Extract
FiveCap, 943 (2000)
FiveCAP, Inc. and General Teamsters Union Local No. 406, International Brotherhood of Team-sters, AFL-CIO. Cases 7-CA-39503, 7-CA- 40230, 7-CA-40465, and 7-CA-40721
October 31, 2000DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN On December 17, 1998, Administrative Law Judge James L. Rose issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief, as well as an answering brief to the Respondent's exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions2 as modified herein,3 and to adopt his recommended Order as modified and set forth in full below. 1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In some instances the judge found violations of Sec. 8(a) without stating that the conduct also violated Sec. 8(a)(1). It is well settled that a violation by an employer of any of the four subdivisions of Sec. 8(a) other than subdivision (1) is also a violation of subdivision 1. 3 NLRB Annual Report 52 (1938). Therefore, we shall treat all of his findings of violations of Sec. 8(a), other than Sec. 8(a)(1), as violations of that sec. as well. 2 We reject the Respondent's argument that it is exempt from the Board's jurisdiction as a political subdivision for the reasons stated in the Board's prior decision involving these parties reported at 331 NLRB No. 157, slip op. at 1-4 (2000). In adopting the judge's finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain regarding the elimination of Florence Feliczak's data entry clerk position and her resulting layoff, we rely on Plymouth Locomotive Works, 261 NLRB 595, 602- 603 (1982), in which the employer, as here, unilaterally eliminated a bargaining unit position following the union's certification. The case relied on by the judge, Holy Cross Hospital, 319 NLRB 1361 fn. 2 (1995), is not precisely apposite in that it involved the employer's unilateral elimination of a job classification that was in the contractual unit and that the Board had addressed and had specifically retained in the unit during a unit clarification proceeding. No exceptions were filed to the judge's findings that the Respondent did not violate the Act as follows: by instituting a confidentiality policy; by unlawfully reducing employee Florence Feliczak's workweek and later suspending her in February 1997; and by denying employee Melissa Kukla classroom materials on her return to work in the fall of 1997, by withholding and limiting the assistance of teacher's aides to Kukla, by excluding Kukla from a staff meeting, and by affording Kukla disparate treatment when it scrutinized and criticized her work in November 1997. 1. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by placing employee Florence Feliczak on probation after she had returned to work from a lawful suspension imposed by the Respondent. We reverse this finding and dismiss this allegation for the reasons stated below. Feliczak worked for the Respondent as a data entry clerk.4 On Friday, February 7, 1997,5 when Feliczak was not at work, the Responden...See the full content of this document
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