Dish Network Service Corp.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1126 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
Dish Network Service Corp. and Local 1108, Com-
munications Workers of America, AFL–CIO.
Case 29-CA-24670
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
On June 27, 2002, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charging
Party filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings1 and conclusions2 as
modified and to adopt the recommended Order.3
The judge found that the Respondent violated Section
8(a)(1) of the Act by telling employees that the Respon-
dent did not recognize the Union’s shop stewards. He
also found that the Respondent violated Section 8(a)(5)
and (1) by refusing to provide a copy of a disciplinary
consultation sheet to Steward Sean Ambrose and by tell-
ing Ambrose that he should make his request to his union
representative, who could then ask for the information
from the Respondent’s attorney. As explained below, we
agree with the judge on both issues.
1. McCann’s nonrecognition statement
On December 9, 2001, field service technician Derrick
Durant returned late from his route. On December 12,
when Durant arrived at work at 7 a.m., his supervisor,
Field Service Manager Thomas Murphy, informed Du-
rant that Murphy had to write him up for returning late.
When Durant asked that a shop steward be present dur-
ing the meeting, Murphy gave his permission. David
Gerace, a union steward, participated in the meeting,
asking Murphy to clarify certain statements. Murphy
then gave Durant an oral warning and told him to be
more careful in the future.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
2 No party excepted to the judge’s dismissals of the allegations that
the Respondent unlawfully threatened Derrick Durant, refused to rec-
ognize the Union, and reneged on an agreement resolving Durant’s
grievance.
3 We shall modify the judge’s recommended notice, substituting the
Board’s usual language for that of the judge.
Later that day, Human Resources Generalist Lynn
DiPietro informed Murphy that Durant’s oral warning
must be memorialized in written form. She gave Murphy
a sample employee consultation form that contained an
“action plan” designed “to keep an eye on Derrick’s trav-
eling times and keep in contact with him.” Still later,
Murphy again met with Durant, who was represented by
Steward Brian Feldman. Feldman advised Durant not to
sign the consultation form, and Durant followed that ad-
vice. Durant worked the entire day and returned to the
facility at about 5:30 p.m. When he reported to the man-
ager’s office to return his paperwork, he was met by
Manager Charles Jerabek, DiPietro, Murphy, and Gen-
eral Manager Daniel McCann. McCann asked Durant to
sign the employee consultation form. Durant refused and
asked that a steward be present. After this request was
refused, Durant asked Feldman to come into the office.
According to the credited testimony of Durant and
Feldman, McCann said that Feldman could not enter the
office because the parties had no contract, and the Re-
spondent did not recognize the shop stewards.
As the Board has previously held, a unionized em-
ployer’s statement that it will not recognize the union’s
stewards violates Section 8(a)(1). Morse Operations,
Inc., 336 NLRB 1090, 1099 (2001).4 We, therefore,
agree with the judge that McCann’s statement was
unlawful.
In exceptions, the Respondent argues that the judge
erred in crediting the testimony of Durant and Feldman
regarding McCann’s statement. The judge credited Du-
rant and Feldman because “their versions of the state-
ments made by McCann are consistent and believable
given the fact that McCann refused to permit the steward
to be present during the discipline of Durant, and given
the Respondent’s policy of not recognizing the steward’s
right to be present during disciplinary interviews, or
permitting the steward to be present but not participate.”
The Respondent argues that the judge’s credibility de-
termination must be rejected because the Company does
not have an unlawful policy relating to the recognition of
stewards and because Feldman was lawfully excluded
from the meeting.
We find that the judge’s crediting of Durant and
Feldman is supported by the Respondent’s other state-
ments and conduct that were consistent with a policy of
not recognizing the stewards’ right to be present during
disciplinary interviews, but not by McCann’s refusal to
permit Union Steward Feldman to be present during the
discipline of Durant.
4 The absence of a contract is not a lawful reason for a unionized
employer’s refusing to recognize stewards. Frankline Inc., 287 NLRB
263 fn. 7 (1987).
339 NLRB No. 147
DISH NTETWORK SERVICE CORP. 1127
Whether or not the Respondent actually had such a
policy of refusing to recognize the Union’s stewards, its
statements and actions during and following the after-
noon meeting are consistent with Durant’s and
Feldman’s account of McCann’s remarks. The judge
could reasonably rely on such evidence in crediting their
testimony. The record shows that DiPietro made non-
recognition statements similar to McCann’s at the late
afternoon meeting. DiPietro admitted that she “ex-
plained to Brian Feldman that he was not to be present”
because there was “no grievance procedure” and “there
was no contract.” McCann also admitted that DiPietro
cited the lack of a collective-bargaining agreement as one
of the reasons Feldman had to leave.5 Following the
meeting, DiPietro unlawfully refused to furnish Steward
Sean Ambrose with a copy of Durant’s disciplinary con-
sultation form, even though she knew Ambrose was a
steward (see part 2 below).
The record also shows that DiPietro continued to es-
pouse an illegal policy at the hearing. When asked
whether it was appropriate for a steward to be present at
the investigatory meetings held on the morning of De-
cember 12, she testified, “I don’t see a reason for the
shop steward to be there, no.”6 DiPietro’s statement is
contrary to the well-settled principle that employees have
the right to union representation in investigative meet-
ings that they reasonably believe could result in disci-
pline. NLRB v. J. Weingarten, 420 U.S. 251, 257–260
(1975). Because Durant could reasonably have believed
that discipline could result from the morning meetings
(as, indeed, it did), he was entitled to have a steward pre-
sent at those meetings. DiPietro’s testimony indicates
that Durant would have been denied this right had the
issue been placed before DiPietro at the time.7

5 Our dissenting colleague’s assertion that “there is no evidence any
employee was aware of [DiPietro’s] view at the time of McCann’s
statement” is simply wrong. McCann testified that DiPietro stated, in
the presence of employees, that the absence of a collective-bargaining
agreement was one of the reasons Feldman should leave.
6 The dissent’s suggestion that DiPietro’s hearing testimony was her
“personal view” is contradicted by the record. At the hearing, DiPietro
was asked, “In your opinion as the Human Resources generalist for that
part of the region, was it appropriate for a union steward to be present
at the early morning meeting, when Mr. Murphy was explaining the
behavior?” (Emphasis added.) She responded, “I don't see a reason for
a shop steward to be there, no.” Thus, DiPietro's testimony reflects her
professional view, not her personal one. Moreover, the position she
took at the hearing is consistent with the accounts that she and McCann
gave of her statements on the afternoon of December 12.
7 Murphy allowed Gerace and Feldman to attend the morning meet-
ings, but only because he did not understand the Company’s approach
in these matters. When asked, “What was your reaction when Ms.
DiPietro said that the steward [Feldman] could not be present [at the
afternoon meeting], when you had already permitted a steward to be
present at two prior [morning] meetings on this issue,” Murphy testi-
Although the evidence discussed supports the judge’s
crediting of Durant and Feldman, McCann’s refusal to
permit Feldman to be present during the discipline of
Durant does not. Employees have the right, under Wein-
garten, to representation in investigative meetings that
they reasonably believe can result in discipline, but there
is no such right at a meeting devoted entirely to the ad-
ministration of predetermined discipline. Baton Rouge
Water Works Co., 246 NLRB 995, 997 (1979). That was
the apparent purpose of the later afternoon meeting, and
the General Counsel has not alleged that the Respondent
acted unlawfully in banning Feldman from that meeting.
Because there is no contention that McCann unlawfully
denied Feldman access to that meeting, we do not rely on
his action in finding that the judge properly credited
Feldman and Durant.8
In the dissent, Member Schaumber contends that, con-
trary to the judge’s finding, the Respondent had no pol-
icy of not recognizing stewards and that, in context,
McCann’s statement was “at most a de minimis violation
of the Act,” not warranting a Board order.9 He also urges
that, because the parties’ collective-bargaining relation-
ship was in its infancy, the Union should not be allowed
to “interrupt and distort the bargaining process by pursu-
ing a rigid and mechanistic application of the Act to such
an isolated remark.” We are not persuaded by these ar-
guments.
The issue here is not whether the Respondent actually
had a policy of refusing to recognize the Union’s stew-
ards in disciplinary proceedings. The question, rather, is
whether McCann's statement—that Feldman could not
enter the office because the parties had no contract and
the Respondent did not recognize the shop stewards—
reasonably tended to coerce employees in the exercise of
their Section 7 rights. It clearly did.
McCann is the Respondent’s general manager. He
made his remark in the presence of DiPietro, the Re-
spondent’s human resources generalist, who made simi-
lar comments of her own and whose later statements and
unlawful conduct were fully consistent with McCann’s
statement. Employees, then, could reasonably conclude
that McCann spoke for the Respondent. McCann’s re-
mark, in turn, tended to create the impression that em-
ployees had to wait until contract negotiations were suc-

fied, “Basically, I had no reaction. Like I said, I was—I was fairly new
to the position and, you know, I figured Lynn has more experience in
this matter, so what she did was the better of the two options.”
8 We also disavow fn. 5 of the judge’s decision, which wrongly im-
plies that Feldman had a right to participate in the afternoon meeting.
Consolidated Edison of New York, 323 NLRB 910 (1997), does not
stand for that proposition.
9 The Respondent did not make the de minimis argument; the dissent
has raised it sua sponte.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
cessfully completed before the Respondent would recog-
nize the Union’s shop stewards. It, thus, communicated
to employees the futility of trying to deal with the Re-
spondent through their own designated representatives.
Sending such a message is not a de minimis viola-
tion,10 particularly where, as here, the Respondent has
committed other related violations.11 Despite the dis-
sent's assertion, there is no evidence that the filing of the
charge, or the processing of the complaint, somehow
harmed the collective-bargaining process. Nor does the
dissent cite any authority suggesting that the Board
would be authorized to withhold remedies available un-
der the Act, even if that had been the case.
2. DiPietro’s refusal to provide information
to Ambrose
Some time after December 12, Shop Steward Sean
Ambrose asked DiPietro for a copy of Durant’s discipli-
nary consultation form. DiPietro responded that
Ambrose could “speak to his union representative and
request it through our attorney.” We agree with the
judge, for the reasons stated in his decision, that the Re-
spondent violated Sections 8(a)(1) and (5) by refusing to
provide Ambrose a copy of the form and by telling him
to request it from the Respondent’s attorney.12
In its exceptions, however, the Respondent contends
for the first time that, “there is no evidence to indicate
that Mr. Ambrose was acting in the capacity of a Union
steward when he made the request.” We find no merit in
this argument. DiPietro admitted that she knew Ambrose
was a steward. She did not tell Ambrose, or testify at the

10 Member Liebman finds, contrary to the dissent, that McCann’s
statement is more coercive because it was made in the early stages of a
bargaining relationship, at a point when employees are more suscepti-
ble to coercion because they may have an incomplete understanding of
their rights under the Act.
Member Acosta finds it unnecessary to analyze the alleged degree of
coercion attributable to the fact that the parties’ bargaining relationship
was in its early stages.
11 The cases cited by the dissent in support of its de minimis argu-
ment—Bellinger Shipyards, Inc., 227 NLRB 620 (1976); Musicians
Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973); Wichita Eagle
& Beacon Publishing Co., 206 NLRB 55 (1973); and Square D Co.,
204 NLRB 154 (1973)—are inapposite. In those cases, unlike here, the
unlawful conduct had been substantially remedied or effectively con-
tradicted by later conduct. Golub Corp., 338 NLRB 515, 517 fn. 18
(2002).
12 Arguing before the judge, the Respondent defended its refusal by
claiming that it had provided the documents to its attorney for distribu-
tion to the Union during collective-bargaining negotiations. The judge
properly rejected this defense. In addition to the reasons given by the
judge, we find no persuasive evidence that Durant's disciplinary form
was among any documents provided to the Union in time to be respon-
sive to the steward's request, or that the parties had agreed to process all
information requests, regardless of intended use, through their attor-
neys. In any case, the Respondent has abandoned this argument in its
exceptions.
hearing, that her refusal to give the information was
based on a belief that Ambrose was not acting in that
capacity. Nor did the Respondent make any such argu-
ment to the judge. Thus, this contention is both baseless
and untimely raised. See Rules and Regulations of the
National Labor Relations Board, Section 102.46.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dish
Network Service Corp., Farmingdale, New York, its of-
ficers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER SHAUMBER, dissenting in part.
Assuming arguendo that the Respondent violated Sec-
tion 8(a)(1) through General Manager Daniel McCann’s
remark that the Respondent did not recognize the Un-
ion’s shop stewards as the employees’ collective-
bargaining representative, I find the violation is at most
de minimis. This is because when the remark is properly
considered within the context of the disciplinary situation
in which the statement was made, a context in which the
Respondent was not legally required to permit a stew-
ard’s presence in the first place, and in light of evidence
that prior to the time the remark was made the Respon-
dent did recognize and deal with stewards of the newly
certified Union, it cannot be said that McCann’s isolated
and offhand remark reflects a policy of refusing to deal
with the stewards as the bargaining representatives of the
unit employees. It, therefore, warrants neither the issu-
ance of a Board order nor the imposition of a remedy.1
Rather, where, as here, a collective-bargaining relation-
ship is in its infancy and the parties are still negotiating a
first collective-bargaining agreement, the Board should
hesitate before permitting either party to interrupt and
1 As to the 8(a)(5) violation, I reluctantly concur in affirming the
judge’s finding that Respondent violated Sec. 8(a)(5) by refusing to
provide a copy of a disciplinary consultation sheet to Steward Sean
Ambrose, and by telling Ambrose that he should make his request to
his union representative, who could then ask for the information from
the Respondent’s attorney. I note that Respondent has abandoned its
previous argument that it was responding to such information requests
through its attorney in contract negotiations and the Union subse-
quently obtained the requested copy through this process. If Respon-
dent raised this argument before the Board, it might have a valid de-
fense of its failure to provide the requested information directly to
Ambrose. However, Sec. 102.46(b)(1)(iv) of the Board’s Rules re-
quires that “[e]ach exception . . . shall concisely state the grounds for
the exception.” The Respondent’s sole contention in its exception to
the 8(a)(5) finding is that Ambrose was not acting in his capacity as
shop steward when he requested the document. This contention lacks
merit.
DISH NTETWORK SERVICE CORP. 1129
distort the bargaining process by pursuing a rigid and
mechanistic application of the Act to such an isolated
and incidental remark.
Facts
The Union was certified on June 21, 2001.2 Following
certification, the parties commenced bargaining for an
initial contract. Without objection from the Respondent,
employee Stewards Sean Ambrose, Brian Feldman, and
David Gerace attended the bargaining sessions. The par-
ties did not reach an agreement before the events at issue
occurred.
As to these events, on the morning of December 12,
Field Service Manager Thomas Murphy informed field
service technician Derrick Durant that he would be writ-
ten up for returning late from his work route on Decem-
ber 9. Durant asked that a shop steward be present.
Murphy then permitted Steward Gerace to participate in
the meeting, which ended with Murphy giving Durant an
oral warning and essentially telling him to be more care-
ful in the future. Later on December 12, Human Re-
sources Generalist Lynn DiPietro directed Murphy to
memorialize Durant’s oral warning in a written consulta-
tion form. When Durant returned from his route that
day, General Manager Daniel McCann and other man-
agement officials, including DiPietro, met with Durant.
McCann requested that Durant sign the consultation
form. Durant refused. Durant then asked Steward
Feldman, whom Durant saw passing by, to come into the
office. According to the credited testimony of Durant
and Feldman, McCann said that Feldman could not enter
the office because the parties had no contract, and the
Respondent did not recognize the shop stewards.3 The
judge found, and my colleagues agree, that McCann’s
statement constituted a violation of the Act that warrants
the imposition of a Board order and remedy.
Analysis
In adopting the judge, my colleagues concede, as they
must, that McCann lawfully refused to permit Steward

2 All dates refer to 2001.
3 As noted by my colleagues, during the same meeting in which
McCann made the remark found unlawful, Human Resources General-
ist DiPietro told Steward Feldman that he was not to be present since
there was no grievance procedure and no contract, and, after the meet-
ing, DiPietro refused to furnish Steward Ambrose with a copy of Du-
rant’s disciplinary consultation form. As to DiPietro’s statement, I note
that it is not alleged to be unlawful, but is simply referred to, together
with DiPietro’s refusal to furnish the disciplinary consultation form, as
support for the judge’s finding, based on credibility, that McCann actu-
ally made the remark at issue here. Thus, it is only comments and ac-
tions made in connection with a meeting at which stewards were not
lawfully entitled to be present that can be said to support a finding that
the Respondent would not deal with the stewards as the bargaining
representatives of the unit employees.
Feldman to be present during management’s afternoon
meeting with Durant. They correctly point out that em-
ployees do not have a Weingarten4 right to representation
at a meeting devoted entirely to the administration of
predetermined discipline. But, as pointed out above at
footnote 3, the only remarks and actions on the part of
the Respondent that would indicate that the Respondent
would not deal with the stewards as the bargaining repre-
sentatives of the unit employees arose out of that meet-
ing. Otherwise, the Respondent’s conduct prior to the
meeting at issue evidences the Respondent’s willingness
to deal with the stewards as the employees’ bargaining
representatives. In these circumstances, I find that
McCann’s remark does not reflect a policy of refusing to
deal with the stewards as the bargaining representatives
of the unit employees.
Thus, since the maintenance of an unlawful policy has
not been shown, McCann’s remark was at most a de
minimis violation of the Act. In my view, “the alleged
misconduct here is of such obviously limited impact and
significance that we ought not to find that it rises to the
level of constituting a violation of the Act. The Board’s
rising case load and the problems involved in handling it
could be alleviated if cases of this type were not proc-
essed.”5
More importantly, the parties’ collective-bargaining
relationship was in its infancy. It appears that the em-
ployer’s workforce had not previously been unionized.
Consequently, it is not surprising that some members in
the management chain may not have been familiar with
the many requirements of the Act. During periods such
as this, the Board should be reluctant to expend its re-
sources when a technical de minimis violation of the Act
is involved. Rather, the Board should stay its hand in
favor of leaving it to the parties to work out potential
conflicts in their relationship within the framework of
their legitimate expectations and demands.
All of this, in my view, requires us to recognize that at
this stage of the parties bargaining relationship, it is de-
sirable that the mutual education of the parties regarding
the rights and obligations that arise within the context of
the bargaining relationship should be left to the parties
themselves. For such a mutual education furthers the
bargaining process and the development of the trust
which is essential to the well being of that relationship.
It is, therefore, far preferable to the unilateral filing of
charges and the pursuit of litigation before the Board that
4 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
5 Musicians, Local 76 (Jimmy Wakely Show), 202 NLRB 620, 621
(1973). Accord: Bellinger Shipyards, Inc., 227 NLRB 620 (1976);
Wichita Eagle & Beacon Publishing Co., 206 NLRB 55 (1973); and
Square D Co., 204 NLRB 154 (1973).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
we have here. In sum, it benefits neither the parties, nor
the Board, nor the public’s interest in the development of
productive and stable labor relations to encourage the
litigation of these kinds of matters at this stage in the
parties’ relationship. By declaring what occurred here an
unfair labor practice that requires the issuance of a cease
and desist order, I fear that the Board does precisely that.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to give the Union the information
that it needs to represent you.
WE WILL NOT tell the union shop steward to have other
union representatives make information requests to our
lawyer.
WE WILL NOT tell our employees that we do not recog-
nize the union shop stewards as the employees’ collec-
tive-bargaining representative as designated by the Un-
ion.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL give the Union the information it needs to
represent you.

DISH NETWORK SERVICE CORP.

Joanna Piepgrass, Esq., for the General Counsel.
George Basara, Esq. (Buchanan Ingersoll, P.C.), of Pittsburgh,
Pennsylvania, for the Respondent.
Lowell Peterson, Esq. (Meyer, Suozzi, English & Klein, Esqs.),
of New York, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge: Based upon a
charge and a first amended charge filed, respectively, on De-
cember 19, 2001, and February 20, 2002, by Local 1108,
Communications Workers of America, AFL–CIO (the Union),
a complaint was issued on March 1, 2002, against Dish Net-
work Service Corp. (Respondent).
The complaint alleges that the Respondent (a) threatened
employees with discipline if they discussed with their co-
workers or shop stewards disciplinary meetings held by the
Respondent; (b) told its employees that the Respondent did not
recognize the Union as the employees’ collective-bargaining
representative; and (c) told its employees that the Respondent
did not recognize the union shop stewards as the employees’
collective-bargaining representative, as designated by the Un-
ion. The complaint also alleges that the Respondent refused to
furnish certain requested information to the union shop steward,
and instead directed the steward to have other union representa-
tives make the information request to the Respondent’s counsel.
The complaint further alleges that the Respondent reneged on
an agreement between it and the Union resolving a disciplinary
grievance. The Respondent timely filed an answer which was
amended at the hearing. On May 7, 2002, a hearing was held
before me in Brooklyn, New York. Upon the evidence pre-
sented in this proceeding, and my observation of the demeanor
of the witnesses and after consideration of the briefs filed by all
parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a domestic corporation and subsidiary of
EchoStar, having its principal office and place of business at
501 South Santa Fe Drive, Littleton, Colorado, and a place of
business at 85 Schmidt Boulevard, Farmingdale, New York,
has been engaged in the commercial installation and mainte-
nance of satellite dishes. During the past year, Respondent has
purchased and received at its Farmingdale facility, goods and
materials valued in excess of $50,000 directly from suppliers
located outside the State of New York. The Respondent admits,
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Re-
spondent also admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Unlawful Comments by the
Respondent’s Officials
1. The facts
On June 21, 2001,1 the Union was certified by the Board as
the exclusive collective-bargaining representative of the em-
ployees in the following appropriate collective-bargaining unit:

All full-time and regular part-time field installation techni-
cians employed by Respondent at its Farmingdale facility, lo-
cated at 85 Schmidt Boulevard, Farmingdale, New York, ex-
cluding all office clerical employees, guards and supervisors
as defined in Section 2(11) of the Act.

1 All dates hereafter are in 2001.
DISH NTETWORK SERVICE CORP. 1131
Following the certification, collective-bargaining negotia-
tions have taken place but no agreement has been reached.
There is no grievance procedure in effect.
On about December 9 field service technician Derrick Du-
rant returned late from his route.2 He was expected back at 5:30
p.m. but returned to the facility shortly after 9 p.m., having told
Manager Charles Jerabek that he was lost en route.
a. December 12—The morning meeting
Durant testified that when he arrived at work at 7 a.m. his
supervisor, Field Service Manager Thomas Murphy said that he
had to “write [him] up” for returning late the night before. Also
present in the room was Manager Jerabek.
Durant asked that a shop steward be present during the meet-
ing. Murphy gave permission and Durant asked David Gerace,
the Union’s steward, to attend. With Gerace present, the two
managers said that Durant took too long to return to the plant.
Gerace testified that following a brief caucus with Durant in the
hallway, he told the managers that he did not believe that this
was a major violation worthy of any discipline, including writ-
ten discipline. Durant testified that they “worked out an ar-
rangement” whereby they agreed to “let it go away” with a
verbal warning provided that Durant would be more careful of
his time in the future.
After the meeting, Gerace briefed Co-Shop Steward Brian
Feldman on the matter, telling him that Durant was concerned
that he was going to be written up, that he spoke with the two
managers and they agreed to give him a verbal warning with
the condition that he would be more careful with his time in the
future.
Manager Murphy, who had been a supervisor only a couple
of weeks at the time of the incident, testified that based upon
Durant’s lengthy time between stops on December 9 he decided
to give him a verbal warning. This decision was made with
manager Jerabek on the morning of December 12 before he met
with Durant. On December 12, he told Durant that his perform-
ance did not meet the Respondent’s standards, and that in the
future if he was lost he must contact his supervisor. Murphy
stated that Steward Gerace did not attempt to negotiate any-
thing other than a verbal warning. Gerace participated in the
meeting, asking Murphy to clarify certain statements and fol-
lowing the meeting, asking for copies of travel times and dis-
tances that Murphy referred to.
Murphy denied that Gerace said that Durant should receive
no discipline. Murphy also stated that Gerace did not attempt to
negotiate anything other than a verbal warning, and he denied
agreeing to ignore the alleged misconduct.
Sometime thereafter that day, Murphy told Human Re-
sources Generalist Lynn DiPietro of the verbal warning given
to Durant. DiPietro informed Murphy that even a verbal warn-
ing must be memorialized in written form. She gave Murphy a
sample employee consultation form which he then completed.
The employee consultation form is dated December 12 and
essentially states that on December 9, Durant took too much
time in between jobs, and was late returning to the office. The

2 There is a nonmaterial discrepancy in the date of the alleged mis-
conduct—either December 9 or 11.
form contained an “action plan” which was “to keep an eye on
Derrick’s traveling times and keep in contract with him via
Nextel, to assist in any possible traveling problems. Will meet
on January 12, 2002 for further review of this matter.” In the
column “verbal or written warning” was the notation “verbal
12/12/01.”
Murphy also told DiPietro that Gerace was present during
the consultation. DiPietro testified that she believed that it was
inappropriate and unnecessary for a steward to be present be-
cause Murphy was simply explaining to Durant that his behav-
ior was unacceptable.
b. December 12—The afternoon meetings
Durant stated that he worked the entire day and returned to
the facility at about 5:30 p.m. He reported to the manager’s
office to return his paperwork and was met by Manager Jera-
bek, DiPietro, and General Manager Daniel McCann. Durant
testified that McCann asked him to sign the employee consulta-
tion form. Durant, who was in the office at that time for about 5
minutes, refused to sign it and asked that a shop steward be
present. He stated that he was not allowed to get a steward, but
he saw Steward Brian Feldman walking by and asked him to
come in to the office.
According to Durant, McCann remarked that Feldman could
not enter the office because “we have no contract; therefore we
don’t recognize shop stewards.” McCann also said that there
was no contract and no arbitration or grievance procedure in
effect. Feldman was present with Durant in the doorway for 10
to 15 minutes.
Durant stated that he and Feldman left the office together.
Feldman went to the cafeteria and Durant stayed in the hallway
because he wanted to speak with the steward. Durant testified
that McCann told him that “if I bring this up to any other em-
ployee, that further disciplinary action will be taken.” In con-
trast, Feldman testified that he and Durant went to the cafeteria
together.
Feldman stated that earlier in the day, Gerace told him that
Durant was called into the manager’s office for a writeup and
was going to be written up, but that the matter would be con-
sidered a verbal warning. Feldman stated that Gerace told him
that Murphy had issued a verbal warning to Durant with advice
that Durant was to call for directions if he got lost.
Feldman further testified that Durant told him that he was
being called into the office for a writeup. He accompanied Du-
rant to Murphy’s office. Feldman told Murphy that he thought
the matter had been taken care of—that if Durant was late re-
turning to the shop he should call and request directions. Mur-
phy replied that such was his understanding of how it was sup-
posed to have been resolved, but DiPietro “got wind of it” and
wanted a writeup.3 The meeting ended after 5 minutes.
Feldman testified that later that day, Murphy told him that
they would meet a short time later and asked him and Durant to
wait in the cafeteria. They were then called into the meeting.
Present were Murphy, Jerabek, DiPietro and McCann. DiPietro
3 Gerace testified that 2 months prior to the hearing he received a
verbal warning which was not memorialized in a writing. However,
Neither DiPietro nor McCann were involved in that matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
told Feldman that there was no reason for him to be present
since this was an “employee-management meeting only.”
McCann said that “there was no contract between the Union
and Dish Network; therefore, he didn’t recognize the union,
therefore, he didn’t recognize me as shop steward and I had to
leave.” Feldman said that he disagreed, he told Durant not to
sign anything, and he left.
Murphy testified that following his instruction from DiPietro
to make a written record of the verbal warning, he wrote the
employee consultation form set forth above. He asked Durant
to come into the office. Jerabek was present. Murphy told Du-
rant that he was told that all verbal warnings must be docu-
mented, and gave him the form. Durant said he wanted a shop
steward. Steward Feldman entered the office and said that Du-
rant should not be given the paper because he had not commit-
ted any similar offenses prior to that time.
DiPietro testified that she overheard Feldman raising his
voice questioning Murphy’s writing up Durant, and saying that
Durant did not recognize the writeup and would refuse to sign it
because he had no prior history of such an offense. DiPietro
then entered the office and asked Feldman and Durant to leave
for a short time. She was told what happened and then asked
McCann to join them. DiPietro asked for the details of the dis-
cussion and why Feldman was present and raising his voice,
objecting to Murphy’s warning to Durant. Murphy said that he
told them that he wanted to document their earlier conversation,
Durant requested that a steward be present, and it was
Feldman’s opinion that Durant should not be receiving a verbal
warning. The managers discussed the merits of the grievance,
and agreed that Feldman should not be present during the im-
position of discipline upon Durant. McCann stated that he was
“overly concerned” when a steward is involved in a disciplinary
matter and he was not made aware of the situation. McCann
also stated that upon learning of the facts of the incident and its
current status, he was satisfied that the matter was thoroughly
investigated by Murphy and Jebanek, the investigation was
over, and that the matter was then a “disciplinary process.”
Following their discussion, the managers called Durant and
Feldman back into the meeting.
McCann and DiPietro testified that they told Feldman that
since the matter was in the “discipline part of the consultation”
it was “not necessary” that he be present, and he should leave.
DiPietro testified that she told Feldman that “he was not to be
present because we did not have a grievance procedure agreed
upon, there was no contract, that he was not to be present dur-
ing employee consultations.” McCann quoted DiPietro as say-
ing in essence that “there was no collective-bargaining agree-
ment at that point, and that we’re not doing an investigation, so
there was no need for his presence . . . there.” McCann stated
that the disciplinary process was confidential pursuant to the
Respondent’s handbook, quoted below, and, therefore, Feldman
could not be present. McCann further stated that “where if I’m
issuing a disciplinary process, that no other employee be pre-
sent. It’s between the manager and the employee, not another
employee. So that’s why I said—that’s why I concurred that
Mr. Feldman should leave, because he’s another employee . . .
and doesn’t have the right to know another person’s business
. . . regardless if he’s a shop steward, at that point.” McCann
further stated: “We were issuing a disciplinary process, at that
point. We were no longer conducting any kind of investiga-
tion.”
Although Murphy had “no problem” with Gerace and
Feldman participating in the prior meetings he deferred to
DiPietro’s experience. DiPietro testified that she believed that
Feldman should not be objecting to an employee’s consultation
when there was no agreed-on grievance procedure in place. In
addition, DiPietro stated that the Union’s role in the discipli-
nary process where there is no grievance procedure in effect is
to permit the steward to observe but not speak during a consul-
tation. She further stated that although the Respondent has rec-
ognized shop stewards, it has not recognized their involvement
in the disciplinary procedure, except as observers.
Feldman denied that the reason given for asking him to leave
the meeting was because it was for the purpose of issuing a
disciplinary notice, or that the meeting was disciplinary in na-
ture, and not investigatory.
Feldman stated that following the meeting he told McCann
he spoke with the Union which asked him to advise McCann
that he was in violation of the Act, and that charges would be
filed. McCann said that the meeting was disciplinary and not
investigatory and that the investigation was done. McCann also
mentioned that he contacted the Respondent’s attorney who
advised him that he was “covered” under Weingarten.4 McCann
denied speaking with Feldman after he left the room.
When Feldman left the room, the managers told Durant that
he was receiving a verbal consultation due to the “unaccounted
for” time he took in completing his assignments. They also told
him that he must improve his performance. Durant refused to
sign the employee consultation form.
McCann denied threatening Durant with discipline if he
mentioned the matter to any other employee, or discussed with
his coworkers or steward disciplinary meetings held by the
Respondent. Murphy and DiPietro denied hearing McCann
threaten Durant in such a manner. Nor did Murphy hear
McCann say that the Respondent did not recognize the Union
or the shop steward as the employees’ representative. McCann
denied disciplining Murphy for permitting Gerace and Feldman
to attend the sessions with Durant. McCann further denied tell-
ing employees that the Respondent did not recognize the Union
as the employees’ collective-bargaining representative. He
stated that he recognized the Union and the shop stewards as
the representatives of the employees in the facility.
Durant testified that one or 2 days later, Jerabek told him that
DiPietro instructed him to document the verbal warning. Jera-
bek apologized, saying that he was “forced” to write him up.
DiPietro stated that following the certification of the Union,
the Respondent has recognized the shop stewards as the em-
ployees’ representatives, and the stewards have attended collec-
tive-bargaining negotiation sessions, and have been involved in
various disciplinary actions with the Respondent.

4 NLRB v. Weingarten, 420 U.S. 251(1975).
DISH NTETWORK SERVICE CORP. 1133
2. Analysis and Discussion
a. The alleged threat
The complaint alleges that McCann and DiPietro threatened
employees with discipline if they discussed with their cowork-
ers or shop stewards, disciplinary meetings held by the Re-
spondent.
The alleged threat relates to Durant’s testimony that follow-
ing his meeting with McCann, he left the office and waited in
the hallway while Feldman went to the cafeteria. It was while
waiting in the hallway that McCann allegedly threatened him
with “further disciplinary action” if he brought “this up to any
other employee.”
First, there is no evidence that DiPietro threatened employ-
ees in any manner. Second, I cannot credit Durant’s claim that
McCann threatened him. Durant’s account differs from
Feldman’s, who stated that he and Durant left McCann’s office
together, went to the cafeteria together, and waited there to-
gether until they were called into the meeting with the Respon-
dent’s managers. Accordingly, there is no evidence that Durant
was alone in the hallway with McCann.
In addition, I cannot rely upon Durant’s testimony which
was faulty in a critical manner. He stated that he was presented
with the written consultation form in the morning meeting with
Murphy. That could not have happened since the credited tes-
timony of Murphy and DiPietro was that Murphy only verbally
counseled Durant at that meeting. It was only later, after being
told by DiPietro that he must memorialize the verbal warning in
written form that he prepared the consultation form. In this
regard, the testimony of Murphy and DiPietro are consistent
and worthy of belief and such testimony is credited.
Further, Gerace, who was present with Durant at the morning
meeting, did not testify that he saw the written employee con-
sultation form. I accordingly credit McCann’s denial that he
threatened Durant as alleged.
I will accordingly recommend that this allegation be dis-
missed.
b. The statements that the Respondent did not recognize
the Union or its shop stewards
The complaint alleges that on December 12, McCann told
employees that the Respondent did not recognize the Union as
the employees’ collective-bargaining representative and did not
recognize the union shop stewards as the employees’ collec-
tive-bargaining representative, as designated by the Union.
As set forth above, Durant testified that McCann said that
Feldman could not enter the office because the Respondent has
no contract and therefore does not recognize shop stewards.
Feldman testified to essentially the same statement by McCann.
Feldman stated that during that meeting, he was told by
McCann that since there was no contract between the Union
and the Respondent, therefore he did not recognize the Union
or him as steward.
The testimony of DiPietro is instructive. She stated that she
told Feldman that he could not be present during the discipline
of Durant because there was no contract between the parties
and no grievance procedure in place. She further stated that the
shop steward could only observe the discipline but not speak
during an employee’s consultation. Of course, this position
stated at hearing differed from what took place since Feldman
was not permitted to even observe Durant’s consultation.
DiPietro further stated that the Respondent does not recognize
the steward’s involvement in the disciplinary procedure, except
as observers.
In denying the statements attributed to him, McCann testified
that he recognized the Union as the certified bargaining repre-
sentative of the employees and also recognized the stewards as
the employees’ representative in the facility. He gave examples
of his recognition of the Union and the stewards: The stewards
attend collective-bargaining negotiations and have been in-
volved in certain disciplinary proceedings.
I credit the testimony of Durant and Feldman as to the state-
ment concerning the shop stewards. Their versions of the state-
ments made by McCann are consistent and believable given the
fact that McCann refused to permit the steward to be present
during the discipline of Durant, and given the Respondent’s
policy of not recognizing the steward’s right to be present
during disciplinary interviews, or permitting the steward to be
present but not participate.5 In effect, this is a policy of not
recognizing shop stewards, as alleged. In addition, the Respon-
dent’s admitted refusal to provide Steward Sean Ambrose with
a copy of Durant’s consultation is further evidence that the
Respondent did not recognize the stewards’ representational
role, and supports a finding that McCann told that to Durant
and Feldman.
“Union stewards are an important part of the mechanism of
maintaining stable labor relations in the shop through the ad-
ministration of collective-bargaining agreements and the ad-
justment of grievances.” Capitol Trucking, Inc., 246 NLRB
135, 139 (1979). McCann’s statement to Durant and Feldman
that he did not recognize the shop stewards interferes with the
employees’ right to be represented by their representatives and
violates Section 8(a)(1) of the Act. Capitol Trucking, supra at
141.
However, I cannot credit Feldman’s testimony that McCann
said that he did not recognize the Union. This comment was
allegedly made during the meeting at which Durant was also
present yet Durant did not corroborate Feldman’s testimony. It
is apparent that the Respondent recognizes the Union in that
collective-bargaining negotiations are ongoing. I, therefore,
credit McCann’s denial of this statement attributed to him.
B. The Alleged Refusal to Furnish Information
DiPietro testified that some time after December 12, Shop
Steward Sean Ambrose asked her for a copy of Durant’s con-
sultation form. She told him to speak to his union representa-
tive, meaning the chief Union Negotiator Dennis Trainor, and
request it through the Respondent’s attorney. At the time, col-
lective-bargaining negotiations were ongoing and apparently
the Respondent’s attorney had been turning over requested
documents to the Union at the bargaining table.

5 “The Weingarten rule applies when an employer conducts an
investigatory and/or disciplinary interview with an employee.” Consoli-
dated Edison of New York, 323 NLRB 910, 911 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
DiPietro stated that the Respondent’s policy concerning con-
fidentiality of personnel files prohibited her from giving
Ambrose a copy of the consultation form. That policy states:

Personnel Files
All personnel files are the sole property of EchoStar and are
deemed to be confidential. The content of these files will not
be distributed to any employee or former employee for any
reason. Current employees may review the contents of their
personnel file in the presence of their department manager or
supervisor, or a representative of the Human Resources De-
partment. Employees who wish to review their own file
should contact the Human Resources Department.

DiPietro stated that the consultation form is considered a
personnel record which is covered by the above policy. She
explained that the policy prohibits the release of personnel re-
cords to employees other than the employee involved in the
personnel action. She stated that since Ambrose was an em-
ployee he could not be given the form, even though he was also
a shop steward.
However, at the request of the Union during negotiations,
DiPietro gave copies of employee consultations to the Respon-
dent’s attorney which were then turned over to the Union. She
is aware that Stewards Ambrose, Feldman, and Gerace are pre-
sent at negotiations on behalf of the Union, but she is not aware
as to whether the documents she made available to the Union
are shared with those employees. DiPietro stated that she be-
lieved that the consultation form at issue was turned over to the
Union’s negotiators.
The Respondent’s original answer and its amended answer
made at the hearing admitted that on or about December 13,
2001:

(a) The Union, by its shop steward, requested that Re-
spondent furnish it with a copy of a written disciplinary
action it issued to employee Derrick Durant.6
(b) Respondent, by DiPietro . . . refused to furnish the
requested information described above in (a) to the Union
shop steward. Ms. DiPietro asked that the steward make
the request through his Union representative as part of the
ongoing collective-bargaining process.7
(c) Respondent, by DiPietro . . . upon declining to
honor the request of the Union’s shop steward to provide
the information described above in (a), directed the Union
shop steward to have other Union representatives make the
information request to Respondent’s counsel.8

The Respondent’s answer denied that the requested informa-
tion was necessary for, and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining representa-
tive of the unit employees.
Thus, it is undisputed that the Union requested a copy of the
written consultation form completed for Durant, and the Re-
spondent refused that request and asked that the steward request

6 Par. 12(a) of the complaint.
7 Par.12 (c) of the complaint.
8 Par. 12(d) of the complaint.
such information through his union representative during bar-
gaining.
The Board and the courts have long held that an employer is
statutorily required, upon request, to provide information that is
relevant to and necessary for its employees’ bargaining repre-
sentative to carry out its statutory duties and responsibilities.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
It is clear that the document requested related to discipline of
bargaining unit employees and as such was presumptively rele-
vant to the Union’s performance of its statutory functions.
Booth Newspapers, Inc., 331 NLRB 296, 299–300 (2000). The
Respondent has not met its burden of showing that the informa-
tion requested is not relevant.
The Respondent argues that its personnel policy provides
that the contents of employee personnel files are confidential
and may not be given to any employee for any reason. In De-
troit Edison Co. v. NLRB, 440 U.S. 301 (1979), the Supreme
Court held that under certain circumstances, confidentiality
claims may justify a failure or refusal to provide relevant in-
formation to a union. When an employer raises a “legitimate
and substantial” claim of confidentiality, the Board must bal-
ance the union’s need for the information against the legitimate
confidentiality interest established by the employer. However,
in those instances, the employer “bears the burden of demon-
strating that its refusal to furnish relevant and necessary infor-
mation to a labor organization is excusable because the re-
quested data is privileged information.” Aerospace Corp., 314
NLRB 100, 103 fn. 10 (1994).
The Respondent has not met its burden here. Its basis for re-
fusing to turn over Durant’s consultation form to Steward
Ambrose was that the document was covered by its personnel
policy prohibiting the release to any employee for any reason.
No special reason for the policy has been cited. The Respon-
dent’s argument is, in essence, that its employees’ personnel
files are per se confidential. The Board has “repeatedly rejected
the blanket confidentiality claims as an inadequate defense for
an employer’s per se refusal to furnish any information from an
employee’s file.” Wayne Memorial, 322 NLRB 100, 103
(1996); Washington Gas Light Co., 273 NLRB 116 (1984).
Accordingly, the Respondent had not established a “legitimate
and substantial” claim of confidentiality.
Similarly, the Board has found unlawful an employer’s re-
fusal to supply information to a union agent, instead directing
him to submit all information requests to its labor counsel.
Wayne Memorial, supra at 109. Here, the Respondent did the
same thing. DiPietro asked Ambrose to make his request to the
Union negotiator who could ask for the information from the
Respondent’s attorney. In addition, a union is entitled to desig-
nate who it wishes to represent it. People Care, 327 NLRB 814,
825 (1999). A shop steward is entitled to make a request for
information and an employer is obligated to provide the re-
quested information to the steward. The only reason that the
Respondent has given for refusing to turn over the document to
Ambrose was that the material requested had been provided by
the Respondent to its attorney for distribution to the Union at
the bargaining table. This is not a legitimate reason to refuse to
provide the information to the steward who had a lawful right
to receive the requested information.
DISH NTETWORK SERVICE CORP. 1135
C. The Alleged Reneging on an Agreement Resolving
a Grievance
The complaint alleges that on about December 12, DiPietro
and McCann reneged on an agreement between the Respondent
and the Union resolving a disciplinary grievance.
In her posthearing brief, counsel for the General Counsel
moved to withdraw that allegation “based on evidence adduced
at the hearing.” The Union objected to the motion to withdraw
the allegation and asserts that the evidence supports the allega-
tion.
I deny the General Counsel’s motion to withdraw the allega-
tion. Inasmuch as the allegation has been fully litigated, the
General Counsel no longer has unreviewable discretion, pursu-
ant to Section 3(d) of the Act, to withdraw the allegation. I
accordingly exercise my discretion to deny the motion to with-
draw. Sheet Metal Workers Local 162 (Dwight Lang’s Enter-
prises), 314 NLRB 923 fn. 2 (1994).
The Union alleges that an agreement was reached in the
morning session with Durant that his discipline would simply
be a verbal warning, however at the afternoon meeting the
method of discipline was changed to a written confirmation of a
verbal warning. It appears that both methods amount to the
same thing—a verbal warning. The Respondent’s requirement
that the verbal warning be reduced to writing is reasonable. If
this was not done, there would be no readily available, reliable
record of the verbal warning. Such a written record is especially
important in view of the Respondent’s system of progressive
discipline. The fact that Gerace had received a verbal warning
in the past which was not put in writing is of no moment since
neither DiPietro nor McCann were involved in that transaction.
I accordingly cannot find that there was an “agreement” be-
tween the Respondent and the Union resolving Durant’s griev-
ance in the form of a verbal-only warning. While it is true that
at the morning meeting there was no mention of the need to
confirm the warning in writing, the effect of doing so later does
not change the form of the warning—it was verbal only. There-
fore, it cannot be said that the Respondent reneged on any
agreement to impose a verbal warning on Durant.
CONCLUSIONS OF LAW
1. Dish Network Service Corp. is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 1108, Communications Workers of America, AFL–
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. At all material times, the Union has been, and is, the ex-
clusive representative of the employees in the following appro-
priate collective-bargaining unit within the meaning of Section
9(a) of the Act:

All full-time and regular part-time field installation techni-
cians employed by Respondent at its Farmingdale facility, lo-
cated at 85 Schmidt Boulevard, Farmingdale, New York, ex-
cluding all office clerical employees, guards and supervisors
as defined in Section 2(11) of the Act.

4. By failing and refusing to furnish the Union with a copy of
a written disciplinary action it issued to employee Derrick Du-
rant, and by declining to honor the request of the Union’s shop
steward to provide that information and instead directing the
union shop steward to have other union representatives make
the information request to the Respondent’s counsel, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
5. By telling employees that the Respondent did not recog-
nize the union shop stewards as the employees’ collective-
bargaining representative as designated by the Union, the Re-
spondent violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Dish Network Service Corp., Farmingdale,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish a copy of an employee’s
disciplinary action to the Union’s shop steward.
(b) Directing that the union shop steward have other union
representatives make information requests to the Respondent’s
counsel.
(c) Telling employees that the Respondent did not recognize
the union shop stewards as the employees’ collective-
bargaining representative as designated by the Union.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish a copy of the disciplinary action of Derrick Du-
rant to the Union’s shop steward.
(b) Within 14 days after service by the Region, post at its fa-
cility in Farmingdale, New York, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 29, 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 in-

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
10 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since December 12, 2001.
(c) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.