ATC/Vancom of California, L. P.

National Labor Relations Board - Board Decisions

May 7, 2003

338 N.L.R.B. 1166 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1166
ATC/Vancom of California, L.P. and Chauffeurs,
Sales Drivers, Warehousemen and Helpers, Lo-
cal 572, International Brotherhood of Team-
sters, AFL–CIO

ATC/Vancom of California, L.P. and George Rodri-
guez , Petitioner

Chauffeurs, Sales Drivers, Warehousemen and Help-
ers, Local 572, International Brotherhood of
Teamsters, AFL–CIO, Union and United Trans-
portation Union, Intervenor. Cases 31–CA–
24875, 31–CA–25022, and 31–RD–1434
May 7, 2003
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On December 14, 2001, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief to the Respon-
dent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings,2 findings, and conclusions and
to adopt the recommended Order.3

1 The Respondent has filed a motion to reopen the record and the
General Counsel has filed a motion to strike portions of the Respon-
dent’s brief in support of exceptions. We deny the Respondent’s mo-
tion, as the evidence the Respondent seeks to adduce has not been
shown to be newly discovered and previously unavailable. We grant
the General Counsel’s motion because the Board will not consider facts
or documents not made part of the record. Wisconsin Steel Industries,
318 NLRB 212, 216 fn. 17 (1995).
2 We agree with the judge in finding no merit to the Respondent’s
argument that it was bound by California Government Code Sec. 16645
and thus was required to remove the Union’s notices to maintain strict
neutrality. The statute cited by the Respondent did not go into effect
until January 1, 2001. The Respondent removed notices from the bulle-
tin board on December 7 or 8, 2000, and again on December 14 or 15,
and announced its new policy of removing all union literature on De-
cember 26. Thus, the unlawful activity occurred before the statute, on
which the Respondent allegedly relied, went into effect. In light of this
finding, we find it unnecessary to pass on the other reasons provided by
the judge to reject the Respondent’s affirmative defense.
We have entered a standard “cease and desist” Order, and we have
directed a second election. In compliance with the Order, and in con-
nection with that election, the Respondent would be required to restore
the Union’s access to the bulletin board. If, in the future, the Respon-
dent is sued under the above statute, based on its actions in compliance
with this Order, it may seek reconsideration of this Order. At that time,
amicus briefs would be appropriate.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, ATC/Vancom of California,
L.P., Santa Clarita, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.
IT IS FURTHER ORDERED that the election held in Case
31–RD–1434 be, and is, set aside, and that said case be,
and is, remanded to the Regional Director for Region 31
to conduct a new election when he deems the circum-
stances permit the free choice of a bargaining representa-
tive.
[Direction of Second Election omitted from publica-
tion.]

Brian D. Gee, for the General Counsel.
James Foster and Jeff Hackney (McMahon, Berger, Hanna,
Linahan Cody & McCarthy), of St. Louis, Missouri, for Re-
spondent/Employer.
Lourdes M. Garcia (Wohlner, Kaplon, Phillips, Young & Cut-
ler), of Encino, California, for Teamsters Local 572.
Daniel Elliott, of Cleveland, Ohio, for United Transportation
Union.
George Rodriguez, of Lancaster, California, pro se, for the Peti-
tioner.
DECISION
STATEMENT OF CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Los Angeles, California, on October 22, 2001,
based upon a consolidated complaint1 issued by the Regional
Director for Region 31 of the National Labor Relations Board.
As modified by the severance, it is based upon an unfair labor
practice charge filed on January 16, 2001, by Chauffeurs, Sales
Drivers, Warehousemen and Helpers, Local 572, International
Brotherhood of Teamsters, AFL–CIO (the Union). The com-
plaint alleges that ATC/Vancom (Respondent) has committed
certain violations of Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act). In addition, the Regional Direc-
tor has ordered a hearing on two2 union objections to the out-
come of a representation election, Case 31–RD–1434, and has
consolidated them with the unfair labor practice complaint.
They track the remaining allegation of the complaint, paragraph
13.

3 In light of our rulings, we deny both the Attorney General of Cali-
fornia’s motion for leave to file memorandum as amicus curiae, and the
General Counsel’s motion for leave to file a supplemental memoran-
dum.
1 Shortly before the hearing in this matter commenced, the Regional
Director approved a settlement agreement in Case 31–CA–25022.
Accordingly, that case was severed, and the corresponding paragraphs
of the complaint were deemed to have been withdrawn.
2 At the hearing the Union, through counsel, advised that it had ear-
lier withdrawn Objections 3 and 4, leaving only 1 and 2 for resolution.
338 NLRB No. 180
ATC/VANCOM OF CALIFORNIA, L.P. 1167
The Issues
George Rodriguez, the decertification petitioner, filed his
election petition on November 30, 2000.3 According to the
complaint, shortly after that filing, Respondent barred the Un-
ion from posting notices on the drivers’ room bulletin board, a
board which was established by the collective-bargaining con-
tract then in effect. Pursuant to a stipulated election agreement
a representation election was held on January 3, 2001. The
United Transportation Union (UTU) intervened in the election.4
The principal issue as framed by the complaint is whether Re-
spondent’s barring the Union from using its contractually bar-
gained-for bulletin board violated Section 8(a)(5) as a unilateral
change in working conditions. In addition, it seems to me, it
may properly be asked whether by that conduct Respondent
repudiated a clause of the collective-bargaining contract and
directly, within the language of Section 8(a)(1), interfered with
the employees’ right to receive communications from their
statutory representative.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to orally argue, and to file briefs. The General Counsel,
Respondent and both labor organizations have filed briefs
which have been carefully considered. Based upon the entire
record of the case, as well as my observation of the witnesses
and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
The pleadings, supplemented by the evidence, demonstrate
that Respondent is a limited partnership which operates the city
bus system for the City of Santa Clarita, including fixed routes,
commuter services to downtown Los Angeles and the San Fer-
nando Valley, and paratransit transportation for the elderly and
the disabled. Respondent admits that during the past year it has
derived gross revenues in excess of $250,000 and has received
goods and services directly from sources outside California in
excess of $2000.5 Accordingly, it admits it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Furthermore it admits that the Union is a
labor organization within the meaning of Section 2(5) of the
Act. I so find.
The facts are largely uncontroverted. Respondent has oper-
ated the city of Santa Clarita bus system since 1996. It runs the
business from a city-owned yard on West Avenue Stanford.
During the period in question its approximately 100 coach op-
erators were represented by the Union which had a collective-

3 All dates are the year 2000 unless otherwise indicated.
4 The voting unit covered all full-time and regular part-time bus op-
erators employed by the Employer at its Santa Clarita, California opera-
tion, excluding office clerical employees, all other employees, mainte-
nance employees, guards and supervisors as defined in the Act. The
tally shows that in a voting unit of approximately 98 employees, 76
votes were cast for representation by the UTU, 10 in favor of the Union
and none for no representation.
5 Therefore, it meets the standard for the assertion of jurisdiction
over local transit systems. See Charleston Transit Co., 123 NLRB
1296 (1959).
bargaining agreement which was in effect from November 1,
1996, to August 4, 2001. The Union has represented those driv-
ers for least 10 years, including the period prior to Respon-
dent’s assumption of the transit contract from the city. Before
1996 the transit system had been operated by a predecessor.
Respondent’s general manager is Ken Graska and its director
of operations is Sheri Camuso. The Union has two stewards
among the drivers, George Rodriguez and Oscar Franco Jr. In
October the Union had been placed in trusteeship, resulting in
the hiring of Business Agent Miguel Lopez and his assignment
to Respondent in November.
Sometime in the middle of 2000, the UTU approached Rod-
riguez and asked him to solicit authorization cards on its behalf.
Rodriguez agreed to do so and subsequently the UTU instructed
him concerning the filing of a decertification petition. After a
false start, on November 30 Rodriguez filed the instant petition.
Pursuant to a Stipulated Election Agreement the election was
scheduled for January 3, 2001. The UTU intervened and was
placed on the ballot.
In the drivers’ room6 at the yard’s administration building is
a bulletin board in a case with glass doors. The right side is
considered to be the Union’s bulletin board, while the left is
used for operational information. The Union’s bulletin board
was established by a clause in the 1996–2001 collective-
bargaining agreement.7 During the first 11 months of 2000,
Rodriguez posted between 10 and 15 union notices on that
board. When Lopez became the business agent, he introduced
himself by posting two notices of his appointment (one English,
one in Spanish) on the board. After they had served their pur-
pose he removed them. Clearly the union bulletin board serves
a material and substantial communication function. Moreover,
until November, Respondent exercised no oversight over the
board.
On December 7 or 8, Rodriguez posted a notice on Union
letterhead announcing a special meeting for all driv-
ers/operators to be held on December 9 at a local hotel. The
announcement contained no other information and did not de-
scribe the purpose of the meeting. Of course, the meeting was
to discuss the decertification election which had just been
scheduled.
Operations Manager Camuso observed the notice and
promptly removed it from the board. When Rodriguez asked
her who had removed the notice, Camuso acknowledged that
she had done so, explaining that a corporate decision had been
6 The drivers’ room is a break room in which are located vending
machines, a refrigerator, tables, chairs, a television set, and the dispatch
window. It is commonly used by drivers in between their split shifts.
7 Art. VIII, sec. 5 of that collective-bargaining contract reads: “The
Company agrees to provide space for a bulletin board for union use.
Postings by the Union on this board are to be confined to formal notices
of meetings, elections, names of representatives and officers of the
Union, and recreational or social events of the Union. Postings not on
union letterhead shall be initialed and dated by the business agent, and
shall be removed from the bulletin board after they have served their
purpose or 2 weeks after posting. All other notices shall be submitted to
management for approval.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
made to remove it. Rodriguez told her she could not do so,
noting the Union’s contractual right to post such notices.8
On December 14 or 15, Rodriguez posted a similar notice,
this time for a meeting at a local pet shop on December 16.
Within hours Camuso had removed it as well.
This prompted Rodriguez to notify Lopez about the prob-
lems he was having and on December 18 a meeting was con-
ducted between Camuso, Lopez, Rodriguez, and Franco. Dur-
ing the meeting Lopez advised Camuso that Respondent was
breaching both the contract and the law by removing the no-
tices from the Union’s board. She replied that corporate head-
quarters had told her that Respondent had to remain neutral in
the election and because of that it would no longer allow the
Union to post notices concerning the upcoming election.
On December 26 another meeting was conducted. This time
Respondent’s officials were General Manager Graska, Camuso
and Safety Director Cheryl Lindh while the Union’s representa-
tives were the same. The initial portion of the meeting was
devoted to some outstanding grievances, but it concluded with
Graska handing out a memo directed to “all employees” con-
cerning the posting of union materials. In its entirety the memo
reads:

In accordance with California law please be advised
that in order to maintain a “neutral” workplace, all union
literature of any kind will now be prohibited from being
placed on any bulletin board including those previously
utilized by any union or labor organization. We are pub-
lishing this policy to insure that we maintain “neutrality”
in the workplace and do not favor one union or another in
the current contest between the UTU and the Teamsters
Local 572.
It is our stated policy not to interfere with an em-
ployee’s choice about whether to join or be represented by
a labor union. Accordingly, to preserve our “employer
neutrality” we want to insure that we are not assisting,
promoting, or deterring union organizing.
Accordingly, there shall be no literature posted of any
kind by either the UTU or the Teamsters on the bulletin
boards unless it is approved by management in advance.
Anyone caught tampering with the locks or otherwise
posting material on top of the glass cover will be subject to
disciplinary action.
Thank you for your cooperation.

Despite Respondent’s assertion that neither union would be
permitted to post material, Rodriguez testified that UTU cam-
paign material remained posted elsewhere in the building, spe-
cifically next to the dispatch desk. He had posted it there him-
self.9 When he told Camuso it was up, it was removed as well.
At no time prior to Camuso’s removing the Union’s first no-
tice on December 8 had Respondent advised the Union of its

8 The UTU contends that the contract’s bulletin board clause was not
aimed at representation elections. The clause is, however, aimed at
union meetings, which Rodriguez’ notices clearly announced, and were
without reference to the meetings’ purpose.
9 Rodriguez, apparently serving both unions, posted Teamsters mate-
rial on its board (per its contractual right) and UTU material in other
places where it might be seen, but not on the Teamsters board.
intention to bar the Union from its bulletin board. Indeed, on
December 26, the decision was presented as a fait accompli.
II. LEGAL ANALYSIS
The General Counsel asserts that Respondent’s unilateral ac-
tion in barring the Union from its own bulletin board is a
breach of the bargaining obligation and a straightforward viola-
tion of Section 8(a)(5) and (1). Furthermore, it would appear
that interfering with the Union’s ability to communicate with its
constituency is a straightforward interference with the employ-
ees’ exercise of their rights under Section 7 to communicate
with their statutory representative. These theories will be expli-
cated more fully below.
First, however, I shall touch upon Respondent’s general con-
tentions. It has, relying on a California statute, asserted that it
was only seeking to demonstrate its neutrality during the course
of the election campaign. While the argument sounds equitable,
in fact it is specious from the outset, for it entirely ignores an
employer’s actual responsibility as set forth under the Act. Any
discussion of an employer’s obligations to the election process
must begin with the fundamental concept that an employer may
not change the status quo if the change may reasonably affect
the outcome of the pending election. This doctrine is most
commonly invoked when an employer grants a benefit to em-
ployees before an election. The rule, commonly stated, is that
the employer is obligated to act as if the union is not in the
picture. See the seminal case of McCormick Longmeadow
Stone Co., 158 NLRB 1237, 1241 (1966). In McCormick, the
Board adopted Trial Examiner Reel’s decision which held:
“[A]n employer’s legal duty in deciding whether to grant bene-
fits while a representation case is pending is to determine that
question precisely as he would if a union were not in the pic-
ture. If the employer would have granted the benefits because
of economic circumstances unrelated to union organization, the
grant of those benefits will not violate the Act. On the other
hand, if the employer’s course is altered by virtue of the un-
ion’s presence, then the employer has violated the Act.” Also J.
& G. Wall Baking Co., 272 NLRB 1008, 1012 (1984), and see
House of Raeford Farms, 308 NLRB 568, 569 (1992), enfd. 7
F.3d 223 (4th Cir. 1993), where the Board in dealing with an
employer who had a preexisting policy of soliciting grievances
said:

The judge correctly observed that an employer who has had a
past practice and policy of soliciting employee grievances
may continue to do so during an organizational campaign.
See, e.g., Lasco Industries, 217 NLRB 527, 531 (1975). It is
well established, however, that an employer cannot rely on
past practice to justify solicitation of employee grievances if
the employer significantly alters its past manner and methods
of solicitation during the union campaign. Carbonneau Indus-
tries, 228 NLRB 597, 598 (1977). We find that the Respon-
dent’s method of solicitation of grievances following the on-
set of the union organizing campaign clearly constitutes a sig-
nificant alteration of its past practice.

Another example is KOFY TV-20, 332 NLRB 771 (2000),
which held that an employer’s election eve change of coffee
breaktime from the beginning or the end of a shift to midshift in
ATC/VANCOM OF CALIFORNIA, L.P. 1169
order to comply with state law, was an unlawful change of the
status quo. A myriad of similar cases can be found as well.
Therefore, neutrality, is not as Respondent would have it, an
obligation to affirmatively level the playing field as it sees fit.
Neutrality, instead, is the obligation to maintain the existing
status quo (although there are some exceptions not applicable
here).
Furthermore, another barrier to an employer’s unilateral
changes is interposed, as here, where a collective-bargaining
contract is in effect. Section 8(d) of the Act mandates that the
conditions established by the collective-bargaining contract
shall be maintained until mutually altered (except in certain
limited contract hiatus situations not present here). The perti-
nent portion of Section 8(d) is set forth in the footnote.10 I have
Italicized the most significant language.
Respondent seeks to avoid Section 8(d) by asserting that bul-
letin board matters are not mandatory subjects of bargaining.
The UTU has taken a similar position. Yet, the Board and the
courts have long held otherwise. See the cases cited by the
General Counsel, NLRB v. Proof Co., 242 F.2d 560 (7th Cir.
1957), cert. denied 355 U.S. 831 (1957), enfg. 115 NLRB 309
(1956), Arizona Portland Cement Co., 302 NLRB 36, 44
(1991), and the cases cited therein at footnote 28. Moreover, as
the General Counsel also observes, the Board has held in a
nearly identical fact pattern that an employer violated Section
8(a)(5) and (1) when it unilaterally changed the bulletin board
posting policy established on a union’s behalf by a collective
bargaining agreement even though controversial flyers had
been posted there. Formosa Plastics Corp., Louisiana, 320
NLRB 631 (1996). See also Arizona Portland Cement Co.,
supra, Pioneer Press, 297 NLRB 972 (1990).11

10 Sec. 8(d) [Obligation to bargain collectively] For the purposes of
this section, to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement or any question arising there under, and the
execution of a written contract incorporating any agreement reached if
requested by either party, but such obligation does not compel either
party to agree to a proposal or require the making of a concession:
Provided, That where there is in effect a collective-bargaining contract
covering employees in an industry affecting commerce, the duty to
bargain collectively shall also mean that no party to such contract shall
terminate or modify such contract, unless the party desiring such termi-
nation or modification—
(1) serves a written notice upon the other party to the contract
of the proposed termination or modification sixty days prior to the
expiration date thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is proposed to make
such termination or modification;
(2) offers to meet and confer with the other party for the pur-
pose of negotiating a new contract or a contract containing the
proposed modifications,
(3) [omitted]
(4) [omitted]
. . . .
11 Respondent suggests in its brief that it had become necessary to
control the board because, according to its offer of proof, “tension and
competition” was occurring between proponents of both unions. Yet it
never offered to prove that the bulletin board had become a “battle-
Accordingly, absent any valid affirmative defense it is clear
that Respondent was not privileged to unilaterally bar the Un-
ion from posting meeting notices on its bulletin board. Fur-
thermore, I also find that by barring the Union from its own
bulletin board, one which is established by a collective-
bargaining contract, that Respondent made a midterm change,
or more properly described, a midterm repudiation of a term of
the agreement. That, too, violates Section 8(a)(5) and (1) of the
Act. A case quite similar to this is Frontier Hotel & Casino,
309 NLRB 761, 766–767 (1992), enfd. sub nom. Unbelievable,
Inc., 71 F.3d 1434 (9th Cir. 1995). In that case the employer,
contrary to the terms of its collective-bargaining contract, ex-
pelled union officials from its employee dining room, thereby
changing a contractually established condition of employment.
Adopting my decision the Board and the court found such con-
duct to be an improper midterm modification of the contract.
And, of course, by removing this avenue of communication it
tended to undermine the union as the statutory representative,
also violative of Section 8(a)(5). The same observations must
be made here.
In addition, in Frontier, the Board found that by expelling
the union officials respondent directly interfered with the abil-
ity of the employees to receive communications from their
statutory representative. That interference was a direct violation
of Section 8(a)(1). When respondent barred the union from its
own bulletin board, it likewise interfered with the ability of the
employees to communicate with their statutory representative.
This situation is hardly any different from Frontier. Accord-
ingly, again absent a valid affirmative defense, I find Respon-
dent’s action here to be an independent violation of Section
8(a)(1) for it literally interferes, in the words of the statute, with
the right/obligation of the Union to communicate with its con-
stituency.12
Respondent has offered several defenses justifying its con-
duct. It first argues that its action had no effect on Rodriguez’
ability to reach the employees. It cites Rodriguez’ testimony
asserting that it demonstrates that he contacted them anyway. A
review of Rodriguez’ testimony does not lead to that conclu-
sion. He was asked if he had been “able to effectively commu-
nicate the dates and times and places, of the Teamsters meet-
ings that occurred after notices were taken down from the bul-
letin board.” His reply was, “I let them know about the meet-
ings . . . employees . . . Well, I had to go and try to find them,
one-on-one.” Given the fact that there were 100 coach drivers
to be reached, it seems quite unlikely that he was fully success-
ful on both occasions. I find Respondent’s argument to be un-
persuasive.
Second, Respondent argues that its action could have had no
coercive effect nor could it have affected the outcome of the
election. This argument is not based on any factual assertion,
only counsel’s interpretation of the evidence. That interpreta-

ground” [see Nugent Service, 207 NLRB 158 (1973); Contra Costa
Times, 228 NLRB 692 (1977)], which might actually privilege such
regulation.
12 Sec. 8(a)(1) of the Act provides: “It shall be an unfair labor prac-
tice for an employer - to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7; . . . .”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
tion flies in the face of Board law and experience. The Board
has consistently held since Dal-Tex Optical Co., 137 NLRB
1782 (1962), that conduct violative of the Act is a fortiori con-
duct which interferes with the exercise of a free and untram-
meled choice in an election. Indeed, contrary to Respondent’s
claim that it was only seeking to demonstrate its neutrality, its
conduct actually had the effect of disfavoring and undermining
the Union. Clearly, if the employees are determining to substi-
tute one bargaining representative for another, they should be
allowed to assess the incumbent’s performance without an em-
ployer-imposed lens distorting their ability to appraise the
situation.
Finally, viewing it as its strongest argument, Respondent
contends that it was obligated to follow a California statute
requiring employer neutrality during the representation process.
I was unimpressed with the contention during the hearing and
remain so.
The statute, California Government Code Section 16645,
deals with state contractors performing work on state property
and their use of state funds. In essence, the statute prohibits
state contractors who perform their business on state property
or who receive state monies from “assistant[ing], promot[ing],
or deter[ing] union organizing by employees who are perform-
ing work on a service contract, including a public works con-
tract, for the state or a state agency.” In addition it bars the
expenditure of state provided funds for the purpose of assisting,
promoting or deterring union organizing.
The first observation to be made about the statute is that it
did not become effective until January 1, 2001, only 2 days
before the election. Therefore, it was not in effect during De-
cember when Respondent was removing notices from the Un-
ion’s bulletin board and issuing its December 26 policy memo.
The statute simply had no application, arguable or otherwise.
Second, Respondent has not been shown to be a state con-
tractor. It is a contractor to a municipality, not the State of Cali-
fornia. The statute is not directed to the counties or to the mu-
nicipal corporations within the State. If it had been, the Legisla-
ture would have utilized language so saying. The Legislature
clearly knows the difference between state agencies and cities.
Again the statute has no application to Respondent.
Third, accepting Respondent’s offer of proof to the effect
that it receives about 10 percent of its funding from the State,
there is no proof, nor even an offer of proof, that any of its state
money was directed at regulating the bulletin board. The statute
can have no application here.
Frankly, I find this proffered defense empty of logic. It is
only smoke and mirrors, not a valid legal defense. There is,
therefore, no need to discuss Respondent’s further argument,
that the statute is not preempted by the NLRA. Preemption, as
an issue, is not ripe for decision.
Accordingly, as no valid defense has been raised, my finding
Respondent to have violated Section 8(a)(5) and (1) stands as
set forth above.
Recommendation Regarding the Election in
Case 31–RD–1434
Rather clearly, the unfair labor practices found here are vir-
tually congruent with the two objections to the outcome of the
election filed by the Union. Therefore, I conclude, based upon
the rule set forth in Dal-Tex Optical Co., 137 NLRB 1782
(1962), that the election should be set aside. In that case, the
Board held that unfair labor practices occurring during the
course of a representation election campaign is a fortiori con-
duct which interferes with the exercise of the employees’ free
and untrammeled choice in an election. See also Diamond Wal-
nut Growers, 316 NLRB 36 (1995). Accordingly, I recommend
that the Board set the election aside and direct that a second
election be conducted after an appropriate remedial period as
set forth in the unfair labor practice portion of this case.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The affirmative action will include
an order to post a notice to employees advising them of the
remedial steps it will take. The Regional Director will have the
discretion to also require the notice be in any foreign language
he deems appropriate.
On the foregoing findings of fact and the entire record in this
case, I issue the following
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 and the UTU are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent’s conduct in depriving the Union of access to
its bulletin board violated the Act as follows:
(a) It deprived employees of access to their statutory collec-
tive-bargaining representative and thereby interfered with the
employees’ Section 7 right to union representation, a violation
of Section 8(a)(1).
(b) It had the tendency of undermining the Union as the em-
ployee bargaining representative because the employees could
no longer as readily receive communications from their repre-
sentative, thereby violating Section 8(a)(5) and (1).
(c) It constituted a repudiation of the collective-bargaining
contract clause designed to provide an information system from
the Union to the employees and to protect the employees’ Sec-
tion 7 rights, thereby violating Section 8(a)(5) and (1).
(d) It constituted a unilateral change in a material and sub-
stantial term and condition of employment in circumstances
where Section 8(d) of the Act prohibits the unilateral repudia-
tion of collectively bargained terms and conditions and thereby
violated Section 8(a)(5) and (1).
Based on the foregoing findings of fact and conclusions of
law and the entire record, I issue the following recommended13

13 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.
ATC/VANCOM OF CALIFORNIA, L.P. 1171
ORDER
The Respondent, ATC Vancom of California, L.P., Santa
Clarita, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Depriving the Union of access to its bulletin board in a
manner which
(b) Interferes with the employees’ Section 7 right of access
to their statutory representative or interferes with their right to
receive communications from that representative.
(c) Tends to undermine the Union as the employees’ statu-
tory representative
(d) Constitutes a repudiation of a clause in the collective-
bargaining contract clause designed to provide an information
system from the Union to the employees and to protect the
employees’ Section 7 rights.
(e) Constitutes a unilateral change of a material and substan-
tial condition of employment.
(f) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region post at its
business in Santa Clara, California, copies of the attached no-
tice marked “Appendix.”14 Copies of the notice, on forms pro-
vided by the Regional Director for Region 31 after being signed
by Respondent’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicucous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-

14 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.”
ployees and former employees employed by Respondent at any
time since December 8, 2000.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps Re-
spondent has taken to comply.
Any outstanding motions which are inconsistent with the
above findings are denied.
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 ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT deprive Chauffeurs, Sales Drivers, Warehouse-
men and Helpers, Local 572, International Brotherhood of
Teamsters, AFL–CIO of access to its bulletin board in a manner
which:
Interferes with your Section 7 right of access to your
statutory representative or interferes with your right to re-
ceive communications from their representative.
Tends to undermine Local 57 as your statutory repre-
sentative.
Constitutes a repudiation of the bulletin board clause
in the collective-bargaining contract.
Constitutes a unilateral change of a material and sub-
stantial condition of employment.

WE WILL NOT in any like or related manner interfere with, re-
strain, coerce you in the exercise of your rights guaranteed by
Section 7 of the Act.
ATC/VANCOM OF CALIFORNIA, L.P.