services, 320
NLRB 32, 32 (1995). Accordingly, I shall recommend dismis-
sal of paragraph 10(i)(2) of the amended complaint in Case 32–
CA–018149. As to the excessive talking warning, as between
Grissom and Williams, given my impression that the latter’s
demeanor, while testifying, was not that of a candid witness, I
credit the more forthright Grissom that, in its June 18 memo-
randum, Respondent announced a new work rule. In this re-
gard, I note that Williams was not corroborated on the past
existence of such a rule and that, even if employees always
were aware they should not wander away from their work sta-
tions or engage in excessive talking to the detriment of their
work, there is no record evidence that they knew such acts
would subject them to discipline. As set forth above, work
rules are mandatory subjects of bargaining. In my view, estab-
lishing this new rule suggested to the bargaining unit employ-
ees that their elected bargaining representative was irrelevant.
Kurdzeil Iron of Wauseon, supra. Also, given the likelihood of
attendant discipline, the work rule clearly had a material, sub-
stantial, and significant impact upon the bargaining unit em-
ployees’ terms and conditions of employment, and Respondent
was obligated to have given the Union notice of the change and
to have afforded it an opportunity to bargain. Having failed to
do so, I find that Respondent engaged in conduct violative of
Section 8(a)(1) and (5) of the Act.
10. The policy that employees receive an unexcused
absence for not providing a week’s prior notice
The General Counsel alleges that Respondent acted unlaw-
fully by unilaterally changing its existing practice and requiring
that all time off be scheduled, at least, 1 week in advance in
order not to be considered an unexcused absence without giving
the Union prior notice and affording it an opportunity to bar-
gain. In this regard, there is no dispute that, on July 3, 2000,
David Williams published a memo, which was distributed to all
bargaining unit employees, concerning “attendance and time
off.” The memo read, “Just a reminder. All time off, whether
for a full day or for a partial day must be scheduled at least one
week in advance. Any notice less than one week will be con-
sidered an unexcused absence or occurrence.” Container repair
mechanic Grissom testified that Williams himself distributed
the memo to employees at a meeting and that the practice at the
time for scheduled time off was employees “. . . had to give
reasonable notice . . . there wasn’t any memo that said you had
to give a week.” Grissom knew Williams was not enunciating
an existing policy as, during the prior Christmas season, he
gave his supervisor 2 or 3 days advance notice of his need to
take time off, and his request was granted.104 Also, according
to Grissom, 3 weeks later, he again requested time off, giving
his supervisor 2 or 3 days notice, and the latter again gave him
permission. During cross-examination, Grissom conceded that
he believed Williams’ memo represented a change in policy

104 Grissom recalled that he filled out a leave request form on this
occasion.
because it was the first time he ever saw it in writing, that both
of his examples of time off were not “foreseeable” absences,
and that Respondent distinguishes between foreseeable and
unforeseeable absences in its notice policy. As to his memo,
Williams testified, “Its a memo I put out as a reminder; we
were starting to get an increased number of people requesting
time off with very short time notices.” According to Williams,
since January 2000, “one week was the minimum amount of
time we wanted” as notice for time off, and this policy never
changed during his tenure with Respondent. Thus, the docu-
ment “does not” represent a change; rather, it was “just a re-
minder.” However, notwithstanding Respondent’s policy, Wil-
liams conceded the company would make allowances for em-
ployees, who need time off and do not have a week’s notice.
Brandee Chorro corroborated Williams on Respondent’s notice
policy, testifying that Respondent’s time off policy has a notice
requirement, which is “. . . one week’s advance notice for it to
be an excused absence.” She added that this policy has not
changed since the Richmond facility opened in August 1999.
She then identified a leave of absence request form, dated Janu-
ary 24, 2000, from an employee who wanted a day off for a
doctor appointment. At the top of the document (R. Exh. 28),
are words in a box. The four lines of text begin with “Please
Note” and the third sentence reads, “You must hand in this
form at least 1 week before the date you request off occurs.”
Finally, there is no contention that Respondent gave notice to
the Union or afforded it an opportunity to bargain before pub-
lishing the July 3 memo.
In considering whether Williams’ July 3 memo constitutes a
new policy or merely reiterates an existing practice or policy, I
credit Williams, as corroborated by Chorro and Respondent’s
Exhibit 28, that, since, at least, January 2000 and probably
earlier, Respondent has had a policy of requiring an employee
to provide, at least, 1 week’s notice for a time off request. Not-
ing that he filled out a leave request form on, at least, one occa-
sion, I can not credit container repair mechanic Grissom that
Williams’ July 3, 2000 memo was the first time he became
aware of this requirement. However, the second sentence of
Williams’ memo is that which is alleged as constituting the
alleged unlawful unilateral change105 and is more troubling.
Thus, neither Williams nor Chorro specifically testified that
Respondent’s existing notice of absence policy included the
protocol that notice of less than a week would result in the
leave being considered as an unexcused absence or occurrence,
and no such admonition is found in Respondent’s Exhibit 28.
Moreover, Grissom testified regarding two instances of leave
requests, both of which he made less than a week before the
requested days off and both of which were granted, and Wil-
liams himself admitted Respondent made allowances for bar-
gaining unit employees who required time off but failed to give
the required 1 week’s advance notice. Respondent’s counsel
correctly point out that an employer may lawfully implement a

105 In their posthearing brief, counsel for the General Counsel argue
that the unlawful unilateral change is the requirement of 1 week’s no-
tice prior to taking leave. However, this is not the allegation of the
amended complaint in Case 32–CA–018149.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

440
written clarification of a preexisting policy without notice to
and bargaining with a union; however, as set forth above, the
issue is whether the clarification is “fully consistent” with the
existing practice. Allied Mechanical Services, supra. The only
written version of Respondent’s preexisting policy is found on
Respondent’s Exhibit 28, and I do not believe that the corollary
necessarily is that providing less than 1 week’s notice will re-
sult in an unexcused absence. Therefore, I believe that, in his
July 3 memo, by adding the second sentence, Williams imple-
mented a new notice for time-off policy, and, as accumulated
unexcused absences lead to discipline under Respondent’s pro-
gressive discipline policy, the unilateral change had a material,
substantial, and significant impact upon the bargaining unit
employees’ terms and conditions of employment. Further, as
set forth above, by unilaterally implementing this new work
rule, a mandatory subject of bargaining (Praxair, Inc., supra),
Respondent sent a message to the bargaining unit employees
that their newly elected collective-bargaining representative
was irrelevant. Kurdzeil Iron of Wauseon, supra. Accordingly,
by implementing this policy change without giving notice to the
Union or affording it an opportunity to bargain, Respondent
engaged in conduct violative of Section 8(a)(1) and (5) of the
Act.
11. Respondent required employees to work on their
regularly scheduled days off—July 7 and 8
The General Counsel alleges that Respondent acted unlaw-
fully by unilaterally, without notice to the Union or affording it
an opportunity to bargain, requiring bargaining unit employees
to work on their regularly scheduled days off. There is no dis-
pute that, on July 5, 2000, Respondent published a memo from
David Williams to all bargaining unit employees at the Rich-
mond facility, stating, “Unfortunately, our backlog is at 110
trailers. In order to reach an acceptable level by this weekend
we will need to schedule Friday night and Saturday as regularly
scheduled workdays. Regularly scheduled is a nice way of
saying ‘MANDATORY’. . . .” Edward Grissom testified that
the document was posted on a bulletin board, that, at the time,
his regular workweek was Sunday through Thursday, and that
second-shift employees were not regularly scheduled to work
on Friday nights or on Saturdays. As set forth above, asked
during cross-examination whether Respondent’s policy before
and after the election was occasionally to require employees to
work on their days off when the backlog was high, Grissom
replied, “. . . they had been having mandatory overtime. This
was mandatory overtime.” He added that “they’ve always done
it” and “this isn’t a change” in policy.”
Echoing Grissom, David Williams testified that the July 5
document announced “overtime” for Friday, July 7, and Satur-
day, July 8; that “. . . overtime was just a fact of life” at the
Richmond facility; that he had requested employees to work
overtime on days off “at least 25 or 30 times;” that “from the
Post Office’s perspective, a holiday was only a holiday if we
were current on our work;” and that Respondent’s goal was to
have no more than 15 to 20 unloaded trucks on any Friday. He
then pointed to Respondent’s Exhibit 18, a notice, which is
similar to the above, requiring Respondent’s second-shift em-
ployees to work on Friday, November 26 and its first-shift em-
ployees to work on Saturday, November 27, 1999. During
cross-examination, asked about employees who had unbreaka-
ble plans for the mandatory overtime days, Williams replied,
“. . . if they came to our supervisors prior to the business day,
we tried to work with them.” He added that it was the supervi-
sor’s decision as to whether to excuse an employee from the
mandatory overtime. Finally, as discussed above, Williams
testified that, in May or June, he and John Lopes met at his
office, discussed “overtime in general,” and reached agreement
upon the procedures Respondent would utilize to announce and
staff overtime when necessary. While denying that Respondent
gave notice to the Union regarding mandatory overtime on July
7 and 8, despite testifying on rebuttal, Lopes failed to deny
Williams’ testimony as to their discussion of and agreement
upon overtime procedures.
In Respondent’s July 5 memo to bargaining unit employees,
David Williams informed employees that, due to excessive
backlog, the scheduling of Friday night, July 7, and Saturday,
July 8, as regularly scheduled workdays was “mandatory;”
Edward Grissom testified that Respondent has a past practice,
predating the election, of scheduling mandatory overtime when
the backlog was high, and the record evidence corroborates
such a past practice; and David Williams was uncontroverted
that, prior to July, he and John Lopes discussed and agreed
upon Respondent’s procedures for assigning overtime days.
Further, Board law is longstanding that, where an employer
adheres to a longstanding past practice of assigning mandatory
overtime and implements it without giving notice to the labor
organization, which represents its employees, or affording it an
opportunity to bargain, the employer’s actions are not unlawful
if said past practice predates the employer’s obligation to bar-
gain with the union. San Antonio Portland Cement Co., supra.
Herein, of course, there is ample record evidence that Respond-
ent’s policy of assigning mandatory overtime to employees
predated the election and that Respondent acted fully in accord
with this policy. Accordingly, I believe that the assignment of
mandatory overtime on July 7 and 8, 2000, did not represent a
change in the bargaining unit employees’ terms and conditions
of employment and that, therefore, as Respondent had no obli-
gation to give notice to or afford the Union an opportunity to
bargain, no violation of Section 8(a)(1) and (5) of the Act oc-
curred, and I shall recommend that paragraph 10(k) of the
amended consolidated complaint in Case 32–CA–018149 be
dismissed.
12. Respondent’s change in the working times of
processing department employees on the first shift
The General Counsel alleges that Respondent acted unlaw-
fully by unilaterally, without giving notice to the Union or af-
fording it an opportunity to bargain, changing the shift times for
its bargaining unit employees on the first shift. In this regard,
there is no dispute that, on the Friday preceding the Memorial
Day weekend in 2000, Respondent posted a notice throughout
the Richmond facility, advising first-shift employees that their
hours of work on Saturday and Monday would be 4 a.m.
through 12:30 p.m. According to Michelle Mayse, who worked
on the first shift and whose normal hours of work were 6 a.m.
through 2:30 p.m., first-shift employees previously had never
ALAN RITCHEY, INC. 441

worked such hours, and “Mr. Williams said that due to people
requesting to come in at an earlier time that we were going to
[work this earlier shift].” Williams testified that this occurred
because of the USPS announcement, making Memorial Day a
working holiday. “A lot of employees came up to me and
wanted to know if they could come in at 4:00 instead of 6:00 so
they could get out at 12:30 instead of 2:30” over the weekend.
He added, “They felt like on that Saturday especially they
would get a longer time-off cycle if they got out of the plant
two hours earlier. . . . I told them if they could get some super-
visors to volunteer to come in early they could. But I wasn’t
going to change the plant shifts.” Williams further testified that
this was a “strictly voluntary” thing and that less than half of
the first-shift work force participated. He denied any discipline
was associated with failing to come in at 4 a.m. During cross-
examination, Williams conceded not informing the Union of
the changes in the employees’ shift times over the Memorial
Day weekend—“I thought since they just asked to do it, it
wasn’t necessary.”
There is no dispute that shift starting and closing times are
mandatory subjects of bargaining and that changing the starting
and ending shift times for the bargaining unit employees on the
first shift for the Saturday and Monday of the Memorial Day
weekend in 2000 constituted changes in their terms and condi-
tions of employment. While Respondent only acted upon the
entreaties of the bargaining unit employees themselves, while
compliance with the earlier starting time was entirely voluntary,
while no employees were disciplined for reporting at their nor-
mal starting time, and while the shift starting and ending terms
reverted to the normal times on the following Tuesday, other
than “a lot,” there is no evidence as to the number of employees
who petitioned Respondent to change the shift hours for the 2
days. Moreover, no matter how inconsequential the change in
shift times for 2 days appears, a precedent was arguably estab-
lished for more substantial changes merely based upon requests
from unit employees. Therefore, I believe the change, in fact,
did have a material and substantial impact upon the terms and
conditions of employment of the bargaining unit employees.
Also, in acting as it did, Respondent exhibited to the employees
that their designated bargaining representative was irrelevant in
establishing their terms and conditions of employment. Kur-
dzeil Iron Wauseon, supra. Accordingly, I believe that, by
unilaterally changing the shift times for the first-shift pro-
cessing department employees during the Memorial Day holi-
day in 2000, Respondent engaged in acts and conduct violative
of Section 8(a)(1) and (5) of the Act, and I so find.
13. Respondent changes the job duties of container
repair department mechanics
The General Counsel alleges that Respondent acted unlaw-
fully by unilaterally, without giving notice to the Union or af-
fording it an opportunity to bargain, changing the job duties of
its bargaining unit mechanics in the container repair depart-
ment. In this regard, Edward Grissom testified that the follow-
ing document (GC Exh. 8) was distributed by Supervisor
George Jordan to the swing-shift mechanics during a depart-
ment meeting. Dated July 26, 2000, the document reads:
Container Repair Expectations Revised
1) After clocking in to begin your shift, a mechanic
should immediately receive a container. This will cut
down on the unnecessary down time we have been using.
2) All breaks, including lunch, should be taken at the
normal time that breaks are given, the only exception to
this issue is our welder do [sic] to the over amount of
fumes in the welding cage. He may need to come out for
air outside the normal break times.
3) With the over abundance of work that we are pres-
ently faced with, no mechanic should clock into meeting,
training, or down time after returning from lunch or break.
The mechanic or welder should immediately clock into a
container and continue work.
4) When looking for a container to work on this should
not be a mission that takes a great deal of time. It should
not take five or ten minutes to find a container to work on.
To stop this problem a mechanic should already have a
container at his work station that he is already clocked on
before he goes looking for another container to bring to his
work station. This will take away using to [sic] much time
in looking for another container.
5) We can spend an over amount of time looking for
that perfect container to work on, it may look great until
you get it back to your station and put it on your eater and
see it has a lot of damage to be repaired underneath the
container. This in turn will cause you to lose valuable
time on repairing that container.
6) As far as triple liners on the ER’s this type of work
can be done by teams or any other way the mechanics see
fit to get the job done, 1st shift and 2nd shift must share
the work load on all the bad containers on a equal basis.
7) All of these revisions will be approved by the me-
chanics before they are put into effect, we work in a de-
mocracy and will continue to have input and suggestions
by the mechanics before anything becomes official.
8) Mechanics should immediately clock into a contain-
er after lunch instead of clocking back in to down time ie.
Previous container or the next container you plan to work
on.
9) If a mechanic has problems with a container not
scanning he should have his supervisor or a material han-
dler take the paper work back to initial to be researched, in
the mean time he can be working on the next container. If
the supervisor or the material handler are not immediately
available move on to your next container until they can
take the paper work over to the initial inspection area for
you.
10) A mechanic can have up to five containers at his
work station at any given time so long as it is not creating
a jam that might create a safety issue. It is understandable
that on some occasions that a mechanic may have contain-
ers coming back from welding that may cause more con-
tainers at his/her work station it is the responsibility of the
supervisor to assure that the material handlers align the
containers properly to avoid congestion.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

442
According to Grissom, with regard to 1, previously “we would
get four, five maybe six containers, enough to do for a while
. . . which would take us a little while to get them . . . .” As to
2, it was a “different” rule as, previously, “. . . if we were work-
ing in a container and we lacked a little bit to finish it and then
we’d clock out and go to lunch.” Under the new rule, every
mechanic was required to take breaks and lunch at the same
time as other mechanics. No. 3 is “different” as previously
there had been no mention if employees would “. . . spend a
little time in the rest room or something . . . .”106 Concerning 4,
Grissom believed it differed form what existed as previously
“. . . we used to just pull a container over and . . . clock in on it
and work on it and then go get another one . . . .” Under the
new system, “. . . if [the container] didn’t have much work to
do on it and you get it finished, they want you to go out while
you’re still on this [container] and get more . . . “while remain-
ing on the initial clock.” With regard to 6107 and 7, Grissom
believed the former to be different as Respondent was request-
ing that employees work in teams while performing their indi-
vidual work and, and, as to the latter, Jordan “. . . asked me to
sign it.” Finally, Grissom said that 9 was a different procedure
but conceded it had no effect upon his job and that 10 was dif-
ferent as previously there had been no specified limit to the
number of containers a mechanic could have at his workstation
for repair. During cross-examination, Grissom said his super-
visor, Jordan, held meetings with the container repair depart-
ment employees daily at the start of the shift and that it was
“not unusual” for Jordan to raise work-related issues including
suggestions on how to improve their work. Grissom added that
Jordan had been holding such meetings since prior to the elec-
tion, that much of the material on General Counsel’s Exhibit 8
concerned improving the mechanics’ efficiency levels, but that,
in the past, Jordan’s suggestions had been verbal—“He never
did pass none of these out.” Finally, Grissom acknowledged
that Respondent’s facility was a new venture for the USPS and
that, since the commencement of operations in Richmond in
August 1999, there had been constant “tweaking” of job proce-
dures—“I’d say so.”
Counsel for the General Counsel contend that, in the above
document, Respondent implemented “. . . substantial and sig-
nificant changes in the mechanics’ job functions,” including a
decrease in the amount of time for employees’ lunchbreaks, a
heavier workload, and new instructions for selecting containers,
and that these were not mere “adjustments” in how the mechan-
ics did their jobs. Arguing to the contrary, counsel for Re-
spondent contend that, taken as a whole, the document sets
forth “minor changes to the means by which container repair
employees performed their existing job duties . . . .” Grissom
was uncontroverted, and I find, that most of what is contained
in General Counsel’s 8 represented changes in how the contain-
er repair department employees performed their daily work.
However, while work rules are nominally mandatory subjects
of bargaining, as stated above, to rise to the level of the types of

106 As stated above, Grissom testified that, under Respondent’s sys-
tem, down time is referred to as “indirect time” and an increase in this
would result in lowered efficiency.
107 Grissom stated that 5 represented no change in procedures.
changes, which require prior notice and bargaining with a labor
organization, such changes must represent “. . . material and
substantial change[s] in terms and conditions of employment.”
Outboard Marine Corp., supra. Further, if the changes “. . .
constitute merely particularization of, or delineations of means
for carrying out, an established practice, they may, in many
instances, be deemed not to constitute a ‘material, substantial,
and significant’ change.” Bath Iron Works Corp., supra. I
agree with counsel for Respondent that the alleged unlawful
changes are, in reality, minor changes in the “means” by which
container repair mechanics were to perform their job duties and
had a quite negligible, if any, impact upon their terms and con-
ditions of employment.108 Accordingly, no duty to bargain
existed, and I shall recommend that paragraph 11(a) of the con-
solidated complaint in Cases 32–CA–018459 and 32–CA–
018526 be dismissed.109
14. The unit inventory clerk changes
The General Counsel alleges that Respondent unlawfully
unilaterally changed the shift and number of hours worked by
the unit inventory clerk without notice to or bargaining with the
Union. In this regard, Edward Grissom testified that the indi-
vidual, classified as the unit inventory clerk, works in the con-
tainer repair department and that the person’s job is to stock the
shelves with parts. Grissom further testified that, prior to the
election, there had been two women—Sheila ________ and
Debra Hadnot—performing this work; that one worked the
entire first shift and one worked the entire second shift; that,
subsequent to the election, the two women were moved to other
departments and, thereafter, only one employee, a male, Daryl
_______, performed the work of the unit inventory clerk; and
that he begins working midway through the first shift and con-
tinues working until midway through the second shift. David
Williams testified that, in July 2000, the USPS issued a modifi-
cation to its contract with Respondent, changing the inspection
criteria on containers to be repaired in the container repair de-
partment. According to Williams, the effect of the modification
was to reduce the amount of work by half, and, as a result, there
was a reduced demand for parts. He continued, stating that
Hadnot had always performed different jobs in order to keep
busy; that, with the reduced workload, “she was . . . switched to
material handling” in the warehouse with an increase in pay;
that the other clerk was on leave at the time;110 that an individ-
ual, Daryl Staley, was eventually given the job of unit invento-
ry clerk with a 10-hour workday (6 a.m. until 4:30 p.m.) over-
lapping the first and second shifts. Williams conceded that he
failed to give the Union notice of Staley’s working hours.
Contrary to counsel for Respondent, I agree with counsel for
the General Counsel that the foregoing represent the types of

108 For example, requiring the mechanics to take lunch at the ap-
pointed hour and requiring them to resume working rather than loung-
ing in the rest room at the conclusion of the lunch hour hardly impact
upon the mechanics’ terms and conditions of employment or represent
suitable subjects for bargaining.
109 Absent any record evidence of unlawful animus, I shall also rec-
ommend dismissal of the allegation that publication of the July 26
memorandum was violative of Sec. 8(a)(1) and (3) of the Act.
110 Upon her return, she was given a different job.
ALAN RITCHEY, INC. 443

material and significant changes in mandatory subjects of bar-
gaining, requiring prior notice and bargaining with a labor or-
ganization. Thus, the changes, set forth above, involved such
subjects as bargaining unit staffing, the transfer of employees to
different jobs and their applicable rates of pay, and the estab-
lishment of a work shift longer than Respondent’s normal work
shift and one overlapping the first and second shifts, all of
which, I believe have significant precedential value. Therefore,
I find that the changes did, in fact, have a material and substan-
tial impact upon the bargaining unit employees’ terms and con-
ditions of employment. Further, as set forth above, by acting
unilaterally in the above manner, Respondent suggested to its
bargaining unit employees that their newly selected collective-
bargaining representative was irrelevant. Kurdzeil Iron of
Wauseon, supra. In such circumstances, Respondent was obli-
gated to have given the Union prior notice of the changes and
an opportunity to bargain, and, having failed to do so, Re-
spondent engaged in acts and conduct violative of Section
8(a)(1) and (5) of the Act, and I so find.111
15. Respondent’s cafeteria benefits plan
The General Counsel alleges that Respondent acted unlaw-
fully by implementing an accident/disability insurance policy
without notice to the Union or affording it an opportunity to
bargain. There is no dispute that the allegation pertains to Re-
spondent’s benefits plan, known as the “Alan Ritchey, Inc.
Cafeteria Plan.” The uncontroverted record evidence establish-
es that the cafeteria plan has been offered to all of Respondent’s
employees since July 1994, the effective date of the plan and
that, since prior to the election, information briefly mentioning
the cafeteria plan, which is available to all of Respondent’s
employees in all of its divisions, including the several service
centers, along with an outline of other company benefits, has
been given to each bargaining unit employee at the time of his
or her hire.112 The record further establishes that the plan has
an open enrollment period from May 1 through 31 each year;
that, as operations at Respondent’s Richmond facility did not
commence until August 1999, bargaining unit employees did
not become eligible to enroll in the plan until May 1, 2000; that
the cafeteria plan includes life, disability, and accident insur-
ance coverage; and that there were no changes in the terms of
the plan, which was offered to the bargaining unit employees in
May 2000. There is no dispute that, prior to offering the plan to
its bargaining unit employees at its Richmond facility during
the open enrollment period in May 2000, Respondent did not
give notice to the Union or afford it an opportunity to bargain.
In my view, the salient facts are that Respondent’s cafeteria
plan has been part of its employee benefits package since prior
to the time the Richmond plant commenced operations in Au-
gust 1999 and that, from the date through April 12, it had been
described, although not in minute detail, for all newly hired

111 In the absence of evidence establishing unlawful animus, I shall
recommend dismissal of the allegation that Respondent’s conduct was
violative of Sec. 8(a)(1) and (3) of the Act.
112 Edward Grissom recalled receiving a “bunch of papers” at the
time of his hire but did not recall seeing the document, which discussed
the cafeteria plan.
employees in an outline of available benefits. Thus, contrary to
the General Counsel, what occurred in May 2000 was not the
implementation of a new employee benefit by Respondent but,
rather, the commencement of the open season for enrollment in
the preexisting cafeteria benefits plan, about which the bargain-
ing unit employees were aware and for which they were now
eligible to enroll. Section 8(a)(1) and (5) of the Act prohibits a
unilateral change in the bargaining unit em-ployees’ existing
terms and conditions of employment, and “it is this change
which is prohibited and which forms the basis of the unfair
labor practice charge.” NLRB v. Dothan Eagle, 434 F.2d 93, 98
(5th Cir. 1970). Herein, as the cafeteria plan was a preexisting
benefit, about which the bargaining unit employees had
knowledge, as the yearly enrollment period remained the same,
and as the terms of the plan itself remained the same, the requi-
site “change” for finding an unfair labor practice does not ex-
ist.113 In these circumstances, Respondent was not obligated to
have given notice to the Union prior to offering the cafeteria
plan during open enrollment, and, while cognizant of the Un-
ion’s status as a recently certified labor organization, I am
compelled to recommend dismissal of paragraph 9(a) of the
complaint in Case 32–CA–018601.
16. Respondent’s hiring of temporary employees directly
to perform the work of bargaining unit employees and
paying them different wages and benefits than paid to
unit employees
The General Counsel alleges that, commencing in November
2000, Respondent began acting unlawfully by unilaterally,
without notifying or affording the Union an opportunity to bar-
gain, hiring temporary employees directly to perform the work
of bargaining unit employees and paying them at different
hourly rates of pay than paid to bargaining unit employees. In
this regard, Edward Grissom testified that, one day, in early
December 2000, in the lunchroom, he spoke to another em-
ployee, who said that he had been hired on a temporary basis to
work for Respondent. “A couple of days later, in a hallway at
the Richmond facility, Grissom approached David Williams,
and ‘I asked him . . . about [hiring temporary employees who
were performing the work of bargaining unit employees] . . .

113 In asserting the existence of an unfair labor practice, counsel for
the General Counsel contend, “Whether or not employees were given
notice at the point of hire that they would be eligible to enroll . . . is
immaterial. The salient facts are that Respondent was offering a benefit
. . . that clearly materially altered the terms of their employment that
Respondent had not previously offered.” However, they cite to no
Board or court decisions on point or even to any analogous decisions.
Contrary to the General Counsel, I equate Respondent’s offering of the
plan during its open season enrollment period to a 6-month anniversary
raise of a specified amount, the existence of which had been made
known to employees at the time of hire. Surely, absent any discretion,
an employer would be under no obligation to bargain at the 6-month
anniversary date of each employee, and, as in Rural/Metro Medical
Services, 327 NLRB 49, 51 (1998), counsel would be arguing that the
failure to give the raise constitutes an unlawful unilateral change. I
think the same is true herein, and the requisite change for an unfair
labor practice would have been Respondent’s failure to have offered the
plan on May 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

444
and he said that he had talked to John Lopes about it.’” Ac-
cording to Grissom, Williams said the temporary employees
were working on just a short-term basis, and “. . . if they
worked out well, then he would keep them.” Grissom, who
believed the temporary employees were being paid at a higher
hourly wage rate than were bargaining unit employees, asked
Williams if such were true, and the latter said they were being
paid more per hour because they were not receiving any bene-
fits. Also, the plant manager told Grissom that, rather than
hiring the temporary employees from an agency, Respondent
had hired them directly. Finally, Grissom testified that the
temporary employees “. . . were working in processing . . .
[doing] material handling, inspection, and shrink wrap . . .” —
work done by bargaining unit employees. During cross-
examination, Grissom conceded that Respondent had hired
temporary employees, who worked in the processing depart-
ment, in December 1999; however, the individuals were hired
“. . . through a temporary agency and [Respondent] got rid of
all of them.” The record establishes that, commencing in No-
vember, Respondent hired 24 temporary employees at a rate of
pay of $14.38 per hour and, at least, two other temporary em-
ployees at a rate of pay of $18.95 per hour, that the individuals
were not permitted coverage under Respondent’s health and
welfare plans, and that they were subject to a different absen-
teeism policy than were bargaining unit employees.
Williams testified that, in fact, Respondent did hire tempo-
rary employees toward the end of 2000 “to handle the increase
in volume that you’re going to get . . . during that time period.”
He added that the temporary workers performed the “same
jobs” as bargaining unit employees but were needed due to the
“. . . seasonal workload that we hadn’t kept up with.” Initially
testifying he spoke to John Lopes about the hiring of temporary
employees, Williams corrected himself, stating he “. . . called
for John Lopes but I actually spoke with Hector Valdivia,”
another business agent,114 “and we were just talking about op-
tions” having to do with the anticipated “excess work” at the
end of the year and whether Respondent would need temporary
workers. The options, about which they spoke included utiliz-
ing a permanent weekend shift and whether temporary employ-
ees would be “in the group or out of the group” working week-
ends, “and he said he would get back to me.” Upon examining
his calendar, other than leaving a message for John Lopes on
November 6 regarding “temp employees,” Williams was unable
to say he ever again spoke to anyone form the Union regarding
the matter of temporary employees, and, according to Williams,
Lopes “. . . never called me back.” On this point, General
Counsel’s Exhibit 69 establishes that temporary employees
were hired as early as November 9 and, according to Williams,
the actual decision to hire temporary workers was reached
“probably within the 30 days prior to hiring them . . . .” As to
the higher hourly rates of pay, Williams explained that, in order
to be in compliance with Respondent’s contract with the USPS

114 Williams averred that Lopes was not in the Union’s office and he
was transferred to Valdivia. Williams added that the subject of the
conversation actually was upcoming employee overtime—“. . . I was
talking to him about some overtime to be coming up, and then I also
spoke with him about . . . the extra work coming in.”
and “with the Department of Labor,” the temporary employees
were paid “the same hourly rates as our employees in the same
positions plus they had to be paid the health and welfare
amount . . . .”115 Finally, Williams conceded that, unlike in
1999, the temporary employees, who were hired at the end of
2000, were hired directly by Respondent, and “they were per-
forming unit work” and that the employment contracts, which
the temporary workers executed, referred to the possibility that
they would be retained as full-time employees.
John Lopes testified that he did not become aware that Re-
spondent had hired temporary employees in 2000 until Decem-
ber. He denied any conversations with Williams on the subject
except, in early October, when Williams mentioned to him “. . .
that they were thinking about hiring people without benefits
that they were going to pay them more money in lieu of bene-
fits. . . . I asked him why . . . would you want to do that . . . . he
just told me . . . it’s something we’re thinking about. That’s the
last I heard about that.” Lopes denied being given notice by
Respondent of the decision to hire temporary employees or
being afforded the opportunity to bargain about it. On this
point, on December 8, Lopes wrote to James Craig Brown,
stating that the Union had just become aware that Respondent
had hired temporary workers and requested information regard-
ing the number of hires, their rates of pay, and their benefits.
Initially, with regard to Respondent’s alleged direct hiring of
temporary employees, there can be no question that such repre-
sented a “change” herein. Thus, Respondent admits that, in
contrast to hiring temporary employees from an employment or
temporary agency in 1999, it hired such employees directly in
2000 to fill bargaining unit positions and to perform the work
of bargaining unit employees. Moreover, unlike the temporary
employees in 1999, who were specifically excluded from the
bargaining unit and none of whom were offered full-time em-
ployment, as the possibility existed that the temporary employ-
ees, who were hired in November and December 2000, would
be offered employment on a full-time basis to continue per-
forming the work of bargaining unit employees, Respondent’s
direct hiring of such employees clearly had a material and sig-
nificant effect upon the bargaining unit employees. The hiring
of temporary employees to perform the work of bargaining unit
employees is a subject about which an employer is obligated to
give a labor organization prior notice and to afford it an oppor-
tunity to bargain. Alamo Cement Co., supra at 1034. Crediting
the uncontroverted testimony of Williams and that of Lopes, it
is clear that Respondent and the Union never actually engaged
in bargaining over the direct hiring of temporary employees,
and, even assuming Williams left a message, regarding the
decision to hire temporary employees, with the Union on or
about November 6, 2000, the record evidence is that Respond-
ent commenced hiring such employees within a day or two
after the “notice” and that Respondent reached its decision to
do as many as 30 days earlier. In these circumstances, at the
time Williams left his message, the direct hiring of temporary
employees was a fait accompli, and the Board has held that

115 Counsel for Respondent failed to offer into the record any por-
tions of the contract with the USPS which corroborated Williams’
testimony.
ALAN RITCHEY, INC. 445

notice of such is insufficient to satisfy an employer’s obligation
to bargain within the meaning of the Act. Ciba-Geigy Pharma-
ceuticals Division, 264 NLRB 1013, 1017 (1982). According-
ly, I believe Respondent’s direct hiring of temporary employees
was violative of Section 8(a)(1) and (5) of the Act, and I so
find.
Regarding the contention that Respondent unlawfully unilat-
erally established hourly pay rates for its temporary workers
different than the hourly rates at which bargaining unit employ-
ees were paid for performing the same work, there is no dispute
that, commencing in November 2000, Respondent paid its di-
rectly-hired temporary employees at higher hourly rates of pay
for performing the same work as bargaining unit employees and
that these amounts consisted of the wage rate for the position
plus an amount equal to the hourly cost of health and welfare
coverage. Also, there is no contention that Respondent notified
the Union prior to implementing these hourly rates of pay.
Williams testified that he formulated the temporary workers’
hourly rates of pay in the above manner so as to be in compli-
ance with Respondent’s contract with the USPS and with the
Department of Labor. On this latter point, in their posthearing
brief, counsel for Respondent describe the requirements of the
Federal Service Contract Act and imply that this is what plant
manager Williams meant is stating he acted in compliance with
the Department of Labor. There is, of course, no mention of
the Service Contract Act in the transcript and, while explaining
its terms, counsel failed to cite to the relevant potions of that
statute, which support their contention, and never requested that
I take judicial notice of it.116 Further, as stated above, Re-
spondent failed to offer into the record portions of its contract
with the USPS, supporting Williams’ testimony. Therefore,
Williams’ explanation for the hourly pay rates of the temporary
workers is uncorroborated by either provisions of the contract
between Respondent and the USPS or any other documents.
Obviously, rates of pay are a mandatory subject of bargaining.
Respondent failed to bargain with the Union over the temporary
employees’ hourly rates of pay, and the temporary employees,
hired directly by Respondent, specifically were not excluded
from the bargaining unit. Further, given the lack of corrobora-
tive evidence, I do not believe that, based solely upon Wil-
liams’ testimony, Respondent established that it was restricted
in what it could have negotiated with the Union on the above
subject. Accordingly, given the status of the temporary em-
ployees, who were hired in November and December 2000, as,
at least, potential bargaining unit employees, I find that their
rates of pay had a substantial and significant effect upon the
bargaining unit employees’ terms and conditions of employ-
ment and that Respondent acted in violation of Section 8(a)(1)
and (5) of the Act by unilaterally, without notice to the Union
or affording it with an opportunity to bargain, implementing the
hourly pay rates of its temporary employees.

116 In these circumstances, I find Respondent’s defense that it acted
in conformity with the provisions of the Service Contract Act to be
unavailing.
17. Respondent’s reduction of the work hours of
mechanics in the container repair department
The General Counsel alleges that Respondent acted unlaw-
fully by unilaterally, without giving notice to the Union or af-
fording it an opportunity to bargain, reducing the number of
daily hours worked by its container repair department mechan-
ics on a day-to-day, as-needed basis including, but not limited
to, several dates in December 2000 and January 2001. In these
regards, there is no dispute that, commencing in early Decem-
ber 2000 and continuing through the time of the instant hearing,
Respondent reduced the work hours of its Richmond facility’s
container repair department mechanics. The record establishes
that, in June 2000, the USPS modified its contract with Re-
spondent, changing the criteria for determining which contain-
ers were to be inspected and repaired, and, as a result, the vol-
ume of containers to be repaired was reduced by approximately
half. On September 12, 2000, James Craig Brown wrote to
John Lopes that, due to the decline, “. . . it has become neces-
sary to decrease the staffing of the second-shift container repair
department at our Richmond facility” stated that “. . . each af-
fected employee will be offered available positions on second
shift.” He added that any employee, who failed to accept Re-
spondent’s offer, “. . . will be laid off.” Concluding, Brown
wrote:

As the representative of the bargaining unit employees
at our Richmond facility, we wanted to give you advance
notice of the necessity to eliminate the second shift con-
tainer repair department and transfer those employees into
available positions on second shift. While we are fully
willing to discuss with you the above-described changes,
we cannot allow those discussions to unduly protract such
changes as time is of the essence. I have directed that no
announcement of the reduction-in-force/transfer be made
to members of the bargaining unit until September 19th
. . . .

Three days later, on September 15, Lopes wrote to Brown,
objecting “. . . to implementation of this reduction in force on
such short notice without affording the Union a reasonable
opportunity for prior bargaining” but stating the Union’s desire
to begin bargaining on the subject. Thereafter, on October 24,
Lopes and Edward Grissom met with David Williams in the
latter’s office at the Richmond facility. According to Lopes,
Williams spoke about “changes” which were required in the
container repair department. “It was slowing down and it was
going to affect four or six . . . of the lowest people,” and “. . .
we . . . just talked about . . . what’s the Union’s opinion about
something like that.” Williams said “that he . . . felt . . . if he
moved somebody in a different department . . . their wage rate
should change to the lower rate because the maintenance de-
partment . . . is a higher rate.” Lopes testified that he said he
had no objection to moving people to other departments, “. . .
but they retained their same rate of pay.” Williams objected to
this, and, after each continued to state his position, the meeting
ended with Williams saying, “. . . he’d just get back to us.”
Lopes added that he and Williams never discussed the matter
again and specifically denied that there was any discussion
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

446
about possibly sending container repair employees home early.
Six days later, on October 30, Lopes wrote to Williams:

This letter is in response to our meeting at your office
on Tuesday, October 24, 2000
Local 5’s position regarding layoff due to reduction in
work in the maintenance department is the following:

(1) Those employees in the maintenance department
with the least amount of seniority would be affected
(2) The Company has the right to utilize those affected
in other classifications as needed. They retain classify-
cation and rate of pay.
(3) If the company finds that it cannot provide enough
work in the production area, then a layoff would accrue.
(4) Layoff using seniority list of all employees defined
by the National Relations Board as the Local 6 bargaining
unit. Thus, the lowest people on seniority list would be
laid off.

I hope that this letter clarifies our discussion regarding this
matter. . . .

Lopes testified that he received no response to this letter. He
further testified that he believed his conversation with Williams
about the container repair department concerned just four to six
workers in the department and not the entire employee com-
plement—“During our discussion it wasn’t going to affect no
more than six.” Also, he denied any agreement about reducing
the hours of work of employees in the container repair depart-
ment, stating, “that wasn’t discussed.” He added that such was
not even an issue—“The issue was the rate of pay” in another
department. According to Lopes, the next thing he heard about
the container repair department employees was from Grissom,
who telephoned him in early December “. . . and told me that
people were sent home.” Testifying during rebuttal, Grissom117
stated that he was present during the entire October 24 meeting.
Asked whether Williams ever proposed sending container re-
pair employees home early as a solution to dealing with the
reduced volume of work, he said Williams did discuss the work
shortage but specifically denied Williams mentioning sending
employees home early as a solution.
David Williams testified with regard to this October 24
meeting with Lopes at his office in the Richmond facility. The
meeting concerned the container repair department employees,
and “basically we talked about how . . . we were having less
and less work come into the area. And that we had too many
mechanics in that area. We [discussed] some of the options . . .
we didn’t want to lay anybody off. What . . . we . . . offered to
do [was] to . . . move people to processing or give them the
option to go to processing, based on seniority. And then [pay]
them their higher rate for a week. And then [drop] them to the
processing rate if they decided to keep that job.” Asked what
were the other available options, Williams replied, “. . . to lay

117 Grissom did testify that, on November 6, his supervisor, Jordan,
announced that all container department work would be divided evenly
between the first and second shift mechanics and that if “. . . day shift
gets four hours, we get four hours. If day shift gets six hours, we get
six hours.” He added that this system has continued to date.
people off, lay off the mechanics permanently.” Then asked
the following leading question, “Was there a discussion about
reduced hours,” Williams replied, “I mentioned to him that we
couldn’t pay the mechanics . . . the higher rate forever. . . . I
said if we didn’t get that option, then we would just keep them
. . . as mechanics and . . . just cut their hours when there was no
work available . . . . pay them the legal minimum for the day
but then send them home. . . . Lopes . . . basically said that he
negotiated contracts . . . with moving people and lowering their
rates, and it was . . . my understanding when he left the meeting
that it was probably okay with him.” Williams further testified
that he discussed three options with Lopes—moving people
from container repair to processing, laying them off, or reduc-
ing hours. Later, Williams testified, “It was my understanding
that he was going to have to go back and get it approved, but I
thought he was going to say it was okay to move people to
processing and lower their rate if they wanted that option. Oth-
er than that, to lay them off.” According to Williams, he sub-
sequently learned that the latter was not Lopes’ position and
that Lopes said the Union would only agree to moving employ-
ees to processing at the higher wage rate or, if not, layoffs in
seniority order. Williams continued, stating that thereafter he
continually attempted to reach Lopes by telephone but that
Lopes never returned his calls.
Based upon the foregoing, I believe that, in December 2000,
by implementing a decrease in its bargaining unit container
repair department mechanics’ hours of work, a mandatory sub-
ject of bargaining (Carpenters Local 1031, 321 NLRB 30, 31
(1996)), Respondent materially and significantly changed their
terms and conditions of employment. Having observed the
testimonial demeanor of the above three witnesses, Lopes and
Grissom appeared to be honest and forthright with regard to
what occurred during the October 24 meeting; while Williams
impressed me as testifying mendaciously. Moreover, I note
that the latter’s testimony was inconsistent and that he only
mentioned reducing the hours of the container repair mechanics
and sending them home early in response to a leading question
by counsel; that, in his September 12 letter, James Craig Brown
never mentioned decreasing the hours of work for mechanics as
a solution to the reduction of work in the container repair de-
partment. Further, in his October 30 letter to Respondent,
Lopes never mentioned any proposal to reduce employees’
hours, a matter he surely would have discussed had it been
raised by Williams. Accordingly, I find that at no point during
the meeting did Williams ever raise as an option, which Re-
spondent had been considering, reducing the work hours of
bargaining unit mechanics and sending them home early when
work was slow. Also, I credit Lopes that he never again heard
from Williams after their October 24 meeting. In this regard,
noting his October 30 letter and as it would have been in the
Union’s interests to have reached an accommodation on the
container repair department mechanics, I believe Lopes un-
doubtedly would have returned phone calls from Williams.118

118 I do not believe the parties had reached impasse after just one
bargaining session concerning the contents of James Craig Brown’s
letter. Thus, there is no evidence that the parties had exhausted their
prospects of reaching an agreement, had reached a deadlock, or had
ALAN RITCHEY, INC. 447

Based upon the foregoing, while the parties obviously com-
menced bargaining on Respondent’s plan to transfer second-
shift container repair mechanics to other positions or lay them
off due to their decreased workload, inasmuch as the matter
was neither raised by Respondent nor discussed by the parties,
by reducing the hours of its container repair department me-
chanics without giving notice to the Union or affording it an
opportunity to bargain, Respondent engaged in an unlawful
unilateral change, violative of Section 8(a)(1) and (5) of the
Act, and I so find. Carpenters Local 1031, supra; Equitable
Resources Energy Co., 307 NLRB 730, 733 (1992).119
I. Jordan’s Announcement of the Pending Layoff of
Container Repair Department Mechanics
The General Counsel alleges that Respondent acted to un-
dermine the Union as the collective-bargaining representative if
its employees by announcing there would be layoffs of contain-
er repair department mechanics and what the criteria for the
layoff selections would be. In this regard, Edward Grissom
testified that, on September 13, 2000, his supervisor, George
Jordan, held a meeting for the second-shift container repair
department mechanics in the work area at approximately 3 p.m.
Jordan began, informing the employees that, due to the post
office having “changed the criteria,” they would be having
“less work coming in . . . . and that something was going to
have to give , . . .”120 He then mentioned the possibility of
layoffs, saying that, while “. . . the Union would probably disa-
gree with him,” he would base a “. . . layoff according to absen-
teeism, efficiency, and attitude.” He then discussed the me-
chanics working in other departments, saying, “[Y]ou could
either go work in another department or go home.” Employees
asked questions, mainly about the manner in which Respondent
would conduct a layoff; Jordan repeated how he would do it
and reiterated that the Union would not agree. There is no dis-
pute that, at no point during the meeting, did Jordan state that,
prior to implementing transfers or layoffs, Respondent was
obligated to inform the Union of its decisions and afford the
latter an opportunity to engaging in bargaining over what Re-
spondent proposed regarding the container repair department

used their “best efforts” to reach an agreement. It is evident that the
Union did not believe they were at impasse as, 6 days later, Lopes gave
Williams a counterproposal.
119 Assuming that the parties reached an impasse on October 24 with
regard to Respondent’s proposals to transfer container mechanics to
other positions or to lay them off, Board law is clear that an employer
may only implement changes in terms and conditions of employment
consistent with its preimpasse proposals. McAllister Bros., 312 NLRB
1121, 1123 (1993). Herein, reducing the hours of work of the container
repair department mechanics was not part of Respondent’s preimpasse
proposals. Accordingly, implementation of such changes would have
been unlawful.
120 The record establishes that Jordan held this meeting just 1 day
after James Craig Brown sent a letter to the Union, informing it that in
order to resolve the problem of decreasing work for its container repair
department, Respondent wanted to transfer the second-shift mechanics
to other positions on that shift or, if the employees refused to accept
transfers, to lay them off. In the letter, Brown promised to withhold
announcement of Respondent’s plans until September 19.
mechanics. During cross-examination, Grissom conceded that,
notwithstanding what Jordan said, “[N]obody in container re-
pair was laid off” and that Jordan spoke in a professional man-
ner and not in a threatening way.
Counsel for the General Counsel state that, at the time Jordan
spoke to the mechanics, the Union had neither the time in
which to formulate positions as to Respondent’s proposals nor
the opportunity to engage in bargaining with Respondent and
that he failed to inform the employees Respondent was obligat-
ed to give notice to the Union prior to implementing transfers
or layoffs and to afford the Union an opportunity to engage in
bargaining. Counsel then argue, without citing any supporting
decisions of the Board, that, in the above circumstances, Jor-
dan’s comments had the effect of unlawfully undermining the
Union as the employees’ bargaining representative. I disagree.
Thus, unlike in Rock-Tenn Co., 319 NLRB 1139 (1995), Jordan
did not provide the employees with information which was
inconsistent with the position Brown advanced to the Union in
his September 12 letter. Further, unlike in Page Litho, Inc.,
supra, Jordan did not threaten that Respondent was close to
implementing employee transfers and/or layoffs; there is no
record evidence of any transfers of container repair mechanics
to other positions; and Grissom admitted that no employees
were laid off. Also, unlike in St. Joseph’s Hospital, 247 NLRB
869, 877 (1980), Jordan did not solicit the listening employees’
views as to Respondent’s plans. In my view, Jordan merely
spoke prematurely to the listening mechanics about the same
subjects, which Brown addressed in his letter to the Union, and
expressed his own views as to how Respondent should proceed.
Accordingly, his comments did not have the effect of under-
mining the Union in the minds of the bargaining unit employ-
ees and were not violative of Section 8(a)(1) and (5) of the Act.
Therefore, I shall recommend dismissal of paragraph 11(d) of
the consolidated complaint in Cases 32–CA–018459 and 32–
CA–018526.
J. Respondent’s Alleged Unlawful Direct Dealing
1. Respondent requires mechanics to execute the
“Container Repair Expectations Revised” document
The General Counsel alleges that Respondent unlawfully by-
passed the Union and dealt directly with its bargaining unit
employees by asking them to sign a memo, agreeing to changes
in their job duties. In this regard, I have previously found that,
during a meeting with the second-shift mechanics, the supervi-
sor, George Jordan, distributed a memorandum, dated July 26,
2000, entitled “Container Repair Expectations Revised” and
that each mechanic was requested to execute his copy of the
document. Further, I concluded that, inasmuch as the delineat-
ed changes in the manner, in which mechanics were required to
perform their jobs, were minor and had a negligible impact on
their terms and conditions of employment, they did not rise to
the level of the types of changes, which require notice to a labor
organization prior to implementation affording the latter an
opportunity to bargain. Board law clearly requires that an em-
ployer meet and bargain exclusively with the bargaining repre-
sentative of its employees and that an employer which deals
directly with its bargaining unit employees or with any repre-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

448
sentative of the employees, other than their designated bargain-
ing representative, does so in violation of Section 8(a)(1) and
(5) of the Act. Further, direct dealing need not take the form of
actual bargaining. Allied Signal, Inc., 307 NLRB 752, 753
(1992). In any case, involving an allegation of direct dealing,
the inquiry must concern whether the employer’s direct solici-
tation is likely to erode “the union’s position as exclusive rep-
resentative.” Modern Merchandizing, 284 NLRB 1377, 1379
(1987). Finally, the Board has developed criteria to be used for
determining whether an employer has engaged in direct deal-
ing, violative of Section 8(a)(1) and (5) of the Act. These are
that the Respondent was communicating directly with union-
represented employees; that the discussion was for the purpose
of establishing or changing wages, hours, and terms and condi-
tions of employment or undercutting the Union’s role in bar-
gaining; and that such communication must be to the exclusion
of the union. Permanente Medical Group, 332 NLRB 1143,
1144 (2000); Southern California Gas Co., 316 NLRB 979,
982 (1995); Obie Pacific, 196 NLRB 458, 459 (1972). In my
view, it may be argued that requiring employees to execute
their copies of General Counsel’s Exhibit 8 was tantamount to
seeking their approval of the changes to the exclusion of their
designated bargaining representative. However, as I have pre-
viously concluded that, while arguably controversial, the
changes set forth in said document do not arise to the level of
the types of changes which materially impact upon the bargain-
ing unit employees’ terms and conditions of employment so as
to require prior notice and bargaining with a labor organization,
I do not believe that Respondent’s request or requirement that
the container repair mechanics execute the July 26 memoran-
dum had the effect of eroding the position of the Union as the
employees’ exclusive bargaining representative. Cf. Allied
Signal, Inc., supra. Accordingly, I do not believe Respondent’s
acts and conduct constituted direct dealing in violation of Sec-
tion 8(a)(1) and (5) of the Act, and I shall recommend dismissal
of paragraph 12 of the consolidated complaint in Cases 32–
CA–018459 and 32–CA–018526.
2. Polling the first-shift processing department
employees regarding changing their starting times
The General Counsel alleges that Respondent unlawfully en-
gaged in direct dealing with its bargaining unit employees by
polling its first-shift processing department employees regard-
ing their desire to change their starting times and, thus, receive
overtime. In this regard, I have found that, prior to the Memo-
rial Day holiday in 2000, as a result of “a lot” of the first-shift
processing department employees approaching Plant Manager
Williams with regard to changing the shift starting times for the
weekend, Respondent changed the shift times for the 2 days.
Other than the foregoing admitted entreaties, there is no evi-
dence that any managers approached employees as to the matter
prior to changing the shift times. In their posthearing brief,
counsel for the General Counsel concede that “. . . it does not
appear . . . that any polling actually occurred,” but then inexpli-
cably argue that “. . . there was evidence of direct dealing by
Respondent.” Of course, counsel neglected to point out what
this evidence is or where it could be found. In these circum-
stances, as the allegation involves “polling,” counsel’s conces-
sion is rather significant. Accordingly, in the absence of evi-
dence pertaining to polling or of any instance of direct dealing
with the bargaining unit employees regarding changing the shift
times, I find no violation of Section 8(a)(1) and (5) of the Act
of the Act occurred and shall recommend dismissal of para-
graph 14(b) of the amended complaint in Case 32–CA–018149.
3. Respondent’s offer of triple time to bargaining unit
employees for working on Memorial Day
The General Counsel alleges that Respondent unlawfully by-
passed the Union and dealt directly with its bargaining unit
employees by offering to pay its first-shift processing depart-
ment employees triple time for working on the May 29, 2000
Memorial Day holiday if they voluntarily worked on Saturday,
May 27 and did not miss any days of work the following week.
In this regard, Michelle Mayse was uncontroverted that, on
Saturday, May 20, supervisors informed employees on the first
shift that they would not be required to work over the following
Saturday. Two days later, on Monday, Plant Manager Williams
announced “over the intercom” that “we were going to have to
work Saturday due to backlog.” Then, on Wednesday, Wil-
liams reversed himself, informing the bargaining unit employ-
ees “that we didn’t have to work on Saturday.” However, on
Thursday, Williams announced that “. . . he had made a mistake
and was asking for volunteers to work on Saturday.” At this
point, supervisors approached employees, seeking volunteers,
but few expressed any willingness to work on Saturday. Then,
on Friday, Respondent published General Counsel’s Exhibit 11,
leaving copies in conspicuous places throughout the Richmond
facility. Said document, entitled “Plantwide Hours for Satur-
day and Monday for Day Shift 4:00AM to 12:30PM,” an-
nounced that employees would be paid time and a half for
working on Saturday and double time plus 8 hours holiday pay
for working on Monday, with payment contingent upon em-
ployees working 8 hours on Saturday and Monday and 40 hours
the following week. David Williams testified that, prior to the
election, he had the authority to pay employees in the manner,
set forth on the above document, and that employees were paid
in the manner for the Memorial Day weekend.
Notwithstanding that counsel for the General Counsel disre-
garded the pleading of the allegation and, treating it as an al-
leged unlawful unilateral change, argued that Respondent’s
conduct violated Section 8(a)(1) and (5) of the Act as it “. . .
gave no notice to the Union and did not afford it an opportunity
to bargain over the issue,” I shall treat it as alleged. In this
regard, there can be no question that Respondent’s supervisors
conduct on Thursday, May 25, and the wording of General
Counsel’s Exhibit 8, together constituted an offer to the bar-
gaining unit employees for work on the following Saturday and
Monday and effectively composed bargaining.121 Whether the
employees work on those days would be voluntary or required,
their payment, and any preconditions for payment were manda-
tory subjects of bargaining, and Respondent was obligated to
have dealt with the Union on these matters. The Union was a
newly certified labor organization and, by dealing directly with

121 Of course, acceptance of Respondent’s offer was signified by
employees showing up for work on both days.
ALAN RITCHEY, INC. 449

the bargaining unit employees and acting as if the Union did
not exist, Respondent’s conduct clearly had the effect of un-
dermining the Union’s status as the employees’ bargaining
representative. Modern Merchandizing, supra. Accordingly,
Respondent’s conduct was violative of Section 8(a)(1) and (5)
of the Act, and I so find.
4. Respondent’s meetings with bargaining unit
employees concerning reduction-in-force issues
The General Counsel alleges that Respondent undermined
the Union as the exclusive bargaining representative of its em-
ployees by meeting directly with its employees concerning
upcoming subjects of bargaining including reduction of work
issues. In this regard, the record establishes that, after a 6-
month interruption, collective bargaining for an initial contract
between Respondent and the Union resumed on January 18,
2001. Representing the Union were John Lopes and the em-
ployees’ negotiating committee, and representing Respondent
were Bobby Ritchey, James Craig Brown, Anthony Welling,
the new plant manager, and Richard __________. According to
Edward Grissom, late in the bargaining session, which con-
cluded at 3:30 p.m. “we were discussing safety, uniforms, and
tools, and I brought up the subject that the shirt the Company
gave us to wear was 50 percent polyester and that when I was
welding . . . I got burned because a spark caught on fire.”
Then, speaking directly to Lopes, Welling asked if he could
speak to these people and gestured towards the employees.
Lopes responded that he could and that any of these employees
would be “a good member on your safety committee.” Grissom
continued, testifying that, on the following Tuesday, January
23, Welling called a meeting of the container repair department
employees at 3 p.m. Employees from both shifts were present,
and Welling began speaking. He started on the subject of the
mechanics being sent home early, saying, “. . . that was because
they didn’t have the work and because Alan Ritchey only has
one client,” the USPS. He then asked for “feedback” as to what
the mechanics thought “should be done.”122 He then proceeded
to “ask each individual” the question. “He went to each indi-
vidual around the room asking them . . . what should be done
. . . that they have this work shortage.” Several responded that,
if there had to be a layoff, it should be done in order of seniori-
ty. Others suggested switching days off. “Tony made it very
clear that before anything could be actually done, he would
have to meet with Mr. Lopes.” Grissom recalled that Welling
also spoke about their efficiency levels, stating that the Seattle

122 Clearly, Respondent already was aware of the Union’s position
with regard to what should be done about the work shortage. Thus, as
set forth above, Lopes wrote to David Williams on October 30 that
seniority should govern on any matters affecting the bargaining unit
mechanics; that, while Respondent had the right to transfer mechanics
to other bargaining unit positions, the affected employees should retain
their classifications and rates of pay; and that, if layoffs were chosen as
the course of action, “. . . the lowest people on seniority list would be
laid off.”
employees were “more efficient” and that we needed to pay
attention to what we were doing.123
Grissom next testified that, at the end of the above meeting,
Welling announced he would hold a followup meeting during
the following week to discuss the reduction in the number of
containers for repair. On January 31, after Grissom reported
for work, Welling held a meeting but only the second-shift
container repair department employees were present.124 “Tony
started the meeting with the subject of work load that some-
thing just had to be done . . . and that these short hours wasn’t
getting it . . . .” Then, Welling “. . . went around to each indi-
vidual and asked them what they thought should be done. He
said he wanted input from each mechanic. . . .” During the
meeting, Welling again cautioned that “. . . he would have to
speak with Mr. Lopes before anything was final.” Finally,
Grissom testified that he attended the next bargaining session
between the parties on March 9 and that, during the meeting,
the parties held a lengthy discussion about the consequences of
the reduced amount of work in the container repair department.
Anthony Welling testified that, towards the end of the Janu-
ary 18 bargaining session, he got John Lopes’ attention and said
it was necessary that he be able to speak to the container repair
department employees and “‘. . . go over the issues of cherry
picking and the lack of work and reduced hours in the depart-
ment.’” Welling pointed out that members of the employees’
bargaining committee were also container repair department
employees “. . . so nothing would be happening that they
wouldn’t be part of. And I just said I need to be able to talk to
them . . . . and Mr. Lopes said, yes, that is appropriate, that’s
what we’d like to see happen.”125 After giving the container
repair mechanics advance notice of the meetings, on January
23, he met separately with the employees on each shift. With
regard to the second-shift employees meeting, “I explained to
them that we were getting together so that we could take an
opportunity to discuss things that were going on in the depart-
ment . . . give them a chance to ask questions and hear clearly
from me what I know and what information there is in terms of
where we are in terms of the workload, and wanted the oppor-
tunity to explain to them what we were doing to try and assure

123 Grissom testified that neither he nor any union official objected to
Welling holding this meeting and that, besides himself, three other
bargaining committee members were container repair mechanics. Also,
besides efficiency and reduction in work, they also discussed “cherry
picking,” which means selecting containers with little or nothing wrong
to work on rather than the next container in line, at the meeting.
124 Grissom said that no one informed the Union about the schedul-
ing of the meeting.
125 Welling recalled Grissom speaking about his shirt catching on
fire but said it occurred earlier in the meeting.
According to Welling, he felt the need to speak to the container re-
pair mechanics as “. . . a couple of employees . . . had come up to me
. . . and asked me questions” regarding “. . . the issues that they were
facing and the loss of work hours and wages was becoming more and
more pregnant with them . . . .” Welling admitted he wanted to reach
an agreement with the Union on the container repair department em-
ployees quickly and did not want to wait for the conclusion of contract
negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

450
that all the work that was available for container repair . . . was
getting to them. We [discussed] . . . the issue of cherry picking
. . . some of the harder more difficult pieces of container repair
work. We were talking about the lack of work and the reduced
hours, and again explained to them that this is an opportunity
for them to be able to share information with me. . . . I indicat-
ed that Mr. Lopes was aware we were having the meeting . . .”
and “. . . your bargaining committee people are going to hear
the same stuff, but we’re not here to decide anything. That any
decisions about anything or any practices or any changes that
would have to be handled between the company and . . . the
union in negotiations.” Welling stated that he informed the
employees that Respondent was in a difficult position because
it could not go and seek work for the container repair employ-
ees, that Respondent was limited by its contract with the USPS,
and that “. . . I needed to hear from them” whether they wanted
matters to remain the same “. . . or did they want me to try and
move things forward with the Union and . . . see . . . if we could
balance the work to the work force.” Welling mentioned he
was attempting to obtain as many containers as he could for
them to repair. Then, employees began “. . . asking questions
like how long is this going to continue, and my answer [was] I
don’t have an answer to that, we’re trying to work through it.”
Also, “some employees asked if they could work in other areas
and I said at this point my understanding is that that’s restricted
because . . . there’s no agreement [on] wages for that area.”
Asked if he mentioned options other than reducing the hours of
work, Welling replied, “I pointed out that . . . I can’t source any
of their work. I can’t bring in anything else for them to do, so
we’re faced with this amount of work and this number of peo-
ple. And so the reality is . . . to wind up with some reduction in
the labor force in order to equal the amount of work if you want
to return to somewhere around 40 hours worth of work.” Final-
ly, with regard to this meeting, Welling admitted asking em-
ployees what they thought of the issues, stating, “. . . that was
the general tone of the information exchange, which was . . .
tell me what your experience has been with these types of
things. According to Welling, his goal was “. . . to get them all
themselves talking about it, so they’re aware of what’s happen-
ing . . . .” He denied such rose to the level of bargaining.
Welling testified that he held another meeting with the con-
tainer repair mechanics on each shift a week later. According
to him, the subject was layoffs and “the types of things . . .
involved in making the selection . . . for the layoff . . . . basical-
ly I asked an open ended question, what are ways of doing it
because . . . they as a group needed to sort of think it through
and understand what was going on and the process . . . .” As to
this, Edward Grissom mentioned the use of social security
numbers. “I think I gave people the heads up that probably
seniority was going to be a critical issue . . . . I asked . . . you’re
all trained in the various product and everything, and everyone
pretty much acknowledged that they were. Welling testified
that, as to the role of the Union, he said, “[E]veryone is open
and welcome to give their input here and stuff but ultimately
it’s going to come down to discussion with the Union and do it.
And I may have made the comment that Z hoped . . . we could
move this through as an aside and not get balled up in the
whole contract negotiation because . . . this is urgent to you
. . . .”
During cross-examination, Welling was asked if the infor-
mation he obtained was important to Respondent, and he re-
plied, “Not particularly, no. . . . It was important in sense of
them hearing from me where we were and having them under-
stand the nature of the business with [the USPS] . . . .” Asked
why, then, it was important for him to have Lopes’ permission
to speak to the employees, Welling said, “[T]o avoid any con-
fusion or conflict.” As to what information he obtained from
the employees, Welling replied, “That they wanted to . . . get
the work force reduced so the remaining people had 40 hours of
work.” Also, “. . . lots and lots of different things.” He con-
ceded “. . . I discussed it with Craig Brown that we needed to
make this an important item and not let it get backlogged in the
entire bargaining process. . . .” Then, Welling further conced-
ed, “I had to call meetings so that people had an opportunity to
voice their concerns . . . .” Specifically, his purpose for holding
the second meeting on January 31 was “. . . to get input . . . on
methods and things that they felt would be appropriate ways for
a selection of who would stay in the department and who
should go elsewhere in terms of seniority or other criteria . . .
and be able to share with me those methods that have been used
in their past . . . .” Finally, Welling admitted he failed to in-
form Lopes on January 18 that he would be asking employees
for input or soliciting opinions.
James Craig Brown corroborated Welling as to what oc-
curred at the January 18 meeting. Towards the end of the ses-
sion, “Tony Welling spoke directly to Mr. Lopes . . . and said
that he needed . . . to speak to the mechanics in the container
repair department about some issues that we had raised in the
meeting particularly the cherry picking and the lack of work
. . . .” Lopes raised no objection, saying the Union wanted
open dialogue back and forth. Brown also testified that the
parties next met for bargaining on March 9 and that the subject
matter was “the lack of work in container repair and the need to
effectuate the layoffs.” According to Brown, Lopes raised no
objection to the two employee meetings prior to the bargaining
session. Finally, testifying on rebuttal, John Lopes specifically
denied that, during the January 18 bargaining session, Welling
asked him for permission to speak to the container repair me-
chanics about the impact of the lack of work in that department
or to solicit input from said employees about the lack of work.
While they differ on some details, the recollections of Gris-
som, Welling, and Brown are not thoroughly inconsistent. I was
most impressed with the demeanor of Grissom and believe his
version of events was the more convincing and trustworthy and
shall rely upon his testimony as to what occurred at the January
18 and March 9 bargaining sessions and the two container re-
pair department employees meetings with Welling. The testi-
mony of the latter appeared to be too labored to be entirely
accurate, and Brown appeared to be merely repeating Welling’s
version of events. Accordingly, I find that, during the parties’
January 18 bargaining session, without explaining what he
would say or ask, Welling sought and was granted permission,
by Lopes, to speak to the container repair mechanics. I further
find that, during his ensuing meeting with the container repair
personnel, amongst whom were members of the bargaining unit
ALAN RITCHEY, INC. 451

employees’ negotiating committee, while cautioning he would
have to reach agreement with Lopes before anything became
final and after explaining the existing, unsatisfactory situation
of declining work and employees receiving fewer hours, Well-
ing questioned each mechanic as to what should be done and
that, during his second meeting with the mechanics the follow-
ing week, after again cautioning that he would have to reach an
agreement with Lopes before anything could be final, Welling
stated that employees working shorter hours was not a satisfac-
tory solution the problem of the lack of work and again asked
each employee what should be done. I also find that, during the
March 9 bargaining session, the parties spent a substantial part
of the time discussing the consequences of the lack of work in
the container repair department. Finally, Welling admitted that,
during his first meeting with the container repair department
employees, he told them he needed to hear from them whether
they wanted matters to remain the same; that, during his second
meeting with the employees, he sought each employee’s opin-
ion as to how layoffs should be effectuated; that he discussed
what he heard with Brown; and that, on January 18, he failed to
disclose to Lopes he would be polling employees regarding the
above matters.
In my view, noting that Welling received Lopes’ permission
to hold meetings with the container repair department mechan-
ics, that members of the bargaining unit employees’ negotiating
committee attended the two meetings and voiced no objections
to what Welling did, and that he stressed to the mechanics the
need to bargain to an agreement with the Union before anything
final could be implemented, the issue herein is whether Well-
ing polled the container repair department employees for the
purpose of undermining the Union’s role in bargaining. In my
view, this must be answered affirmatively. Thus, it is axiomat-
ic that, by virtue of the April 13, 2000 election, only the Union
was the designated bargaining representative of Respondent’s
bargaining unit employees, including the container repair me-
chanics, and, based upon Lopes’s October 30, 2000 letter, Re-
spondent already was acutely aware of the Union’s positions on
its proposed solutions for the lack of work in the container re-
pair department. While Welling may well have felt the need to
explain the serious nature of the existing situation to the me-
chanics—and, indeed, Lopes felt this was a good idea, there
seems to have been no reason for his polling other than to as-
certain the extent of the employees’ support for the Union’s
bargaining positions. In this regard, unlike in Von’s Grocery
Co., 320 NLRB 53, 67 (1995), Welling’s polling was not “. . .
simply an innocent query about a matter of general interest.”
To the contrary, if done innocently, Welling certainly would
have been candid with Lopes, regarding his intent, when he
sought the latter’s permission to speak to the mechanics. His
silence speaks proverbial volumes, and the importance, which, I
believe, Respondent attached to the information gained from
Welling’s questions, is best seen from the extensive bargaining,
regarding the container repair mechanics, which occurred at the
parties’ next bargaining session. Further, counsel for Respond-
ent’s reliance upon the Board’s decision in Permanente Medi-
cal Group, supra, is misplaced as that case involved an em-
ployer’s meetings with employees in order to obtain infor-
mation to help it formulate its own bargaining proposals, and
Respondent makes no such contention herein. Indeed, Welling
disingenuously claimed little of any import was derived from
his polling. In sum, while Welling had permission to speak
generally to the container repair mechanics about their current
and future job situation, he did not have the Union’s permission
to poll them regarding their positions on an issue about which
Respondent was acutely aware of the Union’s position. As I
believe the purpose, and only foreseeable effect of Welling’s
polling, was to undermine the Union’s bargaining position, I
believe Respondent acted in violation of Section 8(a)(1) and (5)
of the Act and so find.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times since April 13, 2000, the Union has been the
exclusive representative for the purposes of collective bargain-
ing, within the meaning of Section 9(a) of the Act of the fol-
lowing appropriate unit:

All full-time and regular part-time warehouse, processing,
container repair, and quality and data departments employees,
including inspectors, material handlers, banders, stretch wrap-
pers, receivers, loaders, unloaders, forklift operators, tray re-
pair operators, logistic clerks, yard drivers, mechanics, weld-
ers, repair parts inventory clerks, quality auditors, palletized
quality auditors—initial inspectors, and final inspectors em-
ployed by Respondent at its Richmond, California facility;
excluding all employees performing work duties at Respond-
ent’s facility who are provided to Respondent by temporary
placement or employment agencies, outside contractor em-
ployees, office clerical employees, janitors, managers, super-
visors, acting supervisors, confidential employees, profes-
sional employees, data analysts, plant maintenance leads,
guards, and supervisors as defined by the Act.

4. By issuing disciplinary warnings to two container repair
department mechanics for failing to perform at minimum effi-
ciency levels subsequent
to increasing the minimum efficiency level for the employ-
ees without giving prior notice to the Union or affording it an
opportunity to bargain over the increase, Respondent engaged
in acts and conduct violative of Section 8(a)(1) and (5) of the
Act.
5. Subsequent to the Union’s May 26, 2000 demand to bar-
gain prior to each act of discipline, by issuing discretionary
verbal warnings, written warnings, suspensions, and discharges
to its bargaining unit inspectors for failing to perform at mini-
mum efficiency levels without prior notice to the Union or
affording it an opportunity to engage in bargaining over the
discipline, Respondent engaged in acts and conduct violative of
Section 8(a)(1) and (5) of the Act.
6. Subsequent to the Union’s May 26, 2000 demand to bar-
gain prior to each discharge of a bargaining unit employee, by
issuing discretionary discharges to bargaining unit employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

452
without prior notice to the Union or affording an opportunity to
bargain over the discharge, Respondent engaged in acts and
conduct violative of Section 8(a)(1) and (5) of the Act.
7. Subsequent to the Union’s May 26, 2000 demand to bar-
gain prior to each act of discipline, by issuing discretionary
verbal warnings, written warnings, suspensions and discharges
to its bargaining unit employees for violations of its absentee-
ism policy without prior notice to the Union or affording it an
opportunity to bargain, Respondent engaged in acts and con-
duct violative of Section 8(a)(1) and (5) of the Act.
8. By unilaterally, without giving prior notice to the Union or
affording it an opportunity to bargain, imposing a new work
rule on bargaining unit employees, prohibiting them from dis-
cussing the Union with their fellow employees during working
time, Respondent engaged in acts and conduct violative of Sec-
tion 8(a)(1) and (5) of the Act.
9. By imposing a work rule upon its bargaining unit employ-
ees, prohibiting them from discussing the Union with their
fellow employees during working time, when there were no
prohibitions as to conversations about any other subjects, Re-
spondent engaged in discriminatory acts and conduct, violative
of Section 8(a)(1) and (3) of the Act.
10. By insisting, as a condition precedent to the resumption
of face-to-face collective bargaining, that the Union provide it
with a “complete” contract proposal, one which included all
economic terms, by delaying the appointment of a substitute
authorized bargaining representative and by demanding to meet
at an unreasonable location for bargaining, Respondent failed
and refused to bargain in good faith in violation of Section
8(a)(1) and (5) of the Act.
11. By unilaterally, without prior notice to the Union or af-
fording it an opportunity to bargain, eliminating Memorial Day
and Labor Day as nonworking holidays, changing the job duties
of welder, Kevin Lynch, implementing a new work rule prohib-
iting excessive talking and wandering away from work stations,
implementing a new work rule mandating that, with less than 1
week prior notice, leave from work would be considered an
unexcused absence, changing the shift times for the first-shift
processing department employees during the Memorial Day
weekend in 2000, changing the work shift and the working
hours of the unit inventory clerk, implementing a plan to hire
temporary employees directly rather than through temporary
employment agencies and paying the employees at a different
hourly rate than paid to bargaining unit employees, who per-
form the same work, and reducing the hours of work of con-
tainer repair department mechanics, Respondent engaged in
acts and conduct violative of Section 8(a)(1) and (5) of the Act.
12. By bypassing the Union and dealing directly with its bar-
gaining unit employees regarding working voluntarily on the
Saturday of the Memorial Day holiday weekend in 2000 and
offering to pay them at a triple time rate of pay for working on
Memorial Day, Respondent undermined the position of the
Union as the bargaining representative and engaged in acts and
conduct violative of Section 8(a)(1) and (5) of the Act.
13. By bypassing the Union and directly polling its container
repair department employees as to their positions on solutions
for the lack of work in their department and on implementing
layoffs while well aware of the Union’s positions on these is-
sues, Respondent undermined the bargaining position of the
Union and engaged in acts and conduct violative of Section
8(a)(1) and (5) of the Act.
14. The above-described unfair labor practices are unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
15. Unless specified above, Respondent has engaged in no
other acts and conduct violative of the Act.
THE REMEDY
I have found that Respondent has engaged in, and continues
to engage in, serious and extensive acts and conduct violative
of Section 8(a)(1) and (5) of the Act. Accordingly, I shall rec-
ommend that it be ordered to cease and desist from the actions
and to take certain affirmative actions designed to effectuate the
purposes and policies of the Act. Initially, I have found that
two container repair mechanics, Tyrone Sparkman and Dale
May, received unlawful disciplinary warnings after Respondent
began stricter enforcement of its efficiency standards for its
container repair mechanics without prior notice to the Union or
affording it an opportunity to bargain. In these circumstances, I
shall recommend that Respondent immediately rescind and
remove the warning notices from the personnel file of each
employee and notify him that such has been done. Next, I have
found that, notwithstanding the Union’s May 26, 2000 request
to bargain prior to the disciplining of bargaining unit employ-
ees, Respondent unlawfully continued to issue discretionary
warning notices, suspensions, and discharges to inspectors for
not working at the minimum efficiency level without prior no-
tice to the Union or affording it an opportunity to bargain.
Accordingly, I shall recommend that Respondent be ordered to
rescind and remove all verbal and written warning notices and
notices of suspensions and terminations from the personnel
records of all inspectors, who received such discipline for low
efficiency since May 26, and notify each that such has been
done. With regard to employees Demone Anderson, George
Booker, John Chatman, Jacquelyn Greer, Marietta Haywood,
Sheila Jackson, Ardell Shelfo, Ebony Mouton, Monique Dud-
ley, Donika Dotson, Sheila McFarland, Paulette Hicks, Linda
Martinez, Toni Bertrand, Candace Minter, and Tina Bowman,
each of whom was suspended for low efficiency subsequent to
May 26, I shall recommend that Respondent be ordered to
make each employee whole for any loss of earnings he or she
may have suffered, with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Regarding employees Anderson, Booker, Chatman,
McFarland, Shelfo, Daryl Johnson, Yolanda Stevens, and Mari-
an Howard, each of whom was discharged for low efficiency
subsequent to May 26, I shall recommend that Respondent be
ordered to immediately offer each reinstatement to his or her
former position of employment or, if the position no longer
exists, to a substantially equivalent position without prejudice
to his or her seniority or other rights or privileges previously
enjoyed and to make each employee whole from the date of his
or her discharge until the day he or she is offered reinstatement
for any loss of earnings and other benefits he or she may have
suffered as a result of his or her discharge, with said amounts
computed in the manner prescribed in F. W. Woolworth Co., 90
ALAN RITCHEY, INC. 453

NLRB 289 (1950), and with interest computed as in New Hori-
zons for the Retarded, supra.126
I have found that, notwithstanding the Union’s May 26 re-
quest to bargain prior to the discharge of any bargaining unit
employees, utilizing its discretion, Respondent unlawfully dis-
charged employees, LaTachianna Pontiflet and Mandrell Mil-
ler, without prior notice to the Union or affording it an oppor-
tunity to bargain. Therefore, I shall recommend that notices of
their discharges be expunged from the personnel files of each
employee and that Respondent be ordered to immediately offer
Pontiflet and Miller reinstatement to their former positions of
employment or, if the positions no longer exist, to a substantial-
ly equivalent ones without prejudice to his or her seniority or
other rights or privileges previously enjoyed and to make each
whole from the date of his or her discharge until he or she is
offered reinstatement for any loss of earnings or benefits he or
she may have suffered as a result of his or her unlawful dis-
charge. The amounts are to be computed in the manner estab-
lished in F. W. Woolworth Co., supra, with interest computed as
in New Horizons for the Retarded, supra.
I have found that, notwithstanding the Union’s May 26 re-
quest to bargain prior to the imposition of discipline against
bargaining unit employees, Respondent unlawfully continued to
issue discretionary warning notices, suspensions, and discharg-
es to employees who violated its absenteeism policy without
prior notice to the Union or affording it an opportunity to bar-
gain. Accordingly, I shall recommend that Respondent be or-
dered to rescind and remove any verbal or written warning
notices and notices of suspensions and terminations for viola-
tions of its absenteeism policy from the personnel files of any
bargaining unit employees, who received such discipline sub-
sequent to May 26, and to inform the employees that such has
been done. With regard to employee, Latosha Green, who was
suspended for excessive absenteeism, I shall recommend that
she be made whole for any loss of earnings and benefits with
interest to be computed in the manner set forth in New Horizons
for the Retarded, supra. As to employees Lowe Shakesnider,
Merdia Fort, Theodore Hagaman, Shawndale Quilter, Michelle
Mayse, Armando Leapheart, and Marcell Spain, each of whom
was discharged for violating Respondent’s absenteeism policy,
I shall recommend that Respondent be ordered to offer each
immediate reinstatement to his or her former position or, if the
position no longer exists, to a substantially equivalent position
without prejudice to his or her seniority or any other rights or
privileges previously enjoyed and to make each whole from the
date of his or her discharge until the date he or she is offered
reinstatement for any loss of earnings or benefits, with the
amounts to be computed in the manner set forth in F. W. Wool-

126 Counsel for the General Counsel additionally backpay order, re-
quiring Respondent to reimburse the employees involved herein for any
extra Federal and/or State income tax that would or may result from the
lump sum of any backpay award to them. In the absence of any Board
decisions on the propriety of such an additional remedy, I must deny
the General Counsel’s request. It is, of course, within the power of the
Board to grant the General Counsel’s request.
worth Co., supra, and with interest computed in the manner set
forth in New Horizons for the Retarded, supra.
I have found that Respondent engaged in numerous unlawful
unilateral changes, each of which materially and substantially
affected the bargaining unit employees’ terms and conditions of
employment. In this regard, generally, I shall recommend that
Respondent specifically be ordered to cease and desist from
unilaterally changing the terms and conditions of employment
of its bargaining unit employees without giving prior notice to
the Union and affording it an opportunity to bargain over any
such changes. Specifically, I shall recommend that, in order to
restore the status quo ante herein Respondent be ordered, upon
the request of the Union, to rescind each of the unlawful unilat-
eral actions described above.127 Further, in order to restore the
status quo ante for its container repair department employees,
in addition to reinstituting their normal daily work schedules to
that which existed prior to Respondent’s unlawful conduct, I
shall recommend that Respondent be ordered to reimburse each
of the above employees in the department for any wages and
benefits he or she may have lost as a result of Respondent’s
unlawful reductions in their hours of work, with the amounts
computed in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), and with interest as set forth in New
Horizons for the Retarded, supra. Also, I shall recommend that
Respondent be ordered to cease and desist from bypassing the
Union and dealing directly with its employees regarding chang-
es in their terms and conditions of employment and polling
them regarding issues, which are the subject of bargaining be-
tween the parties.
Finally, I have found that Respondent bargained in bad faith
by insisting that the Union provide it with a “complete” con-
tract proposal as a condition precedent to resuming collective
bargaining and by delaying in the appointment of a substitute
lead negotiator and insisting on meeting at an unreasonable
location. As a remedy, I shall recommend that Respondent be
ordered to cease and desist from such acts and conduct and,
affirmatively, to bargain in good faith. Counsel for the General
Counsel seeks as an additional remedy an order extending the
certification year. Board precedents establish that a labor or-
ganization’s certification year commences to run from the date
of its initial bargaining session with an employer—herein June
6, 2000. Dominguez Valley Hospital, 287 NLRB 149, 150
(1987); San Antonio Portland Cement Co., 277 NLRB 309, 311
(1985). Board law is equally well settled that, when an em-
ployer’s unfair labor practices intervene and prevent the bar-
gaining unit employees’ certified bargaining agent form enjoy-
ing a free period of a year after certification to establish a bar-
gaining relationship, it is entitled to resume its free period after
the termination of the litigation involving the employer’s unfair
labor practices. Mar-Jac Poultry Co., 136 NLRB 785 (1962).
In these circumstances, to assure a period of good-faith bar-
gaining, the measures, required by the Board, include an exten-
sion of the certification year for some time period. Bryant &

127 Quite obviously, Respondent will be unable to rescind its unlaw-
ful change in the shift hours during the Memorial Day weekend in
2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

454
Stratton Business Institute, 321 NLRB 1007, 1045 (1996).
While in most cases, this extension is for 1 year (id; Dominguez
Valley Hospital, supra; Cellar Restaurant, 262 NLRB 796
(1982)), the Board has also extended the certification year for
less than a year and for, what it terms, a “reasonable time” or a
“reasonable period.” Valley Inventory Services, 295 NLRB
1161 (1989); San Antonio Portland Cement Co., supra at 309;
G. J. Aigner Co., 257 NLRB 669 (1981). Herein, while it is
true that more than 7 months elapsed before the parties resumed
collective bargaining in January 2001 and that the delay was, in
great part, caused by Respondent’s unlawful condition prece-
dent to a continuation of bargaining and by the delay resulting
from its unlawful, delinquent appointment of a substitute lead
negotiator, it is also true that the Union delayed 2 months in
submitting a draft contract proposal to Respondent and that,
inexplicably, another 3-1/2 months elapsed before the Union
submitted an uncomplicated and generic proposal on wages and
pension plan contributions to Respondent. In these circum-
stances, I believe the Union’s certification year should be ex-
tended for a reasonable period, not exceeding 10 months, after
all the unfair labor practices herein have been remedied.
[Recommended Order omitted from publication.]