Alan Ritchey, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 2009

354 N.L.R.B. 628 (N.L.R.B. 2009)

354 NLRB No. 79
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Alan Ritchey, Inc. and Warehouse Union Local 6,
International Longshore and Warehouse Union,
AFL–CIO. Cases 32–CA–18149, 32–CA–18459,
32–CA–18526, 32–CA–18601, and 32–CA–18693
September 25, 2009
DECISION AND ORDER REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On April 19, 2002, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief.1 The General
Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief to the General
Counsel’s exceptions. The Charging Party filed cross-
exceptions and a supporting brief, and a brief in response
to the Respondent’s exceptions. The Respondent filed an
answering brief to the Charging Party’s cross-exceptions.
Several amici curiae also filed briefs.2 The Charging
Party filed a brief in response to LPA’s amicus brief.
The National Labor Relations Board3 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-

1 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
2 Amicus briefs were filed by the Employers Association 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, where the Respondent’s
disciplinary policies and past practice admitted of some (but not unlim-
ited) discretion. A third amicus brief urging affirmance of the judge’s
finding in this regard was filed jointly by the American Federation of
Labor and Congress of Industrial Organizations, the American Postal
Workers Union, AFL–CIO, and the Newspaper Guild-CWA, AFL–
CIO.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. August 18,
2009) (No. 09–213). But see Laurel Baye Healthcare of Lake Lanier,
Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for rehearing
denied Nos. 08–1162, 08–1214 (July 1, 2009).
ings, and conclusions only to the extent consistent with
this Decision and Order.4
The Respondent contracts with the United States
Postal Service (USPS) for, among other things, the in-
spection and repair of nonmotorized mail-handling
equipment. The Respondent performs these services at
several facilities, including, as pertinent here, its Rich-
mond, California facility, which it opened in August
1999, and where it employs approximately 250 employ-
ees. On April 13, 2000,5 a majority of the Respondent’s
employees in an appropriate bargaining unit voted in
favor of representation by the Union.
The General Counsel alleged that, following the Un-
ion’s selection as bargaining representative, the Respon-
dent 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.6

4 We will modify the judge’s recommended Order to conform to the
violations found and in accordance with the Board’s standard remedial
language. We will substitute a new notice in accordance with our deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd.
354 F.3d 534 (6th Cir. 2004). 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, and we find no support in the
record for a finding that a majority or substantial number of the Re-
spondent’s employees are Spanish speaking. 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).
In the remedy section of his decision, the judge recommended a 10-
month extension of the certification year, but he omitted from his rec-
ommended 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 in this regard, and we will
modify the recommended Order accordingly.
5 All dates are in 2000 unless otherwise indicated.
6 There are no exceptions to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(5) and (1) in connection with (a) the
discharges of Cheryl Robinson and Christy Jackson; (b) the discipline
of Dante Clemente; (c) the required use of safety glasses; (d) the safety
ticket program; (e) the work rule that first-shift inspectors finish the
work of second-shift inspectors; (f) the change in starting time for
employees in the first-shift mailbag section; (g) the alleged imposition
of more onerous plant objectives for unit employees; (h) the require-
ment to work on regularly scheduled days off (July 7 and 8); (i) the
change in job duties of container repair department mechanics; (j) the
implementation of a cafeteria benefits plan; (k) the announcement of
the pending layoff of container repair department mechanics; (l) the
requirement that mechanics execute the “Container Repair Expectations
Revised” document; (m) the polling of first-shift processing department
employees about changing their starting times; (n) the alleged promul-
gation of more stringent discipline standards and procedures and more
onerous standards for the completion of work; and (o) the change in
working times of first-shift processing department employees during
the Memorial Day holiday. There are also no exceptions to the judge’s
dismissal of the allegation that the Respondent violated Sec. 8(a)(1) by
refusing to permit Michelle Mayse to represent Maggie Hales at Hales’
termination meeting. 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
1. We agree with the judge, for the reasons he states,
that the Respondent violated Section 8(a)(5) and (1) by
bargaining in bad faith and dealing directly with employ-
ees.7 We also agree with the judge, again for the reasons
he states, that the Respondent violated Section 8(a)(5)
and (1) by unilaterally making the following changes in
employees’ terms and conditions of employment:8 im-
plementing a new work rule deeming leave from work an
unexcused absence if taken with less than 1 week’s prior
notice; changing the work shift and working hours of the
unit inventory clerk; implementing a plan to hire tempo-
rary employees directly rather than through temporary
employment agencies and paying temporary employees
at a different rate for performing bargaining unit work;
and changing the shift times for the first-shift processing
department employees during the Memorial Day holiday.
2. We agree only in part with the judge’s finding that
the Respondent violated Section 8(a)(5) and (1) when it
unilaterally reduced the number of nonworking holidays.
The contract between the Respondent and the USPS
gives the USPS the right to change any contract term at
its discretion. On April 18, the USPS modified its con-
tract 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 had, and breached, a duty to bargain with
the Union over the effects of the holiday reduction. As
to the decision, however, we reverse the judge’s finding
of a violation. The Respondent’s hands were tied by the
USPS’s contract modification, and thus the Respondent
was not obligated to bargain over the decision to reduce
the number of nonworking holidays. Long Island Day
Care Services, 303 NLRB 112, 117 (1991) (finding no

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.
7 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.
8 In discussing these unilateral changes, the judge cited NLRB v.
Katz, 369 U.S. 736 (1962). In that case, the Supreme Court held that,
following the union’s selection as exclusive bargaining representative,
the employer could not continue its practice of merit pay increases,
which were informed by a large measure of discretion, without notify-
ing the union and providing an opportunity to bargain. Member
Schaumber does not reach the question whether, or to what extent, Katz
applies to day-to-day employer decisions necessary to operate the em-
ployer’s business, such as the Respondent’s discretionary imposition of
discipline, discussed below.
violation because “there was nothing of substance to bar-
gain about” due to the respondent’s “total lack of discre-
tion” over a federally subsidized wage increase).
3. We also agree, but only in part, with the judge’s
findings concerning the Respondent’s no-union-talk rule.
The complaint alleged that the Respondent violated Sec-
tion 8(a)(1), (3), and (5) by implementing the rule. The
judge found that the Respondent unilaterally promul-
gated 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 during work time while allow-
ing all other topics of conversation except racial slurs,
constituted an independent violation of Section 8(a)(1).
See Jensen Enterprises, Inc., 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 em-
ployees for violating the no-union-talk rule. Thus, we
will dismiss the 8(a)(3) allegation.
4. We will also dismiss the allegation that the Respon-
dent violated Section 8(a)(5) and (1) by changing welder
Kevin Lynch’s work assignments. These assignments
were consistent with past practice. Lynch was experienc-
ing an excessive amount of down time. On June 6,
Lynch was asked to perform container 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 enu-
merated “[e]ssential [d]uties and responsibilities” of his
welder classification. In these circumstances, we find no
unilateral change in violation of Section 8(a)(5). 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 acknowl-
edged same practice existed before), enfd. mem. 9 F.3d
113 (7th Cir. 1993).
5. The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to notify the
Union and afford it an opportunity to bargain before dis-
ciplining inspectors for failing to meet minimum effi-
ciency standards, disciplining employees for absentee-
ism, and discharging employees Latachianna Pontiflet
(for insubordination) and Mandrell Miller (for threaten-
ing behavior). The judge found that the Respondent had
a bargaining obligation before imposing this discipline,
relying on Washoe Medical Center, Inc., 337 NLRB 202,
ALAN RITCHEY, INC. 3
202 fn. 1 (2001). As we explain below, however, our
subsequent decision in Fresno Bee, 337 NLRB 1161
(2002), is dispositive. As dictated by that decision, we
shall dismiss these allegations.9
We shall summarize the relevant facts, which are set
forth in greater detail in the judge’s decision. From the
time it began operations at the Richmond facility in Au-
gust 1999, the Respondent maintained a five-step pro-
gressive discipline system consisting of counseling, ver-
bal warning, written warning, suspension, and termina-
tion. On January 18—well before the April 13 elec-
tion—the Respondent announced that inspectors would
be expected to achieve a minimum performance level of
80 percent of the USPS’s efficiency standard. From Au-
gust 1999 until the April 13 election, the Respondent
issued performance-related discipline to approximately
50 inspectors, consisting of 68 verbal warnings, 20 writ-
ten warnings, 4 suspensions, and 1 discharge. From the
April 13 election to the end of September, the Respon-
dent issued performance-related discipline to approxi-
mately 41 inspectors, consisting of 22 verbal warnings,
29 written warnings, 22 suspensions, and 14 discharges.
The Respondent admitted that there was some discre-
tion involved in the application of its progressive disci-
pline system. The Respondent’s employee handbook
stated that
[f]rom time to time, situations may arise which warrant
consideration and flexibility on the part of management
. . . . [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.
Plant Manager David Williams testified that three inspectors
whose performance fell short were given some leniency:
Francis Young because her husband died, Amelia Santos
because 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. Williams acknowledged that application of the
performance standards was not “hard and fast,” stating:
“You reviewed each employee and just dealt with the cir-
cumstances . . . [;] nothing in life is ever straight numbers.”
The Respondent’s progressive discipline system also
applied to absenteeism. The Respondent’s absenteeism

9 The judge dismissed two additional allegations concerning the Re-
spondent’s disciplining of inspectors for failing to meet minimum effi-
ciency standards. For the reasons he states, we agree that the Respon-
dent did not discriminate in violation of Sec. 8(a)(3). As indicated
below, we remand to the judge the issue of whether the Respondent
more strictly enforced its standards in violation of Sec. 8(a)(5).
guidelines provided for the following levels of discipline
for unexcused absences over a 12-month period: 2 to 4,
counseling; 5 or 6, verbal warning; 7 or 8, written warn-
ing; 9 or 10, suspension; and 11 or more, termination.
As with its discipline for performance shortcomings,
however, the Respondent exercised some discretion in
applying these guidelines. Two employees with nine
unexcused absences each were given a verbal warning
and a written warning, respectively. An employee with
62 unexcused absences received a verbal warning, while
another with 10 unexcused absences was discharged.
Again, Williams acknowledged that discretion existed in
applying the absenteeism guidelines, testifying that
“every single case is going to be different based on the
circumstances . . . [;] there is always discretion in-
volved.” 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 dis-
cretion.”
Finally, the Respondent’s progressive discipline sys-
tem applied to the Respondent’s discharge of Pontiflet
for insubordination on May 31 and of Miller for threaten-
ing behavior on October 13. Again, the Respondent’s
managers acknowledged that discretion played a part in
those decisions. Williams testified that there was “dis-
cretion in the insubordination policy as to whether an
employee was terminated or not.” Chorro agreed that
there was “discretion as to . . . insubordination,” but she
also testified that threatening behavior was “usually
grounds for termination,” adding: “We don’t take these
things very lightly. You can’t nowadays.”
On May 26, the Union notified the Respondent by let-
ter that it was protesting the Respondent’s unilateral dis-
ciplinary actions. In this letter, the Union took the posi-
tion that the Respondent was required by law to afford
the Union “prior notice, and an opportunity to bargain,
before taking disciplinary action against bargaining unit
employees.”
In his decision, the judge found that after the April 13
election, the Respondent did not change its performance
standards for inspectors. He also found, however, that
the Respondent’s application of those standards involved
a degree of discretion—as did its application of its absen-
teeism guidelines and the rules relied upon in discharging
Pontiflet and Miller. Citing Washoe Medical Center,
supra, the judge held that an employer’s exercise of some
discretion in meting out discipline imposes a duty on the
employer to engage in predisciplinary bargaining, pro-
vided that the union has demanded it. Accordingly, the
judge concluded that, once the Union had demanded bar-
gaining over disciplinary decisions by virtue of its May
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
26 letter, the Respondent was thereafter obligated to pro-
vide the Union notice and an opportunity to bargain be-
fore each individual instance of discipline. The judge
further concluded that because the Respondent had failed
to do so, it thereby violated Section 8(a)(5) and (1). Our
decision in Fresno Bee, supra, which issued subsequent
to Washoe Medical Center, dictates a different result.
In Fresno Bee, as here, the General Counsel alleged an
unlawful failure to engage in predisciplinary bargaining.
There, as here, the employer’s disciplinary policies re-
mained unchanged, but the employer exercised some
discretion in applying those policies.10 There, as here
(and unlike in Washoe Medical Center), the union de-
manded predisciplinary bargaining. Id. at 1176. The
judge in Fresno Bee held that the employer had no duty
to bargain before imposing the discipline, 337 NLRB at
1186-1187, and the Board affirmed the judge’s decision
in relevant part, leaving her analysis of the Section
8(a)(5) issue entirely undisturbed. Id. at 1161. Accord-
ingly, we apply Fresno Bee, which is extant Board law
and which prescribes dismissal of the alleged violation
here. 11
The General Counsel argues that the Respondent exer-
cised effectively unlimited discretion, rendering this case
unlike those cases where the Board concluded that the
employer was privileged to act before giving notice and
an opportunity to bargain. We find this argument un-
availing. The Respondent’s discretion operated within
the parameters of its five-step progressive discipline pro-
cedure. Various types of warnings were succeeded by
suspension; suspensions were succeeded by discharges.
Notwithstanding evidence of some flexibility or leni-
ency, the framework of the progressive discipline system
circumscribed the Respondent’s exercise of discretion as
it disciplined employees.12

10 As in Fresno Bee, the Respondent’s discipline involved some
measure of discretion. However, this discipline was meted out in the
context of a five-step progressive discipline system, which predated the
Union’s selection as bargaining representative. Moreover, the record
does not reflect any significant deviation, after the April 13 election,
from the Respondent’s prior issuance of discipline. As noted above, in
the 6 months preceding the election, the Respondent issued perform-
ance-related discipline to approximately 50 inspectors; and in the suc-
ceeding 6 months, it issued such discipline to approximately 41 inspec-
tors.
11 In our view, Fresno Bee and Washoe Medical Center are not ir-
reconcilable. In Washoe Medical Center, the union had not requested
before-the-fact bargaining with regard to impositions of disciplinary
actions, and the footnote addressing this issue stated a necessary, but
not sufficient, condition for finding the violation alleged there.
12 In rejecting the General Counsel’s argument that the Respondent
had effectively unlimited discretion here, we do not—and need not—
decide precisely how much discretion is required before a duty to bar-
gain attaches.
In sum, based on the foregoing, the Respondent did not
violate Section 8(a)(5) and (1) of the Act by failing to
notify the Union and bargain with it before issuing spe-
cific discipline to particular individuals.13
6. The judge recommended dismissal of the allegation
that the Respondent violated Section 8(a)(5) and (1) by
unilaterally changing its efficiency policy after the April
13, 2000 election and more strictly enforcing its effi-
ciency standards for inspectors. Based on evidence that
the Respondent disciplined inspectors as much or more
before the election as after, the judge rejected the argu-
ment that there was an established past practice of lax
enforcement of an 80 percent minimum efficiency stan-
dard prior to the election, and he found no meaningful
difference in the discipline imposed by the Respondent
for violation of those standards before and after the elec-
tion. Therefore, in the judge’s view, the inspectors ex-
perienced no “basic change” in working conditions re-
quiring the Respondent to bargain. The judge relied er-
roneously on Trading Port, Inc., 224 NLRB 980 (1976),
and Wabash Transformer, 215 NLRB 546 (1974), prece-
dent later summarized in Bath Iron Works, 302 NLRB
898, 901 (1991), for the proposition that where perform-
ance standards and sanctions remained the same, the re-
lated “tightening of the application of existing discipli-
nary sanctions did not require bargaining with the un-
ion.”
We agree with the judge that the record shows that the
80 percent minimum efficiency standard and the sanc-
tions for failing to meet that standard remained essen-
tially unchanged after the election. However, there is at
least a question as to whether the Respondent’s enforce-
ment of its efficiency standard became more stringent.
The record reflects that prior to the election the Respon-
dent allowed certain inspectors who were performing
below the 80 percent efficiency standard to increase their
performance in incremental steps over time, albeit after
an initial discipline. Concededly, the evidence to that
effect was limited to a brief window of time, and most of
it actually predated William’s formal announcement of
the 80 percent standard.14 Nonetheless, the judge did

13 Our finding that the Respondent did not violate Sec. 8(a)(5) in this
regard is limited to finding that the Respondent was not obligated to
engage in predisciplinary bargaining. We do not have before us, and
therefore need not address, what bargaining obligations the Respondent
may have had after it imposed that discipline. Although the complaint
alleged both decision and effects bargaining violations, the judge ad-
dressed and found only a decision bargaining violation, and the General
Counsel did not except to the judge’s failure to make a finding on the
effects bargaining issue. Nor did the General Counsel present argu-
ment on this issue. Thus, the effects bargaining issue is not before us.
14 The evidence relating to the period between William’s formal an-
nouncement of the standard and the election was limited to the discipli-
ALAN RITCHEY, INC. 5
state that the Respondent had a “practice” of permitting
employees, preelection, to gradually increase their effi-
ciency levels to the 80 percent minimum over time,
without being subject to additional discipline, and further
stated that after the election the Respondent no longer
permitted inspectors such improvement leeway. Further,
the record indicates that, postelection, inspectors were
disciplined, sometimes repeatedly, for failing to meet the
80 percent efficiency level in less than 4 weeks.15
Hence, the fact that the 80 percent efficiency standard
and sanctions for failing to meet that standard remained
the same is not necessarily dispositive of whether the
Respondent made a change in the enforcement of its pol-
icy that constituted a substantial and material change in
terms and conditions of employment sufficient to require
preimplementation bargaining with the Union. Thus, if
the evidence actually proved (1) the existence of a
preelection established past practice16 of permitting in-
spectors to avoid additional discipline by gradually im-
proving their performance over time, and (2) a postelec-
tion change to the practice that removed the opportunity
to avoid additional discipline through graduated im-
provement, and (3) that the change to the past practice
constituted a material and substantial change in employ-
ees’ terms and conditions of employment, a violation of
Section 8(a)(5) might be established. Cf. Vanguard Fire
& Security Systems, 345 NLRB 1016, 1017 (2005) (The
Board has held that a change from lax enforcement of a
policy to more stringent enforcement is a matter that
must be bargained over). In addition, the Board has held
that the threat of discipline for a breach of a unilaterally
implemented policy is sufficient to establish a material
and substantial change triggering a (preimplementation)
bargaining obligation. E.g., Ferguson Enterprises, Inc.,

nary records of only six inspectors. It is not clear whether those were
the only inspectors disciplined or if the records are simply incomplete.
15 We note, however, that the judge also credited Williams testimony
that the 4-week efficiency standard applied only to initial discipline,
that after an initial discipline efficiency was not measured as an average
over time, and that it was not inconsistent with the Respondent’s policy
and practice to discipline an employee within a week after the initial
discipline.
16 To establish the existence of a past practice it must be shown that
the practice occurred “with such regularity and frequency that employ-
ees could reasonably expect [the practice] to continue or recur on a
regular and consistent basis,” and that the party being asked to honor
the practice was “aware of its existence.” Regency Heritage Nursing
and Rehabilitation Center, 353 NLRB No. 103, slip op. at 2 (2009)
(citations omitted). We make no judgment as to whether the evidence
establishes such a practice here. [Moreover, in Member Schaumber’s
view, if the evidence shows that the practice both before and after the
election was to permit managers to exercise the discretion to allow
employees to gradually improve to the performance minimum, then the
fact that more employees were allowed to do so before the election
does not in itself establish any change in the practice.]
349 NLRB 617, 618 (2007), and Postal Service, 341
NLRB 684, 687 (2004).
Accordingly, we shall sever this issue from the re-
mainder of the case and remand it to the judge with in-
structions to give further consideration to evidence of the
degree of postelection change in the Respondent’s en-
forcement of its efficiency standard and, in light of the
aforementioned precedent, to make further findings and
conclusions whether the threat of enforcement and actual
enforcement of any changes to the existing disciplinary
system triggered a bargaining obligation.
ORDER
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
during working time, when there was no such prohibition
as to conversations about any other subjects.
(b) Failing and refusing to bargain in good faith by in-
sisting, as a condition precedent to resuming face-to-face
collective bargaining, that Warehouse Union Local 6,
International Longshore and Warehouse Union, AFL–
CIO (the Union) provide it with a complete contract pro-
posal, including all economic items; by delaying the ap-
pointment of a substitute authorized bargaining represen-
tative; and by demanding to meet at an unreasonable
location for bargaining.
(c) Undermining the Union as the bargaining represen-
tative of its employees by bypassing the Union and deal-
ing directly with its employees in an appropriate bargain-
ing unit concerning wages, hours, or other terms and
conditions of employment.
(d) Refusing to bargain with the Union as the certified
representative of its employees in an appropriate bargain-
ing unit by making certain unilateral changes in terms
and conditions of employment.
(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 during working time.
(b) On request of 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 1 week’s prior notice; (ii) changes in shift times for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the first-shift processing department employees during
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 exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time warehouse, process-
ing, container repair, and quality and data departments
employees, including inspectors, material handlers,
banders, stretch wrappers, receivers, loaders, unloaders,
forklift operators, tray repair operators, logistic clerks,
yard drivers, mechanics, welders, repair parts inventory
clerks, quality auditors, palletized quality auditors—
initial inspectors, and final inspectors employed by Re-
spondent at its Richmond, California facility; excluding
all employees performing work duties at Respondent’s
facility who are provided to Respondent by temporary
placement or employment agencies, outside contractor
employees, office clerical employees, janitors, manag-
ers, supervisors, acting supervisors, confidential em-
ployees, professional employees, data analysts, plant
maintenance leads, guards, and supervisors as defined
by the Act.
The Union’s certification is extended 10 months from the
date the Respondent begins to comply with this Order.
(d) On request, bargain with the Union in good faith
concerning the effects of the elimination of Memorial
Day and Labor Day as nonworking holidays.
(e) Within 14 days after service by the Region, post at
its facility in Richmond, California, copies of the at-
tached notice marked “Appendix.”17 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-

17 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.”
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since April 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the issue of whether the
Respondent violated Section 8(a)(5) and (1) of the Act
by enforcing a changed efficiency policy for its inspec-
tors after the April 13 election is remanded to Adminis-
trative Law Judge Burton Litvack for further action con-
sistent with this Decision and Order. The judge shall
prepare a supplemental decision limited to this issue,
setting forth findings of fact, conclusions of law, and a
recommended Order. Following service of the supple-
mental decision on the parties, the provisions of Section
102.46 of the Board’s Rules and Regulations shall be
applicable.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. September 25, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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.
ALAN RITCHEY, INC. 7
WE WILL NOT prohibit you from discussing the Union
during working time, when there is no such prohibition
as to conversations about any other subjects.
WE WILL NOT fail and refuse to bargain in good faith
with Warehouse Union Local 6, International Longshore
and Warehouse Union, AFL–CIO (the Union) by insist-
ing, as a precondition to resuming face-to-face collective
bargaining, that the Union provide us with a complete
contract proposal, including all economic items; by de-
laying the appointment of a substitute lead negotiator;
and by demanding to meet at an unreasonable location.
WE WILL NOT undermine the Union as the representa-
tive of our bargaining-unit employees by bypassing the
Union and dealing directly with our unit employees con-
cerning wages, hours, or other terms and conditions of
employment.
WE WILL NOT refuse to bargain with the Union as the
certified representative of our bargaining-unit employees
by unilaterally changing terms and conditions of em-
ployment.
WE WILL NOT fail or refuse to bargain collectively and
in good faith with the Union concerning the effects re-
sulting from our 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
set forth above.
WE WILL rescind the work rule prohibiting employees
from discussing the Union during working time.
WE WILL, on request of the Union, rescind the follow-
ing unilateral changes: (i) the work rule mandating that
leave would count as an unexcused absence if taken
without at least 1 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 inven-
tory 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 representative of our employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time warehouse, process-
ing, container repair, and quality and data departments
employees, including inspectors, material handlers,
banders, stretch wrappers, receivers, loaders, unloaders,
forklift operators, tray repair operators, logistic clerks,
yard drivers, mechanics, welders, repair parts inventory
clerks, quality auditors, palletized quality auditors—
initial inspectors, and final inspectors employed us at
our Richmond, California facility; excluding all em-
ployees performing work duties at our facility who are
provided to Respondent by temporary placement or
employment agencies, outside contractor employees,
office clerical employees, janitors, managers, supervi-
sors, acting supervisors, confidential employees, pro-
fessional employees, data analysts, plant maintenance
leads, guards, and supervisors as defined by the Act.
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 on the 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 prac-
tices 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 on 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 consolidated com-
plaint, alleging that Respondent had engaged in, and is continu-
ing to engage in, unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act.2 The original 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 Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
amended unfair labor practice charges in Case 32–CA–18601
were filed by the Union on November 30, 2000, and January 4,
2001, respectively, and, on February 6, 2001, after an investiga-
tion, based on the unfair labor practice charges, the Acting
Regional Director for Region 32 of the Board issued a com-
plaint, alleging that Respondent had engaged in, and is continu-
ing to engage in, unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act. The unfair labor practice
charge in Case 32–CA–18693 was filed by the Union on Janu-
ary 31, 2001; after an investigation, based on the unfair labor
practice charge, on February 22, 2001, the Regional Director
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 period
immediately preceding issuance of each of the complaints
herein, 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 herein, it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.

dent “has failed and refused and is continuing to fail and refuse to bar-
gain collectively and in good faith with the representative of it employ-
ees”—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
the section of the Act in their brief, it can hardly be found that Respon-
dent or its counsel did not completely comprehend the gravamen of the
allegation. Accordingly, as I believe counsel for Respondent has mis-
takenly elevated form over substance, I find no merit to their conten-
tion.
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
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 Respon-
dent 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
employees in the processing department wear safety glasses,
implementing 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, im-
plementing a rule requiring that the first-shift inspectors finish
the second shift’s work, from May 22–30, 2000, changing the
start time for employees in the first-shift mailbag section of the
processing 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

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’ ac-
tivities in support of the Union and their discharges, I granted counsel
for Respondents’ motion to dismiss said 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).
ALAN RITCHEY, INC. 9
Kevin 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
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 Respon-
dent 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

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-
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
changes 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
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
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 Respon-
dent’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 Respon-
dent inspects, repairs, and stores the nonmotorized equipment,8
with which the USPS handles the mail at its postal service fa-
cilities and on its mail transportation vehicles. At its Rich-
mond, 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 fa-
cility, from December 5, 1999, through January 2001;10 Re-

Case 32–CA–18149, I have likewise considered the alleged unilateral
changes only as violations of Sec. 8(a)(1) and (5) of the Act.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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-
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
said 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 Respon-
dent’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 as-
pects of Respondent’s operations, including worker productiv-
ity,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

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.
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 employ-
ment 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 process-
ing 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]
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

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
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.”
ALAN RITCHEY, INC. 11
be working at a minimum efficiency level of 80 percent of the
USPS efficiency standard;22 and that, on a daily basis, process-
ing department supervisors consistently informed inspectors
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 November 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 stan-
dard for inspectors. According to Mayse, the plant manager
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 stan-

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 effi-
ciency level of 100 percent of the efficiency standard for mechanics,
which was established by the USPS. Contradicting Respondent’s plant
manager, Edward Grissom, a mechanic in the container repair depart-
ment at Respondent’s Richmond facility and a member of the Union’s
employee bargaining committee, testified that, when he was hired,
nothing was said about a minimum efficiency level but that “. . . later
on they expected us to do 80 percent.” Grissom added that he became
aware of the 80-percent figure in September 1999 and that the mechan-
ics’ minimum 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 said 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–18459
and 32–CA–18526, 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.”
dards for different products,” and “we were unaware of what
the standard . . . was . . . on different products.” Contradicting
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 prod-
ucts.” 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 . . . the supervi-
sors 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 “em-
ployee counseling reports.” On the documents, there is no space for
verbal warnings. Therefore, I shall consider a written report of a verbal
counseling 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 effi-
ciency 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
compilation of such an average prior to the imposition of any disci-
pline. Further, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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 sur-
rounding circumstances, Williams answered, “when you know
someone’s working the low volume area, or you know some-
one’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 numbers.”
For example, according to Williams, notwithstanding low effi-
ciency, no discipline was given to a woman, who was having
“issues” related to her husband, who was dying of cancer, 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 volume” areas.
Also, workers going from inspecting mailbags to inspecting
trays, sleeves, and lids was not a difficult transition for effi-
ciency 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 volume
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 sec-
ond week in January, was not disciplined for his low efficiency
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

how Respondent 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
inspectors 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
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.
what the efficiency level was. . . . She explained to me then that
I needed to be at 85 percent . . . and could I bring my numbers
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
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

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.
ALAN RITCHEY, INC. 13
level for the prior week had been 75.15 percent and that her 4-
week average efficiency level had been 76.26 percent. Ponti-
flet, 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-
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 represen-
tative. 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 warnings, 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 subjected 41
different bargaining unit inspectors to a total of 22 verbal warn-
ings, 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 “time-
frame[s]” for such in the only counseling report for November
1999 and the December 1999 employee counseling reports,
which begin on the day before Williams became plant manager,
reveal that Respondent normally permitted employees, who
received verbal warnings for low efficiency, to increase 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 established, eight
other employees were expected to be at a 50-percent efficiency
level the following week and to raise their levels by 5 percent

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 effi-
ciency, 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.
each subsequent week; employee Lowe Shakesnider was ex-
pected to be at a 55-percent efficiency level and to increase his
efficiency 5 percent thereafter; several employees were ex-
pected to raise their efficiency levels 10 percent each week
until they reached a 100-percent efficiency level; employee
Sheila Jackson was required to be at a 50-percent efficiency
level the following week and, thereafter, show “steady im-
provement 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 inspectors, in
January 2000, employee John Chatman received a verbal warn-
ing 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 contin-
ued low efficiency but were only required to increase their
efficiency levels to 70 percent. Similarly, on the day before 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 bargaining unit in-
spectors, subsequent to the election, requires the employee to
achieve an 80-percent efficiency level, without permitting the
inspector to gradually increase his or her percentage, 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
months of 2000 notwithstanding that Torres achieved an aver-
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 inconsis-
tent 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 qual-
ity control and data manager, first moved into a rated (inspec-
tor) position on June 8, 2000. Nevertheless, according to Re-
spondent’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 man-
ager 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.”
week;” Monique Dudley’s verbal warning notice and written
warning notice require that she maintain an 80-percent effi-
ciency level “each” and “every” week; Jacqueline Greer’s sus-
pension 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
the above inspectors was assessed only after Respondent de-

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.
ALAN RITCHEY, INC. 15
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, Respon-
dent 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
there was never any change in Respondent’s practice in this
regard.

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.
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 proc-
essing 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 Respon-
dent 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 indi-
viduals, Respondent is alleged to have disciplined 26 in viola-
tion of Section 8(a)(1) and (3) of the Act and that the General
Counsel contends that, by the incidents of discipline, Respon-
dent more harshly enforced its efficiency standard for inspec-
tors in order to retaliate against the employees for having se-
lected the Union as their representative for purposes of collec-
tive bargaining.47 In this regard, traditional Board law is well

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
points, including assertedly informing inspectors during meetings on
January 18 that, in order to determine the propriety of initial discipline,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
settled. Thus, as explained by the Board in Naomi Knitting
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 preponderance
of the evidence, that antiunion animus was a motivating 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 notwith-
standing 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 General Counsel
must show (1) that the employees were engaged in activities in
support of the Union; (2) that Respondent was aware of or sus-
pected 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 Respon-
dent’s actions. Such motive may be demonstrated by circum-
stantial 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 concluding 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 suffi-
cient to make the acts and conduct, at issue, violative 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);
Filene’s Basement Store, 299 NLRB 183 (1990). Third, pre-
textual 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
NLRB 970, 970 (1991); Shattuck Den Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966).

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.
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
noted, 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

48 In addition, the Board found two instances of unlawful interroga-
tion.
ALAN RITCHEY, INC. 17
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 em-
ployer’s motivation rather than upon the discriminatees’ union
activities and the employer’s knowledge of each discrimina-
tee’s said acts. Thus, in Hyatt Regency Memphis, 296 NLRB
259 (1989), as herein, the General Counsel alleged that, subse-
quent to a representation election and in retaliation for the un-
ion’s successful election, the respondent more stringently en-
forced a work rule and unlawfully discharged several employ-
ees for assertedly violating it. Finding that, after the election,
the respondent 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 respon-
dent was unlawfully motivated in discharging the discrimina-
tees. 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 em-
ployer’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
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

49 In their posthearing brief, counsel for the General Counsel
wrongly assert that “. . . there is an absence here of any 8(a)(1) state-
ments to establish union animus” and that there is an “. . . absence of
direct evidence of animus.”
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-
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

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 strin-
gently if the Union were elected.” Id. at 263.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
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 testi-
mony 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, Respon-
dent closely adhered to its progressive discipline policy, and the
low efficiency levels of each inspector are well documented
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
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-

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).
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
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

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–18459 and 32–CA–18526.
ALAN RITCHEY, INC. 19
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 enforce-
ment of work rules, in effect, became the term and condition of
employment, while the corrective actions, which Respondent
demanded 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, repre-
sented 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–18459 and 32–CA–18526
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
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
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 effi-
ciency, a shift manager will take into account whether the em-
ployee’s performance has been adversely affected by an illness
to a member of his/her family, whether the inspector is a new
employee, whether the employee had transferred from inspect-
ing trays, sleeves, and lids to inspecting mailbags or transferred
from a nonrated position, whether the inspector had been util-
ized 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 Respon-
dent exercises discretion in determining whether and what dis-
cipline is warranted imposes upon it the duty to notify and bar-
gain 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
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

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, absent
evidence of unlawful animus, I shall recommend dismissal of the al-
leged violations of Sec. 8(a)(1) and (3) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
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 premium
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 union 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 recent decisions
of the Board. First, in Eugene Iovine, Inc., 328 NLRB 294
(1999), finding that the respondent’s unilateral reduction 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 employees’
hours of work involved significant “management discretion.”
The Board then stated that it “. . . and the courts have consis-
tently 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
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

55 As examples, the Board listed only discretionary wage increases
and discretionary layoffs.
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.
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 ac-
tion 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 activity
in this area, when exercised on the basis of purely discretionary
considerations, failing to conflict with plant practices openly
evident from published standards . . . and which imposes no
new form of discipline . . . is perfectly legitimate as peculiar 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, sub-
stantial, 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
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
ALAN RITCHEY, INC. 21
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 pro-
vide the union with advance notice and an opportunity to bar-
gain about the implementation of [the discretionary acts] . . . ,”
the Board rejected the administrative law judge’s conclusion
regarding the necessity of a “change” for finding a violation of
Section 8(a)(1) and (5) of the Act. Washoe Medical Center,
supra at 202 fn. 1. Instead, in affirming the administrative law
judge that the employer did not unlawfully fail to bargain “be-
fore-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 Wa-
bash 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 or-
ganization, in discretionary discipline situations, the Board will
place the burden upon the labor organization to make a “before-
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

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. How-
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 dis-
charges, likewise constituted a mandatory subject of bargain-
ing.59 In these circumstances,60 I believe that, subsequent to
May 26, inasmuch as Respondent continued to issue discretion-
ary discipline 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 disci-
pline subsequent to May 26 must be considered violative of
Section 8(a)(1) and (5) of the Act,61 and I so find.62

ever, 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
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
Minter, and Tina Bowman; and the post-May 26 discharges of employ-
ees 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–18149.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
C. The Discharges of Employees Latachianna Pontiflet,
Cheryl Robinson, and Christy Jackson
The amended complaint in Case 32–CA–18149 alleges that
employees LaTachianna Pontiflet, Cheryl Robinson, and
Christy 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 work station 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 stan-
dard. . . . 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.”
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 Ponti-
flet 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–18149 be dismissed as to both individu-
als. 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 em-
ployee handbook, employees are informed that, if they are ab-
sent 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 absenteeism guidelines provide the following disci-
pline for unexcused 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

63 Likewise, the complaint in Case 32–CA–18601 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.
ALAN RITCHEY, INC. 23
11 or more require termination. Brandee Chorro, Respondent’s
human resources manager at its Richmond service center, testi-
fied that, for the entire time it has operated the facility, prior to
and subsequent to the April 13, 2000 election, Respondent has
disciplined, and continues to discipline, employees for violating
its absenteeism policy in the manner set forth above and that
neither its excessive absenteeism policy nor the progressive
disciplinary policy attendant to it changed subsequent to the
election. Finally, the record establishes that, at no time subse-
quent to Flotte’s and Lopes’ above-described bargaining de-
mand letter, dated May 26, has Respondent given notice to the
Union and offered to bargain prior to imposing discipline upon
bargaining 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,
David 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-
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

64 Williams said this was the same before and after the election.
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
E. The Alleged Unlawful Disciplining of Employees
Mandrell Miller and Dante Clement
The consolidated complaint in Cases 32–CA–18459 and 32–
CA–18526 alleges that Respondent violated Section 8(a)(1) and
(5) of the Act by disciplining and eventually terminating em-
ployees 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 dis-
charged 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 examina-
tion that he discussed Miller’s discharge with an official of the

65 These include the verbal and written warnings to employees
Wilburt 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
Quilter, Michelle Mayse, Armando Leapheart, and Marcell Spain.
I shall recommend dismissal of the remaining allegations of par.
10(m) of the amended complaint in Case 32–CA–18149.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Union, during cross-examination, Respondent’s plant manager
admitted, that the conversation occurred subsequent to the em-
ployee’s termination and stated he could not recall any such
conversation prior to discharging Miller. Brandee Chorro testi-
fied that, since August 1999, Respondent has had a policy per-
taining to threats by employees against coworkers or supervi-
sors and that, rather than enforced by Respondent’s progressive
discipline system, such conduct is usually grounds for immedi-
ate discharge.67 With regard to employee Clement, while Re-
spondent 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 employee.69
Further, there is no record evidence that Respondent gave no-
tice to the Union or afforded the Union an opportunity to bar-
gain over the discharge of Miller or over any of the discipline,
including the termination, to which Clement was subjected.
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
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–18149, the Gen-
eral Counsel alleges that Respondent engaged in acts and con-
duct violative of Sections 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

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 post-hearing brief, without citation to any evidence in the
record, counsel for the General Counsel conjure a reason for Respon-
dent’s disciplining of Clement. In the absence of record evidence. I
have not made any such finding as to the reason for his discharge.
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 Respon-
dent 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
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. Fi-
nally, 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 talking
interfere with your work or somebody else’s. . . .” He added
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. Accord-
ingly, I shall rely upon Mayse’s version of their conversation
and find that, upon encountering Mayse and Hales in the recep-
tion 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 activi-

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.”
ALAN RITCHEY, INC. 25
ties or any other union-related matters other than during break-
times, lunch, or before and after work. I further find that, given
Williams’ explicit admission, Respondent previously had no
general 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 em-
ployer 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, Respon-
dent 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-
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

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 termi-
nated, appears to have been a discharge interview rather than an inves-
tigatory interview, and an employer is not required to permit union
representation during the imposition of previously decided upon disci-
pline. 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–18149 be dismissed.
During Collective Bargaining
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 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 first.”
He further testified that, as the bargaining session concluded, “.
. . I asked [Ritchey] if we could calendar some dates” for future
meetings, and Ritchey replied “that he wasn’t really sure be-
cause 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 ini-
tial 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 complete 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 “com-
plete” proposal to Respondent within 2 weeks. Brown testified,
“Towards the end of the meeting, there was a discussion con-

72 Notwithstanding that several individuals, who attended the meet-
ing, testified at the trial, only Lopes and Brown testified as to what
occurred.
73 During cross-examination, Lopes agreed that the inclusion of
wages was stressed by Brown.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
cerning . . . the non-productivity [of the meeting],” with “. . .
Mr. Ritchey [expressing] . . . disappointment that we weren’t
able to make any . . . headway . . . . Mr. Ritchey expressed a
desire to have a contract with the Union within three or four
negotiating sessions,” and “we wanted a complete proposal 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 recall
Lopes’ reply, averring “it was all in the same conversation 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 nest 2 weeks. Nevertheless, on June 22,
Lopes wrote a letter to Brown in which he provided dates in

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” propos-
als, 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
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 Respon-
dent’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.
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-
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

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.”
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.”
ALAN RITCHEY, INC. 27
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.
within two weeks. He further agreed that no further nego-
tiation sessions would be scheduled before the complete
proposal 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 pro-
posal 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.”
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 concerning
the Company’s compliance with the wage and fringe benefit
requirements of the Service Contractor Act (SCA).” In detail-
ing his requests, the attorney noted “in order to formulate ap-
propriate wage proposals for employees in the various job clas-
sifications at the Richmond facility, Local 6 must first deter-
mine 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

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.
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, “we see no reason why the
Company cannot meet with the Union immediately to discuss
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 propos-
als 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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
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 avail-
ability would not be known until some unspecified time
after 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 represen-
tative 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
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

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.
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
letter, to Lopes, regarding the latter’s request for available
meeting dates, rather than raising the business agent’s pur-
ported 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 suggested dates. In these circumstances, noting that the
Union presented Respondent with a comprehensive contract
proposal, with the exception of wage rates and a pension con-
tribution amount, on August 3, I find, as alleged, that, in his
July 21 and September 5 letters, rather than describing a com-
mitment by the Union’s business agent,86 Brown actually im-
posed a gratuitous and baseless condition precedent for con-
tinuing initial contract negotiations with the Union—no further
bargaining until Respondent received a “complete” contract
proposal, including all economic terms, from the Union—and
that, in fact, from August 3, the date upon which the Union
mailed its contract proposal to Respondent, through November
15, the date upon which Lopes transmitted to Brown the Un-
ion’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 purpose of resuming collective bargaining for an
initial agreement. I further find that, notwithstanding having
the required “complete” contract proposal from the Union, from
November 15 through the end of December, Respondent con-
tinued to refuse to meet and bargain with the Union, raising
pretentious objections to the Union’s demands. Thus, 2 weeks
after receiving the latter proposals, while failing to name a sub-
stitute lead negotiator, 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 re-
placement, 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 willing to meet with union representatives in
Texas. Finally, only after Lopes again demanded that Respon-
dent 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.

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.”
ALAN RITCHEY, INC. 29
1953); Twin City Concrete, Inc., 317 NLRB 1313, 1314 (1995);
Chemung Contracting Corp., 291 NLRB 773, 774 fn. 3 (1988);
Fountain Lodge, Inc., 269 NLRB 674, 674 (1984). Further, an
employer’s obligation to meet and bargain with the labor or-
ganization, which is the bargaining representative of its em-
ployees, is not satisfied by inviting or demanding written pro-
posals 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
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-

87 While Sec. 8(d) of the Act simply requires bargaining at “reason-
able 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).
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.
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–18149, the consolidated complaint in Cases 32–
CA–18459 and 32–CA–18526, and the complaint in Case 32–
CA–18601 that Respondent engaged in acts and conduct, viola-
tive of Section 8(a)(1) and (5) of the Act, by unilaterally, with-
out 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
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 unilat-
eral 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.”

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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Bottom Line Enterprises, 302 NLRB 373, 374 (1991). The
limited exceptions are when, in response to an employer’s dili-
gent and earnest efforts to engage in bargaining, a labor organi-
zation avoids or delays bargaining and when “economic exi-
gencies 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
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 Respon-
dent’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

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 man-
ager.”
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.
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
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
safety 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, with-

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.
ALAN RITCHEY, INC. 31
out deciding, that Respondent’s new policy represented a mate-
rial change in the bargaining unit employees’ terms and condi-
tions 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
Printers, 305 NLRB 1061 at fn. 2 (1992); Long Island Day
Care Services, 303 NLRB 112,114 (1991); Embossing Printers,
268 NLRB 710 fn. 2 (1984). Therefore, I shall recommend
dismissal of paragraph 10(a)(ii) of the amended complaint in
Case 32–CA–18149.
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 time-
clock and that no such program had existed at the Richmond
facility prior to the posting of the memorandum. According to
Mayse, under the announced policy, which did not become
effective until after the election, members of the safety commit-
tee 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-

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.
ment this program or that it afforded the Union an opportunity
to bargain over it.
Given the respective credibility of Mayse and Williams, I
rely 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
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 opportu-
nity 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
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
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
elimination of Memorial Day and Labor Day as nonworking
holidays. Legal Aid Bureau, 319 NLRB 159, 168 (1995); Ac-
curate Dye Casting Co., 292 NLRB 982, 988–989 (1989); Sa-
loon, 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 sec-

94 With regard to Memorial Day, Respondent paid its bargaining unit
employees 8 hours holiday pay and double time for working that day.
ond 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
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 Respon-
dent’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 Ponti-
flet 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
clearly impeached by her pretrial affidavit.98 Therefore, con-
trary to Pontiflet’s assertion, I believe that Respondent always
had a work rule, predating the election, of requiring first-shift

95 Counsel for the General Counsel failed to offer a copy of this
document 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.
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.
ALAN RITCHEY, INC. 33
inspectors to complete the unfinished pallets of second-shift
inspectors and that the memorandum, which Pontiflet asserted
she was given, did not represent a change of past practice.
Moreover, while, as set forth above, work rules are mandatory
subjects of bargaining, even assuming that the memorandum
existed 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
merit to the allegation that requiring first-shift inspectors to
complete unfinished pallets constituted an unlawful unilateral
change and shall recommend that paragraph 10(d) of the
amended complaint in Case 32–CA–18149 be dismissed.
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 proc-
essing 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–18149.

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 em-
ployer’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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
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,
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-

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.
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 con-
tainer 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 disci-
plining employees May and Sparkman. Finally, I find support
for Williams’ testimony from the written words on the docu-
ment—“our goal.” Accordingly, as I do not believe that the
memorandum, at issue, represented a change from past practice,
I shall recommend that paragraph 10(g) of the amended com-
plaint in Case 32–CA–18149 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 at-
tended 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
ALAN RITCHEY, INC. 35
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
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. More-
over, Williams did not dispute Grissom’s testimony that weld-
ing is a highly specialized craft and that such work fundamen-
tally 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 sig-
nificant precedential value, I believe requiring Lynch to per-
form 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 Respon-
dent to assign 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 certified Union.’” Eugene Iovine, Inc., supra. More-
over, Respondent’s actions sent “. . . the message to the em-
ployees that [it] set an important term and condition of em-
ployment, thereby suggesting the irrelevance of the employees’
collective-bargaining representative.” Kurdzeil Iron of Wau-
seon, 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 circumstances, I find that, by acting unilater-
ally 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.

102 Inasmuch as it appointed Lynch to be acting foreman over the
second-shift container department in November 2000, Respondent
could not have been too concerned with Lynch’s job performance.
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.
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 distrib-
uted 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,
“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 work stations 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 prac-
tices 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
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 pro-
ductivity 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-
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 dis-
missal of paragraph 10(i)(2) of the amended complaint in Case
32–CA–18149. As to the excessive talking warning, as be-
tween 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
memorandum, Respondent announced a new work rule. In this
regard, 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 rea-
sonable 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
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

104 Grissom recalled that he filled out a leave request form on this
occasion.
ALAN RITCHEY, INC. 37
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
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

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–18149.
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 unbreak-
able 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 Respon-
dent’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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
curred, and I shall recommend that paragraph 10(k) of the
amended consolidated complaint in Case 32–CA–18149 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
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.
Kurdzeil Iron Wauseon, supra. Accordingly, I believe that, by
unilaterally changing the shift times for the first-shift process-
ing department employees during the Memorial Day holiday 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 con-
tainer 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-
ALAN RITCHEY, INC. 39
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.
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.”

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.
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 Respon-
dent contend that, taken as a whole, the document sets forth
“minor changes to the means by which container repair em-
ployees 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 container
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
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–18459 and 32–CA–18526
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

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
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 inven-
tory 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
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, Respon-
dent 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 estab-
lishes that the cafeteria plan has been offered to all of Respon-
dent’s employees since July 1994, the effective date of the plan
and that, since prior to the election, information briefly men-
tioning the cafeteria plan, which is available to all of Respon-
dent’s employees in all of its divisions, including the several
service centers, along with an outline of other company bene-
fits, 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 facil-

110 Upon her return, she was given a different job.
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.
ity did not commence until August 1999, bargaining unit em-
ployees did not become eligible to enroll in the plan until May
1, 2000; that the cafeteria plan includes life, disability, and
accident insurance 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 of-
fering the plan to its bargaining unit employees at its Richmond
facility during the open enrollment period in May 2000, Re-
spondent did not give notice to the Union or afford it an oppor-
tunity to bargain. In my view, the salient facts are that Respon-
dent’s cafeteria plan has been part of its employee benefits
package since prior to the time the Richmond plant commenced
operations in August 1999 and that, from the date through April
12, it had been described, although not in minute detail, for all
newly hired 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 bargaining 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
requisite “change” for finding an unfair labor practice does not
exist.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–18601.

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 (19980, 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.
ALAN RITCHEY, INC. 41
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] . . .
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-

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 . . . .”
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
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

115 Counsel for Respondent failed to offer into the record any por-
tions of the contract with the USPS which corroborated Williams’
testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
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 Respon-
dent 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
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). Accord-
ingly, I believe Respondent’s direct hiring of temporary em-
ployees 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, Respon-
dent failed to offer into the record portions of its contract with
the USPS, supporting Williams’ testimony. Therefore, Wil-
liams’ 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,

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.
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.
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,
ALAN RITCHEY, INC. 43
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
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

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.
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
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.
Other than that, to lay them off.” According to Williams, he
subsequently 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
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
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 con-
tainer 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 dis-
agree with him,” he would base a “. . . layoff according to ab-

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
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.
senteeism, efficiency, and attitude.” He then discussed the
mechanics 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
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 obli-
gated to give notice to the Union prior to implementing trans-
fers or layoffs and to afford the Union an opportunity to engage
in bargaining. Counsel then argue, without citing any support-
ing decisions of the Board, that, in the above circumstances,
Jordan’s comments had the effect of unlawfully undermining
the Union as the employees’ bargaining representative. I dis-
agree. 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 Un-
ion 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–18459 and 32–
CA–18526.
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
ALAN RITCHEY, INC. 45
that each mechanic was requested to execute his copy of the
document. Further, I concluded that, inasmuch as the deline-
ated 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
employer meet and bargain exclusively with the bargaining
representative of its employees and that an employer which
deals directly with its bargaining unit employees or with any
representative of the employees, other than their designated
bargaining 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
solicitation is likely to erode “the union’s position as exclusive
representative.” Modern Merchandizing, 284 NLRB 1377,
1379 (1987). Finally, the Board has developed criteria to be
used for determining whether an employer has engaged in di-
rect dealing, 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 conditions of employment or undercutting the Union’s role
in bargaining; 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 ex-
clusion of their designated bargaining representative. However,
as I have previously concluded that, while arguably controver-
sial, the changes set forth in said document do not arise to the
level of the types of changes which materially impact upon the
bargaining unit employees’ terms and conditions of employ-
ment 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 memorandum had the effect of eroding the position of
the Union as the employees’ exclusive bargaining representa-
tive. Cf. Allied Signal, Inc., supra. Accordingly, I do not be-
lieve Respondent’s acts and conduct constituted direct dealing
in violation of Section 8(a)(1) and (5) of the Act, and I shall
recommend dismissal of paragraph 12 of the consolidated com-
plaint in Cases 32–CA–18459 and 32–CA–18526.
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–18149.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
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
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

121 Of course, acceptance of Respondent’s offer was signified by
employees showing up for work on both days.
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.”
. . . that they have this work shortage.” Several responded that,
if there had to be a layoff, it should be done in order of senior-
ity. 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
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-

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.
ALAN RITCHEY, INC. 47
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
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 indi-
cated 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.” Fi-
nally, with regard to this meeting, Welling admitted asking
employees 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 . . . . basi-
cally 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 informa-
tion he obtained was important to Respondent, and he replied,
“Not particularly, no. . . . It was important in sense of them
hearing from me where we were and having them understand
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 confu-
sion 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 con-
ceded, “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
inform 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
Grissom, 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 con-
tainer repair department employees meetings with Welling.
The testimony 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
permission, by Lopes, to speak to the container repair mechan-
ics. I further find that, during his ensuing meeting with the
container repair personnel, amongst whom were members of
the bargaining unit employees’ negotiating committee, while
cautioning he would have to reach agreement with Lopes be-
fore anything became final and after explaining the existing,
unsatisfactory situation of declining work and employees re-
ceiving fewer hours, Welling questioned each mechanic as to
what should be done and that, during his second meeting with
the mechanics the following week, after again cautioning that
he would have to reach an agreement with Lopes before any-
thing could be final, Welling stated that employees working
shorter hours was not a satisfactory 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 de-
partment. Finally, Welling admitted that, during his first meet-
ing 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 opinion as to how lay-
offs 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 axio-
matic that, by virtue of the April 13, 2000 election, only the
Union was the designated bargaining representative of Respon-
dent’s bargaining unit employees, including the container repair
mechanics, and, based upon Lopes’s October 30, 2000 letter,
Respondent already was acutely aware of the Union’s positions
on its proposed solutions for the lack of work in the container
repair department. While Welling may well have felt the need
to explain the serious nature of the existing situation to the
mechanics—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 Respon-
dent’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 informa-
tion to help it formulate its own bargaining proposals, and Re-
spondent 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 Respon-
dent’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 employees without giving prior notice to the Union
or affording it an opportunity to bargain over the increase, Re-
spondent 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
ALAN RITCHEY, INC. 49
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
Marian Howard, each of whom was discharged for low effi-
ciency subsequent to May 26, I shall recommend that Respon-
dent 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
Woolworth Co., 90 NLRB 289 (1950), and with interest com-
puted as in New Horizons 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
Miller, without prior notice to the Union or affording it an op-
portunity 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 posi-
tions of employment or, if the positions no longer exist, to a
substantially 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 bene-
fits he or she may have suffered as a result of his or her unlaw-
ful discharge. The amounts are to be computed in the manner
established in F. W. Woolworth Co., supra, with interest com-
puted 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 dis-
charges to employees who violated its absenteeism policy
without prior notice to the Union or affording it an opportunity
to bargain. Accordingly, I shall recommend that Respondent be
ordered 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-
worth Co., supra, and with interest computed in the manner set
forth in New Horizons for the Retarded, supra.

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.
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
changes in their terms and conditions of employment and poll-
ing them regarding issues, which are the subject of bargaining
between 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 &
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

127 Quite obviously, Respondent will be unable to rescind its unlaw-
ful change in the shift hours during the Memorial Day weekend in
2000.
ALAN RITCHEY, INC. 51
(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
form 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended128
ORDER
The Respondent, Alan Ritchey, Inc., Richmond, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing disciplinary warning notices to container repair
department mechanics for failing to perform at minimum effi-
ciency levels subsequent to increasing the minimum efficiency
levels for the employees without giving prior notice to the Un-
ion or affording it an opportunity to bargain.
(b) Subsequent to the Union’s May 26, 2000 request to bar-
gain prior to each act of discipline, issuing discretionary verbal
warnings, written warnings, suspensions, and discharges to
bargaining unit inspectors for failing to perform at minimum
efficiency levels without prior notice to the Union or affording
it an opportunity to bargain.
(c) Subsequent to the Union’s May 26, 2000 request to bar-
gain prior to each act of discipline, issuing discretionary dis-
charges to bargaining unit employees without prior notice to the
Union or affording it an opportunity to bargain.
(d) Subsequent to the Union’s May 26, 2000 request to bar-
gain prior to each act of discipline, issuing discretionary verbal
warnings, written warnings, suspensions, and discharges to
bargaining unit employees for violations of its absenteeism
policy without prior notice to the Union or affording it an op-
portunity to bargain.
(e) Unilaterally, without giving prior notice to the Union or
affording it an opportunity to bargain, imposing a new work
rule upon bargaining unit employees, prohibiting them from
discussing the Union with their fellow employees during work-
ing time.
(f) Imposing a work rule upon its bargaining unit employees,
prohibiting them from discussing the Union with fellow em-

128 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ployees during working time, when there were no such prohibi-
tions as to conversations about any other subjects.
(g) Failing and refusing to bargain in good faith by insisting,
as a condition precedent to the resumption of face-to-face col-
lective bargaining, that the Union provide it with a “complete”
contract proposal, including all economic items, delaying the
appointment of a substitute authorized bargaining representa-
tive, and demanding to meet at an unreasonable location for
bargaining.
(h) Unilaterally, without prior notice to the Union or afford-
ing 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 prohibit-
ing excessive talking and wandering away from workstations,
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, hiring 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 perform the same work, and
reducing the hours of work of container repair department me-
chanics.
(i) Undermining the Union as the bargaining representative
of its employees by bypassing the Union and dealing directly
with its bargaining unit employees regarding working voluntar-
ily on the Saturday of Memorial Day weekend in 2000 and
offering to pay them at a triple time rate of pay for working on
Memorial Day.
(j) Undermining the bargaining position of the Union by by-
passing the Union and polling its container repair department
employees as to their positions on solutions for the lack of work
in their department and on implementing layoffs when it was
well aware of the Union’s positions on those issues.
(k) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies and purposes of the Act.
(a) Upon request of the Union, bargain collectively with it in
good faith for an initial collective-bargaining agreement cover-
ing the employees in the following 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 Respon-
dent’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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
sional employees, data analysts, plant maintenance leads,
guards, and supervisors as defined by the Act.
(b) Make whole, with interest, in the manner set forth in the
Remedy section of this decision, the following individuals, who
were unlawfully suspended subsequent to May 26, 2000,—
Demone Anderson, George Booker, John Chatman, Jacqueline
Greer, Marietta Haywood, Sheila Jackson, Sheila McFarland,
Ardell Shelfo, Ebony Mouton, Monique Dudley, Donika
Dotson, Paulette Hicks, Linda Martinez, Toni Bertrand, Can-
dace Minter, Tina Bowman, and Latosha Green.
(c) Offer immediate reinstatement to the below-named em-
ployees, who were unlawfully discharged subsequent to May
26, 2000, to their former positions or, if the positions no longer
exist, to substantially equivalent positions without prejudice to
their respective seniority or other rights and privileges previ-
ously enjoyed and make each whole, with interest, in the man-
ner described in the remedy section of this decision—Demone
Anderson, George Booker, John Chatman, Daryl Johnson,
Sheila McFarland, Ardell Shelfo, Yolanda Stevens, Marian
Howard, Latachianna Pontiflet, Mandrell Miller, Lowe Shakes-
nider, Merdia Fort, Theodore Hagaman, Shawndale Quilter,
Michelle Mayse, Armando Leapheart, and Marcell Spain.
(d) Within 14 days from the date of this Order, expunge and
remove from the personnel files of any bargaining unit em-
ployee, who received the unlawful discretionary verbal warning
notices, written warning notices, notices of suspension, and
notices of termination, given to bargaining unit employees,
subsequent to May 26, 2000, for reasons including failing to
meet minimum efficiency levels and violating its absenteeism
policy, and, within 3 days thereafter, notify each employee, in
writing, that this has been done and that his or her verbal warn-
ing notice, written warning, notice of suspension and/or notice
of discharge will not be used against him or her in any way.
(e) Upon the request of the Union, rescind the above-
described unlawful, unilateral changes, all of which pertain to
the bargaining unit employees’ terms and conditions of em-
ployment, until such time as it negotiates with the Union in
good faith to agreement or to impasse.
(f) Make whole, with interest, in the manner set forth in the
Remedy section of this decision, each container repair depart-
ment employee, who had his or her hours reduced, as a result of
its unlawful unilateral change.
(g) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Office may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of the Order.129
(h) Within 14 days after service by the Region, post at its fa-
cility in Richmond, California, copies of the attached notice,
marked “Appendix.”130 Copies of the notice, in English and

129 If requested, the originals of such records shall be provided in the
same manner.
130 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-
Spanish, on forms provided by the Regional Director of Region
32, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt and maintained by it for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing 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 current employees and
former employees employed by the Respondent at any time
since April 13, 2000.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a provided by the Region, attesting to the steps that the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended complaint in Case
32–CA–18149, the consolidated complaint in Cases 32–CA–
18459 and 32–CA–18526, and the complaint in Case 32–CA–
18601 be dismissed insofar as they allege violations of Section
8(a)(1) and (3) of the Act and Section 8(a)(1) and (5) of the Act
not specifically found herein.
Dated: April 19, 2002
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
the National Labor Relations Act and has ordered us to abide
by the provisions of this Notice.
WE WILL NOT issue disciplinary warning notices to our con-
tainer repair department mechanics for failing to perform at
minimum efficiency levels after increasing the minimum effi-
ciency levels for the employees without giving prior notice to
Warehouse Union Local 6, International Longshore and Ware-
house Union, AFL–CIO (the Union) and affording it an oppor-
tunity to bargain.
WE WILL NOT, after the Union’s May 26, 2000 request to
bargain prior to each act of discipline, using our discretion,
issue verbal warning notices, written warning notices, notices
of suspension and notices of firings to our inspectors for failing
to perform at minimum efficiency levels without prior notice to
the Union or affording it an opportunity to bargain.
WE WILL NOT, after the Union’s May 26, 2000 request to
bargain prior to each act of discipline, using our discretion, fire
any bargaining unit employees without prior notice to the Un-
ion or affording it an opportunity to bargain.
WE WILL NOT, after the Union’s May 26, 2000 request to
bargain prior to each act of discipline, using our discretion,
issue verbal warning notices, written warning notices, notices

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. 53
of suspension, and notices of firings to our bargaining unit em-
ployees for violating our absenteeism policy without prior no-
tice to the Union or affording it an opportunity to bargain.
WE WILL NOT unilaterally, without prior notice to the Union
or affording it an opportunity to bargain, impose a new work
rule upon our bargaining unit employees, prohibiting them from
discussing the Union with their fellow employees during work-
ing time.
WE WILL NOT impose a work rule upon our bargaining unit
employees, prohibiting them from discussing the Union with
their fellow employees during working time when there is no
such prohibition as to conversations about any other subjects.
WE WILL NOT fail and refuse to bargain in good faith with the
Union by insisting, as a precondition to the resumption of face-
to-face collective bargaining, that the Union provide us with a
complete contract proposal, including all economic items, by
delaying the appointment of a substitute lead negotiator, and by
demanding to meet at an unreasonable location.
WE WILL NOT unilaterally, without giving notice to the Union
and affording it an opportunity to bargain, eliminate Memorial
Day and Labor Day as nonworking holidays, change the job
duties of our welder, implement a new work rule prohibiting
excessive talking and wandering away from workstations, im-
plement a new work rule mandating that, with less than 1 week
prior notice, leave from work will be considered an unexcused
absence, change the shift times for first-shift processing de-
partment employees during the Memorial Day weekend in
2000, changing the work shift and working hours of the unit
inventory clerk, hire temporary employees directly rather than
through temporary employment agencies and pay them at a
different wage rate than paid to our bargaining unit employees,
who are doing the same work, and reduce the hours of work of
our container repair department employees.
WE WILL NOT undermine the Union as the bargaining repre-
sentative of our bargaining unit employees by bypassing the
Union and deal directly with our employees regarding working
voluntarily on a Saturday and offer to pay them at a triple time
rate of pay for working on Memorial Day.
WE WILL NOT undermine the bargaining position of the Un-
ion by bypassing it to poll our container repair department em-
ployees as to their positions on solutions for the lack of work in
their department and on implementing layoffs when we were
aware of the Union’s positions on these issues.
WE WILL NOT, in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
WE WILL, on the request of the Union, bargain collectively in
good faith with it for an initial collective-bargaining agreement
covering the following individuals:
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 us at our Richmond, California facility; excluding
all employees performing work duties at Respondent’s facility
who are provided to Respondent by temporary placement or
employment agencies, outside contractor employees, office
clerical employees, janitors, managers, supervisors, acting su-
pervisors, confidential employees, professional employees,
data analysts, plant maintenance leads, guards, and supervi-
sors as defined by the Act.
WE WILL make whole, with interest, for any wages and bene-
fits lost the following employees, who were unlawfully sus-
pended subsequent to May 26, 2000—Demone Anderson,
George Booker, John Chatman, Jacqueline Greer, Marietta
Haywood, Sheila Jackson, Sheila McFarland, Ardell Shelfo,
Ebony Mouton, Monique Dudley, Donika Dotson, Paulette
Hicks, Linda Martinez, Candace Minter, Tina Bowman, and
Latosha Green.
WE WILL, within 14 days from the date of the Order of the
Board, offer immediate reinstatement to the below-named em-
ployees, who were unlawfully discharged subsequent to May
26, 2000, to their former positions or, if the positions no longer
exist, to substantially equivalent positions without prejudice to
their respective seniority or other rights and privileges previ-
ously enjoyed and make each whole, with interest, for any
wages and benefits lost as a result of being unlawfully fired—
Demone Anderson, George Booker, John Chatman, Daryl
Johnson, Sheila McFarland, Ardell Shelfo, Yolanda Stevens,
Marian Howard, Latachianna Pontiflet, Mandrell Miller, Lowe
Shakesnider, Merdia Fort, Theodore Hagaman, Shawndale
Quilter, Michelle Mayse, Armando Leapheart, and Marcell
Spain.
WE WILL, within 14 days from the date of the Order of the
Board, expunge and remove from the personnel files of any
bargaining unit employees who received the unlawful discipli-
nary verbal warnings, written warnings, notices of suspension,
and notices of discharge, given to bargaining unit employees
subsequent to May 26, 2000, for reasons including failing to
meet minimum efficiency levels and violating our absenteeism
policy, and, within 3 days thereafter, notify each employee, in
writing, that this has been done and that his or her verbal warn-
ing notice, written warning notice, notice of suspension, and/or
notice of discharge will not be used against him or her in any
way.
WE WILL, upon request of the Union, rescind the above-
described unlawful, unilateral changes, all of which pertain to
our bargaining unit employees’ terms and conditions of em-
ployment, until such time as we negotiate with the Union in
good faith to agreement or to impasse.
WE WILL make each container repair department employee,
who had his or her work hours reduced as a result of our unlaw-
ful, unilateral change whole, with interest, for any wages or
benefits lost.
ALAN RITCHEY, INC.