Alternative Community Living, Inc. d/b/a New Passages Behavioral Health and Rehabilitation Services

National Labor Relations Board - Administrative Judge Opinions

Jul 25, 2014

07-CA-099976 (N.L.R.B. Jul. 25, 2014)

JD–43–14
Pontiac, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALTERNATIVE LIVING, INC. d/b/a
NEW PASSAGES BEHAVIORAL HEALTH
AND REHABILITATION SERVICES
and Case 07-CA-099976
LOCAL 517 M, SERVICE EMPLOYEES
INTERNATIONAL UNION (SEIU)
Rana Roumayah, Esq.,
for the General Counsel.
Gregory Bator, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Detroit, Michigan
on May 13-14, 2014. Local 517 M, Service Employees International Union (SEIU) (the Union)
filed the charge on March 11, 2013, an amended charge on March 28, 2013, and a second
amended charge on May 7, 2013.1 The General Counsel issued the complaint on October 31,
2013.
The complaint alleges that the Union and the Respondent reached a complete agreement
on the terms of a collective-bargaining agreement which the Respondent has refused to execute
since March 25, 2013, in violation of Section 8(a)(5) and (1) of the Act. Alternatively, the
complaint alleges that during the period from October 2011 through March 2013, the
Respondent: (a) failed to cloak its representatives with the authority to enter into binding
agreements; (b) reneged on the complete agreement that was reached on March 25, 2013; and (c)
refused to bargain with the Union with regard to union security in violation of Section 8(a)(5)
and (1). The complaint further alleges that on or about May 5, 2013, the Respondent unilaterally
implemented a final offer that was dated April 17, 2013, without reaching a valid impasse in
violation of Section 8(a)(5) and (1).

1 All dates are in 2013, unless otherwise indicated.
JD–43–14
2
The complaint also alleges that the Respondent maintained a personnel handbook which
contained the following rules alleged to be overly broad and facially violative of Section 8(a)(1):
Rule 6.4-Violence-Free Work Place; Rule 16.2-Dress Code; Rule 16.3-Employee Honesty and
Integrity ; Rule 16.7-Consumer Confidentiality; Rule 16.9-Media Releases; Rule 16.11-
Solicitation; Rule 16. 13-Confidentiality of New Passages Information; and Rule 16.14-E-mail,5
Voicemail, Intranet and the Internet; Rule 16.15-Facebook, Blogs, Twitter, and any other Social
Networks. Finally, the complaint also alleges that the Respondent maintained the following
provisions of its Corporate Compliance and Integrity Plan handbook in violation of Section
8(a)(1): Standard 3.2-Proprietary Information; Standard 5.12-Derogatory Language; Standard
6.1-Respect; and Standard 6.2-Confidentiality with Colleagues.10
On the entire record, including my observation of the demeanor of the witnesses,2 and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
15
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of business in Pontiac, 20
Michigan, and various other facilities in the State of Michigan provides services and housing for
people with mental and/or physical disabilities and the elderly. Annually, in conducting its
operations, the Respondent derives gross revenues in excess of $100,000 and purchases and
receives at its Michigan facilities, products, goods, and materials valued in excess of $5000
directly from points outside the State of Michigan. The Respondent admits, and I find, that it is25
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
30
Background
The Respondent receives approximately 75 percent of the funding for its operations
through the Community Mental Health Boards in the 11 counties in southeast Michigan in which
it provides services. The Community Mental Health Boards receive their funding from the State 35
of Michigan as part of the Medicaid program. The remaining 25 percent of the Respondent’s
funding comes from insurance payments for those individuals serviced by the Respondent who
have private insurance.

2 In making my findings regarding the credibility of witnesses, I considered their demeanor, the
content of the testimony, and the inherent probabilities based on the record as a whole. In certain
instances, I credited some, but not all, of what a witness said. I note, in this regard, that "[N]othing is
more common in all kinds of judicial decisions than to believe some and not all" of the testimony of a
witness. Jerry Ryce Builders, 352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950) rev’d. on other grounds, 340 U.S. 474 (1951). See also J. Shaw Associates,
LLC, 349 NLRB 939, 939-940 (2007).
JD–43–14
3
Since 2006, the Union has been the exclusive collective-bargaining representative of the
following unit employees employed by the Respondent:
All full-time and regularly scheduled part-time direct care workers and case
managers employed by the Employer at its various group homes located in Bay, 5
Saginaw, Clinton, Eaton, Ingham, Jackson, Washtenaw, Oakland, Macomb,
Lapeer, Livingston, and Sanilac Counties in the State of Michigan; but excluding
all line managers, directors, human resource personnel, nurses, administration
assistants, and guards and supervisors as defined in the Act and all other
employees.10
The Respondent employs approximately 315 unit employees who work under the title of
“rehabilitation assistant.” These employees provide personal care and community living support
to individuals in a residential setting. The services include meal preparation, routine household
care, and assistance with daily living activities such as bathing, dressing, and personal hygiene.15
On August 11, 2011, the Respondent became affiliated with Hope Network, a nonprofit
corporation that also serves individuals with disabilities and the elderly. The Hope Network
offices are located in Grand Rapids, Michigan, and provide rehabilitative and behavioral health
services through approximately 47 affiliated organizations located throughout Michigan.20
The Section 8(a)(5) and (1) Allegations
Facts25
The 2009-2011 Collective-Bargaining Agreement
The Respondent and the Union entered into a collective-bargaining agreement that was
effective by its terms from December 2, 2009, to December 2, 2011. (GC Exh. 5.) The 30
negotiations for this agreement began on June 29, 2007. Attorney James Gwinn was the lead
negotiator on behalf of the Respondent while Daniel Renner, a labor relations specialist with the
Union, was the Union’s chief negotiator. At the outset of negotiations, the parties signed written
ground rules that had been proposed by the Respondent. Paragraph 1 of these ground rules
indicated: “The chief negotiator for both parties will be vested with the authority to reach a 35
tentative agreement at the bargaining table without approval from a superior person or governing
body.” Paragraph 6 of these ground rules indicated: “The parties recognize that the final
agreement is subject to ratification by the parties.”
The 2007-2009 collective-bargaining agreement was ratified by the union membership on 40
December 11, 2009. On the same date the tentative collective-bargaining agreement was
submitted to the Respondent’s board of directors for ratification. At the board of directors’
meeting, Gwinn pointed out to the board a potential disagreement between the parties regarding
the language in the tentative agreement regarding holiday pay. Gwinn recommended that the
Respondent’s bargaining team meet with the Union to clarify the language prior to the board of 45
director’s ratification of the tentative agreement. After directing Gwinn as to the language it
believed would clarify the matter, the board moved to ratify the collective-bargaining agreement
JD–43–14
4
contingent upon clarification of the holiday pay issue. (R. Exh. 21.) Thereafter, the Respondent’s
bargaining team met with the Union and a memorandum of understanding (MOU) clarifying the
holiday pay issue was executed by the parties on January 15, 2010. (R. Exh. 2.) Another MOU
clarifying the recognition clause of the contract was executed on the same date.
5
The parties’ 2009-2011 collective bargaining agreement contained a union-security
clause and a dues-checkoff provision. This agreement also included an annual reopener clause
regarding health insurance. During the term of the agreement, the parties’ representatives met
pursuant to this clause and any changes to health insurance agreed to by the parties’
representatives were not submitted to the Respondent’s board of directors for ratification.10
The Negotiations for a Successor Agreement
On November 8, 2011, the parties met to begin negotiations for a successor agreement.
Gwinn was again the Respondent’s chief negotiator. The other members of the Respondent’s 15
bargaining team were Jamie Bragg-Lovejoy, the Respondent’s then director of operations,3 and
Angel Pierce. The Union’s chief negotiator was Renner and the other members of the Union’s
bargaining team consisted of three bargaining unit employees.
Prior to the commencement of the negotiations, the Respondent submitted to the Union 20
the same set of ground rules that had been used in the prior negotiations. (GC Exh. 6.) Renner
testified that at the first bargaining meeting he informed the Respondent’s representatives that he
would not sign the ground rules document agreement because it was not a mandatory subject of
bargaining. Renner further testified that he indicated to the Respondent’s negotiating team that
the union membership would have to ratify any tentative agreement.25
Gwinn also testified that Renner refused to sign the proposed ground rules. Gwinn
recalled that Renner indicated that he objected to paragraph 4 of the proposed ground rules
which indicated, in relevant part: “The parties agree not to make any statements to the media that
would be adverse or damaging to the employer’s business regarding the particular issues being 30
addressed in negotiations.” Gwinn testified that Renner stated that he wanted “the ability to go to
the media and take his case outside of the bargaining table.”
Gwinn testified that at either the first or second bargaining session he stated that the
Respondent’s bargaining team “had authority to sign tentative agreements and to carry on as 35
before, get-come to an agreement, come to a contract and take it to our board.” (Tr. 334.) Bragg-
Lovejoy testified that at the first meeting Gwinn stated that the Respondent’s representatives
could enter into tentative agreements but that those agreements would have to be submitted to
the board of directors for ratification (Tr. 281). Bragg Lovejoy’s testimony is corroborated by her
contemporaneous notes of the first bargaining session. In this connection, her notes reflect: “TAs 40
once signed; ratification.” (R. Exh. 23, p.3.) Renner specifically denied that Gwinn ever stated
during negotiations that the Respondent’s board of directors had to ratify the agreement.

3 Bragg-Lovejoy became the Respondent's executive director in approximately February 2012.
Priscilla Horde, the Respondent’s talent manager, who oversees human resources, replaced Bragg-
Lovejoy on the negotiating team on December 11, 2011.
JD–43–14
5
It is undisputed that at the first meeting, Renner refused to sign the proposed ground
rules. I credit Renner’s uncontradicted testimony that he indicated to the Respondent’s
representatives that any tentative agreement would have to be submitted to the union
membership for ratification. I additionally note such a statement would also be consistent with
the Union’s position regarding the first set of negotiations between the parties.5
With respect to the conflict in the testimony between Renner, Gwinn, and Bragg-Lovejoy
about what Gwinn said regarding his authority to enter into an agreement, I credit the testimony
of Gwinn and Bragg-Lovejoy. Their testimony is mutually corroborative and is inherently
plausible. In this regard, in 2007 the parties executed ground rules proposed by the Respondent 10
for the negotiations for their initial contract. In fact, both parties ratified the tentative agreement
reached by their negotiating teams. In the Union’s case, the union membership ratified the
agreement while the Respondent’s board of directors also ratified the agreement. In 2011, Gwinn
proposed the same ground rules for the parties to abide by. With this background, I do not find
Renner’s testimony that Gwinn stated that he had the authority to enter into a final agreement to 15
be plausible and I do not credit that aspect of Renner’s testimony. In addition, I found the
demeanor of Gwinn and Bragg-Lovejoy when testifying about this issue reflected certainty. On
this point, Renner appeared to testify in a manner he believed would strengthen the Union’s
position. In addition, on cross-examination Renner testified in an evasive manner regarding this
issue. Accordingly, I find that at the first meeting on November 8, 2011, Gwinn advised Renner 20
and the other members of the Union’s negotiating team that the Respondent’s bargaining team
had the authority to enter into a tentative agreement that would have to be ratified by the
Respondent’s board of directors.
In December 2011, the parties entered into an agreement which extended the existing 25
collective-bargaining agreement in its entirety until a successor agreement became effective (Jt.
Exh. 3).The parties continued to bargain throughout 2012 without reaching an agreement.4 In
December 2012, the Governor of Michigan signed into law a bill passed by the Michigan
Legislature prohibiting employers and unions from entering into an agreement that required
employees to pay union dues as a condition of employment. (Jt Exh. 1.) This law is commonly 30
referred to as the Michigan “Freedom to Work Act.” The statute provided that the prohibition
against union-security clauses would apply only to an agreement “that takes effect on or is
extended or renewed” after the statute’s effective date of March 28, 2013.
In December 2012, the SEIU assigned organizing coordinator Sasha Eisner to assist 35
Local 517 M in its negotiations with the Respondent because of the implications arising from the
new “Freedom to Work” law. The initial meeting that Eisner attended was held on January 24,
2013. Renner was also present for the Union, while Gwinn and Horde were present for the
Respondent. During this meeting the parties reached agreement on some additional issues, but an
overall tentative agreement was not reached. The parties scheduled a meeting for February 27, 40
but the Respondent canceled the day before the meeting because snow was forecast.
The parties met again on March 14, 2013. It is undisputed that at this meeting Eisner
asked the Respondent’s representatives if they were intentionally dragging their feet to get past

4 From of the first meeting in November 2012 through March 2013 the parties met approximately 12
times.
JD–43–14
6
the Michigan “Freedom to Work” deadline or if they were really interested in reaching an
agreement. It is also undisputed that Gwinn responded that the Respondent was completely
neutral on the right to work legislation; that it was a faith-based organization, and that the
Respondent’s representatives were there to try to reach an agreement. Eisner then stated that the
parties “should get to work and try to reach an agreement.” After further negotiations, the parties 5
reached a complete tentative agreement that included a union-security clause. According to
Eisner’s uncontroverted testimony, the Union made some major compromises in order to retain
the union-security clause. The tentative agreement contained a handwritten page signed by both
Renner and Horde which contained the terms “1 yr upon ratification 5< 100 and 5 > 110.” (GC
Exh. 7.) According to Gwinn’s undisputed testimony, the parties agreed that during the first year 10
of the contract unit employees with less than 5 years would receive a $100 bonus and those with
greater than 5 years would receive $110. Gwinn further testified that in order to establish a date
for payment the parties agreed upon ratification of the agreement as the starting point. According
to Gwinn, prior to the tentative agreement being signed, the parties discussed that ratification
was necessary for both the Union and the Respondent. (Tr. 345.) After the terms of an agreement 15
were reached, the parties shook hands and Renner and Horde signed the tentative agreement.
It is undisputed that the parties agreed to have a conference call the next day to make sure
that there was agreement on language so that the tentative agreement could be presented to the
Union members for ratification by March 25.20
Renner and Eisner testified that after the parties shook hands, Gwinn said that he had to
get back to his office but that it was a “done deal” pending ratification of the contract by the
union members. Renner and Eisner also testified that Gwinn did not say anything about needing
to obtain ratification of the agreement by the Respondent’s board of directors.25
Gwinn’s testimony conflicts with that of Eisner and Renner regarding a discussion of the
Respondent’s need to have the tentative agreement ratified. Gwinn testified that Eisner asked
him to commit to bringing the tentative agreement to the board of directors for ratification before
March 28. Gwinn testified that he responded it was not an issue and that if a tentative agreement 30
was signed that day there would be 9 or 10 days to have a board meeting and that the
Respondent’s representatives would make sure that it happened. According to Gwinn, when the
parties signed the tentative agreement Renner asked if Gwinn would let him know as soon as
possible when the board of directors would meet to ratify the agreement. Gwinn assured him that
he would and then left the meeting. Although Horde testified at the trial, she was not asked any 35
questions by the Respondent’s counsel regarding the substance of the meeting held on March 14.
There is also conflicting testimony regarding the telephone conversations that occurred
between Renner, Gwinn, and Horde on March 15 and 16. According to Renner, on March 15
when he spoke to Gwinn and Horde they discussed the language of the earned time off provision40
in the tentative agreement. Renner emphasized that the Union needed to mail the members the
language of the tentative agreement so that they could review and vote on it by March 25. While
Renner testified that the Respondent’s representatives made no mention of the board of directors
needing to approve the tentative agreement during the conference call, Renner also testified that
Gwinn indicated, “Once you notify us, it’s contingently approved on your membership ratifying 45
it.” (Tr. 52.) Renner testified that the conference call between the same individuals on March 16
resolved the language regarding paid time off.
JD–43–14
7
Gwinn testified that in the conference call on March 15, in addition to discussing
language issues in the tentative agreement, Renner asked if a date had been established for the
board of directors’ meeting. Gwinn responded that the Respondent’s representative had relayed
the message to the board of directors about having a meeting regarding the contract, but they had 5
not yet been given a response. Gwinn testified that in the telephone call held on March 16,
Renner asked again if there was a date set for ratification by the board of directors. Gwinn
responded again that the date had not been established but that it would be.
Horde testified that during the timeframe between when the tentative agreement was 10
reached on March 14 and March 25, Renner asked her either via an email or in a telephone call
whether the board of directors had to ratify the tentative agreement.
On March 18, Eisner sent an email to Renner (GC Exh. 22) which states, in relevant part:
15
Did you find out from Priscilla if there are any further steps on their end that
need to happen to make the TA official before 3/26? (E.g. does board president
Daniel Devos have to approve?)5
On March 18 at 2:18 p.m., Renner responded with an email to Eisner (GC Exh. 22)20
indicating:
yes i did . . . they agreed to have a conditional approval of course pending
membership but set up for 3-26-13.
25
On the same date at 2:41 p.m. Renner sent another email to Eisner indicating:
employer/board approval they have as they have a type of board, they have a
conditional approval already put together contingent upon official notification
from us that the members approved. . .30
On March 21, Gwinn sent the following letter (R. Exh. 9) to Renner by both mail and fax:
In our most recent bargaining session on March 14, 2013 and in our follow-up
telephone conversation on March 15, 2013 you expressed concern as to the 35
timeliness of the employer’s vote on the proposed collective bargaining
agreement.
The Board of Directors for Alternative Community Living, Inc. has scheduled this
meeting to vote on the collective-bargaining agreement for the afternoon of 40
March 25, 2013. We will notify you of the results upon our receipt of same.
If you have any questions, please call.

5 The record establishes that Daniel Devos is the president of the Hope Network board of directors.
JD–43–14
8
Renner did not directly respond to or dispute any of the statements contained in Gwinn’s
March 21 letter.
On March 25, the union membership ratified the tentative agreement and Renner notified
Gwinn and Horde of that fact by an email at 3:53 p.m. (R. Exh. 10.) At 4:47 p.m. Renner sent 5
another email to Gwinn and Horde (R. Exh. 13) indicating, in relevant part:
Need to work on the new documents for distribution. I will put together the
changes and send to you both in the coming days. I hope we do not have issue
with signing that final document for 3-25-13 as that is when both the members 10
and the board approve (hopefully board approval), please let me know when this
has been approved by the board as again the members have ratified.
With respect to the conflicting testimony between Gwinn, Eisner and Renner regarding
what, if any, statements were made by the parties about the necessity of ratification of a tentative 15
agreement by the Respondent’s board of directors, I find that none of the witness accounts are
uniformly reliable. I find that both Renner and Eisner testified regarding the March 14 meeting in
a manner that they believed would bolster the Union’s position. In addition, I find their
testimony that Gwinn did not say anything about needing to obtain ratification of the agreement
by the Respondent’s board of directors at this meeting to be implausible and contradicted by 20
objective evidence.
I credit Gwinn’s testimony that when the parties signed the tentative agreement on March
14, Renner asked Gwinn if he would let him know as soon as possible when the Respondent’s
board of directors would meet to ratify the agreement. I also credit Gwinn’s testimony that in 25
telephone calls on March 15 and that the 16 Renner asked Gwinn if a date had been set by the
board of directors to ratify the agreement. I credit this testimony because it is inherently plausible
under the circumstances. As noted above, I find that at the first bargaining session in November
2011 Gwinn advised Renner that he had the authority to enter into an agreement that would have
to be ratified by the Respondent’s board of directors. Thus, from the outset of negotiations, 30
Renner knew that there would be some form of ratification by the Respondent’s board of
directors. I find that Renner would want to know the date when the Respondent’s board of
directors would meet regarding the tentative agreement, given the looming deadline of
Michigan’s right to work legislation on March 28. While Renner’s articulation of this issue is
somewhat garbled, I also note that Renner’s testimony acknowledged that Gwinn told him in one 35
of the conference calls that the agreement was “contingently approved” after the Union’s
notification that the membership had ratified the agreement. (Tr. 52.) Certainly, the reference to
the fact that the agreement would only be contingently approved based on the Union’s
ratification suggests that Renner knew that the Respondent’s board of directors would have to
approve the tentative agreement before it became final. Renner’s emails to Eisner on March 18, 40
while again not models of clarity, acknowledge that the Respondent’s board of directors would
be meeting on the contract and would have to approve it. Gwinn’s March 21 letter explicitly
makes reference to the concern that Renner had expressed at both the March 14 bargaining
meeting and the March 15 phone conversation regarding when the employer would ratify the
contract. As noted above, Renner did not contemporaneously challenge this assertion. Finally, 45
the email that Renner sent to Horde and Gwinn on March 25 explicitly acknowledges that the
board of directors had to approve the contract.
JD–43–14
9
While I have credited Gwinn’s testimony when it conflicts with Renner’s, I find that
Gwinn’s testimony regarding what Eisner said about encouraging Gwinn to bring the tentative
agreement to the board of directors for ratification before March 28 is not reliable. I note that
Gwinn admitted having difficulty in recalling the exact language assertedly used by Eisner
regarding this issue. (Tr. 341-342.) I also note that Eisner’s email of March 18 to Renner 5
reflecting uncertainty regarding whether the Respondent’s board of directors had a role in
approving the tentative agreement establishes that he did not have detailed knowledge regarding
the Respondent’s ratification procedure at the March 14 meeting. I find it doubtful that Eisner
would be asking specific questions about whether the Respondent’s board of directors would
ratify the agreement on March 14, yet send an email to Renner on March 18 inquiring about that 10
very process.
I find that Horde’s testimony that Renner called her some time after March 14 and
inquired whether the Respondent’s board of directors had to approve the agreement does not
detract from my finding that Renner had knowledge of this requirement. Horde’s testimony was 15
generalized and I find it not as credible as Gwinn’s detailed testimony on this issue that is
corroborated by his letter of March 21 to Renner. I find that Gwinn’s testimony is the most
reliable account of the discussions that occurred on March 14, 15, and 16 about the Respondent’s
need to have the tentative agreement ratified by its board of directors.
20
The March 25 Board of Directors’ Meeting
At the meeting held on March 25, 2013, from 3:30 to 4:15p.m., the Respondent’s board
of directors voted to not approve the tentative collective bargaining agreement. The official
minutes of this meeting, ( GC Exh. 16) and the uncontradicted testimony of board member 25
Richard Fabbrini establishes that while the board had overall satisfaction with the terms and
conditions set forth in the proposed agreement, board members had serious reservations about
the union-security clause contained in the agreement and its impact in relation to the approaching
effective date of Michigan’s “Freedom to Work Act.”
30
The minutes indicate:
The Board discussed the recent and sudden escalation of threats of severe
sanctions against organizations where ratification of proposed collective
bargaining agreements occurred on the eve of the effective date of the Freedom to 35
Work Act. The Board raised concerns about being subjected to harsh attacks
similar to those recently lodged against various Michigan institutions that entered
into agreements before the effective date of the Freedom to Work Act. Board
members discussed their unwillingness to ratify the proposed collective
bargaining agreement where board action could be perceived as an intentional 40
effort to circumvent the intent of the Legislature and Michigan public policy. The
Board discussed its inability to increase its rates to mitigate the damage to which
the Company would be subjected in the event it was targeted for similar attacks.
The Board discussed how its programs affecting vulnerable people could be
negatively affected if it took action that could expose the Company to financial 45
penalties and/or retributive action
JD–43–14
10
At the meeting, members of the board discussed recent media reports about the threats of
sanctions against public institutions by Michigan legislators that had entered into a collective-
bargaining agreement before the effective date of the “Freedom to Work Act” that contained a
union-security clause. Media reports that the board members considered (R. Exh. 19)
reflected that several Michigan public institutions had entered into agreements which contained5
union-security clauses prior to the effective date of the law and that some Michigan legislators
had proposed legislation in response to that action. For example, an article dated March 21 in the
Huffpost Detroit reported that Wayne State University had ratified an 8-year collective-
bargaining agreement and that the University of Michigan had reached tentative 5-year
agreements with five of its unions. The article indicated that in response to these actions a budget 10
panel of the Michigan House of Representatives approved a proposal that would reduce State
funding unless the institutions could prove that the contracts would significantly reduce costs.
Under this proposal, higher education institutions could lose as much as 15 percent of their
expected State funding (R. Exh. 19, p. 13.)
15
According to Fabbrini’s testimony, the board members were concerned about the possible
loss of 15 percent of its State funding since 75 percent of the Respondent’s funds were received
from the State of Michigan’s community mental health boards. (Tr. 240.) Fabbrini testified such
a loss of funding would have a substantial impact on the Respondent’s operations. Based on that
concern, the board of directors passed a resolution rejecting the tentative collective-bargaining 20
agreement and directing the Respondent’s bargaining team to return to collective bargaining with
instructions to “present a counter proposal to the Union incorporating all the terms of the
proposed agreement except to revise those sections of the agreement that would be in conflict
with Michigan’s Freedom to Work Act.”
25
The Post-March 25 bargaining
On March 26 at 3:58 p.m. Gwinn sent the following email to Renner6:
We have been informed that on March 25, 2013, the Board of Directors of 30
Alternative Community Living, Inc. voted not to ratify the proposed collective
bargaining agreement.
We have additional work to do with the bargaining table.
35
Please contact me with available dates for continue contract negotiations so we
can coordinate our schedules.
Renner testified that he contacted Gwinn by phone shortly after he received Gwinn’s
email. Renner testified that he asked Gwinn what had happened, as Gwinn had always indicated 40
that he had the authority to approve the contract on behalf of the Respondent. According to
Renner, Gwinn indicated that he was directed to send the email and that is all he could tell
Renner. Gwinn did not testify regarding such a conversation. While I credit Renner’s

6 Gwinn was in court on March 26. When he returned to his office in the afternoon he learned of the
Respondent's decision not to ratify the tentative agreement but testified credibly that he was not aware of
the reasons at that point.
JD–43–14
11
uncontradicted testimony that he had a brief phone conversation with Gwinn on the afternoon of
March 26 and asked what happened, I find no significance to the portion of Renner’s testimony
reflecting that Gwinn had always indicated that he had the authority to approve the contract on
behalf of the Respondent. As I have indicated above, the record as a whole does not support that
claim.5
Shortly thereafter, Renner sent an email to Gwinn indicating that the Union was available
to meet the next day to continue contract talks. Later on March 26, Renner sent another email to
Gwinn indicating that it was the Union’s position that there was, in fact, a collective bargaining
agreement and that unless the Respondent indicated on March 27 that it would execute the 10
agreement the Union would file an unfair labor practice charge with the NLRB (GC Exh. 11). On
March 27 at 5:21 p.m., after hearing no response from the Respondent, the Union’s attorney,
Amy Bachelder, sent an email to Gwinn asking what the Respondent’s objection to the
agreement was and indicating that “without prejudice to its legal position, the union was
available to meet on March 28 to resolve the matter.” (GC Exh. 12.)15
On March 28, Bachelder and Gwinn spoke by phone. Bachelder did not testify at the
hearing and Gwinn did not testify regarding this telephone conversation. However, according to
a confirming email that Bachelder sent to Gwinn on that date, during their phone conversation
Bachelder asked Gwinn what the problem was with the contract. Gwinn responded that that the 20
board of directors had voted on March 25 not to approve the contract. When Bachelder asked
Gwinn what the board’s problem with the contract was, Gwinn replied that he had not been
informed of the reasoning behind the decision. When Bachelder asked when he would know,
Gwinn said that he would soon receive the board’s reasoning. Bachelder asked if the
implementation of Michigan’s right to work law was an issue in the Respondent’s actions. 25
Gwinn replied that he could not have a meaningful conversation until he had received
instructions from his client. When Gwinn stated that the Union had not provided dates for
negotiation, Bachelder indicated that the Union had informed him that it was available on March
27 and 28. Gwinn stated that he was not available on those dates. Bachelder reiterated that the
Union was prepared to execute a contract consistent with the March 14, 2013 agreement and that 30
any further negotiations by the Union were without prejudice to its position that there was
binding agreement between the parties. (GC Exh. 13)
On April 3, Renner sent a letter to the Respondent that reiterated the Union’s position that
the parties had a collective-bargaining agreement which had been ratified by the union 35
membership. The letter also requested information regarding the action of the board of directors
with regard to the parties’ tentative agreement. The letter indicated that when the Union
reviewed this information it would decide on its course of action. (GC Exh. 15). On April 4,
2013 Gwinn responded in a letter stating that the proposed March 14, 2013 agreement was
subject to ratification by the Respondent’s board of directors, which had not occurred and that 40
there was no final collective bargaining agreement. The letter also enclosed the board of
directors’ minutes for the March 25 meeting and asked the Union to provide bargaining dates for
continued negotiations. (GC Exh. 16.) On April 5, Renner responded in a letter offering
bargaining dates and reiterating that the Union was not waiving any rights with respect to its
position that the parties had a final collective-bargaining agreement.45
JD–43–14
12
On April 12, Renner sent a letter to the Respondent confirming a meeting on April 17,
2013. The letter reiterated the Union’s position that it had a contract with the Respondent. The
letter indicated that any proposals that were agreed to in further bargaining would be contingent
upon the unfair labor practice charges that were under investigation by the NLRB. The letter
further indicated that “Proposals made by the Union and tentative agreements are null and void 5
in the event that the NLRB issues an unfair labor practice complaint consistent with the Union’s
contention that the parties have a binding agreement.” (GC Exh. 17.)
At meeting held on April 17, Eisner and Renner were the principal representatives of the
Union, while Gwinn and Horde represented the Respondent. At the meeting, Eisner reaffirmed 10
the Union’s position that the parties had a binding contract based on the agreement that had been
reached on March 14. Eisner indicated that the Union would not prejudice that position, and if it
engaged in discussions with the Respondent, it would do so on a “contingency” basis. Eisner
stated that the Respondent was a private employer, unlike the public institutions that had been
mentioned in the media reports considered by the board of directors, and which had caused the 15
board to be concerned about a possible loss of funding. Eisner also stated that since the
“Freedom to Work” law’s effective date had passed, the threat from the legislature was gone.
Eisner proposed that the Respondent accept the terms of the March 14 agreement and the Union
would withdraw its unfair labor practice charge.
20
Gwinn responded that the Respondent was maintaining its position and presented the
Union with the Respondent’s final offer. According to Renner’s uncontradicted testimony,
Gwinn also gave the Union a written statement which outlined the content of its final offer. (GC
Exh. 18; Tr. 68.) In addition, Gwinn read the statement to the Union at the meeting. In the a
written statement that accompanied its last offer, the Respondent indicated that the proposal 25
revised the dues provision and that the term of the agreement was described as being for 44
months in order to obtain the same length of time as the tentative agreement had provided for.7
The Respondent’s statement also indicated that the parties were at an impasse and that the
Respondent was submitting its “last, best, and final offer.” The Respondent’s statement also
asked the Union to present its final offer to the union membership for ratification. The statement 30
further indicated, “If we do not hear from you to discuss this last, best, and final offer, or if you
do not inform us of the results of the ratification vote of the membership, then the employer will
implement its last best and final offer effective at the close of the pay period on May 4, 2013 or
May 5, 2013.” The statement also indicated that the date of implementation would terminate the
contract extension agreement that was in effect. 35
The Respondent’s final offer eliminated the union-security provision. The offer contained
an article entitled “Dues and Service Fee” which made the deduction of union dues voluntary.
The Respondent also attached a dues-checkoff authorization form consistent with its proposal.
40
After the Respondent made its final offer, the Union raised issues that it had previously
abandoned or had compromised in an effort to reach agreement before the “Freedom to Work”
law came effective. In this connection, the Union raised issues including an increase in wages,

7 In effect, this extended the length of the contract agreed to by the parties in the March 14 tentative
agreement by 1 month.
JD–43–14
13
earned time off provisions for part-time employees, an arbitration clause, and paid holidays. The
Respondent summarily rejected all of the Union’s proposals.
On April 19, Gwinn sent a letter to Renner reiterating his request that the Union present a
final offer to the membership for ratification. The letter also reiterated that the Respondent 5
intended to implement its final offer on May 5, 2013. (R. Exh. 17.) On April 30, Renner sent a
letter to the Respondent indicating that the Union was reviewing the Respondent’s April 17
proposal and that it was “. . . preparing counterproposals which are responsive to the changed
circumstances reflected by the Employer’s final offer and the amended Labor Mediation Act
legislation which was effective on March 28, 2013. The parties are not at an impasse and have a 10
scheduled negotiation meeting for May 10, 2013 at which the union will present proposals.
Accordingly, unilateral imposition of the employer’s final offer is premature.” (GC Exh. 20.)
On May 5, the Respondent implemented its final offer. According to Horde’s
uncontroverted testimony, after the implementation of the Respondent’s final offer, it continued 15
to honor the dues-checkoff authorizations executed by employees and has continued to remit
dues to the Union. The Respondent has also continued the existing practice of notifying the
Union when new employees are hired and honoring dues-checkoff authorizations that are
submitted by newly hired employees. From May 3, 2013, to May 14, 2014, only two employees
have notified the Respondent that they did not wish to pay union dues since the Michigan right to 20
work law became effective. The Respondent also paid employees the ratification bonus set forth
in the tentative agreement.
On May 10, the parties had one final meeting and reiterated the positions they had
expressed at the April 17 meeting.25
Analysis and Conclusions
Whether the Respondent Violated Section 8(a)(5) and (1) by Failing to Ratify and Execute the
Tentative Collective-Bargaining Agreement30
The General Counsel first contends that the Respondent did not give the Union clear and
timely notice of the limitation on its negotiator’s authority to enter into a final agreement. The
General Counsel correctly notes that the Board has held that in the absence of “affirmative, clear
and timely” notice of the limitation on a bargaining representative’s authority, “an agent 35
appointed to negotiate a collective bargaining contract is deemed to have apparent authority to
bind his principal.” University of Bridgeport, 229 NLRB 1074, 1082 (1977); Aptos Seascape
Corp., 194 NLRB 540, 544 (1971). The Board has also held that any limitation placed on the
negotiating authority of a bargaining representative must be disclosed to the other party before an
agreement is reached. Teamsters Local 771 (Ready-Mixed Concrete), 357 NLRB No. 173 slip 40
op. at 4 (2011).
The Respondent contends that the credible evidence establishes that the Union had clear
and timely notice that the tentative agreement would be subject to ratification by the
Respondent’s board of directors.45
JD–43–14
14
It is undisputed that prior to the first meeting held by the parties on November 8, 2011,
the Respondent submitted to the Union the same ground rules that the parties had agreed to in
their prior negotiations. These ground rules provide that the chief negotiator has the authority to
enter into a tentative agreement but that “final agreement is subject to ratification by the parties.”
While the Union refused to agree to these ground rules in the negotiations that began in 5
November 2011, I find that this document reflects the intent of the Respondent to set forth the
limitation imposed on its chief negotiator. I find that the credible evidence establishes that at the
initial bargaining meeting the Respondent’s chief negotiator, Gwinn, advised the Union that he
had authority to enter into a tentative collective-bargaining agreement that would have to be
ratified by the Respondent’s board of directors. 10
I also find that prior to the tentative agreement being signed by the parties on March 14,
the parties again discussed the fact it would have to be ratified by both parties. After the tentative
agreement was signed, Renner asked Gwinn if he would let him know as soon as possible when
the Respondent’s board of directors would be meeting to ratify the agreement.15
Based on the credible evidence, I find that Gwinn gave the Union clear and timely notice
of the limitations on his authority to negotiate a collective bargaining agreement. Gwinn made it
clear to the Union at the outset of negotiations that any tentative agreement would have to be
ratified by the Respondent’s board of directors. He reiterated that point prior to the parties’20
execution of the tentative agreement on March 14, 2013. Accordingly, I find no merit in the
General Counsel’s argument that the Respondent failed to give clear and timely notice of the
limitation on the authority of its bargaining representative prior to the parties reaching a tentative
agreement on March 14, 2013.
25
The General Counsel also contends, however, that even if the Respondent had properly
notified the Union that its board of directors needed to ratify the tentative collective-bargaining
agreement, the Respondent violated Section 8(a)(5) and (1) because it withheld ratification
without good cause.
30
The Respondent contends that the board of directors had a good-faith basis to refuse to
ratify the tentative agreement because of concerns that the ratification of the agreement could
jeopardize the Respondent’s funding.
In support of his position, the General Counsel relies on cases such as Valley Central 35
Emergency Veterinary Hospital, 349 NLRB 1126 (2007); and Transit Service Corp.. 312 NLRB
477 (1993) where employers withdrew or repudiated tentative agreements without good cause in
violation of Section 8(a)(5) and (1).
In the instant case, the evidence is clear that the basis of the Respondent’s board of 40
directors’ refusal to ratify the tentative agreement on March 25 was its concern regarding the
impact of the imminent implementation of the Michigan “Freedom to Work” Act on the
Respondent’s funding.
As noted above, at the meeting the board of directors considered reports appearing in the 45
media reflecting the possible impact on educational institutions that signed a collective-
bargaining agreement with a union-security clause shortly before the implementation of the
JD–43–14
15
“Freedom to Work” legislation. One such report indicated that a budget panel of the Michigan
House of Representatives approved legislation that educational institutions which signed such an
agreement could lose as much as 15 percent of their State funding, unless the institution could
prove that the contract would significantly reduce costs. Another report indicated that when
Michigan State University was approached by a union seeking an extension of a collective-5
bargaining agreement which included a union-security provision, the University refused to do so
because of a possible loss of $15 million in funding because of the proposed legislation in the
Michigan House of Representatives (R. Exh. 19, p.10).
Alarmed by the threats of a loss of funding against public institutions that had entered 10
into collective-bargaining agreements containing a union-security clause shortly before the
effective date of the new “Freedom to Work” law, the board voted to not ratify the tentative
collective bargaining agreement. The board further directed the Respondent’s negotiators to
enter into an agreement consistent with the provisions of the new law, i.e,. one that did not
contain a union-security clause.15
In considering this issue, I note that while a withdrawal of a previously agreed to
proposal is not necessarily violative of the Act, such a withdrawal is unlawful if the respondent
does not demonstrate good cause for the withdrawal of the previously agreed to proposal. Transit
Service Corp., 312 NLRB at 478. Under the unusual circumstances of the instant case, I find that 20
the Respondent established it had sufficient cause to refuse to ratify the tentative agreement. At
the time the board of directors made its decision, the effective date of the “Freedom to Work”
was 3 days away. A media report had indicated that a budget panel of the Michigan House of
Representatives had approved a 15-percent reduction of the State funding to educational
institutions that had recently entered into a collective-bargaining agreement that contained a 25
union-security clause, unless these institutions could demonstrate that the agreement included
substantial cost savings.
The Respondent receives the great majority of its funding through the State of Michigan.
While it was not clear on March 25 that the funding restriction passed by a budget panel of the 30
Michigan House of Representatives would in fact, become law, I find that the board of directors
was genuinely concerned with a possible substantial loss in the Respondent’s funding if it
ratified the tentative collective-bargaining agreement, which contained a union-security clause,
shortly before the effective date of the new law. I find, therefore, that the decision of the board of
directors was based on practical business considerations and not on a desire to delay or impede 35
negotiations or because of any philosophical objection to a union-security clause.
In reaching this conclusion, I find persuasive the Board’s decision in Food Service Co.,
202 NLRB 790, 803 (1973), in which it found that the employer established sufficient cause to
withdraw from two tentative agreements and that such conduct did not warrant an inference of 40
bad-faith bargaining. In that case, the employer withdrew agreement on successor and
subcontracting provisions. In doing so, the employer relied on the advice of newly retained
counsel, who had explained at the bargaining table that the successor clause could hinder the
employer’s ability to sell the business and that the subcontracting provision could restrict the
employer’s existing practice of utilizing casual employees.45
JD–43–14
16
I find the cases relied on by the General Counsel to be distinguishable as in each of those
cases, the respondent was unable to establish good cause for withdrawing from a tentative
agreement. For example, in Valley Central Emergency Veterinary Hospital, supra, the
employer’s repudiation of the tentative agreement was based on its invalid objections to the
union’s ratification process, a subject within the exclusive control of the union. In Transit5
Service Corp, supra, the Board adopted the administrative law judge’s finding that the evidence
established that the employer’s withdrawal from a tentative agreement was motivated by the
filing of a decertification petition and the desire to avoid reaching an agreement so that the
decertification petition could be processed. Id. at 483.
10
On the basis of the foregoing, I find that the Respondent did not violate Section 8(a)(5)
and (1) of the Act by refusing to execute the tentative agreement reached on March 14 and
accordingly I shall dismiss that portion of the complaint.
15
Whether the Respondent Refused to Bargain with the Union Regarding a Union Security
Provision in Violation of Section 8(a)(5) and (1) of the Act
20
Paragraph 12 of the complaint alleges that the Respondent refused to bargain with the
Union with regard to union-security in violation of Section 8(a)(5) and (1) of the Act. In support
of this allegation, the General Counsel first contends that the Respondent’s conduct in regard to
bargaining about the union-security clause was “ . . . motivated simply by bad faith opposition to
union security.” (GC Br. at 36.) In support of this contention, the General Counsel relies on25
Chester County Hospital, 320 NLRB. 604, 622 (1995), enfd. 116 F. 3d 469 (3d Cir. 1997).
There, the Board found that the employer’s opposition to union-security and dues-checkoff was
based on vague “philosophical” grounds without substantial business justification. Under those
circumstances the Board found that the employer had a fixed intention not to agree to any form
of union-security or checkoff and thereby violated Section 8(a)(5) and (1).30
In the instant case, the parties’ 2009-2011 agreement contained a union-security clause
and the Respondent never raised any philosophical objections to the issue of union security
during negotiations. On March 13, when Eisner asked if the Respondent was stalling
negotiations in an attempt to get past the implementation of the impending right to work law in 35
Michigan, Gwinn stated that the Respondent was “neutral” on the right to work legislation and
was trying to reach an agreement with the Union.
The minutes of the board of directors’ March 25 meeting and Fabbrini’s testimony
establish that the board’s reservations regarding entering into a collective bargaining agreement 40
containing a union-security clause was based on the business-related consideration that the
Respondent’s funding may be cut if it entered into such an agreement on the eve of the
implementation of the “Freedom to Work” legislation.
Under the circumstances present in this case, I do not find that the Respondent’s refusal 45
to ratify the tentative collective-bargaining agreement containing a union-security clause was
based on any philosophical opposition reflecting a fixed intention not to agree to a union-security
JD–43–14
17
provision, but rather on the business related consideration of a potential loss of funding by the
State of Michigan. Accordingly, I find Chester County Hospital to be distinguishable.
The General Counsel next argues that, regardless of the merits of its reasons for refusing
to execute the March 14 tentative agreement, the Respondent delayed in communicating its 5
reasons for refusing to ratify the agreement containing a union-security provision at a critical
time in the negotiations. The General Counsel contends that the delay was sufficient to amount to
a refusal to bargain in good faith in violation of Section 8(a)(5) and (1).
As noted above, the Respondent’s board of directors refused to ratify the tentative 10
agreement on the afternoon of March 25, 2013. The Respondent did not communicate this fact to
the Union until March 26 at 3:58 p.m., when Gwinn sent an email to Renner notifying him of the
board’s decision. Gwinn’s email also requested that the Union provide him with available dates
for negotiations. Renner immediately called Gwinn and asked him what had happened. Gwinn
replied that he was directed to send the email and that was all that he could tell Renner at that 15
time. That same day, Renner sent Gwinn an email indicating that the Union was available to
meet on March 27.
After the Union had received no response from the Respondent, on March 27 at 5:21 p.m.
the Union’s attorney, Bachelder, sent an email to Gwinn asking what the Respondent’s objection 20
to the agreement was and indicating that the Union was available to meet on March 28 to resolve
the matter. After again hearing no response from the Respondent on March 28, Bachelder called
Gwinn and asked why the board of directors had not ratified the agreement. Gwinn replied that
he had not been informed of the reasoning. When Bachelder specifically asked if the
implementation of the Michigan right to work law was an issue in the Respondent’s actions, 25
Gwinn replied that he could not have a meaningful conversation until he received instructions
from his client. Bachelder stated that the Union had informed Gwinn that it was available to meet
on March 27 and 28 but Gwinn replied only that he was not available on those dates, without
giving a reason why.
30
On April 3, Renner sent a letter to the Respondent requesting information regarding the
action taken by the board of directors with regard to the parties’ tentative agreement. It was not
until April 4, 2013, that the Respondent submitted the minutes of the board of directors meeting
reflecting the reasons for the refusal to ratify the agreement.
35
I find that the Respondent’s failure to convey to the Union the reasons relied on by the
board of directors in refusing to ratify the tentative agreement for a 10-day period is
incompatible with the obligation to bargain in good faith. While the Respondent had a plausible
reason for failing to ratify the tentative agreement containing a union-security clause, it was
incumbent on it to immediately convey those reasons to the Union so that an intelligent dialogue 40
regarding the Respondent’s reasons could ensue. This is especially so given the fact that
implementation of the “Freedom to Work Act,” that was the genesis of the Respondents concerns
regarding the tentative agreement, was only days removed from the board of directors’ meeting.
The Respondent persisted in its failure to give the reasons for its refusal to ratify the tentative
agreement for 10 days, despite being directly asked by the Union on several occasions as to the 45
reasons for its action.
JD–43–14
18
As the General Counsel correctly noted in his brief, the Board has emphasized that a
party to collective bargaining must “. . . display a degree of diligence and promptness in
arranging for the elimination of obstacles thereto comparable to that which he would display in
his other business affairs of importance.” Barclay Caterers, Inc., 308 NLRB 1025, 1035 (1992)
(quoting J. H. Rutter-Rex, Inc., 86 NLRB 470, 506 (1949)). In this connection, in NLRB v.5
Mayes Bros., Inc., 383 F.2d 242 (5th Cir. 1967), enfg. 153 NLRB 18 (1965) the court enforced
the Board’s order finding that the employer had refused to bargain in good faith in violation of
Section 8(a)(5) and (1). In its decision, the court noted, “ [the employer’s] failure either to sign
the agreement or to advise the [u]nion why it would not sign is inconsistent with any sincere
intention to compose differences without unnecessary delay and therefore is not good faith 10
bargaining.” In the instant case, the inordinate delay that occurred regarding the reasons for the
rejection of the tentative agreement also does not comport with the obligation to address
differences without unnecessary delay.
I also agree with the General Counsel that the Respondent’s refusal to convey its reasons 15
for its rejection of the tentative agreement occurred at a particularly sensitive time and that this is
also an important factor to consider in determining whether the Respondent complied with its
obligation to bargain in good faith. In Brooks, Inc., 228 NLRB 1365 (1977), enfd. in relevant
part, 593 F.2d 936 (10th Cir. 1979), the union sent a timely notice to reopen an existing contract
on April 10, 1975. When the union received no response, a union agent attempted on several 20
occasions in May 1975 to get in touch with the individual he believed would be the employer’s
principal negotiator. That individual indicated that someone else would handle negotiations. On
June 7, the union learned the name of the individual who then referred the union agent to an
attorney. A meeting between the parties was arranged for June 11. At that meeting the
employer’s attorney indicated that no bargaining would occur until the employer’s obligation to 25
bargain was established. On June 16 the existing contract expired and employees went on strike.
On June 16, the employer indicated it was willing to bargain but imposed conditions on the
negotiations. The Board found that the employer’s conduct constituted a refusal to bargain in
violation of Section 8(a)(5) and (1). In enforcing this part of the Board’s order, the court noted
that the employer’s outright refusal to bargain lasted only 5 days but that “. . . [w]hile the time is 30
short, the refusal came at a critical period just prior to the expiration of the contract in the face of
the threatened strike.” 593 F.2d at 939-940.
On the basis of the foregoing, I find that the Respondent’s refusal to relate the basis for
its decision to refuse to ratify the tentative contract from March 25 to April 4 constitutes a failure 35
to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act.
Whether the Respondent Implemented Its Final Offer Without Reaching a Valid Impasse in
Violation of Section 8(a)(5) and (1) of the Act
40
The complaint alleges that on May 5, 2013, the Respondent implemented its final
offer dated April 17, 2013, without reaching a valid impasse in violation of Section 8(a)(5) and
(1). In defense of this allegation, the Respondent contends that the parties were at an impasse and
that it was privileged to implement the final offer. In support of its position, the Respondent
claims that the Union refused to bargain because it referred to the meetings held after March 25 45
as “contingency talks” rather than collective-bargaining meetings.
JD–43–14
19
In Ead Motors Eastern Air Devices, 346 NLRB 1060, 1063 (2006), the Board
summarized the major factors in determining whether a valid impasse has occurred as follows:
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd.sub nom. Television
Artists, AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968), the Board defined5
impasse as a situation where “good-faith negotiations have exhausted the
prospects of concluding an agreement.” See also Newcor Bay City Division, 345
NLRB 1229, 1238 (2005). This principle was restated by the Board in Hi-Way
Billboards, Inc., 206 NLRB 22, 23 (1973), enf. denied on other grounds 500 F.2d
181 (5th Cir. 1974), as follows:10
A genuine impasse in negotiations is synonymous with a deadlock: the
parties have discussed a subject or subjects in good faith, and, despite
their best efforts to achieve agreement with respect to such, neither party
is going to move from its respective position. [Footnote omitted.]15
The burden of demonstrating the existence of impasse rests on the party claiming
impasse. Serramonte Oldsmobile, Inc., 318 NLRB 80, 97 (1995), enfd. in pert. part 86
F.3d 227 (D.C. Cir. 1996). The question of whether a valid impasse exists is a “matter of
judgment” and among the relevant factors are “[t]he bargaining history, the good faith of 20
the parties in negotiations, the length of negotiations, the importance of the issue or issues
as to which there is disagreement [and] the contemporaneous understanding of the parties
as to the state of negotiations.” Taft Broadcasting Co., supra at 478.
In the instant case, in a letter dated April 5, after the Union had finally received the 25
rationale of the Respondent’s board of directors in refusing to ratify the tentative agreement, it
offered dates to bargain with the Respondent but indicated that it did not waive its rights with
respect to its position that the parties had a final collective-bargaining agreement. In a letter dated
April 12, the Union reiterated its willingness to bargain but again indicated that any tentative
agreements made were contingent upon the outcome of unfair labor practice charge under 30
investigation. The Union explained any tentative agreements reached would be nullified if the
NLRB issued a complaint consistent with the Union’s contention that the parties had a binding
agreement.
As set forth above in greater detail, at the April 17 meeting Eisner again indicated that the 35
Union’s position was that it had a binding agreement based but that the Union would bargain
with the Respondent contingent upon the NLRB’s decision regarding that issue. Eisner indicated
that as a private employer the Respondent was different than the public institutions that had been
mentioned in the media reports considered by the board of directors. Eisner proposed that the
Respondent accept the terms of the March 14 tentative agreement and that the Union would 40
withdraw its pending unfair labor practice charges.
In response, the Respondent presented a final offer to the Union that extended the date of
the agreement by 1 month and eliminated the union-security provision but otherwise contained
the terms set forth in the tentative agreement of March 14.. The Respondent requested that the 45
Union submit the final offer to its membership for ratification. The Respondent further indicated
JD–43–14
20
that if the Union membership did not ratify this proposal it would be implemented on May 4 or
5, 2013.
The Union then made proposals on issues that it had previously abandoned or had
compromised on in an effort to reach the terms of the tentative agreement that the parties entered 5
into on March 14. Specifically, the Union sought to increase in wages, earned time off provisions
for part-time employees, paid holidays, and an arbitration clause. The Respondent summarily
rejected all of the Union’s proposals.
On April 19, the Respondent sent a letter to the Union reiterating its request that the 10
Union present the final offer to the membership for ratification and reiterating that the
Respondent intended to implement that offer on May 5, 2013. On April 30, the Union sent a
letter to the Respondent indicating it was preparing counterproposals which were responsive to
the changed circumstances reflected by the Respondent’s final offer and the right to work
legislation which became effective on March 28, 2013. The letter claimed parties were not at an 15
impasse and indicated that the Union would present a new proposal at the meeting scheduled for
May 10. The letter further indicated that any unilateral imposition of the employer’s final offer
would be premature.
On May 5, the Respondent the implemented its final offer.20
In applying the principles set forth above to the facts of this case, I find that the
Respondent has not met its burden of establishing that a valid impasse existed before it
implemented its final offer. Accordingly, I find that by implementing that offer on May 5, 2013,
the Respondent violated Section 8(a)(5) and (1).25
On April 17, 2013, at the first meeting after the Respondent’s board of directors refused
to ratify the tentative agreement, the Respondent made a final offer that did not include a union-
security provision and extended the date of the agreement by one month. The Respondent had
prepared a written statement in advance of the meeting that was given to the Union and read by 30
Gwinn at the meeting. At the April 17 meeting, the Respondent informed the Union that if it did
not agree to its final offer by May 5, 2013, the Respondent would unilaterally implement it.
Clearly, this is not a situation where good-faith negotiations have exhausted the prospects of
concluding an agreement. The Respondent entered into this phase of the negotiations with a
fixed intention to achieve an agreement on its own terms.35
In applying the factors set forth in Taft Broadcasting, supra, as noted above, I found that
the Respondent violated its duty to bargain in good faith by delaying notification of the reasons
for its board of directors’ refusal to ratify the tentative agreement at a critical time in the
negotiations. This delay negatively impacted the negotiations that took place after the 40
Respondent’s refusal to ratify the tentative agreement. Until the Union knew the reasons for the
Respondent’s refusal to ratify the tentative agreement, it was unable to address the Respondent’s
concerns.
With respect to the length of the negotiations, while the parties had been bargaining 45
since November 2011, the board of directors’ action in refusing to ratify the tentative agreement
because it contained a union-security provision substantially changed the nature of the
JD–43–14
21
negotiations. While the Respondent found satisfactory the terms and conditions of employment
set forth in the tentative agreement, it objected to the union-security clause for the reasons
previously noted. As noted above, even before having the first meeting after this event, the
Respondent had determined that an agreement between the parties would not include union
security and would be extended for an additional month, but would include all of the other issues 5
that the parties had agreed on prior to the board of directors’ refusal to ratify the tentative
agreement. After having one meeting, in which it refused to deviate from its predetermined
course of action, the Respondent reiterated that it would implement its final offer on May 5. This
conduct is clearly indicative of the fact that the Respondent did not make a good-faith effort to
reach the terms of a mutually acceptable agreement before declaring an impasse.10
The question of a union-security provision was a vital importance to both parties. As set
forth above, the Union abandoned and compromised several of its positions in order to reach a
tentative agreement including the union-security provision in time to have it executed prior to the
implementation date of the Michigan “Freedom to Work” statute. Obviously, the issue was also 15
of critical importance to the Respondent since its board of directors’ refusal to ratify the tentative
agreement was based solely on the fact that it contained a union-security provision and the
concern that the Michigan Legislature would cause the Respondent to lose funding if they agreed
to such a contract on the eve of the implementation of the new legislation. While the new
Michigan statute may preclude the Respondent from entering into a collective-bargaining 20
agreement with a union-security provision after March 28, 2013, the Respondent’s unilateral
removal of this important provision, coupled with its unwillingness to consider discussing other
issues to substitute for the loss of that provision, is also not indicative of a serious effort to reach
a mutually acceptable agreement.
25
With regard to the contemporaneous understanding of the parties as to the state of
negotiations, the Union adamantly disagreed with the Respondent’s position that the parties were
in impasse. In the Union’s view there were a substantial number of issues that could be
discussed, given the Respondent’s position that it would not agree to a contract including a union
security clause because of the new Michigan legislation. I find that the Union’s proposal to 30
revisit issues it had compromised or abandoned in order to obtain an agreement with union
security clause provision prior to the implementation of the statute on March 28, to be a
reasonable one. The Respondent’s refusal to consider discussing other subjects in exchange for
the removal of a union security provision also does not reflect a good faith effort to achieve a
mutual agreement.35
Finally, I find no merit to the Respondent’s contention that because the Union expressed
the position that any tentative agreements reached in the bargaining that began on April 17 were
contingent upon a decision by the NLRB regarding whether the parties reached a binding
contract on March 14, 2013, the Union refused to bargain and therefore the parties were 40
deadlocked. I find nothing inconsistent in the Union’s position that the parties had in fact reached
a final agreement but, because of the uncertainty surrounding that issue, it would bargain in good
faith with the Respondent, as long as it was understood that any tentative agreements reached
would not serve as a basis for the Respondent to later claim the Union had waived its right to
claim a binding agreement was reached on March 14. In its April 30 letter, the Union indicated it 45
was preparing counterproposals that were responsive to the changed circumstances reflected by
the Respondent’s final offer and the implementation of the right to work legislation. This letter
JD–43–14
22
reflects a continued desire on behalf of the Union to continue to negotiate to reach the terms of a
collective-bargaining agreement and implicitly acknowledging that such an agreement may not
include a union-security provision.
On the basis of the foregoing, I find that the Respondent implemented its final offer on
May 5, 2013, without reaching a valid impasse and therefore violated Section 8(a)(5) and (1) of 5
the Act.
The Alleged Violations of Section 8(a)(1)
From at least September 2012, through on or about September 7, 2013, the Respondent 10
maintained its personnel handbook, as revised on February 11, 2011 (GC Exh. 4) and a
“Corporate Compliance and Integrity Plan” handbook, as revised on October 9, 2009 (GC Exh.
3). These documents will be collectively referred to as the rules. The rules were distributed to all
employees in the bargaining unit and to all newly hired employees during the time period set
forth above (GC Exh. 2). On or about September 7, 2013, the Respondent rescinded those rules 15
and employees were notified of the implementation of new rules on the same date.
The complaint alleges that during the time period set forth above, the Respondent
maintained certain rules that violate Section 8(a)(1) of the Act. The General Counsel contends
that the challenged rules are facially overbroad and therefore unlawful. The Respondent contends 20
that the disputed provisions are lawful.
In determining whether the maintenance of a work rule violates Section 8(a)(1) of the Act
the Board determines whether it reasonably tends to chill employees in the exercise of their
Section 7 rights. Lafayette Park Hotel 326 NLRB 824 (1998), enfd. mem. 203 F.3d 52 (D.C. Cir. 25
1999). In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board indicated that if
a rule explicitly restricts Section 7 rights, it is unlawful. The Board further noted that if it does
not, “the violation is dependent upon a showing of one of the following: (1) employees would
reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 30
rights.” Id. at 647. In Lutheran Heritage Village, the Board further indicated: “In determining
whether a challenged rule is unlawful, the Board must, however, give the rule a reasonable
reading, it must refrain from reading particular phrases in isolation, and must not presume
improper interference with employee rights.” Id. at 646.
35
As noted above, the General Counsel claims in this case only that the following rules
would, on their face, reasonably be construed by employees to prohibit Section 7 activity and
violate Section 8(a)(1) on that basis.
Rule 6.4-Violence-Free Work Place . . . New Passages defines workplace 40
violence as any verbal, written, or physical activity that is intended to
intimidate, threaten or harm any person . . . . Conduct, which can reasonably be
construed as hostile and threatening, may result in disciplinary action and
possible termination of employment.
45
JD–43–14
23
The General Counsel argues that this rule may reasonably be construed by employees to
limit robust union activity which may be viewed as “harmful and intimidating” by employees
who do not share those views.
In support of his position, the General Counsel relies on Flamingo Hilton-Laughlin, 330 5
NLRB 287, 288 fn. 3 and 294-295 (1999). In Flamingo Hilton, the Board relied on Lafayette
Park Hotel, supra, and found that the employer’s maintenance of a rule which prohibited
“[m]aking false, vicious, profane, or malicious statements regarding another employee, guest,
patron or the Hotel itself” violated Section 8(a)(1). In finding the rule overly broad and unlawful,
the administrative law judge, whose decision on this issue was adopted by the Board, noted that 10
the rule was overbroad because it permitted false statements, in addition to vicious, profane, and
malicious statements. In the judge’s view prohibiting merely false statements, without further
definition, could cause employees to refrain from engaging in protected activities. 330 NLRB at
294.
15
In the instant case, when the language of the rule is read in context, it is clear that the rule
precludes conduct that is intended to intimidate or which could reasonably be construed as
hostile and threatening. There is, of course, no reference in the rule to a prohibition regarding
false statements. Accordingly, I find the challenged rule in the instant case to be distinguishable
from the rules found unlawful in Flamingo Hilton and Lafayette Park Hotel, supra. In applying 20
the Board’s mandate in Lutheran Village to give the rule a reasonable reading, and refrain from
reading phrases in isolation or presuming improper interference with protected rights, I find that
employees would reasonably view the language of this rule which is entitled “Violence-Free
Work Place” to be specifically directed to limiting workplace violence and not construe it as
restraining Section 7 rights. Accordingly, I shall dismiss this allegation of the complaint.25
Rule 16.2-Dress Code . . . . When considering what is appropriate for the
occasion, please note that the following articles are never appropriate to
wear to work: cut-off shorts, midriffs, ball caps in doors (sic), shirts with
commercial or political advertisements, and sweat pants. . . .30
The General Counsel contends that the provision of the rule which specifically prohibits
“shirts with commercial or political advertisements” is overly broad and unlawful as it would
prohibit an employee from wearing a shirt with a union logo.
35
It is well established that employees have a right under Section 7 to wear union insignia
while at work. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945); Bell-Atlantic-
Pennsylvania, Inc., 339 NLRB 1084, 1086 (2003). If an employer can establish special
circumstances that justify the need to preclude the wearing of union insignia, the Board has
found that an employer may prohibit the wearing of such insignia. Nordstrom, Inc., 264 NLRB 40
698 (1982); Leiser Construction, LLC, 349 NLRB 413, 415 (2007).
In the instant case, the Respondent raised no specific defense to any of the challenged
rules. Thus, there is no evidence that the Respondent has special circumstances that would
privilege it to maintain a rule that employees could reasonably construe as prohibiting the 45
wearing of union insignia. Accordingly, I find that the Respondent has violated Section 8(a)(1)
by maintaining the dress code rule set forth above.
JD–43–14
24
Rule 16.3-Employee Honesty and Integrity. . . . Employee should not use work-
time to conduct personal business.
Rule 16.11-Solicitation: In the interest of efficiency and for the protection of our 5
Employees, New Passages prohibits solicitation and distribution of materials or
conducting personal business of any kind by any Employee during work time.
Also, New Passages prohibits solicitation or distribution of materials on New
Passages property by non-employees. Please direct solicitors and distributors to
your supervisor.10
In challenging these rules the General Counsel correctly notes that the personnel
handbook states in Section 11, paragraph 3: “Break periods are considered working time.” The
General Counsel contends that since the personnel handbook specifically provides that break
times are considered working time, when Section 11, paragraph 3 of the handbook is read 15
together with Rules 16.3 and 16.11, the collective effect is that employees may not use break-
time to conduct personal business, which would clearly encompass Section 7 activity such as
solicitation for the union and distribution of union materials.
In Our Way, Inc., 268 NLRB 394, 395 (1983), the Board held that rules prohibiting 20
solicitation during working time are presumptively lawful because “. . . that term connotes
periods when employees are performing actual job duties, periods which do not include the
employee’s own time such as lunch and break periods.” The Board also noted, however, “. . . . a
rule is presumptively invalid if it prohibits solicitation on the employee’s own time. Id. at 394.
25
In the instant case, the Respondent’s handbook defines working time as including break
periods. This makes the rules noted above, when viewed collectively, a facially overbroad
restriction on the Section 7 rights of employees to solicit for and distribute literature on behalf of
a union or engage in other protected activity during lunch and break periods. Accordingly, I find
the maintenance of the above-noted rules violated Section 8(a)(1) of the Act.30
Rule 16.7- Consumer Confidentiality: In the course of your employment, you may
have access to information about New Passages business, other Employees, and
persons served which is confidential in nature. In accepting your employment
with New Passages you are required to maintain confidentiality. . .35
Information concerning New Passages business, other Employees, or persons
served should not be discussed outside the work site. Information concerning
other Employees or persons served should not be released in any form to any
individual or agency without the approval of New Passages.40
Rule 16.9-Media Releases: Only authorized New Passages Employees may give
information to the media. If a contact is made by the media directly to an
unauthorized Employee, that Employee is to request the media’s contact
information and is to inform his or her direct supervisor at once of the media’s 45
information request. No member of the media should be allowed in the facility
without authorized New Passages representatives present.
JD–43–14
25
Rule 16.13-Confidentiality of New Passages Information: Employees have access
to a wide range of confidential information. “Confidential information” is
information which is not generally known and which the Employee obtained
solely as a result of his or her employment.5
During employment, Employees should only share and discuss confidential
information with other Employees on a need to know basis. Employees should
never discuss confidential information with anyone outside New Passages.
Furthermore, Employees should not directly or indirectly copy or remove from10
New Passages any information unless the Employee has a business reason for
doing so and has received his or her supervisor’s permission before doing so.
Standard 3.2-Proprietary Information (Corporate Compliance and Integrity Plan
handbook)15
a. New Passages business methods, business strategies, financial information,
mailing lists, payment and reimbursement information, information relating to
negotiations with physicians, Board Members, Officers and all other Personnel,
independent contractors or third persons, intellectual property, including patents, 20
trademarks, copyrights and software and all other information concerning the
property, business and affairs of New Passages are valuable and proprietary
information and will be kept confidential.
b. Personnel will not disclose any proprietary information to any unauthorized 25
person unless disclosure is permitted under confidentiality policies and
procedures or required by law.
c. New Passages Board Members; Officers, and all other Personnel will exercise
care to ensure that proprietary information is carefully maintained and managed to 30
preserve and protect its value.
Standard 6.2 Confidentiality with Colleagues (Corporate Compliance and
Integrity Plan handbook)
35
New Passages’ Personnel should respect confidential information shared by
colleagues in the course of their professional relationships and transactions. New
Passages Personnel should ensure that such colleagues understand Personnel’s
obligation to respect confidentiality and any exceptions related to it.
40
The General Counsel contends that the confidentiality rules set forth are overly broad and
violate Section 8(a)(1) because they can reasonably be construed to limit the ability of employees
to discuss terms and conditions of employment with each other and third parties such as a union
or the media.
45
With respect to the disclosure of confidential information, the rules set forth above
instruct that information concerning other employees should not be discussed outside the work-
JD–43–14
26
site and that information regarding other employees should not be released “to any individual or
agency” without the approval of the Respondent.
I find that the rules set forth above are overly broad and could reasonably be viewed by
employees as restricting their Section 7 rights. In so finding, I note that in Cintas Corp., 344 5
NLRB 943 (2005), enfd. 482 F.3d 463 (D.C. Cir. 2007), the Board found that a rule “protect[ing]
the confidentiality of any information concerning the company, its business plans, its partners,
new business efforts, customers, accounting and financial matters” 8 could be reasonably
construed by employees to restrict discussions of wages and other terms and conditions of
employment with other employees and with the union. Accordingly, the Board found rule to be 10
unlawful under principles set forth in Lutheran Heritage Village.
Rule 16.7 provides that employees should not release information about other employees
to “any individual or agency” without the approval of the Respondent. Rule 16.9 provides that
only authorized employees of the Respondent may give information to the media.15
In Trinity Protection Services, 357 NLRB No. 157, slip op. at 2 (2011), the Board held:
It has been well established since the Supreme Court’s decision in Eastex, Inc. v.
NLRB, 437 U.S. 556, 565 (1978) that Section 7 protects employee efforts to 20
improve terms and conditions of employment or otherwise improve their lot as
employees through channels outside the immediate employee-employer
relationship.” Consistent with Eastex, the Board has held that employee’s
concerted communications concerning matters affecting their employment with
their employer’s customers or with other third parties, such as governmental 25
agencies, are protected by Section 7 and, with some exceptions not applicable
here, cannot lawfully be banned.
In Trinity Protection Services, the Board found that the statement to employees
prohibiting them from disclosing “any company knowledge to any client” under penalty of 30
discipline would preclude communications that are protected under the Act and accordingly the
Board found the employer’s statement to be violative of Section 8(a)(1).
Since, in the instant case, the rule does not exempt protected communications with third
parties such as union representatives or other governmental agencies regarding workplace 35
matters, employees would reasonably construe the rule as prohibiting such communications
making the rule unlawful under Trinity Protection Services and Hyundai American Shipping
Agency, 357 NLRB No. 80 slip op. at 13 (2011). Accordingly, I find the above noted
confidentiality rules to be overly broad and violative of Section 8(a)(1) of the Act.
40
Rule 16.14-E-Mail, Voicemail, Intranet and the Internet . . Employees are
cautioned against communicating about work and/or related topics on social
networks sites as this type of communication may breach client
confidentiality or may potentially lead to incidents of dignity and respect
violations.45

8 The employer referred to its employees as "partners."
JD–43–14
27
Standard 5.12 Derogatory Language: (Corporate Compliance and Integrity Plan
handbook) New Passages Personnel should not use derogatory language in a
written or verbal communications to or about consumers. New Passages
Personnel should use accurate and respectful language in all communications to 5
and about consumers.
Standard 6.1 Respect (Corporate Compliance and Integrity Plan handbook)
a. New Passages Personnel should treat colleagues with respect and represent
accurately and fairly the qualifications, views, and obligations of colleagues.10
b. New Passages Personnel should avoid unwarranted negative criticism of
colleagues with consumers or with other professionals. Unwarranted
negative criticism may mean comments that refer to colleagues’ level of
competence or to individuals’ attributes such as race, ethnicity, 15
national origin, color, age, religion, sex, sexual orientation, marital status,
political belief, mental or physical disability or any other preference, personal
characteristic or status.
c. New Passages Personnel should cooperate with New Passages colleagues 20
with colleagues of other professions when it serves the well-being of consumers.
The General Counsel claims that these rules limit Section 7 discussions about work-
related topics and are therefore unlawful. Since Rule 16.14 cautions employees about
communicating about work on social networks sites as this type of communication “may 25
potentially lead to incidents of dignity and respect violations,” I find this rule to be overly broad.
There is nothing in the rule which suggests that protected communications are excluded from this
rule. I find that, under these circumstances, employees would reasonably conclude that the rule
requires them to refrain from engaging in certain protected communications if they are critical of
the Respondent or other employees.30
I also find that the rule set forth in “Standard 6.1- Respect (b)” suffers from the same
infirmity. This rule directs employees to “avoid unwarranted negative criticism of colleagues . . .
with other professionals.” While the rule sets forth examples of conduct to be avoided, many of
which are legitimate, because of the wide scope of the rule, employees could reasonably construe35
it to prohibit them from engaging in critical comments regarding the Respondent or its
representatives. In Claremont Resort & Spa, 344 NLRB 832 (2005), the Board found a rule
prohibiting “negative conversations about associates and/or managers” to be violative of Section
8(a)(1). Accordingly, I find that the above noted rules in the instant case are overbroad and
violative of Section 8(a)(1) of the Act.40
I find nothing unlawful in the remainder of the rules noted above. For the most part they
direct employees to be accurate and respectful in communications about consumers, which is a
term that the Respondent uses for clients it treats. I find that these rules address conduct that is
concerned with actions that fall outside of the Act’s protection. I find that employees would not 45
reasonably construe the remainder of the Respondent’s rules set forth above to prohibit Section 7
activity. Hyundai America Shipping Agency, supra, slip op. at 2.
JD–43–14
28
Rule 16.15-Facebook, Blogs, Twitter, and any other Social Networks
Except as otherwise provided under the National Labor Relations Act. . . .5
Nonpublic information relating to the company is the property of the company
and the unauthorized disclosure of such information is forbidden. . . . .
Furthermore, any derogatory remarks made in reference to one’s association with
New Passages and/or clients, customers, products, employees, representatives,
events, findings, opinions, policies or procedures in any public format whether 10
verbal or written will be considered slander and therefore legal restitution may be
sought.
The rule prohibits the unauthorized disclosure of nonpublic information relating to the
Respondent. Such a broadly worded restriction would reasonably be construed to include 15
discussions of wages, hours, and working conditions which employees are entitled to share with
coworkers and third parties. Thus, the first paragraph of the rule is overly broad and violates
Section 8(a)(1). Hyundai America Shipping Agency, 357 NLRB No. 80 slip op. at 1, JD slip op.
at 12.
20
The rule additionally prohibits “derogatory remarks” about the Respondent’s
representatives and policies and procedure and threatens that violations of the rule “will be
considered slander” and could result in possible legal action. I find that employees would
reasonably construe this rule to prohibit them from discussing concerns about the Respondent’s
managers and policies that affect working conditions and thus would cause them to refrain from 25
engaging in protected activities. Claremont Resort & Spa, supra. I also note that the Board
recognizes that “Section 7 protects employee communications to the public that are part of and
related to an ongoing labor dispute.” Valley Hospital Medical Center, 351 NLRB 1250, 1252
(2007). Clearly, the Respondent’s rule interferes with that protected right.
30
The “savings clause” noted above (Except as otherwise provided under the National
Labor Relations Act. . . .) would arguably cancel the unlawfully broad language, but only if
employees are knowledgeable enough to know that the Act permits employees to discuss terms
and conditions of employment with each other and individuals outside of their employer. I find
that employees would decide to comply with the Respondent’s unlawfully broad restriction on 35
their Section 7 rights, rather than undertake the task of determining the exact nature of those
rights and then attempting to assert those rights under the savings clause. In Allied Mechanical,
349 NLRB 1077, 1084 (2007), the Board found “ . . . an employer may not specifically prohibit
employee activity protected by the Act and then seek to escape the consequences of the specific
prohibition by general reference to rights protected by law.” Accord Ingram Book Co., 315 40
NLRB 515, 516 (1994); McDonald Douglas Corp., 240 NLRB 794, 802 (1979). Accordingly, I
find that the Respondent, by maintaining the facially overbroad provisions in Rule 16.15,
violated Section 8(a)(1) of the Act.
New Passages’ Compliance Reporting Facts45
Q. Who is to report violations of company policy or law?
JD–43–14
29
A . All personnel are required to promptly report all known or suspected
suspected violations of wrongdoing. You may report violations to:
Management5
Leadership
Corporate Compliance Designee
New Passages’ Compliance Line
Management staff will assist you reporting violations and will facilitate giving 10
you appropriate device should you seek their assistance. If you feel uncomfortable
with the above, personnel should report concerns directly to the New Passages’
Compliance Line.
Relying on Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998) the General 15
Counsel asserts that the requirement that employees report wrongdoing related to rules and
policies which are overbroad regarding Section 7 activity is unlawful.
On its face, the policy set forth above does not in any way expressly touch upon Section 7
activity. Certainly, there are legitimate business reasons to encourage employees to report 20
misconduct. The theory of the General Counsel is that because some of the Respondent’s rules
and policies are overbroad and violate Section 8(a)(1), the above-noted compliance policy could
be used to enforce those rules and thus interfere with Section 7 rights. I do not agree with this
theory. As the Board noted in Palm’s Hotel & Casino, 344 NLRB 1363, 1368 (2005) when a rule
does not explicit restrict Section 7 activity the fact that it could be read in such a fashion does not 25
establish its illegality.
Greenfield Die & Mfg. Corp., supra, is distinguishable. In that case the employer sent a
letter to the union suggesting that it instruct a union supporter to cease “from threatening and
coercing employees who have clearly indicated to your agent that they not wish to participate in 30
the organizing campaign” and by warning “Continued complaints of threatening and coercive
conduct on the part of your agent . . . . May result in discipline up through and including
discharge for, at least, insubordinate conduct.” The Board found that the letter violated Section
8(a)(1) as the union supporter could reasonably understand the letter as an order to cease his
prounion activities if they drew complaints from fellow employees and a warning that failure to 35
do so could be regarded as insubordination. Id. at 238. In the instant case, as noted above there is
nothing in the Respondent’s policy that in any way touches upon Section 7 activity. Accordingly,
I find that this policy does not violate Section 8(a)(1) of the Act and I shall dismiss this
allegation in the complaint.
40
CONCLUSIONS OF LAW
1. The Union is now and, at all material times, was the exclusive bargaining
representative in the following appropriate unit:
45
All full-time and regularly scheduled part-time direct care workers and
case managers employed by the Employer in its various group homes located in
JD–43–14
30
Bay, Saginaw, Clinton, Eaton, Ingham, Jackson, Washtenaw, Oakland, Macomb,
Lapeer, Livingston, and Sanilac Counties in the State of Michigan but excluding
all line managers, targeted case managers, directors, human resources personnel,
nurses, administration assistance, and guards and supervisors as defined in
the Act and all other employees.5
2. The Respondent has violated Section 8(a)(5) and (1) of the Act by:
(a) failing to inform the Union of the basis for its decision to refuse to ratify the tentative
contract between the parties from March 25 to April 4, 2013;
10
(b) unilaterally implementing its final contract offer to the Union at a time when the
parties were not at a valid impasse in bargaining.
3. The Respondent has violated Section 8(a)(1) of the Act by maintaining the following
facially overbroad rules and policies:15
(a) a dress code prohibiting “shirts with commercial or political advertisements”;
(b) a rule prohibiting solicitation or distribution of materials during worktime without
clarification that such activities are permitted in the workday during periods when employees 20
may legitimately engage in protected activities, such as breaks and lunch periods;
(c) confidentiality rules that prohibit its employees from discussing with nonemployees,
or among themselves, wages, hours, and other terms and conditions of employment;
25
(d) rules cautioning employees about communicating about work on social networks that
may “lead to incidents of dignity and respect violations” and directing employees to “avoid
unwarranted negative criticism of colleagues . . . with other professionals.”;
(e) a rule that provides “nonpublic information relating to the company is the property of 30
the Company and the unauthorized disclosure of such information is forbidden. . . .
Furthermore, any derogatory remarks made in reference to or in association with New Passages
and/or clients, customers products employees, representatives events, findings, opinions, policies
or procedures in any public format whether verbal or written will be considered slander and
therefore legal restitution may be sought.”35
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 40
the policies of the Act.
Since the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing on
May 5, 2013, its final offer without reaching a valid impasse, I shall direct the Respondent to
restore the terms and conditions of the unit employees prior to May 5, 2013, and continue them45
in effect until the parties reach either an agreement or a good-faith impasse. This does not require
the rescission of any ratification bonus or other benefits granted to employees since May 5, 2013.
JD–43–14
31
The General Counsel seeks as an additional remedy an order requiring the Respondent to
remit any back dues that would have been paid to the Union but for its unlawful actions. As
noted above, the Respondent has continued to honor dues-checkoff authorizations and remit dues
to the Union. The Respondent has only failed to remit dues for approximately two employees 5
who have indicated they do not wish to pay union dues pursuant to the Michigan right to work
law. The record does not indicate clearly whether these employees were hired after May 5, 2013,
or were unit employees before that date. The Board has ordered dues reimbursement only when
employees have individually signed dues checkoff authorizations. Southland Dodge, Inc. 205
NLRB 276 fn. 1 (1973). Since the record does not clearly reflect whether these employees have 10
signed valid dues-checkoff authorizations, I shall not grant this remedy.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
15
ORDER
The Respondent, Alternative Community Living Inc., d/b/a New Passages Behavioral
Health and Rehabilitation Services, Pontiac, Michigan, its officers, agents, successors, and
assigns, shall20
1. Cease and desist from
(a) Failing to bargain in good faith by refusing to communicate in a timely manner the
basis for positions it has taken in collective bargaining.25
(b) Unilaterally implementing its final contract offer to the Union at the time when the
parties were not at a valid impasse.
(c) Maintaining the following facially overbroad rules and policies:30
A dress code prohibiting “shirts with commercial or political advertisements.”
A rule prohibiting solicitation or distribution of materials during worktime
without clarification that such activities are permitted in the workday during 35
periods when employees may legitimately be engaged in protected activities, such
as breaks and lunch periods.
Confidentiality Rules that prohibit its employees from discussing with
nonemployees, or among themselves, wages, hours, and other terms and 40
conditions of employment.
Rules cautioning employees about communicating about work on social networks
that may “lead to incidents of dignity and respect violations” and directing

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 purposes.
JD–43–14
32
employees to “avoid unwarranted negative criticism of colleagues . . . with other
professionals.”
A rule that provides “nonpublic information relating to the company is the
property of the Company and the unauthorized disclosure of such information is 5
forbidden. . .
Furthermore, any derogatory remarks made in reference to or in association with
New Passages and/or clients, customers products employees, representatives
events, findings, opinions, policies or procedures in any public format whether
verbal or written will be considered slander and therefore legal restitution may be 10
sought.”
(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.
15
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as the exclusive bargaining
representative in the following appropriate unit:
20
All full-time and regularly scheduled part-time direct care workers and
case managers employed by the Employer in its various group homes located in
Bay, Saginaw, Clinton, Eaton, Ingham, Jackson, Washtenaw, Oakland, Macomb,
Lapeer, Livingston, and Sanilac Counties in the State of Michigan but excluding
all line managers, targeted case managers, directors, human resources personnel, 25
nurses, administration assistance, and guards and supervisors as defined in
the Act and all other employees.
(b) Restore to the unit employees the terms and conditions of employment that were
applicable prior to May 5, 2013, and continue them in effect until the parties reach either an 30
agreement or a valid impasse in bargaining. Nothing herein shall require the rescission of any
ratification bonus or other benefits granted after May 5, 2013.
(c) Within 14 days after service by the Region, post at its facilities in Bay, Saginaw,
Clinton, Eaton, Ingham, Jackson, Washtenaw, Oakland, Macomb, Lapeer, Livingston, and 35
Sanilac Counties in the State of Michigan copies of the attached notice marked “Appendix.”10
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 and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper notices, the notices 40
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees

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 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.”
JD–43–14
33
by such means. 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 facilities 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 5
since September 8, 2012.
(d) 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.10
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., July 25, 2014.15
____________________
Mark Carissimi20
Administrative Law Judge
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 refuse to bargain in good faith with Local 517 M, Service Employees
International Union (SEIU) (the Union) by refusing to communicate in a timely manner the basis
for positions we have taken in collective bargaining.
WE WILL NOT unilaterally implement changes in terms and conditions of employment in the
absence of a valid impasse.
WE WILL NOT maintain the following overbroad rules that infringe on your right to engage in
union and/or protected concerted activity:
A dress code prohibiting “shirts with commercial or political advertisements.”
A rule prohibiting solicitation or distribution of materials during work time without
clarification that such activities are permitted in the workday during periods when
employees may be legitimately engaged in protected activities, such as breaks and lunch
periods.
Confidentiality Rules that prohibit employees from discussing with nonemployees, or
among themselves, wages, hours, and other terms and conditions of employment.
Rules cautioning employees about communicating about work on social networks that
may “lead to instances of dignity and respect violations” and directing employees to
“avoid unwarranted negative criticism of colleagues with other professionals.
A rule that provides “Nonpublic information relating to the company is the
property of the Company and the unauthorized disclosure of such
information is forbidden. . ..”
Furthermore, any derogatory remarks made in reference to or in association with
New Passages and/or clients, customers, products, employees, representatives
events, findings, opinions, policies or procedures in any public format whether
verbal or written will be considered slander and therefore legal restitution may be
sought.”
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, on request, bargain in good faith with the Union as the exclusive bargaining
representative in the following appropriate unit:
All full-time and regularly scheduled part-time direct care workers and case managers
employed by us in our various group homes located in Bay, Saginaw, Clinton, Eaton,
Ingham, Jackson, Washtenaw, Oakland, Macomb, Lapeer, Livingston, and Sanilac
Counties in the State of Michigan but excluding all line managers, targeted case
managers, directors, human resources personnel, nurses, administration assistance, and
guards and supervisors as defined in the Act and all other employees.
WE WILL restore to the unit employees the terms and conditions of employment that were
applicable prior to May 5, 2013, and continue them in effect until we reach either an agreement
or a valid impasse in bargaining with the Union. This does not require the rescission of any
ratification bonus or any other benefits granted after May 5, 2013.
ALTERNATIVE LIVING, INC. d/b/a NEW
PASSAGES BEHAVIORAL HEALTH AND
REHABILITATION SERVICES
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-099976 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.