St. George Warehouse, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 2006

348 N.L.R.B. 1037 (N.L.R.B. 2006)

ST. GEORGE WAREHOUSE
348 NLRB No. 67
1037
St. George Warehouse, Inc. and Merchandise Drivers
Local No. 641, International Brotherhood of
Teamsters. Case 22–CA–24902
October 30, 2006
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On July 28, 2006, Administrative Law Judge Eleanor
MacDonald issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
the General Counsel filed an answering brief, and the
Respondent filed a reply brief.
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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order.
This compliance proceeding involves a Board Order to
restore a bargaining unit that had been reduced by the
Respondent’s unilateral transfer of unit work to nonunit
employees in violation of Section 8(a)(5) and (1) of the
Act. St. George Warehouse, 341 NLRB 904, 909 (2004),
enfd. 420 F.3d 294 (3d Cir. 2005).
1. We reject the Respondent’s argument that an alleged
loss of majority support among the remaining unit em-
ployees makes the Board’s Order to restore the bargain-
ing unit inappropriate. We agree with the judge that un-
der Master Slack Corp., 271 NLRB 78, 84 (1984), the
alleged loss of majority support is tainted by the Respon-
dent’s unlawful unilateral transfer of unit work to non-
unit employees.2
2. The Respondent also argues that it should not be re-
quired to restore the unit, because restoration would re-
quire the hiring of additional employees who have not
chosen to be represented by the Union, and therefore, the
Union will lack majority status in the restored unit.
We reject that argument. The new employees will be
hired as the result of a court-enforced Board Order to
restore the status quo in order to remedy the Respon-
dent’s unilateral transfer of unit work. St. George Ware-
house, supra. But for the Respondent’s unfair labor prac-
tice, there would be no need for the Respondent to hire

1 The case referred to in fn. 3 of the judge’s decision is St. George
Warehouse, Case 22–CA–25400. That case is pending before the
Board, and the judge properly declined to rely on it.
2 Therefore, it is unnecessary to pass on the judge’s finding that the
Respondent’s evidence of employee disaffection would be insufficient
even if it were not tainted under Master Slack. We also find it unneces-
sary to pass on the judge’s suggestion that the Board’s “changed cir-
cumstances” decisions are limited to changes in economic circum-
stances.
employees to restore the unit. Thus, the Respondent
caused the very situation to which it now objects. Under
these circumstances, the Respondent cannot rely on the
large proportion of new hires relative to existing employ-
ees, or on a speculative lack of union support among the
new hires, as a defense to complying with the Board’s
Order to restore the unit. Cf. Yerger Trucking, 307
NLRB 567 fn. 3 (1992) (respondent could not rely on
turnover to deflect a bargaining order pursuant to NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), where the
turnover was caused by the very unfair labor practices
sought to be remedied: discharge of the bargaining unit
and refusal to rehire the prounion employees).3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, St. George Warehouse, Inc.,
Kearny, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Julie L. Kaufman Esq., for the General Counsel.
John A. Craner, Esq. (Craner, Satkin, Scheer, Schwartz & Ar-
nold, PC), of Scotch Plains, New Jersey, for the Respon-
dent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. On May
12, 2004 the National Labor Relations Board issued an Order
requiring the Respondent to rescind the unlawful unilateral
transfer of unit work to temporary agency employees and re-
store the status quo ante by restoring the unit to where it would
have been without the unilateral changes.1 On August 23, 2005
the United States Court of Appeals for the Third Circuit entered
a Judgment enforcing the Board’s Order.2 A controversy hav-
ing arisen regarding the implementation of the restoration rem-
edy, the Regional Director of Region 22 issued a Compliance

3 In rejecting the Respondent’s argument that the Union will lack
majority support in the restored unit, Member Walsh also relies on the
Board’s well-established presumption that new hires support the union
in the same ratio as the employees they replace. See, e.g., NLRB v.
Curtin Matheson Scientific, 494 U.S. 775, 779 (1990); Furniture Ren-
tors of America v. NLRB, 36 F.3d 1240, 1244 (3d Cir. 1994); Spillman
Co., 311 NLRB 95 (1993), enfd. mem. 41 F.3d 1507 (6th Cir. 1994).
The Union was certified as the collective-bargaining representative and
undisputedly had majority support among the 42 employees in the unit
at the time of the election. There is a rebuttable presumption that the
Union’s majority status in the unit continued after the certification year
ended. Curtin Matheson, supra at 778. Because the evidence of em-
ployee disaffection among the existing unit employees is tainted, the
Respondent has not rebutted the presumption, and the Union must be
considered to have majority support among the existing unit employees.
Accordingly, a majority of the new hires will also be presumed to sup-
port the Union. The Respondent has offered no evidence to rebut that
presumption.
1 341 NLRB 904.
2 St. George Warehouse, Inc. v. NLRB, 420 F.3d 294 (3d Cir. 2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
Specification and Notice of Hearing on January 31, 2006. The
hearing in this compliance case was held on April 27, 2006 at
which time Counsel for the General Counsel amended the
Compliance Specification. After some testimony and argument
the hearing was adjourned and the record was held open to
permit Respondent to submit a written offer of proof. On May
18 Respondent submitted a document entitled “Brief” which
also contained an offer of proof. The record was closed by
Order of May 19, 2006. The Order gave both parties the oppor-
tunity to submit a Brief. Counsel for the General Counsel sub-
mitted a Brief on June 26, 2006.
At the hearing, the Respondent stipulated that the Amended
Specification appropriately and accurately sets forth the ratio of
directly hired employees to agency hires in conformance with
the Board’s Order requiring Respondent to return the unit to the
status quo prior to the unlawful change in hiring practices.
Thus, pursuant to the stipulation of the parties herein, I find that
the correct ratio is 12 direct hires to one (1) agency hire.
The only issue in this case arises from Respondent’s conten-
tion that it should not have to abide by the Board’s Order as
enforced by the Court of Appeals. In order to evaluate this
position it is necessary to include a very brief summary of Re-
spondent’s litigation history under the National Labor Relations
Act.
In St. George Warehouse, 331 NLRB 454 (2000), the Board
found that Respondent unlawfully discharged two employees
because of membership in Local 641, interrogated employees
about their Union activities, promised increased benefits if
employees did not select the Union, solicited grievances, cre-
ated the impression of surveillance, issued written warnings
rather than the customary oral warnings and maintained an
unlawful no-distribution, no-solicitation clause. The Third
Circuit enforced the Board’s decision in a memorandum opin-
ion based on “the entire record, including the employer’s dem-
onstrated hostility to its employees’ organizing efforts.” St.
George Warehouse v. NLRB, 261 F.3d 493 (3d Cir. 2001).
In an unpublished decision at 333 NLRB No. 113 (2001)
(not reported in Board volumes), the Board ordered Respondent
to bargain with the Union after Respondent had refused to rec-
ognize and bargain with the Union following its certification on
October 27, 2000 as the exclusive collective bargaining repre-
sentative of a unit of warehouse employees of Respondent. The
bargaining order was enforced by the Circuit Court in St.
George Warehouse v. NLRB, No. 01-2215 (3d Cir. August 7,
2001). The election had been held on April 16, 1999. Counsel
for the General Counsel stated at the instant hearing that Re-
spondent withdrew recognition from the Union in August 2004
and this has led to the filing of a petition for adjudication of
civil contempt before the Third Circuit. Respondent’s Brief
states that the contempt proceeding is still pending before the
Court of Appeals.
Negotiations between the company and the Union began in
October 2001, following the Circuit Court’s enforcement of the
Board’s bargaining order. No collective-bargaining agreement
has been reached.3

3 In JD(NY)-02-05 the ALJ found that Respondent had violated the
Act by making unilateral changes in working conditions, by assisting in
In the instant case at 341 NLRB 904 (2004), the Board found
that Respondent unlawfully delayed in providing the Union
with information on health insurance premiums and failed to
provide the Union with information relating to temporary
agency employees who have performed bargaining unit work.
The Board found that prior to the election Respondent had used
a fluctuating number of temporary agency employees to sup-
plement directly hired employees in the bargaining unit. Fol-
lowing the election Respondent did not replace unit employees
who quit or were fired for cause; instead it used temporary
agency employees. As a result the number of unit employees
decreased from 42 at the time of the election to 8 at the time of
the July 2002 hearing before ALJ Steven Davis. The Board
found that Respondent had violated the Act by unilaterally
transferring unit work to temporary agency employees without
notice to the Union or an opportunity to bargain. The Board
did not disturb the ALJ’s findings, made after extensive analy-
sis of testimonial and documentary evidence, that some time
after the Union won the 1999 election Respondent made a deci-
sion to use agency employees rather than directly hired unit
employees. The Board ordered the company, inter alia, to re-
scind the unlawful unilateral transfer of unit work to temporary
agency employees and restore the status quo ante by restoring
the unit to where it would have been without the unilateral
changes. This Order which has been enforced by the Circuit
Court at 420 F.3d 294 is the subject of the present controversy.
The Circuit Court’s Opinion rejected all of Respondent’s
challenges to the Board’s adoption of the ALJ’s findings of fact
and conclusions of law. The Opinion considered in detail all of
Respondent’s objections to the remedy requiring restoration of
the unit and the court held that
In short, St. George’s objections to the status quo remedy are
unpersuasive. That remedy addresses the violations St.
George committed, and is appropriately tailored to redress the
resultant harms. Accordingly, we will not disturb the Board’s
remedial order. (footnote omitted)
Despite this strong language upholding the Board’s remedial
Order, Respondent urges that one footnote in the Circuit Court
Opinion permits it to avoid complying with the mandates of the
Board and the Third Circuit. In its argument to the Circuit
Court the Respondent had objected to the fact that the Union
would be given bargaining rights for employees who had not
voted for the Union. The Respondent had argued to the Circuit
Court, as it argued in the instant compliance hearing, that only a
minority of the currently employed direct hires continue to
support the union. The court pointed out that there is nothing
permanent in a bargaining order and that the employees could
file for decertification after the effects of the employer’s unlaw-
ful acts have worn off. The court remarked that the record did
not support or controvert the contention that even the remaining
direct hires no longer supported the Union “and so we intimate

the circulation and the filing of a decertification petition, by refusing to
bargain in good faith with the Union, and by issuing warnings to and
suspending two employees who supported the Union. The ALJ deci-
sion has been neither affirmed nor reversed by the Board and I do not
rely on it herein.
ST. GEORGE WAREHOUSE 1039
no view on the question of whether changed circumstances
have undermined the propriety of the Board’s restoration rem-
edy.” An accompanying footnote stated, “It is possible that St.
George will have an opportunity, at the compliance stage, to
present evidence regarding the current state of union support.”
The footnote cited Duke University, 315 NLRB 1291 (1995);
We Can, Inc., 315 NLRB 170 (1994); and Lear Siegler, Inc.,
295 NLRB 857 (1989).
Lear Siegler dealt with an order to restore a manufacturing
operation that had been moved to another location because the
employer did not want to deal with the Union. The Board di-
rected that the employer be permitted to introduce evidence at
the compliance hearing that the restoration remedy was “unduly
burdensome” in view of the economic circumstances of the
company. In We Can the employer objected to the reinstate-
ment and restoration remedy on the ground that the operation
was running at a loss. The Board stated that that the remedy
would be implemented unless the employer could show at the
compliance stage that its operation was closed or curtailed for
legitimate economic business reasons. Similarly, in Duke Uni-
versity the Board found that the employer removed work from
the bargaining unit and ceased hiring full-time workers. The
Board, citing We Can, stated that at the compliance hearing the
employer would be permitted to introduce evidence to show
that a portion of the remedy was no longer appropriate.
This brief summary of the cases cited by the Court of Ap-
peals shows that they all dealt with the possibility that a remedy
may be unduly burdensome to an employer because of changed
economic circumstances. None of these cases permitted reliti-
gation of the Board’s findings that the employer had made a
change for unlawful reasons. The cases hold that the employer
would be required to implement a remedy absent a showing
that it would be “unduly burdensome” to the employer to re-
store the unit to the status quo ante.
The Respondent’s Answer to the Compliance Specification
requests that the Board reconsider its order requiring restoration
of the unit in light of changed circumstances. The Answer
asserts that since the Fall of 2004 it has tried to convince the
Regional Director “that the Union does not represent a majority
of the employees in the existing bargaining unit . . . and . . . an
inference exists that at least a majority of the employees to be
hired do not favor the Union thereby overcoming the presump-
tion that the Union continues to represent a majority of the
hold-over group and the new hires.” The Respondent’s posi-
tion herein is that it ought to be permitted to prove that the re-
maining directly hired unit employees no longer support the
Union.
This argument and the purported proof are irrelevant. The
Board has never permitted an employer to escape its obligation
to comply with a restoration remedy unless the employer could
present evidence that the remedy was unduly burdensome be-
cause of changed economic circumstances. The record evi-
dence upon which Respondent relies is a decertification petition
filed on October 17, 2002 by Louis Buono. Thus, the Respon-
dent does not allege that the remedy is unduly burdensome to it
due to economic factors. Instead, the Respondent alleges that
the unit employees no longer support the Union. This allega-
tion is made after years during which the Respondent has taken
numerous unlawful actions directed at its employees’ support
of the Union. As summarized above, the cases show that since
1999 Respondent has discharged and disciplined employees
because they belonged to the Union and that it engaged in other
conduct that restrained and interfered with its employees’ Un-
ion activities. The Third Circuit remarked on Respondent’s
“demonstrated hostility to its employees’ organizing efforts.”
The Respondent unlawfully refused to recognize and bargain
with the Union following the certification issued in 2000 and
the Respondent refused to furnish information to the Union
once it did begin bargaining. Most significantly, after the 1999
election, the Respondent unlawfully transferred unit work to
temporary agency employees pursuant to its decision to use
agency employees rather than directly hired unit employees.
Respondent’s argument that the employees no longer support
the Union is an attempt to profit from the totality of the unlaw-
ful conduct in which it has been engaged since 1999. Although
Respondent urges that the unfair labor practices to be remedied
herein could not reasonably have contributed to the purported
employee disaffection from the Union, an analysis of the fac-
tors set forth in Master Slack Corp., 271 NLRB 78, 84 (1984),
shows that this argument must fail. The unfair labor practices
herein began in 1999 and are continuing. The diminution of the
unit by the unlawful use of agency employees has never ceased.
Respondent does not claim that it has resumed hiring employ-
ees directly to perform unit work. Indeed, Respondent asserts
the right to continue to replace unit employees with agency
hires. The nature of the violation would reasonably have a
lasting effect on unit employees. The 8 or fewer remaining unit
employees would see that employees represented by the Union
were greatly declining in number and that the number of em-
ployees not eligible for representation was greatly increasing.
Unit employees would see that the employer was determined to
avoid dealing with the Union on behalf of its employees and
was determined to rid itself of the Union over time by ridding
itself of represented employees. This conduct would demon-
strate to the employees that it was futile to seek Union repre-
sentation. Organizational activities and membership in the
Union would fall off accordingly.
At the hearing Respondent sought to introduce an additional
document purporting to show that the Union no longer repre-
sented a majority of the unit. Although I stated on the record
my view that the document was irrelevant and that I would not
rely on it, I permitted Respondent to introduce this document, a
statement by Louis Buono dated August 3, 2004, in order to
preserve Respondent’s ability to present its argument in any
appeal of my decision. In addition to its irrelevance, the state-
ment by a person who ceased employment with Respondent in
February 2004, is far from proving what Respondent alleges.
Buono alleges that “before I left” three employees “no longer
cared for the Union”, but this statement of disaffection does not
prove that they did not want the Union to continue representing
them. Further, as to at least two of the employees the statement
is hearsay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1040
On the entire record and on the stipulation of the parties, I is-
sue the following recommended4

4 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 pur-
poses.
ORDER
The Respondent, St. George Warehouse, Inc., Kearny, New
Jersey, its officers, agents, successors, and assigns, shall restore
the unit of warehouse employees by maintaining a ratio of 12
direct hires to 1 (one) agency hire.