NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Evergreen America Corp. and Local 1964, International Longshormen’s Association, AFL–CIO. Cases 22–CA–25295, 22–CA–26087, and 22–RC–12215

September 21, 2006

DECISION AND ORDER

By Chairman Battista and Members
Liebman and Walsh

On July 25, 2005, Administrative Law Judge Steven Fish issued the attached decision. The Respondent and General Counsel filed exceptions and supporting briefs. The Respondent, General Counsel, and Charging Party filed answering briefs and the Respondent filed reply briefs.

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 combined representation and unfair labor practice case arose out of the Union’s organizational campaign among clerical employees at the Respondent’s Morristown, New Jersey headquarters and several nearby locations. After obtaining signed authorization cards from a majority of the 115 bargaining unit employees, the Union filed a representation petition on June 4, 2002.2

The election was held on July 17. The Union lost by a ballot count of 61 to 52. It thereafter filed election objections and unfair labor practice charges alleging that the Respondent engaged in preelection and postelection violations of Section 8(a)(1) and (3) of the Act.

1. Section 8(a)(1) violations

The judge found, and we agree, that the Respondent violated Section 8(a)(1) prior to the election by: (1) coercively threatening employees with plant closure, with loss of jobs and benefits, and with unspecified reprisals because of their union activities;3 (2) creating the impression that the union activities of employees were under surveillance; (3) instructing employees not to attend union meetings, not to read union literature, and to throw such literature away; (4) coercively interrogating employees about their union activities and about how they intended to vote in the election;4 and (5) soliciting grievances from employees, impliedly promising to remedy grievances and other employee concerns, and explicitly promising to do so.5

2. 8(a)(3) violations

The judge also found, and we agree, that the Respondent violated Section 8(a)(3) and (1) prior to the election by: (1) granting unprecedented and excessive across-the-board wage increases to unit employees; (2) manipulating its promotion process in order to promote more unit employees than in past years;6 and (3) granting employees new or improved benefits, some of which were granted after the election.

3. Gissel bargaining order

The judge concluded that the Respondent’s unfair labor practices interfered with the election and that the election results should be set aside. He further found that the Respondent’s violations so tainted the work environment that the possibility of assuring a fair rerun election was slight, and that employee sentiment here expressed by authorization cards would be better protected by a bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Accordingly, the judge recommended that a Gissel bargaining order be issued.

The Respondent contends that a bargaining order is inappropriate for the following reasons: (1) the Union lacked a card majority; (2) the judge erred in finding the underlying violations, but even if the Board affirms the violations found by the judge, they do not warrant a bargaining order; (3) the Respondent’s president “repudiated” the plant closure and relocation threats made by lower ranking management officials; (4) the judge erroneously failed to consider a combination of traditional and special or extraordinary remedies, rather than a bargaining order, as an appropriate measure to “cleanse” its unlawful conduct while permitting a rerun election; and (5) “changed circumstances,” particularly the passage of time since the occurrence of the unfair labor practices and the addition of new employees since that time, render a bargaining order inappropriate. Having carefully considered these contentions, we agree with the judge that a bargaining order is warranted.

a. Union’s majority status

As a preliminary matter, we must consider and resolve the issue of the Union’s majority status. The judge found that June 15 was the appropriate date for determining the Union’s majority status, at which point the bargaining unit consisted of 115 employees. Accordingly, the judge determined that the General Counsel had to show that the Union obtained at least 58 cards by this date in order to establish majority support. The judge found that the General Counsel properly authenticated, and entered into the record, authorization cards of 62 unit employees who signed their cards on or before this date. The Respondent contends that 9 of these 62 cards are invalid, 6 because the persons who solicited the cards did not witness the employees sign them. We reject this contention.

The Board has long held that it “will . . . accept as authentic any authorization cards which were returned by the signatory to the person soliciting them even though the solicitor did not witness the actual act of signing.” McEwen Mfg. Co., 172 NLRB 990, 992 (1968). The six cards challenged on the basis that the solicitors did not witness the card signing are those of Virginia Huang, Marina Peda, Mike Kelley, Paresha Shah, Michael Biscocho, and Katelin Li. The latter two cards were solicited by Union President Robert Levy, who testified credibly on direct examination that he passed out cards at an April 15 union meeting and received them back from Biscocho and Li, among others, after the meeting. This testimony is sufficient under McEwen Mfg. to authenticate these two cards notwithstanding that, during cross-examination, Levy was less than certain as to who returned cards to him. See Stride Rite, 228 NLRB 224, 235 (1977) (cards solicited by M. Beaudoin valid despite “some confusion” in her testimony regarding who returned cards to her).

The other four cards were solicited by the husband and wife team of Maria and Paolo Magbanua. Maria handed the cards to the four employees in separate envelopes and they returned the envelopes to her. Maria then gave the envelopes to her husband who opened them and confirmed that they contained the signed cards of V. Huang, Peda, Kelley, and Shah. Cards solicited in similar circumstances have been deemed properly authenticated. Sheraton Hotel Waterbury, 312 NLRB 304, 346–347 (1993) (card of S. Matthews solicited by the team of Hector and Sigfred Echeandia).

Having concluded, therefore, that the foregoing 6 cards were properly authenticated, and given that there is no merit to the Respondent’s assertion that 3 other cards are invalid,7 we find that the Union possessed signed cards from a majority of the employees (62 in a unit of 115 employees), as of the agreed-upon date for establishing majority status. With this prerequisite having been established, we next consider the propriety of a bargaining order.

b. Propriety of bargaining order

The Board will issue a Gissel bargaining order in two categories of cases. The first category comprises “exceptional cases” marked by unfair labor practices so “outrageous” and “pervasive” that traditional remedies cannot erase their coercive effects, thus rendering a fair election impossible. NLRB v. Gissel Packing, supra, 395 U.S. at 613. The second category (category II) includes “less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.” Id. at 614. Although the judge did not assign this case to a category, it is clear from his analysis that he considered it a category II case. We agree.

In category II cases, the Board must evaluate the “extensiveness of an employer’s unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future” in determining whether a bargaining order is appropriate. Gissel, supra at 614; Desert Aggregates, 340 NLRB 289, 293–294 (2003). For the reasons stated below, we agree with the judge that the violations committed by the Respondent were sufficiently numerous, serious and extensive to warrant a bargaining order under category II.

Particularly significant in this regard is the fact that, of the many violations committed by the Respondent, three sets were of the “hallmark” variety—violations that are particularly coercive because of their tendency to destroy election conditions, and to persist for longer periods of time than other unfair labor practices. See, e.g., Gissel, supra, at 611 fn. 31; Garvey Marine, Inc., 328 NLRB 991, 994 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001); National Steel Supply, Inc., 344 NLRB No. 121, slip op. at 5 (2005). As the Board has explained with respect to two sets of the Respondent’s hallmark violations—its beneficial grants of wage increases and promotions—they have “a particularly longlasting effect on employees and are difficult to remedy by traditional means not only because of their significance to the employees, but also because the Board’s traditional remedies do not require a respondent to withdraw the benefits from the employees.” Gerig’s Dump Trucking, 320 NLRB 1017, 1018 (1996). Similarly, with respect to the Respondent’s third set of hallmark violations, viz. threats of plant closure and job loss, the Board has emphasized that they “are among the most flagrant of unfair labor practices and are likely to affect the election conditions negatively for an extended period of time.” Cardinal Home Products, 338 NLRB 1004, 1011 (2003).

In addition, we rely upon the coercive impact of the Respondent’s nonhallmark violations, which were both numerous and serious. As discussed above, at the outset of the organizational effort the Respondent reacted swiftly with a torrent of 8(a)(1) violations committed over a 3-month period. They included 13 separate instances of unlawful interrogations by 11 different supervisors; 15 instances of implied promises to remedy solicited grievances; 8 instances of actual promises to do so; 2 instances in which employees were instructed not to attend union meetings, not to read union literature and to throw the literature away; and 1 instance of creating the impression that the union activities of employees were under surveillance.

Accompanying these 8(a)(1) violations were a series of eight separate grants of benefits to employees before and after the election, in violation of Section 8(a)(3). The preelection benefits granted by the Respondent included the posting of job openings on its intranet web site and the liberalization of its attendance policy. The latter included permitting employees to select flextime work schedules and to avoid tardiness warnings by making up as much as 10 minutes at the end of their shifts. The Respondent continued conferring benefits after the election by expanding its casual dress policy, improving its sick leave policy, allowing employees the choice of Martin Luther King day or Good Friday as a paid holiday, lowering the age for early retirement eligibility, and awarding employees $400 Christmas gift certificates and allowing spouses or guests to attend the annual year-end holiday party. Notably, most of these benefits were requested by employees in response to the Respondent’s unlawful solicitation of grievances, thereby fortifying the impression in the minds of employees that the benefit grants were designed to dissuade them from supporting the Union. Overnite Transportation, 329 NLRB 990, 993 (1999).

Each of the violations discussed above directly affected all or significant portions of the bargaining unit, a factor particularly supportive of a bargaining order. See, e.g., Cogburn Healthcare Center, 335 NLRB 1397, 1399 (2001), reversed on other grounds 437 F.3d 1266 (D.C. Cir. 2006). As noted by the judge, the 8(a)(3) wage increases were awarded to all unit employees, as were the other eight separate pre-and-postelection benefits. Similarly, the 8(a)(3) threats of lost benefits (promotional opportunities) and unspecified reprisals were contained in the Respondent’s letter of July 17, which was distributed to all unit employees.8 The 8(a)(1) implied and explicit promises to remedy solicited grievances also touched every bargaining unit employee.

The Respondent’s other violations, although not directed against the entire unit, were committed against many employees. Approximately 27 employees were recipients of the Respondent’s 8(a)(3) threats of job loss and plant closure, 13 employees (8 in the funds department and 5 in finance) were unlawfully instructed not to attend union meetings, not to read the Union’s literature and to throw the material away, 9 were unlawfully interrogated and 7 were subjected to the impression that their union activities were under surveillance. Finally, although not all unit employees were unlawfully promoted, news of this violation was disseminated by e-mail to all unit employees by the Respondent. Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 827 (D.C. Cir. 2001) (dissemination to employees not personally affected by unfair labor practices is a relevant factor supportive of a bargaining order).

The coercive and lasting effect of the Respondent’s unlawful conduct was magnified by the fact that many of the violations were committed by high management officials, a point that has consistently been emphasized by the Board as supporting the issuance of a bargaining order. Concrete Form Walls, Inc., 346 NLRB No. 80, slip op. at 8 (2006); National Steel Supply, Inc., 344 NLRB No. 121, slip op. at 5 (2005); Cogburn Healthcare Center, supra, 335 NLRB at 1400; Overnite Transportation, supra, 335 NLRB at 991. Here, it was the Respondent’s president, Thomas Chen, who authorized the wage increases, the promotions, the new casual dress policy, and the $400 holiday gift certificates. Chen also figured prominently in the unlawful solicitation of grievances and implied promises of benefits, particularly through the speeches that he gave to all unit employees on May 23 and July 16. Other high ranking officials, including executive vice presidents and junior vice presidents, also committed violations. It was Raymond Lin, an executive vice president, who threatened the employees in the finance department and accounting department that the Respondent would close if the Union won the election and instructed employees in the finance and funds department not to attend union meetings, not to read its literature and to throw it away. He and Executive Vice President Jimmy Kuo also engaged in grievance solicitations and impliedly or explicitly promised to remedy them. Junior Vice President Dan Grogg also engaged in this conduct and, together with Junior Vice Presidents Jay Buckley, Charles Yeh, and Eddie Lou, distributed the July 17 letter threatening unspecified reprisals and the loss of promotional opportunities if the Union won the election. As a result of the substantial involvement in unlawful activity by this large number of the Respondent’s highest-ranking officials, its antiunion message is “unlikely to be forgotten” by employees. Consec Security, 325 NLRB 453, 455 (1998), enfd. mem. 185 F.3d 862 (3d Cir. 1999).

“It is also significant that the Respondent did not desist in its unlawful conduct even after the Union lost the election.” Garvey Marine, supra, 328 NLRB at 995. Instead, the Respondent violated Section 8(a)(3) on five separate occasions by granting employees various forms of benefits. As the judge observed, citing Aldworth Co., 338 NLRB 137, 150 (2002), enfd. 363 F.3d 437 (D.C. Cir. 2004), such “post election action demonstrates Respondent’s continuing propensity to violate the Act and indicates that the coercive effects of [its] unlawful conduct are likely to linger, making it highly unlikely that a free fair election can be held.”

c. Asserted repudiation of unlawful conduct

Notwithstanding the foregoing considerations, the Respondent argues that a fair rerun election is possible and that a bargaining order is unnecessary because, on the day before the July 17 election, President Chen addressed the “paramount employee concern of job security” by issuing a letter of “guarantee” to all employees, stating that there would be “no relocation, no loss of positions and no reprisals” based on the election outcome. (Br. at 92.) The Respondent, citing Passavant Memorial Area Hospital, 237 NLRB 138 (1978), claims that this assurance not only repudiated prior threats made by lower-level supervisors, but also demonstrated that threats by management officials would “not likely . . . recur if a new election should be required.” (Br. at 93.)

We reject this argument. Even apart from the insufficiency of Chen’s letter to cure the earlier threats, the threats, in fact, recurred. The very next day, in a letter distributed to all employees and signed by four junior vice presidents, the Respondent threatened the loss of promotional benefits and unspecified reprisals. And then, additional unlawful conduct followed, in the form of postelection grants of benefits.9

d. Asserted changed circumstances

We also reject the Respondent’s argument that passage of time and the addition of new employees since the foregoing numerous violations weigh against a bargaining order. As we have stated on prior occasions, the Board’s practice is to evaluate the appropriateness of a Gissel bargaining order as of the time that the unfair labor practices occurred; changed circumstances following the commission of the violations generally are not considered. Aldworth, supra, 338 NLRB at 151; Overnite Transportation, supra, 335 NLRB at 994–995.10 Although we adhere to that policy, nevertheless, in light of the criticism the Board has received from some courts, particularly the District of Columbia Circuit,11 we have considered the factors urged by the Respondent and conclude that a bargaining order is still appropriate.

With respect to employee turnover, the Respondent merely states that “current circumstances . . . reflect that [the Company] has grown significantly, adding 100 employees company-wide between 2002 and the time of the hearing in 2004.” (Br. at 89.) The Respondent, however, does not indicate how many, if any, of these 100 new employees are additions to the bargaining unit that was subjected to the Respondent’s numerous and serious unfair labor practices. Nor has the Respondent presented any evidence of the number of employees who were in the unit during the commission of the unfair labor practices who have since departed from the unit. Thus, the Respondent has not shown a “danger that a bargaining order that is intended to vindicate the rights of past employees will infringe upon the rights of current ones to decide whether they wish to be represented by a union.” Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1170–1171 (D.C. Cir. 1998).12

As for the passage of time, admittedly, 4 years have elapsed since the commission of the Respondent’s unfair labor practices, and a little over 1 year since the date of the judge’s decision. The case, however, was not presented to the Board until January of this year, when the parties filed exceptions to the judge’s decision. In these circumstances, we do not consider the passage of time since the Respondent’s violations unacceptable for Gissel purposes, and we note that courts, including the District of Columbia Circuit, have enforced bargaining orders involving comparable time periods. See, e.g., Dunkin Donuts Mid-Atlantic, supra, 363 F.3d 437, and Garvey Marine, supra, 245 F.3d 819.

Finally, a discussion of changed circumstances would not be complete without noting a circumstance that the Respondent has failed to mention. On April 12, 2006, the United States District Court for the District of New Jersey issued an injunction pursuant to Section 10(j) of the Act ordering the Respondent to recognize and bargain with the Union. Kendellen v. Evergreen America Corp., 428 F.Supp.2d 243 (D.N.J. 2006). Our decision will effectively maintain those obligations.

Conclusion

In sum, the Respondent’s course of misconduct was swift and severe, encompassing both hallmark and nonhallmark violations. Those violations directly affected the entire bargaining unit, emanated from upper level management, and persisted during the postelection period. Under these circumstances, simply requiring the Respondent to refrain from unlawful conduct will neither eradicate the lingering effect of the violations it committed nor deter their recurrence. Rather, we find that the employees’ representational desires, expressed through authorization cards, would be better protected by a bargaining order than by traditional or special remedies that the Respondent asserts were not considered by the judge. Accordingly, because we conclude that it is unlikely that a fair rerun election can be held because of the lasting effects of the Respondent’s violations, we affirm the judge’s finding that a Gissel bargaining order is appropriate.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Evergreen America Corp., Morristown and Jersey City, New Jersey, its officers, agents, successors, and assigns shall take the action set forth in the Order.

It is further ordered that the election conducted in Case 22–RC–12215 on July 17, 2002, shall be set aside, and that the petition shall be dismissed.

Dated, Washington, D.C. September 21, 2006

___________________________________

Robert J. Battista,                     Chairman

___________________________________

Wilma B. Liebman,                    Member

___________________________________

Dennis P. Walsh,                      Member

(seal)            National Labor Relations Board

Dorothy Foley, Esq. and Tara Levy, Esq., for the General Counsel.

Steven M. Swirsky, Esq., Carmine A. Iannaccone, Esq., Michael F. Mc Gahan, Esq., Donald S. Krueger, Esq. (Epstein, Becker and Green), of New York, New York, for the Respondent.

Herzel Eisenstadt, Esq. (Gleason & Mathews, P.C.), of New York, New York, for the Charging Party.

DECISION

Statement of the Case

Steven Fish, Administrative Law Judge. The trial with respect to the allegations in the above cases was held before me over the course of 43 days between March 2 and September 24, 2004, in Newark, New Jersey, and New York, New York. Numerous charges, amended charges, and complaints resulted in a fourth amended complaint issued on March 2, 2004, which alleged that Evergreen America Corporation (Respondent or EGA) violated Section 8(a)(1) and (3) of the Act. The unfair labor practice allegations were consolidated with a Report on Objections in Case 22–RC–12215 filed by Local 1964, International Longshoremen’s Association, AFL–CIO (the Union or the I. L. A.). The complaint was also amended during the trial. Briefs have been received from Respondent and the General Counsel, and the Charging Party submitted a memorandum. Additionally, the General Counsel and Respondent have submitted reply briefs. All of these documents have been carefully considered.1 Based upon the entire record,2 including my observation of the demeanor of the witnesses, I make the following

Findings of Fact

i. jurisdiction and labor organization

Respondent is a corporation with offices and places of business in Morristown, New Jersey, Jersey City, New Jersey, and in Port Newark and Elizabeth, New Jersey, as well as other locations throughout North America, where it has been engaged in the collection, transport and shipment of international freight.

During the preceding 12 months, Respondent derived gross revenues in excess of $50,000 from the transportation of freight from the State of New Jersey directly outside the State of New Jersey.

It is admitted and I so find that Respondent is and has been engaged in commerce within the meaning of Section 2(5), (6), and (7) of the Act.

It is also admitted and I so find that the Union is and has been a labor organization within the meaning of Section 2(5) of the Act.

ii. the 10(b) issue

Respondent has alleged as an affirmative defense that certain allegations that appeared in the fourth amended complaint should be dismissed because of Section 10(b) of the Act. In order to evaluate Respondent’s defense, it is necessary to trace the charges, amended charges, and complaints, that lead to the final document, which contains according to Respondent, certain untimely allegations which must be dismissed.

The initial charge in Case 22–CA–25295 was filed by the Union on July 19, 2002,3and alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act, by refusing to recognize and bargain with the Union, and by engaging in an “over aggressive campaign to restrain, coerce and intimidate its office clerical employees calculated to discourage their membership and interests in Local 1964 and to irreparably undermine their free choice in the election conducted by the Board on July 17, 2002.4

On December 31, 2002, the Region issued a complaint and notice of hearing, alleging that Respondent violated Section 8(a)(1) and (3) of the Act by unlawfully interrogating employees, threatening them with plant closure, granting excessive wage increases, promoting an excessive number of employees, and liberalizing its attendance policy and its dress code. The complaint did not contain an allegation that Respondent refused to recognize or bargain with the Union or that it violated Section 8(a)(1) and (5) of the Act or that a bargaining order is warranted.

On February 14, 2003, the Regional Director issued a Report on Objections, in Case 22–RC–12215, a first amended complaint in Case 22–CA–25295, and an order consolidating the above cases for trial. The amended complaint added allegations of solicitation of grievances, which were not included in the initial complaint, and specified in greater detail the allegations of unlawful interrogations and threats.5 The amended complaint also did not contain an 8(a)(5) violation or a bargaining order request.

On April 28, 2003, the Union filed a charge in Case 22–CA–25745 alleging that Respondent violated Section 8(a)(1), (3), and (5) of the Act by various actions since July 17, 2002, the day of the election, such as changing terms and conditions of employment, including retirement, sick leave, attendance, dress and transfer policies, and annual bonuses. The charge once again asks for a bargaining order as a remedy. This charge was investigated by the Region. Respondent submitted a position paper in that case, responding to the allegations, wherein it raised a number of defenses and issues, including the assertion that a number of the changes alleged in the charge were made more than 6 months before the April 28, 2003 date of the charge, and were untimely under Section 10(b) of the Act.

On or about June 30, 2003, the Union filed a first amended charge in Case 22–CA–25745. This amended charge was nearly identical to the first charge in Case 22–CA–25745, except that it included some additional alleged changes, such as funeral and marriage leave policies.

At some point undisclosed by the record, the Region determined, as asserted by Respondent in its position statement that some of the Acts alleged in Case 22–CA–25745 occurred more than 6 months before that charge was filed. The Region, therefore, requested that the Union withdraw the charges in that case, and decided to include the allegations in that charge found to have merit, as part of Case 22–CA–25295, which was timely filed.

On August 8, 2003 the Union filed a request to withdraw the charge in Case 22–CA–25745, which was approved by the acting director on August 12, 2003.

On or about August 11, 2003, the Union filed an amended charge to Case 22–CA–25295, alleging that Respondent has since the election changed terms and conditions of employment (as it alleged in Case 22–CA–25745 which it requested withdrawal of in the same covering letter to the Respondent wherein it submitted its amended charge in Case 22–CA–25295), in various respects, that further demonstrates the futility of having another election, and justifies a request for a bargaining order.

On October 31, 2003, the Union filed a charge in Case 22–CA–26087, alleging that on October 28, 2003, Respondent discharged Michael Gunshefski because of his activities on behalf of the Union, in violation of Section 8(a)(1) and (3) of the Act.

On November 25, 2003, the Region issued a second amended complaint. This complaint included, in addition to the same 8(a)(1) violations alleged in the first amended complaint, nine allegations relating to postelection conduct. These new allegations include, since July 17, 2002, Respondent promoted an unusually high number of clerical employees, since July 19, 2002, Respondent liberalized its dress code by instituting a summer casual dress policy, since on or about August 29, 2002, liberalized its dress policy to permit year-round casual dress,6 on or about October 3, 2002, Respondent announced improved sick leave benefits, on or about November 5, 2002, Respondent announced early retirement incentives, in or around December 2002, announced a change in its holiday party policy to permit the attendance of spouses, on or about December 21, 2002, announced the grant of Christmas gift certificates, Respondent announced employees could elect to take Good Friday as a holiday, instead of the regular company holiday on Martin Luther King day, and on or about July 1, 2003, Respondent granted an unusually high wage increase to a large number of clerical employees.7

Additionally, the second amended complaint alleged that since June 2002 Respondent sponsored employee lunches and picnics at its Morristown facility, restaurants, and area recreational facilities. The prior complaints had made no allegations concerning lunches, picnics, or restaurants. The second amended complaint also included another preelection allegation, that Respondent instituted a policy posting job opportunities on an electronic bulletin board, on or about June 11, 2002, which allegation also had not been included in the prior complaints.8

Finally, the second amended complaint, included for the first time allegations that the Union had been designated as the collective-bargaining representative by a majority of employees in an appropriate unit, and that the unfair labor practices committed by Respondent are so serious that a bargaining order is required.

On or about February 3, 2004, the Union filed a second amended charge to Case 22–CA–25745, although the Union had withdrawn that charge previously. The Union’s attorney explained that he made an error by including the Case 22–CA–25745, while he meant to amend Case 22–CA–25295. This amended charge made the same allegations of postelection changes made in its withdrawn charge, and added a new allegation that Respondent on January 22, 2004, announced, inaugurated and conducted at its Jersey City location, “an elaborate unprecedented party in celebration of the Chinese Luna New Year.”

On February 12, 2004, the Regional Director issued a third amended complaint. This complaint was virtually identical to the second amended complaint, except that it added two additional allegations, that on November 26, 2003, Respondent hosted a Thanksgiving luncheon at its Jersey City facility, and on January 22, 2004, hosted a Chinese New Year’s party at its Jersey City facility, in order to discourage employee support for the Union.9

The third amended complaint made no reference to Case 22–CA–25745, or the amended charges filed by the Union in that case. Instead the compliant in paragraph 1, incorrectly asserted that “the Second Amended charge in this proceeding10 was filed by the Union on February 3, 2004.”

On March 2, 2004, the Region issued a fourth amended complaint and order consolidating cases, wherein Case 22–CA–26087 was consolidated with Cases 22–CA–25295 and 29–RC–12215, and adding an allegation that the discharge of Michael Gunshefski on October 28, 2003, because he joined and assisted the Union violated Section 8(a)(1) and (3). In all other respects, the fourth amended complaint repeated the allegations made in the third amended complaint, including the numerous changes in conditions of employment, described as “the granting of . . . benefits,” both pre and postelection. The latter complaint also made no reference to the charges in Case 22–CA–25745, and also incorrectly asserted that the Union filed a second amended charge in Case 22–CA–25295 on February 3, 2004, and a copy was served by regular mail on Respondent on February 5, 2004.

During the course of the trial, on July 26, after it was discovered that the Union had sought to amend a withdrawn charge, I granted the General Counsel’s motion to delete paragraph 1(c) of the fourth amended complaint, which alleges that the Union sought to amend Case 22–CA–25295. The General Counsel stated further that Case 22–CA–25745 is considered a closed case, and no further action was taken with respect to that charge, even after the Union sought to amend it on February 3, 2004. However, the General Counsel concedes, as the record discloses, that allegations were included in the complaint that were raised in the amended charge to Case 22–CA–25745, but asserts that these allegations “are within the ambit of the charges in 22–CA–25295.”

Respondent has filed an amended answer to the fourth amended complaint, wherein it alleges as an affirmative defense that the allegations contained in paragraphs 7(B)11 and 7(F–P) (postelection alleged grants of benefits, including the Thanksgiving luncheon and Chinese New Year’s party) are barred by 10(b) of the Act.. The amended answer also asserted that paragraph 15(A) which alleges that since June 2002 (preelection), Respondent sponsored employee lunches and picnics at its facility, and at area restaurants and recreational facilities are also time barred.

Respondent argues initially that the postelection allegations were raised in the charge filed in Case 22–CA–25745, filed on April 28, 2003, and that the allegations involved were investigated in that case, including receipt of a position statement by Respondent, wherein a 10(b) defense was raised to some of the allegations. The Region, therefore, decided to solicit a withdrawal from the Union of this charge, and to include the postelection allegations in the amended complaint issued on November 25, 2003, based upon the timely filed charge in Case 22–CA–25295.12

Further confusing the matter, the Union filed a second amended charge in Case 22–CA–25745 (although that case had been withdrawn) on February 3, 2004, to allege an additional instance of “an elaborate and unprecedented party.” The Union stated that it intended to this charge to be an amendment to Case 22–CA–25295, but it was inadvertently mislabeled with the wrong case number.

Nonetheless, the Region issued a third and eventually a fourth amended complaint, wherein it included postelection conduct that the Union had referred to in its amended charges, including the mislabeled charge detailed above.

Based on these facts, Respondent asserts that all the post-election conduct alleged in the fourth amended complaint must be considered as barred by Section 10(b), since they all arise out of a charge that was withdrawn, because that charge was itself untimely. I disagree.

The issue to be decided is whether the postelection conduct alleged in the complaint is “closely related” to a timely filed charge. That test is to be applied, without regard to whether another charge encompassing the untimely allegations has been withdrawn or dismissed. Seton Co., 332 NLRB 979, 983 (2000); Redd-I Inc., 290 NLRB 1115, 1116 (1988). Therefore, I conclude that the fact that the withdrawn charge in Case 22–CA–25745 encompassed these allegations is irrelevant. It is also not material that the Union’s amended charges in Case 22–CA–25295, which re-alleges this conduct was also filed outside the 10(b) period. I agree with Respondent that these untimely amended charges, cannot serve to resolve the 10(b) issue, since these amended charges are also time barred.

Therefore, the determinative issue, as related above, is whether the complaint allegations that Respondent claims are time barred, are “closely related” to the timely filed charge in Case 22–CA–25295. There is a three-factor test used by the Board to resolve this issue; (1) whether the otherwise untimely allegation involves the same legal theory as the allegation in the timely charge; (2) whether the allegations arise from the same factual situation or series of events; and (3) whether the Respondent would raise similar defenses to both allegations. Precision Concrete, 337 NLRB 211 (2001); Redd-I, supra; Reebie Storage & Moving Co., 313 NLRB 510, 511–512 (1993).

In my view, all three of these factors are present here. The timely charge filed by the Union, alleges that Respondent refused to recognize and bargain with the Union, and engaged “in an over-aggressive campaign to restrain, coerce, and intimidate its office clerical employees calculated to discourage their membership and interests in Local 1964 and to irreparably undermine free choice in an election conducted by the Board.” The charge also specifically requests a bargaining order as a remedy. Thus, this charge is clearly broad enough to encompass the untimely allegations. The thrust of the Union’s charge, as well as subsequent complaints, is that Respondent engaged in numerous acts designed to destroy the Union’s majority status. The postelection events are clearly alleged to be but a continuation of Respondent’s conduct in discouraging employees’ interest in the Union, precluding their free choice, and warranting a bargaining order. Therefore, the post and preelection events are based on the same legal theory.

As to the second prong, I find that the allegations involve similar conduct, during the same time period, and with a similar object, i.e., Respondent’s efforts to resist the Union’s campaign. Ross Stores, Inc., 329 NLRB 573, 574 –75 (1999), enf. denied in pertinent part 235 F.3d 669 (D.C. Cir. 2001); Seton Co., supra.; Redd-I, supra.

In this regard, Respondent relies on court cases rejecting the Board’s attempts to find “closely related” conduct based upon the fact that the acts involve the same antiunion campaign. Tic-The Industrial Co., Southeast, 126 F.3d 334, 339 (D.C. Cir. 1997). However, I as an administrative law judge am bound by Board law, as expressed in Ross Stores and Redd-I, supra.

Moreover, the D.C. Court of Appeals has held that proof of a pattern of conduct cannot be satisfied solely (emphasis added) on the basis that the separate alleged acts arise out of the same antiunion campaign. Precision Concrete, supra, distinguishing Ross Stores, supra, 235 F.3d at 669, on that basis. Here as in Precision Concrete, supra, I find that the closely related test is met, not “solely” based on the fact that the acts are part of the same antiunion campaign. The allegations involve similar conduct occurring within a common sequence of events in a half-year-time span. Precision Concrete, supra at 212.

Respondent’s distinction between pre and postelection events is not determinative. All of the acts of Respondent both before and after the election were alleged to have a similar purpose of destroying the Union’s majority status, and making a free and fair election impossible. I note in this regard that the initial complaint filed by the Region on December 31, 2002, although it did not request a bargaining order, did include a number of violations of Section 8(a)(1) of the Act, including threats, interrogations, promotions of excessive number of employees, granting of an excessive wage increase, liberalizing its attendance policy, and liberalizing its dress code, all allegedly to dissuade its employees from continuing their support for the Union. Notably, Respondent does not argue that these allegations are not encompassed by the charge, even though the charge does not specifically mention any of these acts. It is also significant that the complaint, filed on December 31, 2002, which gives Respondent notice that the Union and the Board were alleging that its wage increases, promotions, and liberalizing policies to dissuade employees from supporting the Union, was within the 10(b) period for these allegations, as well as for the postelection conduct, included in subsequent complaints. It is also significant that a number of the post election allegations are similar to these complaint allegations, which Respondent concedes are not time bared and are encompassed by the charge on file. Thus, the initial complaint alleged that Respondent on July 1, granted excessive wage increases to a large number of clerical employees and promoted an excessive number of such employees. The fourth amended complaint re-alleges these allegations, but adds allegations that since July 17, 2002, Respondent promoted an unusually high number of clerical employees, and on July 1, 2003, granted unusually high wage increases to such employees. Therefore, the post and preelection allegations are virtually identical except for the time period. Similarly, the initial complaint alleges that Respondent on or about July 1, 2002, liberalized its attendance policy and dress code to dissuade its employees from continuing their support for the Union. In the final complaint, the allegation with respect to attendance policy was changed to read that it occurred on June 11. The liberalization of the dress code allegation was changed in the final complaint by including two paragraphs dealing with this issue, and alleging liberalization by instituting a summer casual dress policy on July 19 and permitting year-round casual dress on August 29.

The remaining postelection allegations, deal with other grants of benefits, such as improved sick leave, early retirement incentives, changes in holiday party policy, granting of Christmas gift certificates, and the holding of luncheons and parties, all with the identical purpose of discouraging employees from supporting the Union. It is clear that these postelection events are closely related to preelection events, concerning which Respondent does not question.

Interestingly, in this regard Respondent does assert in its amended answer that the paragraph in the final complaint alleging that since June 2002, Respondent sponsored employee lunches and picnics at its facility, restaurants, and recreational facilities, is time barred under Section 10(b). This assertion is somewhat puzzling, since it is inconsistent with Respondent’s position that the crucial distinction for “closely related” analysis is between pre and postelection conduct. In any event, I reject Respondent’s contention with respect to this paragraph of the complaint, since I find it to be “closely related” to the charge, as well as to the allegations in the initial complaint.

Respondent also argues that paragraph 7(b) of the final complaint is time barred, since it alleges that Chen interrogated employees in August and September. Since I have rejected Respondent’s assertion that there is any meaningful distinctions, for 10(b) purposes between post and preelection conduct, I reject Respondent’s contention with respect to this allegation, and find it to be closely related to the charge and the initial complaint which was filed within the 10(b) period with respect to this allegation of interrogation.[13]

Finally, with respect to the third prong of the “closely related” analysis, it is clear that the defenses to the pre and post-election conduct by Respondent are virtually the same. The allegations with respect to the excessive wage increases and promotions are identical, except for the time periods, that involve the same issues of whether Respondent engaged in such conduct to discourage union supporters, or because of other business related reasons. The evidence concerning Respondent’s financial condition, its competitive position, its turn over, and its decision to grant these benefits companywide is identical to both pre and postelection conduct. Similarly, with respect to the other alleged changes in benefits, the defenses are essentially the same, i.e., whether the actions constituted a change in prior policy and/or whether they were motivated by a desire to discourage union support. Once again, the fact that these changes (if the conduct constitutes a change), were made nationwide is a part of Respondent’s defense for all of the allegations. Accordingly, based on the foregoing, I reject Respondent’s assertions that any of the allegations are barred by Section 10(b) of the Act.

iii. the position papers

Respondent submitted two position papers to the Region, in connection with the investigation of the objections and the unfair labor practice charges filed by the Union. The first position paper, dated July 2002, makes reference to the representation case number, and sets forth Respondent’s position with respect to the objections filed, including arguments concerning Respondent’s grant of a wage increase.[14] On August 20, Respondent filed an additional position paper, dealing with the post-election issues raised in the Union’s charges.

At the trial, I received in evidence, over the objections of Respondent, both of these position papers. However, I brought to the attention of the parties, Kaiser Aluminum & Chemical, 339 NLRB 29 (2001), and asked the parties to brief, whether Kaiser Aluminum, changes longstanding Board precedent that receives and relies on position papers filed by Respondents.[15]

On September 7, 2001 the Board issued an unpublished Order in Kaiser Aluminum & Chemical Corp., supra, reversing the ruling of the administrative law judge to admit into evidence a position paper submitted by the Charging Party. The Board based on the request of the Charging Party, published the previously issued Order on July 25, 2003. The Board concluded that the position paper submitted by Charging Party was exempt from subpoena, because it was attorney work product as reflected in Rule 26(b)3 of the FRCP, and that the Charging Party did not waive the work product privilege by submitting such a position paper to the General Counsel.

Surprisingly, the Board’s Order made no reference to the longstanding Board precedent that admitted position papers submitted by Respondents to the General Counsel. Nor did the Board make any attempt to distinguish or reconcile this precedent with its decision to revoke the subpoena served on the Charging Party.

Subsequent to Kaiser Aluminum being published, it has not been cited or followed in any subsequent case. There have been a number of cases post Kaiser Aluminum, where position papers have been received by the administrative law judge, and the Board has affirmed the decision without commenting on the issue. Smucker Co., 341 NLRB 10, ALJ slip op. at 4 (2004); Harris Roger’s Corp., 344 NLRB 60 (2005).

In Tarmac America, Inc., 342 NLRB No. 107 (2004), the ALJ received and relied on a position paper filed by a Respondent. (ALJ slip op. at 3 fn. 2). The Board in affirming the administrative law judge’s decision, made specific reference to and relied on statements made by Respondent in its position paper. (Slip op. at 2.) Further in United Scrap Metal, 344 NLRB No. 55, slip op. at 1–2 (2005), the Board specifically relied on a respondent’s position statement in establishing unit size and identity of unit employees, and cited several prior Board cases, relying on position statements as admissions. Navigator Communications Systems, LLC, 331 NLRB 1056, 1058 fn 10 (2000); McKenzie Engineering, supra; Hogan Masonry, 319 NLRB 332, 333 fn 1 (1994).

However, I note that Kaiser Aluminumm, supra, is not cited or distinguished in any of these cases, so it may very well be, that no one raised or saw the issue of a possible inconsistency between Kaiser Aluminum and the well-established Board precedent to receive and rely upon position papers filed by Respondents. Interestingly, in Fairfield Tower Condominium Assn., 343 NLRB No. 101 (2004), the administrative law judge received and relied upon a position paper filed by a respondent Employer. (ALJ slip op. at 6.) The Board while affirming the judge’s finding that the subcontracting involved was permanent, noted that the judge’s finding in that regard was based on respondent’s admission to that effect in a position paper. The Board observed that respondent did not file a specific exception to this finding. The Board then goes on to affirm the finding, but cited some additional reasons, other than the admission in the position paper supporting that conclusion. This suggests to me that while no one raised Kaiser Aluminum as possibly affecting the conclusion as to the admissibility of the position paper, that someone at the Board level in that case realized a possible inconsistency between Kaiser Aluminum, and prior precedent, and made it a point not to rely on the position paper filed in that case.

The General Counsel here argues that there is no inconsistency between Kaiser Aluminum, and prior precedent, since even if a position paper filed by Respondent is considered to be attorney work product, that Respondent waived the privilege by submitting the position paper to the Region. The General Counsel’s position is supported by numerous court of appeals cases. In re Columbia / HCA Healthcare Corp., 293 F.3d 289, 305–306 (6th Cir. 2002): In re Steinhardt Partners, L.P., 9 F.3d 230, 235–236 (2d Cir. 1993); Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428–1431 (3d Cir. 1991); In Chrysler Motors Corp., 860 F.2d 844, 844–846 (8th Cir. 1988).

The basis for these decisions is that since the work product doctrine’s purpose is to promote the adversary system by protecting the confidentiality of papers prepared by attorneys in anticipation of litigation, the privilege is waived when the work product is voluntarily disclosed to an adversary or potential adversary, such as a government agency investigating the party asserting the privilege.

As the Third Circuit in Westinghouse Electric, supra. has stated:

When a party discloses protected materials to a government agency investigating allegations against it, it uses those materials to forestall prosecution (if the charges are unfounded) or to obtain lenient treatment (in the case of well founded allegations.) These objectives, however rational, are foreign to the objectives underlying, the work-product doctrine. [Id. at 1429. Accord Columbia Healthcare, supra at 305–306.]

These cases provide ample justification for the Board’s well-settled precedent to receive and rely on position papers filed by Respondent’s.

However, they do not expressly answer the possible inconsistency with Kaiser Aluminum. In that regard, the General Counsel argues that there is no inconsistency, since the Charging Parties are not potential adversaries to the Region, and, therefore, the privilege is not waived. The General Counsel notes that in the event complaint issues, the Charging Party and the General Counsel, are on the same side, and are not adversaries, and in such circumstances the privilege is preserved and not waived. Castle v. Sangamo Western Inc., 744 F. 2d 1464 (11th Cir. 1984) (Private plaintiff’s attorney did not waive work product privilege by disclosing documents to the Government when private suit was consolidated with EEOC enforcement action.). See also U.S. v. AT&T Co., 642 F.2d 1285, 1296 (D.C. Cir. 1980). (No waiver of work product privilege by private party disclosing information to DOJ in Anti Trust case, held that parties “anticipated litigation” against common adversary.)

Respondent argues that Kaiser Aluminum represents a “wholesale overruling” of prior cases allowing position statements to be used as evidence. It also asserts that a charging Party is a “potential adversary” to the Region, since if the charge is dismissed, charging party can appeal this dismissal. It further notes that it is not unusual for both an employer and a union to file charges against one another relating to the same set of facts, and notes that here, Respondent did file 8(b)(4) charges against the union in May and June 2003.

Respondent further argues that its position papers were submitted in connection with the objections in the representation case, which is recognized to be a non adversary proceeding. Marion Manor for the Aged & Infirm, 333 NLRB 1084 (2001).

With respect to Respondent’s latter contention, while the position paper submitted in July (which is the document that the General Counsel relies upon here) made reference only to the representation case, it is clear as I have noted above, that the wage increase issue discussed therein, was the subject of both an unfair labor practice charge and the objections. It is also clear, and I so conclude, that by submitting that document, Respondent was attempting to persuade the Region to dismiss the ULP charges as well as to dismiss the objections. Therefore, Respondent’s reliance on the nonadversarial nature of representation proceedings is misplaced, and cannot provide support for its assertion that its position paper is protected from disclosure by the work product doctrine.

I cannot agree with Respondent’s assertion that Kaiser Aluminum represents a “wholesale overruling” of prior precedent since the decision did not so state, and made no mention of position papers filed by Respondents.

The General Counsel’s distinction between the Charging Party and Respondent’s position papers, based on whether they are considered “adversaries” or potential adversaries to the General Counsel, may very well be valid, and the rationale for different rules concerning the admissibility of position papers in Board proceedings. I need not and do not decide that issue,[16] since as detailed above, Board cases, post Kaiser Aluminum continue to rely upon position papers filed by respondents. Tarmac America, supra; Smucker Co., supra; United Scrap Metal, supra.

Accordingly I reaffirm my ruling to admit into evidence Respondent’s position papers that it filed with the Region in connection with the investigation of the Union’s charges and objections.

iv. the union’s majority status

Employees David Chiang and Wayne Ting are clerical employees who had been assigned to work for Respondent at Maher Terminal in Port Elizabeth, New Jersey. They began speaking to unionized employees employed at Maher Terminal about the possibility of organizing employees. Ting and Chiang were given the name of Harold Daggett of the International Longshoremen’s Association to speak to. Before making an appointment to meet Daggett, Ting and Chiang ascertained from speaking to coworkers that there was interest in having a union represent them. A meeting was arranged for late March with Daggett. Ting and Chiang told Daggett that the employees wanted to be represented by a union because management treated them unfairly, and because employees were concerned about their job security. In this latter regard, Chiang had attended a management meeting, where management officials talked about bringing in an outside computer consultant to overhaul Respondent’s computer system. Chiang interpreted these remarks as indicating an intent by Respondent to outsource work. Moreover, Respondent had also announced that it was transferring a small amount of work functions from its Morristown facility to its Charleston, South Carolina location. Daggett in turn, introduced the employees to Bob Levy, president of Local 1964 I. L. A., and a meeting was arranged for April 15, at the Holiday Inn, Elizabeth, New Jersey. Approximately 30–40 employees were present, including Ting and Chiang. Levy explained the organizing process and that he was going to distribute authorization cards to be signed by employees. These cards would authorize the Union to represent the employees, and the Union would need these cards signed by employees in order for the Union to move forward. Levy did not explain what he meant by “move forward,” and did not mention an election at this meeting.

Authorization cards were distributed at this meeting, and some were signed and returned to Levy at the meeting. Blank cards were distributed to some employees present at the meeting, including Ting and Chiang to distribute to other employees. The employees thereafter formed an organizing committee, and cards were distributed to employees of Respondent, by organizing committee members, as well as by other employees who were not members of the organizing committee, but who had friends or colleagues who were interested in the Union.

As a result of this process, the Union was able to obtain 66 authorization cards from employees in the bargaining unit, eventually agreed upon the parties. The Union also obtained some cards from employees not included in the unit, such as sales employees, and port captains.[17]

The parties agreed on the second day of hearing that June 15, 2002, is the appropriate date for measuring majority status, and further stipulated that the Excelsior list for the July 17 election which set forth the names of employees in the unit eligible to vote, be used as the list of unit employees for determining majority status of the Union.

On April 15, 2004, more than halfway through its case, the General Counsel sought to introduce a card signed after June 15. After Respondent objected, in part on that basis, the General Counsel sought to withdraw from the stipulation, asserting that it could pick any date to establish its majority status, and was entitled to prove majority status at any subsequent time, if the record so establishes. I permitted the General Counsel to withdraw from the stipulation, but admonished the General Counsel that Respondent be informed of any alternative dates for measuring majority status and that the General Counsel must establish which employees were in the unit on any alternative date. The General Counsel indicated that it would introduce payroll records for any alternative date that it picks. On that basis, I allowed the General Counsel to introduce some cards, signed after June 15. However, the General Counsel never introduced any payroll records or any other evidence, as to the number of employees in the unit on any dates, other than June 15.

Respondent argues that the failure of the General Counsel to establish a date