Raven Government Services

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 651 (N.L.R.B. 2000)

RAVEN GOVERNMENT SERVICES 651
Raven Services Corporation d/b/a Raven Government
Services, Inc. and International Union of Operat-
ing Engineers, Local 826, AFL–CIO and Interna-
tional Union of Operating Engineers, Local 351,
AFL–CIO. Cases 16–CA–18516, 16–CA–18761,
and 16–CA–18841
June 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On December 11, 1997, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the decision and the record1 in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,2 and conclusions3 and to adopt
the recommended Order, as modified.4

1 The Respondent has requested oral argument. This request is denied as
the record, exceptions, and briefs adequately present the positions of the
parties.
2 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative
law judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the find-
ings.
In adopting the judge’s finding that the Respondent violated Sec. 8(a)(5)
by refusing to provide the Union with requested information, Member
Hurtgen does not rely on the judge’s analysis insofar as it may be read to
suggest that a request for information, or the passage of time since impasse
had been declared, would break the bargaining impasse. Rather, Member
Hurtgen finds that, in the circumstances of this case, the Union’s request for
information, for the asserted purpose of formulating new bargaining pro-
posals, obligated the Respondent to provide that information and to meet
with the Union for bargaining.
3 We affirm the judge’s rejection of the Respondent’s argument that a
management rights clause in the contract proposal that it unilaterally im-
plemented after a bargaining impasse justified subsequent unilateral
changes in unit employees’ terms and conditions of employment. See
Control Services, 303 NLRB 481, 484 (1991), enfd. mem. 975 F.2d 1551
(3d Cir. 1992).
In agreeing with the judge and his colleagues that the Respondent vio-
lated Sec. 8(a)(5) by unilaterally changing employees’ terms and conditions
of employment, Member Hurtgen finds that the nonagreed upon manage-
ment-rights clause, which the Respondent previously implemented as part
of its final offer at impasse, does not privilege the Respondent’s subsequent
unilateral changes to the status quo.
We agree with the judge that the Respondent’s withdrawal of recognition
was tainted by its serious unremedied unfair labor practices, including its
refusal to provide information to the Union, unilateral changes in terms and
conditions of employment, and direct dealing with its employees. We also
agree that, in any event, the hearsay report that the Respondent received of a
decertification petition that had been circulating several months prior to its
withdrawal of recognition, and the alleged “inactivity” of the Union, did not
provide the Respondent with sufficient grounds to support a good-faith
doubt that the Union retained the support of a majority of the unit employ-
ees. Our conclusion in this regard is not altered by the Supreme Court’s
decision in Allentown Mack Sales & Service v. NLRB, 118 S.Ct. 818 (1998),
which issued subsequent to the judge’s decision. In that case, the Court held
that “doubt” meant “uncertainty,” so that the test could be phrased in terms
of whether the employer “lacked a genuine, reasonably-based uncertainty
about whether [the union] enjoyed the continuing support of a majority of
unit employees.” Id. at 823. We find that the Respondent’s asserted basis
for its withdrawal of recognition is insufficient, regardless of whether the
test is phrased in terms of “good faith reasonable doubt” of the Union’s
majority support or “genuine, reasonable uncertainty about whether the
Union enjoyed the continuing support of a majority of unit employees.”
See Henry Bierce Co., 328 NLRB 646 (1999).
We agree, for the reasons fully set forth in Caterair In-
ternational, 322 NLRB 64 (1996), that an affirmative bar-
gaining order is warranted in this case as a remedy for the
Respondent’s unlawful withdrawal of recognition from the
Union. We adhere to the view, reaffirmed by the Board in
that case, that an affirmative bargaining order is “the tradi-
tional, appropriate remedy for an 8(a)(5) refusal to bargain
with the lawful collective-bargaining representative of an
appropriate unit of employees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals for
the District of Columbia Circuit has required that the Board
justify, on the facts of each case, the imposition of such an
order. See, e.g., Vincent Industrial Plastics v. NLRB, 209
F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v.
NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and
Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994).
In the Vincent case, the court summarized the court’s law as
requiring that an affirmative bargaining order “must be jus-
tified by a reasoned analysis that includes an explicit bal-
ancing of three considerations: (1) the employees’ § 7
rights; (2) whether other purposes of the Act override the
rights of employees to choose their bargaining representa-
tives; and (3) whether alternative remedies are adequate to
remedy the violations of the Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court re-
quires and find that a balancing of the three factors warrants
an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindicates
the Section 7 rights of the unit employees who were denied
the benefits of collective bargaining by the employer’s
withdrawal of recognition. In contrast, an affirmative bar-
gaining order, with its attendant bar to raising a question
concerning the union’s continuing majority status for a rea-
sonable time, does not unduly prejudice the Section 7 rights
of employees who may oppose continued union representa-
Member Hurtgen agrees with his colleagues that the employee disaffec-
tion from the Union was tainted by the Respondent’s antecedent unfair
labor practices. Member Hurtgen does not reach the issue of whether,
absent such unfair labor practices, the disaffection would have been suffi-
cient to privilege a withdrawal of recognition. See Allentown Mack v.
NLRB, supra.
4 The Respondent shall make unit employees whole for losses resulting
from its unlawful unilateral changes in accord with Ogle Protection Service,
183 NLRB 682 (1970), rather than F. W. Woolworth Co., 90 NLRB 289
(1950), cited by the judge. Furthermore, we shall modify the contingent
notice-mailing provision in the judge’s recommended order in accord with
Excel Container, 325 NLRB 17 (1997).
331 NLRB No. 84
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
tion because the duration of the order is no longer than is
reasonably necessary to remedy the ill effects of the viola-
tion.
Moreover, we note that, in addition to unlawfully with-
drawing recognition, the Respondent also refused to bargain
with the Union following a lengthy impasse in bargaining
over an initial contract by refusing the Union’s requests for
relevant and necessary information, unilaterally eliminating
job classifications, changing wage rates, and implementing
a shift differential and training program, and bypassing the
Union and dealing directly with unit employees on these
and other terms and conditions of employment. We further
note that the evidence in this case fails to establish that the
Union ever lost its majority status. Even if it did, that loss
of majority would not reflect employee free choice under
Section 7, but the effect of the Respondent’s unfair labor
practices described above. We find that these additional
circumstances further support giving greater weight to the
Section 7 rights that were infringed by the Respondent’s
unlawful withdrawal of recognition.
(2) The affirmative bargaining order also serves the poli-
cies of the Act by fostering meaningful collective bargain-
ing and industrial peace. That is, it removes the Respon-
dent’s incentive to delay bargaining in the hope of further
discouraging support for the Union. It also ensures that the
Union will not be pressured, by the possibility of a decerti-
fication petition, to achieve immediate results at the
bargaining table following the Board’s resolution of its
unfair labor practice charges and issuance of a cease-and-
desist order.

(3) A cease-and-desist order, without a temporary decerti-
fication bar, would be inadequate to remedy the Respon-
dent’s violations because it would permit a decertification
petition to be filed before the Respondent had afforded the
employees a reasonable time to regroup and bargain
through their representative in an effort to reach a collec-
tive-bargaining agreement. Such a result would be particu-
larly unfair in circumstances such as those here, where liti-
gation of the Union’s charges took several years and the
Respondent’s unfair labor practices were of a continuing
nature and were likely to have a continuing effect, thereby
tainting any employee disaffection from the Union arising
during that period or immediately thereafter. We find that
these circumstances outweigh the temporary impact the
affirmative bargaining order will have on the rights of em-
ployees who oppose continued union representation.
For all the foregoing reasons, we find that an affirmative
bargaining order with its temporary decertification bar is
necessary to fully remedy the allegations in this case.5
5 Member Hurtgen agrees that, based on the conduct in the instant case,
an affirmative bargaining order is appropriate. More particularly, the Re-
spondent engaged in substantial 8(a)(5) conduct prior to the ultimate of
8(a)(5) violations (the withdrawal of recognition). In these circumstances, it
is appropriate to give the Union a reasonable period in which to seek to
regain the status that it enjoyed prior to the unlawful conduct.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Raven Services Cor-
poration d/b/a Raven Governmental Services, Inc., Fort
Worth, Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following as paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
the facility in Fort Worth, Texas, copies of the attached
notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 16, after be-
ing signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or removed its presence from 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 September 15, 1996.”
2. Substitute the attached notice for that of the adminis-
trative law judge.

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 vio-
lated the National Labor Relations Act and has 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
concerted activities.

WE WILL NOT coercively interrogate you about your
union support or activities.
WE WILL NOT withdraw recognition from and refuse to
recognize and bargain with International Union of Operat-
ing Engineers, Local 351, AFL–CIO as the exclusive col-
lective bargaining agent of our employees in the following
appropriate unit:

RAVEN GOVERNMENT SERVICES 653
INCLUDED: All service and maintenance employees
working for the Employer at the Western Currency
Plant in Fort Worth, Texas.

EXCLUDED: All other employees, including office
clerical employees, quality control employees and ad-
ministrative assistants, supervisors, including weekend
supervisors, and guards as defined in the Act.

WE WILL NOT fail and refuse to furnish the Union with
information necessary and relevant for bargaining on behalf
of the unit employees.
WE WILL NOT bypass the Union as the exclusive col-
lective bargaining agent of the unit employees and WE
WILL NOT deal directly with the employees concerning
rates of pay, wages, hours, and other terms and conditions
of employment and WE WILL NOT institute unilateral
changes in these terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, recognize and on request, bargain with the
Union and if an understanding is reached, embody it is a
signed agreement.
WE WILL furnish to the Union in a timely manner the
information requested by the Union for bargaining.
WE WILL on request rescind any of the unilateral
changes found unlawful herein.
WE WILL make the aforesaid bargaining unit employees
whole for any loss of wages or benefits incurred as a result
of our actions found unlawful, with interest.

RAVEN SERVICES CORPORATION D/B/A RAVEN
GOVERNMENT SERVICES, INC.

Timothy L. Watson, Esq., for the General Counsel.
E. D. David, Esq. (David & Kamp L.L.C.), of Newport News,
Virginia, for the Respondent.
Bernard Middleton, Esq. (Provo & Humphrey), of Houston, Texas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on September 15, 1997, in Fort Worth,
Texas, pursuant to an order consolidating cases, consolidated
amended complaint and notice of hearing filed by the Regional
Director for Region 16 of the National Labor Relations Board (the
Board) on August 29, 1997, and is based on charges filed by Inter-
national Union of Operating Engineers, Local 826, AFL–CIO and
Local 351, AFL–CIO (the Charging Party or the Union). Effective
about March 1, 1997, Local 826 and Local 351 merged with Local
351 being the surviving entity. The complaint as amended at the
hearing alleges that Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) by unlawfully with-
drawing recognition from the Union as the exclusive collective-
bargaining representative of its employees in the following appro-
priate bargaining unit;1 by refusing to bargain with the Union,

1 The unit consist of:
refusing to furnish information necessary for bargaining to the
Union; bypassing the Union and dealing directly with unit employ-
ees; and instituting unilateral changes in the terms and conditions
of employment of the unit employees; and that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by issuing written discipli-
nary memoranda to its employees Ken Forge and David Futty
because of their engagement in union activities and concerted ac-
tivities and to discourage employees from engaging in these activi-
ties; and violated Section 8(a)(1) of the Act by unlawfully interro-
gating its employee George Pike concerning his own and other
employees’ engagement in protected concerted activities without
advising him of his rights to refrain from submitting to such inter-
rogation and affording him his rights against reprisals as set out in
Johnnie’s Poultry, 146 NLRB 770 (1964). The Respondent has by
its answer filed as supplemented at the hearing and in brief denied
the commission of any violations of the Act.
On the entire record in this proceeding, including my observa-
tions of the witnesses who testified here and after due considera-
tion of the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that at all
times material here Respondent has been a Virginia corporation,
with an office and place of business in Fort Worth, Texas, where it
has been engaged in the business of providing maintenance ser-
vices at the Western Currency Plant of the United States in Fort
Worth, Texas; that during the past 12 months Respondent, in con-
ducting its business operations, received gross income from its
contracts with the United States Government in excess of $1 mil-
lion and purchased and received at its Fort Worth, Texas facility,
goods valued in excess of $50,000 directly from sources located
outside the State of Texas and that Respondent has been an em-
ployer within the meaning of Section 2(2), (6), and (7) of the Act.
B. The Labor Organization
The complaint alleges, the Respondent admits, and I find that at
all times material here, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
The Alleged Unfair Labor Practices
The Union was certified to represent the unit employees on
December 24, 1992. The parties engaged in bargaining for a
labor agreement in 1993 and did not reach agreement. In July
1995, the Respondent declared an impasse and unilaterally im-
plemented its proposal. Unfair labor practice charges were
brought against the Respondent for its implementation of its
proposals and there was an interim decision by an administrative
law judge holding that the parties had reached an impasse in
bargaining and that the Respondent had not violated the Act as
there was a lawful impasse at which time Respondent unilater-
ally imposed its final offer. The Respondent sought to develop
this at the hearing and I sustained the objections of the General
Counsel and counsel for the Charging Party that this was not
relevant to the issues in the case before me. I ordered that Re-
INCLUDED: All service and maintenance employees working for
the Employer at the Western Currency Plant in Fort Worth, Texas.
EXCLUDED: All other employees, including office clerical em-
ployees, quality control employees and administrative assistants,
supervisors, including weekend supervisors, and guards as defined
in the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
spondent’s rejected exhibits be placed in the rejected exhibits
file and rejected his various offers of proof at the hearing to
elicit testimony and documentary evidence concerning the bar-
gaining in 1995. I reaffirm all of those rulings; and find that the
bargaining events between the parties in 1993 through 1995
have no relevance to the instant case.
The alleged withdrawal of recognition and refusal to furnish in-
formation and refusal to bargain violations center around a series
of correspondence between the Union and the Respondent in the
late summer and fall of 1996, and culminating in July 1997. The
Union’s business representative and president, Barney Allen, re-
quested information for purposes of bargaining in September 1996
and thereafter was refused this information by Respondent’s legal
counsel, Buddy David, and David ultimately, withdrew recognition
from the Union on behalf of Respondent in July 1997. On Sep-
tember 20, 1996, Allen sent Respondent a letter asking for infor-
mation and requesting bargaining dates. Allen testified that in late
August 1996 a meeting of the Union’s members was held and a
new group chairman (Kenneth Forge) was elected. He testified
there was a renewed interest in bargaining on the part of the unit
employees as a contract between the Respondent and the United
States Bureau of Engraving and Printing (BEP) was set to expire at
the end of September and the unit employees had not received a
wage increase in 3 years. The employees reported that they were
being told by Respondent’s management that there would be clas-
sification changes and possible decreases in wages as a result. The
parties had not met since September 1994. Prior to this the parties
had not bargained since September l993. Pursuant to the meeting
with the employees, Allen initiated several requests for information
and for meetings to bargain. I credit Allen’s unrebutted testimony.
The letters and the responses received from the Respondent are as
follows:
On September 20, 1996, the Union’s business manager, Barney
Allen, wrote a letter to John L. Rulison, Respondent’s president,
with a copy to Respondent’s attorney, E. D. David, who had previ-
ously represented the Respondent during past negotiations with the
Union and who represented Respondent at the instant hearing in
these cases before me.
His letter stated as follows:

I. U. O. E., Local 826 requests a date for collective bar-
gaining. Please let me know when Raven Company represen-
tatives can be available.
Since it has been some time since we have had communi-
cation, the Union needs to update our information. Please
provide me with a detailed description of all benefit plans, in-
cluding the current medical plan, a copy of the Company
rules, a list of current classifications and pay rates, and a
copy of any employee booklets or manuals. Also provide a
work schedule showing the hours of work and the employees
shift assignments.
Thank you. [Emphasis added.]

On September 30, 1996, Respondent’s attorney, E. D. David,
responded by letter to Allen, acknowledged receipt of Allen’s letter
of September 20, and in reply stated, “Please refer to my letter of
July 28, 1995, a copy of which is attached” [emphasis added]. The
letter states as follows:

We have now had an opportunity to analyze your pro-
posal and are frankly shocked by the contents. You will re-
call at the very first negotiating session and throughout you
have insisted that once you agreed on an article, that you
would not revisit that position. Contrary to that position, you
have now put back on the table a number of positions over
which we have already reached impasse. Specifically, you
have put back on the table a closed shop and a check-off to
which, as you know, the Company is not going to agree.
Without in any way being exhaustive, you have made the
following changes to items on which we had reached agree-
ment:
1. You have made a strict seniority proposal whereas we
had already agreed to and crafted over a number of negotia-
tion sessions skill and ability type language.
2. You have left out the performance bonus.
3. You have imposed shift differentials.
4. Your language at 10.05 for filling shifts is not accept-
able. At our last negotiation session, we worked out excruci-
ating language to meet both sides’ objectives and you agreed
to that. You now are withdrawing and taking us back to
square one.
5. With regard to personal leave, you now have reopened
that matter, even though we had agreed to carefully crafted
language.
6. You have reopened the entire sore of who pays the ar-
bitrator in the event of a losing arbitration.
7. You have added proposed wage increases of 3-1/2 per-
cent per year, which is significantly more than your last offer.
The long and short of this is that you have not made one
single proposal on the issues which had kept us apart when
we last negotiated and, in fact, have already negotiated and
reached agreement. Under these circumstances, we see that
there is no need to meet and negotiate. We see your whole
proposal as made in bad faith. [Emphasis added.]

On October 14, 1996, David wrote another letter to Allen on be-
half of Respondent which stated:

Please note my new address, above.
I’m in receipt of letter that you have written to ask for ne-
gotiations in the above matter. Please refer to my letter of
July 28,2 1995, a copy of which is attached. [Emphasis
added.]

On October 22, 1996, Allen sent another letter to David which
states as follows:

In my letter of September 20, 1996, I requested informa-
tion that you have not responded to. Please send the re-
quested information within seven days.
Your letter of July 28, 1995 has nothing to do with our
latest negotiations request.
It’s been well over a year since we submitted proposals to
Raven.
We are in the process of developing new proposals for the
upcoming negotiations. Our proposals will be substantially
changed from those previously submitted. [Emphasis added.]

On November 5, 1996, Allen sent another letter to as follows:

On September 20, 1996 I requested certain information
from Raven Services Corporation. On October 22, 1996 the
Union sent another follow up request. [Emphasis added.]
Please respond to our request by the close of business
November 8, 1996. [Emphasis added.]

2 This is the same letter of July 28, 1995, referred to in David’s letter of
September 30, 1996.
RAVEN GOVERNMENT SERVICES 655
On November 7, 1996, David sent another letter to Allen as fol-
lows:

The information which you requested in your letter of
September 20, 1996 has not significantly changed since we
last met. [Emphasis added.]

On March 13, 1997, Allen sent another letter to David as fol-
lows:

International Union of Operating Engineers, Local 826
has become aware that your company has discussed, pro-
posed, and implemented changes in classifications, working
conditions, wages, benefits and conditions of employment af-
fecting bargaining unit employees at the Bureau of Engraving
and Printing (BEP) Western Currency Plant. [Emphasis
added.]
Be advised that I.U.O.E., Local 826 is the exclusive col-
lective-bargaining representative of “all service and mainte-
nance employees” employed by your company at the BEP
Western Currency Plant. [Emphasis added.]
I.U.O.E., Local 826 has made repeated attempts to
schedule collective-bargaining negotiations with your com-
pany. We have been and continue to be prepared to bargain
with your company on all legal subjects of collective-
bargaining at the earliest possible date and time. [Emphasis
added.]
Your immediate response is requested. [Emphasis added.]

On April 9, 1997, Allen sent another letter to David as follows:

It has come to my attention that the Company has imple-
mented unilateral changes in wages and benefits due to an
Agreement between Raven and the BEP. [Emphasis added.]
Please provide the Union a copy of said Agreement.

On June 6, 1996, Respondent’s project manager of its Bureau of
Engraving and Printing jobsite sent a memorandum to all person-
nel employed at their jobsite as follows:

As mentioned in the previous contract meeting, a Con-
tract requirement is that all Raven Craft Personnel complete
training on all site-specific equipment that we are responsible
for operating, maintaining, and/or repairing. This is neces-
sary to insure individual familiarization with the equipment
and systems assigned, and to understand the important as-
pects of all operating, maintenance and repair tasks as well as
the safety related concerns. [Emphasis added.]
The mechanics of this Maintenance Training Program
(MTP) is as follows:
1. A quiz will be given to determine required knowledge
and understanding of all unit equipment and systems before
proceeding to the next training unit. [Emphasis added.]
A score of 75 must be achieved to receive each unit’s
credit, ie., boilers, chillers, etc. A score of less than 75 on any
of the course units will require unit reading and classroom
work according to the training outline and assigned by the
Trainer. [Emphasis added.]
2. After the allotted time to review the unit manuals and
the required level of understanding is achieved, the trainee
will again be tested with the expectation that a minimum
score of 75 be achieved before proceeding on to the next unit.
[Emphasis added.]
The allotted study and quiz time will be conducted during
normal shift hours and charged to administration on your
timecard.

On July 3, 1997, Allen sent another letter to David as follows:

The Union has learned that Raven is implementing a test-
ing procedure for employees. The employees have been told
that a passing score may be a condition of employment. The
Union has not had the opportunity to bargain on this subject.
[Emphasis added.]
We request that Raven enter into bargaining on this sub-
ject as soon as possible. [Emphasis added.]
Please contact me to arrange a meeting. [Emphasis
added.]

On July 22, 1997, David sent another letter to Allen as follows:

With regard to your letter of July 3, 1997, the Company’s
position is that it does not believe that you or the Union any
longer represent a majority of the employees and have set
forth that position. Additionally, even if you represent the
majority of the employees, our position is that everything that
we are doing is permitted by the management rights clause
which was negotiated and implemented when we reached im-
passe. [Emphasis added.]

By its letter of July 22, 1997, the Respondent questioned the
Union’s majority status and withdrew recognition from the Union
and the Union filed the charges giving rise to the complaint.
Unit employee Kenneth Forge testified that he had been em-
ployed by Respondent for 4 years at the time of the hearing. He is
a stationary engineer and reports to Supervisor Richard Bonner.
He has been committee chairman for the unit employees for 1 year
and is the highest ranking union official at the plant. Forge testi-
fied he has worn union stickers and put them on his locker since he
became committee chair a year ago. He has also updated the union
bulletin board since he took over a year ago. It is undisputed that
there is a union bulletin board on Respondent’s premises which has
been there at all times material herein. The bulletin board is near
the break area. There is area wage determination information on
the bulletin board. He has been posting union information on the
bulletin board for more than a year such as notices of union meet-
ings and directions to the union hall.
In September 1996 Project Manager Lowell Windahl asked
Forge into his office to discuss changes in shift openings and bid
procedures as Windahl was changing to a system of shift prefer-
ence. Windahl also discussed openings in purchasing with Forge
and told Forge that he had awarded this slot to a different individ-
ual. Windahl also told Forge that Respondent was initiating a new
testing and training program for employees. He also told Forge
that he was changing job descriptions and told him that he was
giving an employee a wage increase. He also discussed a mainte-
nance repair team.
In November 1996 Forge was called into a meeting with Win-
dahl and his supervisor, Richard Bonner, to discuss his attendance
record. They informed him that he had three unexcused absences
and tardies and that the next incident would result in the issuance
of discipline. Windahl informed Forge that a flat tire was not an
excuse and that he needed a doctor’s excuse for medically related
absences and that management would rely on individual credibility
determinations as to excused absences. Forge asked Windahl if all
the employees’ files were being reviewed and Windahl said they
were. David Futty was also called in and his attendance was re-
viewed by Respondent. Forge gave Futty a union sticker as well as
other employees.
Forge testified that in early March 1997 the entire day shift (ap-
proximately 18 to 20 individuals) except for 2 supervisors were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
called into a conference room for a meeting conducted by Windahl
and his 2 assistants. Windahl told the employees that the Respon-
dent had received a new 5-year contract with BEP with a 2.5-
percent pay increase and that Respondent would be implementing
a shift differential for the second and third shift. He also told the
employees that Respondent was in the process of getting a training
program on track. He also told them there was a change in the
uniform policy, but that the employees would not receive a uni-
form allowance.
Forge testified that he later spoke to Windahl and asked him to
meet with the second- and third-shift employees and that Windahl
did so and met with 16–18 employees at his request and answered
their questions. Forge testified that he was tested in accordance
with the new testing program in mid-July 1997.
Forge testified that in early July (1997), he met with Respon-
dent’s president, John Rulison, and asked Rulison if Respondent
had any “hard feelings” concerning the employees voting for the
Union in December 1992. Rulison said, “[N]o” but also stated that
the employees did not need a union.
On cross-examination, Forge testified that former project man-
ager, Kenneth Schatzer, was aware that he was a union steward.
He put the notice of the union meeting on the bulletin board in
August 1996. He knows that other employees with unexcused
absences were not called in to meet with Windahl including em-
ployees Byron Judd, Pat O’Rourke, and probably Mike Lemmons.
He testified that there was a subsequent posting that clarified the
maintenance exam score of 75 percent. On redirect, Forge testified
that although Windahl told him that all employees were being
called in concerning their attendance, it “didn’t happen.” Windahl
did not tell him that he had already reviewed all the employees’
records.
General Counsel’s Exhibit 12 issued to Forge is a memorandum
dated November 4, 1996, and states:

Subject: Unexcused Absence and Tardiness

Ken, in reviewing your attendance record for 1996, as I
am doing for everyone, your record indicates the following:

June 1 Tardy
June 23 Absence Unknown
July 21 Absence Unknown
September 12 Tardy
September 15 Absence Unknown

Please give this unacceptable attendance and tardiness
your immediate attention Ken so that future corrective action
will not be necessary.
Additionally, I will be available for discussions and coun-
seling at any time to provide any assistance or help you may
require.
I sincerely hope this action will result in the correction of
this unsatisfactory performance and that we can put these
problems behind us in the future.

I have read and fully understand

Kenneth Forge 11/6/96
Employer Signature

Richard Benn 11/6/96
Witness.

Futty was issued a virtually identical letter which listed six ab-
sences “Unknown” and seven instances of tardiness.
The General Counsel also called Richard O’Brien, a mainte-
nance worker on the night shift and a 5-year employee at the time
of the hearing. He testified that he has received a shift differential
since March 1997. He and two other maintenance employees and
several other unit employees attended a meeting held by Plant
Supervisor Richard Bonner in late September or early October
1996 concerning the contract extension with BEP. Bonner ex-
plained the contract extension, changes in jobs, elimination of jobs,
new positions and duties, and rotating shifts. In March 1997, he
attended a training program meeting held by Windahl and another
of Respondent’s representatives with several unit employees at
which Windahl explained the training program tentatively ap-
proved by BEP.
After the General Counsel rested his case the Respondent put on
its case. In his opening statement the Respondent’s counsel con-
tended that the foregoing meetings were informational only and did
not constitute bargaining with the employees. With respect to the
attendance meeting and memoranda issued to Forge and Futty, he
contended that Windahl spoke to all employees who had three or
more absences or tardies. He contended that Respondent had a
good-faith doubt of the Union’s majority status so as to legally
permit the withdrawal of recognition and the attendant refusals to
bargain and to furnish information and the unilateral changes and
direct dealing with the unit employees. He based the good-faith
doubt on eight points:

1. Evidence of a dissident group or movement to unseat
the Union;
2. knowledge of a decertification petition circulated
among the employees;
3. signing of the decertification petition by the union rep-
resentative;
4. substantial employee turnover in the last 5 years;
5. no notification of union stewards since 1993;
6. no knowledge of union membership meetings;
7. evidence of a lack of union presence at the jobsite; and
8. an unjustifiable union hiatus from bargaining and per-
haps even abandonment.

Respondent contends in the alternative that even if it is found
not to have had a good-faith doubt, none of the actions it took re-
quired it to go back to the bargaining table in reliance on the con-
tract provisions they had bargained to impasse, particularly the
management rights clause.
The Respondent called unit employee, George Pike, in its case.
Pike would be a 5-year employee with Respondent as of October
1997. Pike prepared a petition to decertify the Union between
January and April 1996 and obtained 27 employees’ signatures on
it. He presented it to union committeeman and chief steward, T.
Blevins, and told him the employees were dissatisfied with the
Union. Forge signed the petition. Blevins looked at the petition
and Blevins told him that he had informed Allen of it and that
Allen told Blevins the Union would not withdraw voluntarily. The
petition stated, “We the undersigned employees petition NLRB to
decertify the Operating Engineers Union as our bargaining agent.”
On cross-examination by the General Counsel, Pike testified
that the petition could have been circulated as early as November
or December 1995. He does not know if Blevins signed the peti-
tion. He never filed the petition with the Board and the petition
was solely in his hands until he destroyed the petition. When he
circulated the petition, he told the employees that they needed to
sign the petition to get a different union. No supervisor or member
of management was ever aware of the petition. After he received
word from Blevins that the Union would not voluntarily accept the
petition and withdraw, the unit employees said to leave things as
RAVEN GOVERNMENT SERVICES 657
they were with the Union remaining as the collective-bargaining
representative. Pike is a member of the Union and signed a union
authorization card September 1996 and again in 1997. He never
had any conversation with any member of Respondent’s manage-
ment concerning the decertification petition until he was called into
Windahl’s office on September 8, 1997, shortly prior to the instant
hearing at which time Windahl asked him how many people had
signed the petition and when it had been circulated. On September
9, 1997, he was called into Windahl’s office again and was put on
a three-way conference call with Robert Pittman, Respondent’s
vice president, and Buddy David, the Respondent’s attorney in this
case, and David asked him how many people had signed the peti-
tion and whether a majority of employees supported the Union. He
did not give a copy of the petition to Blevins. He told David he
had not talked to any supervisor concerning the petition. On cross-
examination by the Charging Party, he testified that he was not told
by the Respondent’s representatives why they wanted this informa-
tion. Nor was he given any assurances that he would not suffer
any reprisals or that no actions would be taken against him if he
failed to give the Respondent the information it sought. On redi-
rect, Respondent’s counsel, David, asked him whether the Respon-
dent “knows” (present tense) of the petition and he answered that
he “assumed” the Respondent “knows” (present tense).
The Respondent also called Richard Bonner, its plant operations
supervisor. Bonner has been employed by Respondent since April
1992. Prior to his promotion to his present position, he was a su-
pervisor on the evening shift when he was told of the circulation of
the petition by unit employee Buck Cluff, and he passed this in-
formation on to Kenneth Shastner, who was then Respondent’s
project manager at this jobsite. Bonner never saw the petition and
has no idea how many signatures were on the petition. Shastner
said he would make a note of it. He does not know whether Shast-
ner did so. Bonner has seen union authorization cards passed
around. He has not been aware of any union activity since this
time.
Respondent also called Lowell Windahl, its project manager
since June 1996. Windahl testified he was not aware of the pres-
ence of the Union when he arrived in June 1996 as a new em-
ployee with Respondent and testified that he was not aware of any
union involvement in any of the meetings he has held with em-
ployees. He only recently became aware of the union bulletin
board which he admitted does exist on Respondent’s premises.
With respect to the attendance meetings Windahl testified that
he reviewed all the employees’ attendance records in October 1996
going back to January 1996 and called in employees with in excess
of three absences or tardies and Futty, Kenneth Forge, and Tony
Harris had three or more unexcused absences or tardies. He testi-
fied he was not aware that Forge was a union representative when
he called him in and issued the memorandum to him. He contends
that the memorandum is not discipline but is a prelude to it as it
states that disciplinary action will follow if the employee does not
improve. He did not call in employee Warren Anderson who had
numerous problems and was already under corrective action.
Respondent also called Vice President Pittman who supervises
Government contracts including the one involved at this jobsite.
He testified that he never received information that Forge was a
union steward.
Respondent also called its president and owner, John Rulison,
who testified that Shastner had told him that a decertification peti-
tion was being circulated. Respondent’s Exhibit 7 is a list of
events he prepared for this hearing on which he relied for his deci-
sion to withdraw recognition from the Union. He cited the early
1996 information received from Shastner and the lack of union
activity until 9 months later when the Union requested bargaining
as the evidence on which he based his alleged good-faith doubt of
a lack of majority as well as the past bargaining with the Union’s
representative, Allen.
After the Respondent closed his case, the General Counsel
moved to amend the complaint to allege that on September 8,
1997, Respondent had unlawfully interrogated its employee (Pike)
about his union activities through Lowell Windahl and had on
September 9, 1997, unlawfully interrogated its employee (Pike)
about his union activities by Windahl, its Vice President Robert
Pittman, and its Attorney E. D. David in reference to the two in-
stances when the aforesaid agents of Respondent interrogated Pike
concerning the decertification petition circulated by Pike.
The General Counsel also moved to amend the complaint to al-
lege that on or about October 1996, Respondent unilaterally elimi-
nated job classifications of bargaining unit employees, which were
mandatory subjects of bargaining, without affording the Union
prior notice and the opportunity to bargain concerning these unilat-
eral changes in these terms and conditions of employment. The
General Counsel also moved to add an additional allegation that
Respondent on or about March 5, 1997, unilaterally changed the
bargaining unit wages, mandatory subjects of bargaining, without
affording the Union an opportunity to bargain with Respondent
concerning this change in the terms and conditions of the bargain-
ing unit employees. The Charging Party joined in the motion. The
Respondent objected to these amendments, contending there was
no evidence to support the unlawful interrogation amendment and
that all of the other amendments sought were within the Charging
Party’s knowledge and were untimely. The General Counsel re-
sponded that the additional unilateral changes related back to Sep-
tember 1996, and were closely related to the violations occurring in
that time period and thus were timely filed.
I granted the amendments and stated at the hearing, “in the in-
terest of ensuring that this case is fully briefed, I’m going to forego
the bench decision in this case” which I had previously advised the
parties that I was considering issuing after the taking of evidence.
At no time did the Respondent ask for an opportunity to address
these allegations at the hearing although its witnesses were avail-
able to it. Nor did Respondent ask for additional time. Moreover,
in answer to my question at the hearing after I assigned a briefing
date, whether there was anything further before I closed the record,
the Respondent’s counsel said, “Nothing from us.” It was not until
Respondent filed its brief that the Respondent therein contended it
must be given the opportunity to present evidence with respect to
these charges.” The General Counsel has filed an “Opposition To
Respondent’s Motion To Receive Additional Testimony,” and a
“Motion To Strike Portions of Respondent’s Brief.” I find the
amended allegations have been fully litigated, Respondent had the
option of requesting permission at the hearing to present additional
evidence, but declined to do so and I further find that the unilateral
changes are not time barred but are closely related to the complaint
allegations and that Respondent has had the opportunity to address
them in its brief and did so. Respondent’s request in its brief to
present additional evidence is denied. Section 102.35(8) of the
Board’s Rules and Regulations authorizes administrative law
judges “to order hearings reopened” without setting the standard
for doing so. I am guided however, by Section 102.48(d) of the
Board’s Rules and Regulations setting the standard for requests to
reopen the record filed with the Board which are that “a motion to
reopen the record shall state briefly the additional evidence to be
adduced, why it was not presented previously, and that, if ad-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
dressed and credited, it would require a different result.” The Re-
spondent’s motion to reopen the record in its brief does not comply
on its face with this standard. Nor does it assert any reasonable
grounds for reopening the record. See Pincus Elevator & Electric
Co., 308 NLRB 684 (1992). The General Counsel’s motion to
strike portions of Respondent’s brief at pages 2–4 thereof, as they
reference record evidence in this matter set forth in rejected exhib-
its and rejected offers of proof is granted and they are striken inso-
far as they relate to the subject matter of a prior unfair labor prac-
tice trial prosecuted against Respondent in September 1994 and the
interim decision of the administrative law judge in that case. Elec-
tro-Tec, Inc., 310 NLRB 131 (1993); Today’s Man, 263 NLRB
332 (1982).
Analysis
The 8(a) (5) and (1) Allegations
I find that the Respondent violated Section 8(a)(1) and (5) of the
Act by its withdrawal of recognition from the Union, its refusal to
furnish information, its bypassing of the Union as the collective-
bargaining representative of the unit employees, its engagement in
direct dealing with the employees, and its implementation of uni-
lateral changes in the terms and conditions of its employees with-
out affording the Union notice thereof and an opportunity to bar-
gain concerning them. It is well established that a certified
collective-bargaining representative enjoys a rebuttable presump-
tion of majority support of the unit employees. In order to rebut
this presumption of continued majority status to justify a with-
drawal of recognition, the Employer must establish by objective
criteria that it has a good- faith doubt that the Union enjoys major-
ity support. A good-faith doubt may only be asserted in the ab-
sence of unfair labor practices. In the instant case the Respondent
has wholly failed to rebut the presumption of the Union’s majority
status by a preponderance of the evidence.
In Alexander Linn Hospital Assn., 288 NLRB 103, 107 (1988),
enfd. 866 F.2d 632 (3d Cir. 1989), cited by the General Counsel
the Board cited language quoting Burger Pits, 273 NLRB 1001
(1984):

It is well settled that absent unusual circumstances a
union enjoys an irrebutable presumption of majority status
during the first year following its certification. After the certi-
fication year the presumption of majority status becomes re-
buttable. Whether certified or voluntarily recognized, a union
also enjoys a rebuttable presumption of majority status upon
the expiration of a collective-bargaining agreement. An em-
ployer who refuses to bargain with an incumbent union may
rebut the presumption of majority status by establishing either
(1) that at the time of the refusal to bargain the union in fact
did not enjoy majority status, or (2) that the refusal was predi-
cated on a good-faith and reasonably grounded doubt, sup-
ported by objective considerations, of the union’s majority
status. [Footnotes omitted.]

Moreover, the Employer has failed to establish that its with-
drawal of recognition on the basis of a good-faith doubt of the
Union’s majority status was asserted in the absence of unfair labor
practices. Rather, the evidence shows that the Respondent summa-
rily refused to furnish relevant bargaining information requested by
the Union and refused to bargain with the Union and bypassed the
Union and dealt directly with bargaining unit employees and insti-
tuted unilateral changes in the wages, hours, and other terms and
conditions of employment of the bargaining unit employees long
prior to its withdrawal of recognition from the Union in July 1997.
Respondent’s reliance on secondhand hearsay that a decertification
petition had been circulated 6 to 9 months to a year prior to the
withdrawal of recognition largely on the basis of the petition as
well as alleged inactivity of the Union from its viewpoint is insuf-
ficient to meet the Respondent’s burden in attempting to justify its
withdrawal of recognition from the Union. In Pollock Mfg., 313
NLRB 562 fn. 2 (1993), the Board held that the Respondent had
not shown “by a preponderance of the evidence either actual loss
of majority support or objective factors sufficient to support a rea-
sonable and good-faith doubt of the union’s majority,” citing Laid-
law Waste Systems, 307 NLRB 1211 (1992), when it relied on a
petition that the Respondent had never seen, and the Respondent
did not know what the petition stated or the number of employees
who had signed it. This is clearly what happened in the instant
case as the Respondent made no effort to ascertain if the decertifi-
cation petition truly existed and whether it had been signed by a
majority of the unit employees and did not at any time raise this
alleged doubt with the Union. Rather, it did nothing until the Un-
ion attempted to obtain bargaining information and revitalize nego-
tiations in the fall of 1996 and then chose to rely on an alleged
impasse in bargaining in 1995 as a basis for its refusal to furnish
information and its subsequent withdrawal of recognition. Further,
the Respondent did not make any effort to discover whether such a
petition existed until September 8 and 9, 1997, a week prior to the
instant hearing held on September 15, 1997, at which time its rep-
resentatives interrogated the employee who had allegedly circu-
lated the petition without affording him his rights to refuse to sub-
mit to such an interrogation and without making assurances to him
that he would not be discriminated against if he refused to discuss
the matter with Respondent’s representatives thus violating Section
8(a)(1) of the Act by such interrogation. Johnnie’s Poultry, supra;
Le Bus, 324 NLRB 588 (1997). The Respondent has objected to
the amendment of the complaint which I permitted at the close of
testimony in this case to which it objected. However, the Respon-
dent’s attorney, Windahl, and Pittman who engaged in the interro-
gation of Pike were all present at the hearing but Respondent made
no offer of proof concerning their testimony nor did it request the
opportunity to rebut Pike’s testimony. Thus the Respondent
waived the opportunity to rebut Pike’s testimony at the hearing but
did address this issue in its brief. I find the issues have been fully
litigated.
With respect to Respondent’s contentions that it was free to re-
fuse to bargain with the Union, refuse to furnish it bargaining in-
formation and that it could deal directly with the bargaining unit
employees and institute unilateral changes on the basis of an al-
leged impasse in bargaining in 1993, and a management-rights
clause contained in its proposal, I find these contentions to also be
without merit. In Hospitality Care Center, 307 NLRB 1131, 1135
(1992), the judge held (in a decision affirmed by the Board) that
the failure of the employer to provide the union with relevant in-
formation effectively prevented the union from breaking the im-
passe. Assuming there was a valid impasse in September 1996, in
the instant case, Respondent’s refusal to provide the Union with
the requested information based on a 3-year impasse was unlawful
as it prevented the Union from obtaining relevant information
requested by the Union to revise its proposals in order to break the
alleged impasse. In Airflow Research & Mfg. Corp., 320 NLRB
861, 862 (1996), the Board held that the employer violated Section
8(a)(5) of the Act by refusing the request of the union to bargain 13
months after a lawful impasse in negotiations for an initial collec-
tive-bargaining agreement. The Board stated that “an impasse
does not destroy the collective-bargaining relationship. Instead a
RAVEN GOVERNMENT SERVICES 659
genuine impasse merely suspends the duty to bargain over the
subject matter of the impasse until changes in circumstances indi-
cate that an agreement may be possible.” In McClatchy Newspa-
per, 321 NLRB 1386, 1389–1390 (1996), “impasse is always
viewed as a temporary circumstance and the impasse doctrine . . .
therefore, is not a device to allow any party to continue to act uni-
laterally or to engage in the disparagement of the collective-
bargaining process.” In Gulf States Mfg. Inc. v. NLRB, 704 F.2d
1390, 1399 (5th Cir. 1983), the Court stated:

Anything that creates a new possibility of fruitful discussion
(even if it does not create a likelihood of agreement) breaks
an impasse: a strike may . . . so may bargaining concessions,
implied or explicit . . . the mere passage of time may also be
relevant [citations omitted] [emphasis added].

I find in the instant case that the Union’s letter of October 22, 1996,
clearly implied that the Union intended to offer bargaining conces-
sions.
With respect to the Respondent’s reliance on its management-
rights clause in its implemented offer as the basis for its direct
dealing with its employees and its unilateral changes thus, bypass-
ing the Union, I find this contention is also without merit as there
had been no final agreement on this proposal and there was no
clear and express waiver by the Union concerning this direct deal-
ing and the implementation of unilateral changes.
Although there was a bargaining hiatus since the events of 1995
regarding the alleged impasse in negotiations, the Respondent did
not produce any evidence at the hearing of employee disaffection
with the Union which had been communicated to the Respondent
with the exception of the hearsay information reported to Rulison
concerning the circulation of a decertification petition. The record
is otherwise barren of any evidence of employee disaffection with
the Union which had been communicated to the Respondent. In
Spillman Co., 311 NLRB 95 (1993), the Board found that there
was no evidence that the employees had expressed to the Respon-
dent their dissatisfaction with the union which the employer must
show if it relies on employee turnover to support its alleged good-
faith doubt of the union’s majority status and the Board cited its
adoption of a “rebuttable presumption that newly hired employees
will support a union in the same ratio as the employees they re-
place,” citing Colson Equipment, 257 NLRB 78, 79 (1981), enfd.
in relevant part 673 F.2d 221 (8th Cir. 1982). In T.L.C. St. Peters-
burg, 307 NLRB 605 (1992), the Board agreed with the adminis-
trative law judge’s finding that no weight should be given to hear-
say testimony by the president concerning statements allegedly
made to an employee and a supervisor and conveyed to the presi-
dent in which certain employees purportedly repudiated the union.
The 8(a)(3) and (1) Allegations
With respect to the allegations concerning the memoranda is-
sued to Forge and Futty, I find the General Counsel has established
that Respondent was aware of Forge’s position as a union steward
or representative. Forge testified he had served as a steward since
March 1996, and that former project manager, Kenneth Shatzer,
was aware that he was a steward as of March 1996, although he
was not elected as the operating engineer’s committee chairman
until August 1996. It is undisputed that the Union never notified
the Respondent of Forge’s position as a steward. However, in
early September 1996, then Project Manager Windahl called Forge
into his office and in a meeting between just the two of them dis-
cussed a number of mandatory subjects of bargaining such as shift
openings and bid procedures and a new testing program with Forge
which would affect the bargaining unit members during a half hour
to 45 minutes’ discussion according to Forge’s unrebutted testi-
mony which I credit. I find this supports the General Counsel’s
position that the Respondent was aware of Forge’s position as a
steward, if not as the committee chair. I do not credit Windahl’s
testimony that he was unaware of the union presence on the pro-
ject. I find it highly improbable that this information would not
have been conveyed to him when he was hired as the Respondent’s
highest ranking member of management on the project site. I also
credit Forge’s unrebutted testimony that he posted notices on the
union bulletin board on the project premises in September 1996. I
do not credit Windahl’s testimony that he was unaware of the exis-
tence of the union bulletin board until 2 or 3 months prior to the
hearing. I thus find that the General Counsel has established that
Respondent had knowledge of Forge’s status as a union steward. I
find, however, that the General Counsel has not established that
Respondent was aware of Futty’s union activities although, Forge
testified he gave Futty a union sticker as well as other employees
who signed union authorization cards shortly after Forge became
union committee chairman in August 1996. The record is other-
wise silent as to any participation by Futty in union activities
and/or Respondent’s knowledge thereof. Futty was not called to
testify. I find Respondent’s animus toward the Union has been
established by the 8(a)(5) and (1) violations as set out in this deci-
sion.
I find, however, that the General Counsel has failed to establish
that Forge and Futty received disparate treatment by the issuance
of the memoranda to them regarding their absences. I find that the
memoranda was discipline. Although its tone was soft, it con-
veyed the message of “further” adverse disciplinary action (“cor-
rective action”) if the employees did not improve their attendance
records. However, I credit the testimony of Windahl that he issued
the memoranda to the only three employees (including Forge and
Futty) who had three or more absences except for Anderson who
was already under corrective action. I decline to make an adverse
inference against the Respondent for not producing all of the re-
cords of its employees as requested by the General Counsel. It is
clear that the General Counsel could have or did have access to
Respondent’s records by way of subpoena if he chose to and did
not offer the records of any employees who may have had three or
more unexcused absences although it did obtain the memoranda
issued to Forge and Futty which it introduced as General Counsel’s
Exhibits 12 and 13. The General Counsel has the burden of proof
in establishing a violation of the Act and I find it failed to establish
evidence of disparate treatment and failed to establish a prima facie
case of a violation of the Act by the issuance of the memoranda to
Forge and Futty. Assuming arguendo that it did establish a viola-
tion, I find it has been rebutted by the preponderance of the evi-
dence. Wright Line, 251 NLRB 1083 (980), Manno Electric, 321
NLRB 278 (1996).
CONCLUSIONS OF LAW
1. Respondent Raven Services Corporation d/b/a Raven Gov-
ernment Services, Inc. is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local 351, AFL–
CIO, the surviving entity following its merger with International
Union of Operating Engineers, Local 826, about March 1, 1997, is
a labor organization within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
INCLUDED: All service and maintenance employees work-
ing for the Employer at the Western Currency Plant in Fort
Worth, Texas.

EXCLUDED: All other employees, including office clerical,
quality control employees and administrative assistants, su-
pervisors, including weekend supervisors, and guards as de-
fined in the Act.

4. At all material times, the Union has been, and is, the exclu-
sive statutory representative of the Respondent’s employees in the
above-described unit, within the meaning of Section 9(a) of the
Act, for purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and conditions
of employment.
5. Respondent has failed to establish that at any material time, it
entertained a good-faith doubt of the Union’s exclusive status as
the majority representative of its employees in the above-described
unit or that the Union abandoned the bargaining unit.
6. Commencing on or about October 14, 1996, by refusing to
bargain with the Union as the statutory representative of the unit
employees, and by refusing to furnish the Union with the following
information: a detailed description of all benefit plans including the
current medical plan; a copy of the Respondent’s rules; a list of
current classifications and pay rates; a copy of any employee
booklets or manuals; and a work schedule showing hours of work
and the employees’ shift assignments; all of which information
sought by the Union was and is necessary and relevant to the Un-
ion’s performance as the exclusive collective-bargaining represen-
tative of the unit, Respondent violated Section 8(a)(1) and (5) of
the Act.
7. By unilaterally eliminating job classifications of its employ-
ees in October 1996; and on or about March 15, 1997, unilaterally
changing wage rates of its unit employees and implementing a shift
differential on or about March 15,1997; bypassing the Union about
September 15,1996, and dealing directly with the unit employees
with respect to changes in the way shift openings would be filled,
changes in job classifications, and future job performance testing
of unit employees and bypassing the Union about late September
or early October 1996 and dealing directly with the unit employees
by discussing changes in job responsibilities, elimination of the
HVAC technician position, changing general mechanics to general
technicians with a commensurate increase in pay, shift differential
and call forwarding, and changing job classifications; by on or
about June 6, 1997, unilaterally implementing a maintenance train-
ing program for its unit employees, all of the foregoing of which
were mandatory subjects of bargaining, without affording the Un-
ion prior notice and an opportunity to bargain with Respondent
concerning these mandatory subjects of bargaining, Respondent
violated Section 8(a)(1) and (5) of the Act.
8. By withdrawing recognition from the Union as the exclusive
collective-bargaining representative of the unit on or about July 22,
1997, the Respondent violated Section 8(a)(1) and (5) of the Act.
9. By interrogating its employee on or about September 8 and
9, 1997, concerning his union activities and those of his fellow
employees without advising him of his right to refrain from an-
swering such questions and offering him assurances that he would
not be discriminated against if he refused to furnish the informa-
tion, Respondent violated Section 8(a)(1) of the Act.
10. Respondent did not violate the Act by warning its employ-
ees Forge and Futty for excessive absences and tardiness.
11. The foregoing unfair labor practices in conjunction with the
Respondent’s status as an employer under the Act affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices in violation of Section 8(a)(1) and (5) of the Act, I
shall recommend that it cease and desist therefrom, and from inter-
fering in any like or related manner with its employees’ Section 7
rights and that it take certain affirmative actions designed to effec-
tuate the policies of the Act including the posting of an appropriate
notice. I recommend that the Respondent be ordered to recognize
and on request bargain with the Union, furnish the Union with the
information it unlawfully refused and failed to furnish to the Un-
ion, and if an understanding is reached, embody the understanding
in a signed agreement, rescind the unilateral changes on request by
the Union and make the unit employees whole for any loss of pay
or benefits sustained by the unlawful actions as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest, as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987). Noth-
ing in this Order shall be deemed to require that any increases in
wages and benefits to the unit employees be rescinded.
On these findings of fact and conclusions and on the entire re-
cord, I issue the following recommended3
ORDER
The Respondent, Raven Services Corporation d/b/a Raven Gov-
ernment Services, Inc., Fort Worth, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from the Union and refusing to
recognize and bargain with International Union of Operating Engi-
neers, Local 351, AFL–CIO as the exclusive representative of its
employees in the following appropriate unit:

INCLUDED: All service and maintenance employees work-
ing for the Employer at the Western Currency Plant in Fort
Worth, Texas.

EXCLUDED: All other employees, including office clerical
employees, quality control employees and administrative as-
sistants, supervisors, including weekend supervisors, and
guards as defined in the Act.

(b) Failing and refusing to furnish the Union with information as
found above.
(c) Bypassing the Union and dealing directly with unit employ-
ees as found above.
(d) Instituting unilateral changes in the unit employees’ terms
and conditions of employment as found above.
(e) Interrogating its employees concerning their union and con-
certed activities and those of their fellow employees.
(f) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative actions designed to effectuate
the policies of the Act.
(a) Recognize and on request bargain with International Union
of Operating Engineers, Local 351, AFL–CIO as the collective-
bargaining representative of the employees in the above-described

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended 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.
RAVEN GOVERNMENT SERVICES 661
bargaining unit and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Furnish to the Union in a timely manner the relevant infor-
mation requested by the Union as found above.
(c) On demand by the Union rescind the unilateral changes
found unlawful here. Nothing in this Order shall require that any
increases in wages or benefits be rescinded.
(d) Make whole the unit employees for any loss of pay or bene-
fits they may have suffered as a result of Respondent’s aforesaid
violations of the Act in the manner described in “The Remedy.”
(e) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at the facil-
ity in Fort Worth, Texas, copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the Re-

4 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
gional Director for Region 16, after being signed by the Respon-
dent’s authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to its
employees 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, during
the pendency of these proceedings, the Respondent has gone out of
business or removed its presence from 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 October
1996.
(g) Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the Respon-
dent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”