349 NLRB No.099;05/11/07;Bunting Bearings Corp.;07-CA-43996

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.

Bunting Bearings Corp. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO[1] and Dana Kane. Cases 7–CA–43996, 7–CA–44208–1, 7–CA–44266–1, 7–CA–44266–2, 7–CA–44614, 7–CA–44794, and 7–CB–12863

May 14, 2007

SUPPLEMENTAL DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On October 29, 2004, the National Labor Relations Board issued a Decision and Order in this proceeding,[2] in which it found, among other things, that the Respondent, Bunting Bearings Corp., did not violate Section 8(a)(3) and (1) of the Act by implementing a partial lockout of the bargaining unit following an impasse in negotiations for a successor collective-bargaining contract. The Board further concluded that because the lockout was lawful it did not taint a decertification petition later circulated by a majority of unit employees, and the Respondent did not violate Section 8(a)(5) by relying on that petition to withdraw recognition from, and to refuse to bargain with, the Union. Subsequently, the Union petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the Board’s Order. By unpublished order dated April 28, 2006, the District of Columbia Circuit granted the petition for review and remanded the case to the Board “for further proceedings.”[3]

On September 13, 2006, the Board notified the parties in this proceeding that it had decided to accept the remand from the District of Columbia Circuit, and invited the parties to file statements of position with respect to the issues raised by the remand. No position statements were filed.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

We accept the court’s remand as the law of the case. The court’s decision holds that the Respondent violated Section 8(a)(3) and (1) of the Act by implementing a partial lockout of the bargaining unit following an impasse in negotiations for a successor collective-bargaining contract. As discussed below, we find that the unlawful lockout tainted the decertification petition subsequently circulated by a majority of unit employees, and that the Respondent therefore violated Section 8(a)(5) of the Act by relying on that petition to withdraw recognition from, and to refuse to bargain with, the Union.

Facts

The Respondent manufactures and sells powdered metal bearings. The Respondent and the Union were parties to a collective-bargaining contract. The contract covered a bargaining unit of production and maintenance employees that included both probationary and nonprobationary employees.

The contract specified a probationary period of 90 working days and required all unit employees to become Union members at the completion of their probationary period. The probationary employees were not union members and the nonprobationary employees were all union members.

The parties negotiated several times in advance of the contract’s expiration date, April 26, 2001,[4] but did not reach agreement on a successor contract. There is no allegation of bad-faith bargaining in those negotiations.

On April 21, the nonprobationary employees unanimously authorized a strike if the Respondent did not submit a satisfactory final offer prior to the expiration of the contract. On April 26, the Respondent tendered its final contract offer, which the nonprobationary employees rejected. The Respondent’s probationary employees did not participate in the votes on April 21 and 26.

Beginning April 27, the Respondent locked out its nonprobationary employees. The same day, the Union established a picket line, manned by the nonprobationary employees. The probationary employees were not locked out.

During the lockout, the Respondent continued its operations, utilizing its probationary employees, supervisors, office clericals, and employees from the Respondent’s other plants. All but one of the probationary employees crossed the Union’s picket line and reported to work during the lockout.

By letter dated May 17, the Respondent informed its nonprobationary employees that impasse had been reached in contract negotiations, stated that it intended to implement its “last, best and final” offer on May 21, and encouraged all “union employees” to return to work on that date.[5] The Union replied on May 21, stating that its membership had voted against returning to work. Thus, on May 21, the lockout ended and a strike began. The following week some nonprobationary employees crossed the picket line and returned to work.

On May 29, nonprobationary employee Sue Carol Prince circulated a petition stating that the signatories no longer wanted to be part of the Union. Nineteen of the approximately 35 probationary and nonprobationary employees who were then working signed the petition. The same day, Prince delivered the petition to the Respondent. The next day, Prince filed a petition with the NLRB to decertify the Union.[6]

The Respondent withdrew its contract offer on May 31, citing “changed circumstances.” The Union responded on June 2, stating that it was not aware of any circumstance that would warrant a withdrawal of the Respondent’s contract offer and asking the Respondent to explain what it meant. By letter dated June 5, Phillip Henzler Sr., the Respondent’s corporate manager of human resources, informed the Union that the Respondent had withdrawn its offer based on the fact that a majority of the bargaining unit employees had signed a petition indicating their desire to no longer be represented by the Union. The Respondent further stated that it would be “inappropriate and potentially in violation of federal labor law” for the Company to continue to negotiate with the Union “during the pending decertification process.” During his testimony, Henzler acknowledged that the Respondent withdrew its recognition from the Union at this point.

The unfair labor practice charges in this case were filed between May 4, 2001, and January 30, 2002. The first complaint was issued on July 29, 2001. The fifth order consolidating cases and the fourth amended consolidated complaint were issued on April 2, 2002.

The General Counsel argued in his pleadings, in relevant part, that the Respondent violated the Act by locking out its nonprobationary employees from April 27 to May 21, and by thereafter withdrawing recognition from, and refusing to bargain with, the Union.

The matter was heard before an administrative law judge who concluded that the April 27 to May 21 lockout did not violate the Act because the Respondent locked out its nonprobationary employees in support of a legitimate bargaining position. The judge found no evidence that the Respondent’s decision to lock out only its nonprobationary employees was motivated by a desire to discourage union membership or tended to induce employees to resign from the Union. 343 NLRB at 494–495. Although the judge found that the May 29 employee petition at least partially “resulted from” the lockout, he concluded that the Respondent did not violate the Act by relying on that petition to withdraw recognition from and refuse to bargain with the Union because the lockout “was legal once the clock struck 12 on April 27[.]” Id. at 495.[7] The Board[8] affirmed the judge’s decision.[9]

As set forth above, the Union filed a petition for review in the District of Columbia Circuit, which granted the petition and remanded the case to the Board for further proceedings. The court found that “the Board’s conclusion that the lockout was lawful is inconsistent with the controlling precedent the Supreme Court set forth in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967)[.]” Slip op. at 2. The court’s findings and conclusions are the law of the case.

Analysis

As noted, the court found that the lockout was unlawful. The court remanded the case with directions to “determine whether the Union decertification petition was tainted by the unlawful lockout and, if so, whether [the Respondent] violated § 8(a)(5) [of the Act] by relying on this petition to withdraw recognition from the Union.” Id.

“An employer may not lawfully withdraw recognition from a union where it has committed unfair labor practices that are likely to affect the union’s status, cause employee disaffection, or improperly affect the bargaining relationship itself.” Garden Ridge Management, Inc., 347 NLRB No. 13, slip op. at 4 (2006) (citing Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996) (Lee Lumber II), enfd. in relevant part and remanded in part 117 F.3d 1454 (D.C. Cir. 1997)). “But not every unfair labor practice will taint evidence of a union’s subsequent loss of majority support.” Lexus of Concord, Inc., 343 NLRB 851, 852 (2004).

In cases such as this one, where the unfair labor practice does not involve a general refusal to recognize and bargain with the union, “there must be specific proof of a causal relationship between the unfair labor practice and the ensuing events indicating a loss of support.” Id. at 852 (emphasis in original) (citing Lee Lumber II, 322 NLRB at 177).

The Board considers several factors in determining whether a causal relationship exists between unremedied unfair labor practices and the loss of union support:

(1) the length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the violations, including the possibility of a detrimental or lasting effect on employees; (3) the tendency of the violation to cause employee disaffection; and (4) the effect of the unlawful conduct on employees’ morale, organizational activities, and membership in the union.

Garden Ridge, 347 NLRB No. 13, slip op. at 4 (citing Master Slack Corp., 271 NLRB 78, 84 (1984)). See also Vincent Industrial Plastics, Inc., 328 NLRB 300, 301–302 (1999), enf. granted in part, denied in part 209 F.3d 727 (D.C. Cir. 2000). Applying these factors, we find that the unlawful lockout tainted the decertification petition.

First, the unlawful, nearly month-long lockout ended just 8 days before the employees executed the May 29 petition and 15 days before the Respondent withdrew recognition. The close temporal proximity between the end of the unlawful lockout and the petition on which the Respondent based its withdrawal of recognition weighs in favor of finding that this unfair labor practice caused the loss of union support. RTP Co., 334 NLRB 466, 468 (2001) (finding “close temporal proximity” between the employer’s unfair labor practices and its withdrawal of recognition where the unfair labor practices occurred 2 to 6 weeks prior to the antiunion petition on which the employer based its withdrawal of recognition).[10]

Second, the nature of the unfair labor practice, including the possibility of its detrimental or lasting effect on employees, supports a finding of taint. The court found that employees were locked out because of their union membership. It is reasonable to infer that employees would then seek to disaffect from the Union, lest they suffer adverse employment consequences in the future.

“The final two Master Slack factors focus on the effect of the unlawful conduct on employees’ morale, their organizational activities, and the possible tendency of the unfair labor practices to cause employee disaffection from the union.” AT Systems West, Inc., 341 NLRB 57, 60 (2004). “The Board has held that it is the objective evidence of the commission of unfair labor practices that has the tendency to undermine the union, and not the subjective state of mind of the employees, that is the relevant inquiry in this regard.” Id. (citations omitted).

There is no evidence of any disaffection from the Union before the Respondent violated the Act by unlawfully locking out only its nonprobationary employees. To the contrary, on April 21, a few days before the lockout began, the nonprobationary employees voted unanimously to authorize a strike. Moreover, the Respondent’s conduct is “of a character that reasonably tends to have a negative effect on union membership.” AT Systems West, 341 NLRB at 60 (citing RTP, 334 NLRB at 469). The employees who voted to authorize a strike and to reject the Respondent’s final offer were locked out. The employees who could not and did not participate in those votes were not locked out. Locking out one group of employees but not another group of employees who are distinguishable only by their participation in protected concerted activity may have a discouraging effect on either present or future concerted activity. Great Dane Trailers, 388 U.S. at 32 (“The act of paying accrued benefits to one group of employees while announcing the extinction of the same benefits for another group of employees who are distinguishable only by their participation in protected concerted activity surely may have a discouraging effect on either present or future concerted activity.”).[11]

In sum, applying all of the Master Slack factors to the instant facts, we find that a causal relationship has been shown between the Respondent’s lockout and the Union’s loss of support. Accordingly, that unlawful lockout tainted the petition.

In light of our finding that the unlawful lockout tainted the petition, it follows that the Respondent’s withdrawal of recognition and resulting refusal to bargain with the Union also violated Section 8(a)(5). RTP Co., 334 NLRB at 468 (“If a causal relationship is found between unfair labor practices and the loss of employee support for a union, the evidence on which an employer has based its withdrawal of recognition is said to be ‘tainted,’ and the withdrawal is unlawful.”).

Remedy

Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, we shall order it to cease and desist from engaging in such conduct, and post an appropriate notice. We shall also order the Respondent to take certain affirmative action designed to effectuate the policies of the Act.

To remedy the Respondent’s unlawful lockout of its nonprobationary employees from April 27 to May 21, the Respondent will be required to make those employees whole for any loss of pay and other benefits incurred by them as a result of the lockout, with the amounts owed to be determined in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such amounts to be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). See Schenk Packing Co., 301 NLRB 487, 492 (1991).

To remedy its unlawful withdrawal of recognition from the Union, we shall order the Respondent to recognize and bargain with the Union in the unit described below with respect to wages, hours, and other terms and condition of employment and, if an agreement is reached, embody it in a signed document.

For the reasons set forth in Caterair International, 322 NLRB 64 (1996), we further find that an affirmative bargaining order is warranted in this case as a remedy for the Respondent’s unlawful withdrawal of recognition from the Union. See, e.g., Parkwood Developmental Center, 347 NLRB No. 95, slip op. at 3–4 (2006); Alpha Associates, 344 NLRB No. 95, slip op. at 6–7 (2005). The Board has previously held that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Caterair International, 322 NLRB at 68.

In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required the Board to justify, on the facts of each case, the imposition of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent Industrial Plastics, supra, the court stated that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ § 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” 209 F.3d at 738.

Consistent with the court’s requirement, we have examined the particular facts of this case and we find that a balancing of the three factors warrants an affirmative bargaining order.[12]

(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 Respondent’s unlawful withdrawal of recognition and resulting refusal to bargain with the Union for a successor collective-bargaining agreement. The Respondent’s unlawful lockout of its nonprobationary employees also demonstrated a disregard for the employees’ Section 7 rights and the Respondent’s conduct would tend to unfairly undermine continuing support for the Union. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation, as the order is not of indefinite duration but for a reasonable period of time sufficient to allow the good-faith bargaining that the Respondent’s unlawful withdrawal of recognition cut short. It is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reasonable period of time that employees’ Section 7 right to union representation is vindicated. It will also give employees an opportunity to fairly assess the Union’s effectiveness as a bargaining representative and determine whether continued representation by the Union is in their best interests.

(2) An affirmative bargaining order also serves the Act’s policies of fostering meaningful collective bargaining and industrial peace. It removes the Respondent’s incentive to delay bargaining in the hope of discouraging support for the Union, and it ensures that the Union will not be pressured to achieve immediate results at the bargaining table-results that might not be in the employees’ best interests. It fosters industrial peace by reinstating the Union to its rightful position as the bargaining representative chosen by a majority of the employees. Also, as mentioned, providing this temporary period of insulated bargaining will also afford employees a fair opportunity to assess the Union’s performance in an atmosphere free of the effects of the Respondent’s unlawful withdrawal of recognition and refusal to bargain.

(3) As an alternative remedy, a cease-and-desist order, alone, would be inadequate to remedy the Respondent’s withdrawal of recognition and refusal to bargain with the Union because it would allow another challenge to the Union’s majority status before the employees had a reasonable time to regroup and bargain with the Respondent through their chosen representative in an effort to reach a successor collective-bargaining agreement. Such a result would be particularly unfair where the Respondent’s unlawful refusal to recognize and bargain with the Union has continued since 2001, and has likely undermined employee support for continued union representation. Allowing another challenge to the Union’s majority status without a reasonable period for bargaining also would be unfair in light of the fact that the litigation of the Union’s charges took several years and, as a result, the Union needs to reestablish its representative status with unit employees. Indeed, permitting a decertification petition to be filed immediately might very well allow the Respondent to profit from its own unlawful conduct. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union representation.[13]

For all the foregoing reasons, we find that an affirmative bargaining order with its temporary decertification bar is necessary to fully remedy the violation in this case.[14]

ORDER

The Respondent, Bunting Bearings Corp., Kalamazoo, Michigan, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening office clerical employees with discharge for refusing to cross a union picket line.

(b) Discharging or otherwise discriminating against employees for the exercise of their rights under Section 7 of the Act, including refusing to cross a picket line.

(d) Locking out employees during the life of a collective-bargaining agreement which contains a no-strike/no-lockout clause.

(e) Discouraging membership in the Union by locking out employees who are union members in a discriminatory manner.

(f) Withdrawing recognition from the Union as the collective-bargaining representative of its employees in the following appropriate unit, and refusing to meet and bargain in good faith with the Union:

All production and maintenance employees, including the shipping clerk, employed by Respondent at its Kalamazoo, Michigan facility; excluding managerial employees, professional employees, guards and foremen, assistant foremen and other supervisors as defined in the Act.

(g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Todd McNett full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Todd McNett whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter notify Todd McNett in writing that this has been done and that the discharge will not be used against him in any way.

(d) Make whole those employees who were unlawfully locked out on April 26, 2001, for any loss of earnings and other benefits suffered as a result of the discrimination against them.

(e) Make whole those employees who were unlawfully locked out from April 27 to May 21, 2001, for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision.

(f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(g) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the Respondent’s employees in the following appropriate unit with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed agreement:

(h) Within 14 days after service by the Region, post at its facility in Kalamazoo, Michigan, copies of the attached notice marked “Appendix.”[15] Copies of the notice, on forms provided by the Regional Director for Region 7, after being 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 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 closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 26, 2001.

(i) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official, on a form provided by the Region, attesting to the steps that the Respondent has taken to comply.

Dated, Washington, D.C. May 14, 2007

Robert J. Battista,	Chairman


Wilma B. Liebman,	Member


Peter C. Schaumber,	Member

(Seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not threaten office clerical employees with discharge for refusing to cross a union picket line.

We will not discharge or otherwise discriminate against any of you for supporting Local 6-0293, Paper Allied Industrial, Chemical and Energy Workers International Union or any other union, or refusing to cross a union picket line.

We will not, without just cause, videotape or photograph any activities protected by Section 7 of the National Labor Relations Act, such as picketing.

We will not lock out employees during the life of a collective-bargaining agreement which contains a no-strike/no-lockout clause.

We will not discourage membership in the Union by locking out employees who are union members in a discriminatory manner.

We will not withdraw recognition from the Union and refuse to bargain collectively and in good faith with the Union, in the appropriate unit.

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, within 14 days from the date of the Board’s Order, offer Todd McNett full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

We will make Todd McNett whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Todd McNett, and we will, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.

We will make employees whole, with interest, for their loss of earnings due to our premature lockout of employees on April 26, 2001, prior to the expiration of our collective bargaining agreement with Local 6-0293, Paper Allied Industrial, Chemical and Energy Workers International Union.

We will make whole those employees who were unlawfully locked out from April 27 to May 21, 2001, for any loss of earnings and other benefits suffered as a result of the discrimination against them.

We will, on request, bargain in good faith with the Union as the exclusive bargaining representative of its employees in the following appropriate unit, with respect to wages, hours, and other terms and conditions of employment and if an understanding is reached, embody the understanding in a signed agreement:

All production and maintenance employees, including the shipping clerk, employed by us at our Kalamazoo, Michigan facility; excluding managerial employees, professional employees, guards and foremen, assistant foremen and other supervisors as defined in the Act.

Bunting Bearings Corp.

[1] We have amended the caption to reflect the merger of Paper, Allied Industrial, Chemical and Energy Workers, International Union, AFL–CIO, and Local 6-0293, into the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL–CIO.

[3] United Steelworkers v. NLRB, 179 Fed. Appx. 61 (D.C. Cir. 2006).

[4] Hereafter, unless otherwise indicated, all dates are in 2001.

[5] The May 17 letter invited the nonprobationary employees to return to work asserting that they were not, and had never been, locked out. The letter stated that, “contrary to the union’s position and belief, Bunting Bearings Corp. Kalamazoo plant doors have been and continue to remain open.” Before the judge, the Respondent maintained its position that, as expressed in the May 17 letter, the nonprobationary employees were never locked out. The judge found that the nonprobationary employees were in fact locked out from April 27 to May 21. The Respondent did not except to this finding.

[6] The Union has never challenged the Respondent’s assertion that as of May 29 it had lost the support of the majority of the bargaining unit members.

[7] The judge found that as of May 29, the date the employees executed the petition, the Respondent had committed three unremedied unfair labor practices—locking out its nonprobationary employees several hours prior to the expiration of the parties’ collective-bargaining contract, discharging a probationary employee for refusing to cross the Union’s picket line, and videotaping employees on the picket line. The Respondent did not except to those findings. The judge concluded, and the Board agreed, that those unfair labor practices did not cause the employees’ disaffection from the Union. 343 NLRB at 483 fn. 17.

[8] Chairman Battista and Member Schaumber; Member Liebman dissenting.

[9] The Board found that the Respondent also violated Sec. 8(a)(1) by threatening to terminate office clerical employees who refused to cross the Union’s picket line, but it found no causal relationship between this unfair labor practice and the Union’s loss of majority support. 343 NLRB at 483 fn. 17.

[10] We note that the Respondent did not, in its own view, end the lockout on May 21. Instead, as noted above, the Respondent’s position, communicated directly to the membership on May 17, was that the nonprobationary employees were never locked out and the Union had mistakenly led its members to believe otherwise. This position tended to undermine the Union by suggesting, wrongly, that the employees were kept out of work for nearly a month due to the Union’s mistake. In our view, the Respondent’s mischaracterization of events ensured that the effects of its unlawful conduct lingered past the end of the lockout on May 21.

[11] Our finding that the unlawful lockout, standing alone, tainted the petition renders it unnecessary for us to reexamine whether the Respondent’s other unfair labor practices tainted the petition. See 343 NLRB at 483 fn. 17.

[12] Chairman Battista and Member Schaumber do not agree with the view expressed in Caterair International, supra, that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) violation.” They agree with the United States Court of Appeals for the District of Columbia Circuit that a case-by-case analysis is required to determine if the remedy is appropriate. Alpha Associates, 344 NLRB No. 95, slip op. at 6 fn. 14 (2005). They recognize, however, that the view expressed in Caterair International, supra, represents extant Board law. Flying Foods, 345 NLRB No. 10, slip op. at 10 fn. 23 (2005). Regardless of which view is applied to the instant case, Chairman Battista and Member Schaumber agree that an affirmative bargaining order is warranted here.

[13] HQM of Bayside, 348 NLRB No. 42, slip op. at 4–5 (2006); Parkwood Developmental Center, 347 NLRB No. 95, slip op. at 3–4 (2006); see also Goya Foods of Florida, 347 NLRB No. 103, slip op. at 5–6 (2006); Smoke House Restaurant, 347 NLRB No. 16, slip op. at 3 (2006).

[14] On June 3, 2005, the District of Columbia Court of Appeals granted the Board’s application for summary enforcement of its October 29, 2004 order remedying the Respondent’s lockout of its nonprobationary employees before the expiration of its collective-bargaining contract, in violation of Sec. 8(a)(5), discharge of probationary employee Todd McNett for refusing to cross the picket line, in violation of Sec. 8(a)(3), and videotaping of employees on the picket line during the lockout, in violation of Sec. 8(a)(1). The Respondent’s threat to its office clerical workers, in violation of Sec. 8(a)(1), was not litigated in the summary enforcement proceeding or in the Union’s appeal concerning the April 27 to May 21 lockout. For the sake of clarity, the following order and notice address all violations committed by the Respondent, including the violations that were summarily enforced by the District of Columbia Court of Appeals.

[15] If this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”