Kankakee County Training Center for the Disabled, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 14, 2016

25-CA-166729 (N.L.R.B. Sep. 14, 2016)

JD(NY)–33-16
Kankakee, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KANKAKEE COUNTY TRAINING CENTER
FOR THE DISABLED, INC. Case Nos. 25–CA–166729
25–CA–166765
And 25–CA–166785
25–CA–168799
AMERICAN FEDERATION OF STATE, COUNTY AND 25–CA–168802
MUNICIPAL EMPLOYEES (AFSCME), COUNCIL 31, AFL–CIO
Raifael Williams, Esq., Counsel for the General Counsel.
Melissa Auerbach, Esq., Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, Counsel for the
Charging Party.
Steven Mills, Esq. and Bryan Jones, Esq., Mills Law Offices, Counsel for the Respondent.
DECISION
Statement of the Case
JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on July 19
and 20, 2016 in Kankakee, Illinois. The Consolidated Complaint, which issued on April 29, 2016,
was based upon unfair labor practice charges and amended charges that were filed between
December 28, 20151 and February 1, 2016 by American Federation of State, County and
Municipal Employees (AFSCME), Council 31, AFL–CIO, herein called the Union. The Complaint
alleges that Kankakee County Training Center for the Disabled, Inc., herein called Respondent,
violated Section 8(a)(1) of the Act by prohibiting employees from talking about the Union during
working time while permitting them to talk about other subjects, and violated Section 8(a)(1)(3)
of the Act by suspending Priscilla Williams on November 13 and then discharging her on
November 19 because of her union and protected concerted activities. It is further alleged that
in September and October, the Respondent subcontracted and outsourced bargaining unit work
without prior notice to the Union and without affording the Union an opportunity to bargain about
this conduct, and that since about November 16 the Respondent has failed and refused to
furnish the Union with relevant information that it requested, all in violation of Section 8(a)(1)(5)
of the Act.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act, and that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. Facts
The Union filed a petition to represent the Respondent’s employees and at a Board
election that was conducted on December 29, 2014, a majority of the employees voted to be
represented by the Union. During the campaign Williams was the most (or one of the most)

1 Unless indicated otherwise, all dates referred to herein relate to the year 2015.
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active employee in supporting the Union, soliciting employees to sign authorization cards for the
Union. After the Union was certified, she was elected to be the chief steward and is on the
Union’s bargaining committee. Beginning a few months after the election, the parties began
negotiations for a collective bargaining agreement, and although some issues have been
resolved, the parties have not reached complete agreement on contractual terms and
negotiations continue. The Respondent conducted one pre-election meeting with all of the
employees that was led by Steve Mitchell, Respondent’s CEO in about early December 2014.
Williams and employee Brian Mazzuchi testified that Mitchell asked why they wanted a union
and he said that he felt that they didn’t need one; that they had an open door policy and the
Union only wanted their money. Employee Schwana Murphy testified that Mitchell said that they
didn’t need a union. Williams testified that in about November 2014 while she was speaking to
Diane Graham, the CEO of the Respondent, and previously the Vice President, in Graham’s
office, Graham asked her why they wanted the Union and Williams said that they wanted to be
respected at the job. Graham told her that it didn’t bother her either way, whether they get the
Union or don’t get the Union.
November 13 Incident
The principal portion of this hearing involved a disagreement between Williams and
employee Anthony Viveros that took place on November 13 at approximately 4:15 in the parking
lot of the Respondent’s facility. Williams was suspended on that day and was discharged on
November 19 for her actions in that incident; Viveros was not disciplined. Numerous employees
and supervisors testified about what occurred on November 13, requiring major credibility
determinations. Earlier that day, employee Brian Mazzuchi was called into Production
Supervisor Beverly Flowers’ office; HR Director Julie Galeaz was also present. He testified that
Flowers told him that a fellow employee said that Mazzuchi was “strong-arming him” about the
Union. He said that wasn’t true, but that the employees had the right to discuss the Union and
Flowers said, “No, you do not.” He replied that if it didn’t interfere with production, they could talk
about the Union just like they could discuss the weather and she said that the employees were
not allowed to talk about the Union. Flowers testified that she had a verbal counseling with
Mazzuchi on November 12 or 13. She had received complaints about him interrupting work of
the floor by talking to other employees and interrupting the production and movements of the
product although she does not know what he was talking about. She told him that he couldn’t
interrupt the work; he said okay, and left the office. After he left, Flowers saw Williams nearby
and called her into the office and told her that Mazzuchi had been counseled about disrupting
other people’s work. Williams testified that she was asked by Galeaz to come to Flower’s office
to talk about an issue that they had with Mazzuchi talking about the Union. They said that
Mazzuchi was bullying employees about the Union and that he couldn’t talk about the Union on
the floor and Williams responded that if they could talk about the weather, they could talk about
the Union. Flowers also told Williams that she was told that Williams was telling people that she
(Flowers) couldn’t fire anyone, and Williams denied saying that. Flowers said that she had a
statement saying that Williams had said that she couldn’t fire anyone and Williams said that she
didn’t care what the statement said, that she never said it and she was not a liar. Flowers never
showed her the statement and Williams left the office.
Alyssa Royster testified that in early November, while she was at the facility, she and
Viveros were discussing a past problem that she had at work and Williams approached them
and said not to worry about it: “I’ll talk to Bev. Me and Bev, I have it in for Bev, I will take care of
that.” Viveros testified that a few days prior to November 13, Royster told him that she was
afraid of losing her job and Williams overheard their conversation and told her not to worry
about it, and that she would help her. She said that as Royster was part of her crew, she would
talk to Flowers about it and she did not have to worry about losing her job. Later that day
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Williams told Viveros that she had spoken to Flowers “…and there’s no way she can do
anything because like I talked to her.” Viveros then went to speak to Flowers and asked her if
Williams had spoken to her about Royster possibly losing her job, and Flowers told him that she
did not have any such conversation with Williams. Flowers testified that shortly prior to
November 13, Viveros had come to her office and said that Williams had told him that nobody
could get in trouble as long as they were part of her crew. He said that Royster was in trouble
and Williams told her that she didn’t have to worry because she was part of her crew. Flowers
told him that this did not happen and when Williams came into her office, she related this
conversation to her.
Royster testified that as she was clocking out on November 13, Williams approached her
and asked why Viveros was lying about her and making things up and telling Flowers lies.
Royster said that she didn’t know what she was talking about and left the building. Williams
testified that after clocking out on November 13, she walked to the parking lot and began talking
to Royster, who was sitting in the back seat of a car and asked her if she told Flowers that she
said that Flowers couldn’t fire anybody, and Royster said that she didn’t talk to anybody. At
about that time, Viveros walked out:
And he approached me, calling out, hollering my name, yelling at me, and then he got
closer and called me an F’ing liar, and I said, no, you’re the one that’s a liar because I
never talked to you about anything, and he said, yes, you did, and I said, no, I didn’t. I
don’t talk to you about the union stuff and he said, yes, you did, and why would you want
to have a union at this little facility. You all so dumb you want to have a union at a
nonprofit facility. And then he went on about that, and…kept saying that I was an F’ing
liar, I called him a dumb ass, and he said we’re the dummies for having a union at this
place…
At that time employees Annette Roberts and Carolyn Lawrence were standing behind the car
about five to 10 feet from her. Another employee, LeMoris Burtis came out, and Williams called
him over to tell Viveros that they had a union, and when Burtis said that they do have a union,
Viveros said that they don’t have a contract. While this disagreement continued, Flowers came
out to the parking lot and stood between them and told Williams that she had to calm down and
be a role model and Williams asked why she was talking directly to her, and Flowers said,
“Because you represent the Union.” As she and Burtis were walking away, Viveros continued to
call them dummies because there was no union contract. She asked Flowers if they had a
union, and Flowers said that there was a union, but there was no contract. Flowers told her to
calm down and go home and she and Burtis went to their cars. She testified that during this
incident, she never threatened to hit Viveros and none of the Respondent’s “clients” were
present to witness this incident, although one client was sitting on the patio, about 20 to 30 feet
away.
April Gaines, who has been employed by the Respondent since March 2014, testified
that when she exited the building she saw Williams standing by the car talking to Royster.
Viveros came out of the building a few minutes later and started “yelling, screaming and
cussing” at Williams. He said that there was no union and she said that there was a union; he
called her an F’ing liar and she called him a dumb ass. Other than Royster, Viveros and
Williams, the only other employees that she remembers being in the area were Burtis and
Schwana Murphy. Gaines gave a statement to Williams after the event that Williams gave to the
Respondent on November 19. In the statement, Gaines stated that she was in the car while this
incident was taking place and that when Viveros came out of the building, he got loud and
Williams got loud asking why did he lie to management about her. During this argument, a client
began walking toward them and Williams told him to go back to the facility, which he did;
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Viveros called Williams an F’ing liar and she called him a dumb ass.
Schwana Murphy, who has been employed by the Respondent for 12 years, testified
that Williams and Viveros were “having a conflict.” Other than Williams and Viveros, the only
other employee that she remembers being in the parking lot at that time is Annette Roberts. She
did not see any clients in the area. She heard Viveros tell Williams, “You don’t have a fucking
union” and Williams called him a dumb ass. She did not hear Williams threaten him. She told
Williams to leave it alone and they got in Murphy’s car and left. Roberts, employed by the
Respondent for 16 years, testified that when she left the building she saw Williams standing
alongside a car talking to Royster. Viveros came out of the building and walked to the car and
was “…doing hand gesturing and hand movements, and he …got like in her face,” and then
backed away, but she could not hear what was said. Carolyn Lawrence, who has been
employed by the Respondent for 23 years, testified that when she left the facility Williams was
standing by the car talking to Royster. Viveros approached them and said, “What the F are you
talking to her for?” She also observed him making hand gestures to Williams, but Williams never
moved and she did not hear anything that Williams said. She also gave a statement to the
Union to support Williams.
Burtis, who has been employed at the facility for over a year, testified that he left the
building shortly after 4:15 and saw Williams and Viveros “…kind of going back and forth.”
Viveros was saying that it was dumb to believe that there is a union because Respondent is a
nonprofit and she said that there was a union. Williams called him over and asked if there was a
union, and he said that there was a union, and Williams also asked Flowers if there was a
union, and she said that there was, but they didn’t have a contract. He did not see any clients in
the area and both Williams and Viveros were using their hands as they spoke, but he did not
hear any profanities or threats of violence. He gave a statement for Williams at the request of
another employee which was written by Margo Smith; he read and signed it. He told Flowers
that he didn’t want to get involved in the incident and was not asked by the Respondent to
provide a statement.
Royster2 testified that after she left the building she sat in Austin Murphy’s car in the rear
middle seat. Williams came up to the car and asked, “Where’s Tony?” and they told her that he
was probably clocking out, and should be out soon. At that time she saw a client, Gary, on the
patio about 20 feet from the car. As Viveros was walking toward the car, Williams started
“storming” toward him and “yelling profanity…at him.” She accused him of lying about her to
management and called him a stupid fucking dummy and a fat piece of shit. At the time she
moved to about an inch from his face. While this was occurring, Royster called Flowers to come
out and she came out and stood between Williams and Viveros, telling them that they were on
work property and had to act professionally. Williams told Viveros, “You’re lucky I don’t bust you
in the lip” and he replied that if she did he would call the police. Williams replied, “Snitches get
stitches and wind up in ditches.” Flowers told Williams that she had to calm down and leave and
she started to walk away and then came back screaming that the Union does not support dum-
dums. During this time, Viveros was leaning against the car with his hands in his pocket.
Flowers told Williams that she had to stop because “Gary,” the client, was nearby, and Williams
then walked to her car and left. After the incident she was asked to name the people who
witnessed it, and she gave a statement to the Respondent about the incident.

2 Flowers is Royster’s aunt and she lived with Flowers for about 6 months in 2015. In
addition, Royster and Viveros dated until shortly before the hearing commenced. Royster gave
an affidavit to the Board, but her testimony about it is so confused that it will not be considered.
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Viveros testified that he left the building and walked to Austin Murphy’s car and saw
Williams talking to Royster and Murphy. When she saw him she called him a “fucking snitch.”
He said that he didn’t know what she was referring to, and she said that he snitched on her to
Flowers and he said that he only told Flowers what she had told him and Royster. She
continued calling him names, a liar, a fat piece of shit, an idiot, stupid and a fucking snitch. She
then said that he was lucky that she didn’t “bust you in your fat lip” and he said that, if she did,
he would call the police. She said, “You’re a snitch, snitches get stitches and wind up in
ditches.” He did not raise his voice to her. She then said that he was being stupid and that the
Union does not represent dum-dums. He told her that they didn’t even have a contract, and she
said that we still have the Union and he said, “What’s a union without a contract?” She
continued to scream at him and he saw that Gary, a client, was about five feet away and told
her, “Are you screaming in front of a client. We’re supposed to be role models for them.” She
responded, “That’s Gary. Gary fucking knows me. It doesn’t even matter that they hear.”
Flowers then came out, told Gary that he should leave the area and stood between them and
Williams began to walk away, but came back and started screaming more names at him. She
then walked to her car and left the area. At the conclusion of the incident, Galeaz asked him for
the names of the people who were present at the incident, and he gave her the names as well
as a statement about the incident.
Although he did not testify at the hearing, Austin Murphy’s statement about the incident
was received in evidence. It states:
Priscilla approached my car, sticking her head in my window, looking for Tony, who was
in the building. When Tony came outside Priscilla cornered him next to the passenger
door, screaming at him. Priscilla called him a “fucking idiot” at which time a client had
approached. She then continued to call Tony “a dumb -dumb” and “fucking stupid.” She
also told him “snitches get stiches,” and told him “I want to bust your lip open,” and “hit
you in your ugly assface.” All of this was going on while a client was still present. Priscilla
continued calling him “stupid and childish” and screamed in his face more, restating that
he was a “fucking moron.” She informed him that this was all over him talking behind her
back and continued to call him names in front of a client. Then Bev came out and asked
Priscilla to calm down. She would not calm down at first, and then eventually left the
parking lot eyeballing Tony, telling him to watch his back and started walking back
towards Tony a second time. Then Bev told her to leave and she would take care of it
and she then proceeded to her car and left, telling Tony to watch out.
Flowers testified that at the time of the incident, she was in her office with Theresa
Burley, Respondent’s program manager. She received a call from Royster that Williams was
attacking Viveros and she immediately went to the parking lot and told Burley to tell Galeaz to
meet her there. When she got outside, Gary3 had his arms in the air and told Flowers, “You
need to handle Priscilla. She’s yelling and cussing.” When she got near the car she saw
Williams yelling at Viveros in his face and repeatedly calling him a fucking liar, while he was
leaning back against the car. She tried to get between them and told Williams numerous times
to calm down and go home. Williams threatened to bust him in the lip and he said that he would
call the police. She said that snitches wind up in ditches with stitches. After about 20 minutes
she was able to get Williams to go to her car. After Williams left, Flowers told all those present
that they should meet with Galeaz to prepare statements of what occurred. Burley testified that
after Flowers received a call on her cell phone, she left and told her to get Galeaz to come

3 In the statement that she gave about the incident, she did not mention a client being
present.
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outside. About 5 or 10 minutes later, as she got outside, she heard Williams yelling at Viveros
that snitches get stitches. Flowers was trying to get between them to calm the situation, saying
that Williams is supposed to set an example. Williams said that she wanted to put her fucking
hands on Viveros and he said that they have to be adults and shouldn’t be saying things like
that. Williams called him a dum-dum and said that they have a union. She did not hear him yell,
curse her, call her names or threaten her. Flowers was able to get between them and Williams
went to her car and drove away.
November 19 Disciplinary Meeting
On November 13, Respondent sent a letter to Williams saying that she was suspended
immediately without pay pending a pre-disciplinary meeting to be held on November 18. At the
same time, the Respondent also sent her a letter entitled: “Proposed disciplinary action” stating:
Please be advised that the employer is seeking discharge based upon an occurrence
that happened on 11-13-15. It is reported that you approached another employee called
him names cursed at him and threatened the individual. All in violation of KCTC’s gross
misconduct policies. Critical Offense: Threatening, intimidating or assaulting an
employee/ Use of foul, vulgar language. As a result of the foregoing event a decision has
been made to discharge you.
Attached to these letters was Respondent’s Progressive Discipline/Performance policy.
Attending the November 19 meeting were Williams, Jeff Dexter, staff representative for
the Union, and Smith, and for the Respondent, Galeaz and Flowers. Williams testified that
Galeaz began the meeting by asking Williams if she knew the purpose of the meeting and she
said that she did. Galeaz then gave her statements about the incident written by Viveros,
Royster, Burley, Flowers and Austin Murphy. She testified that she started to tell them her
version of what occurred on November 13, but Galeaz said that they were going to take a break
and Flowers and Galeaz left the room to make copies of the statements; when they returned
they said that they decided to discharge her. Williams then gave them statements of the incident
that she had received from Gaines, Burtis and Ayala.
Smith, who is on the Union’s bargaining committee, testified that Galeaz and Flowers
gave them copies of the statements that they had collected about the incident and the Union
gave them copies of statements that they had gotten from three employees. Galeaz and
Flowers left the office to make copies of the statements and returned about 15 to 20 minutes
later and said that they had decided to discharge Williams based upon the evidence that they
had gotten. She was asked by counsel for the Respondent:
Q. Would cussing alone be a critical offense?
A. Yes, if clients are around, but between staff, off clock, I would say no.
Dexter testified that at this meeting, Galeaz and Flowers gave them copies of the
statements that they had received and Dexter asked them to present their evidence, but they
did not respond. He asked what Williams was being disciplined for and, again, they didn’t
respond: “They only had documents.” Dexter then said that if it related to the November 13
incident, that was “off the clock” and he was unaware of any policy relating to conduct engaged
in off the clock. Williams then gave Galeaz the three statements that they had received and
asked if they had interviewed any of those witnesses and they said that they hadn’t. Galeaz took
them and said that she wanted to make copies of them and Dexter told her that they wanted to
bargain over the effects of the decision. Galeaz and Flowers left the room to make copies of the
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statements and when they returned she said that they had made a determination that Williams
was terminated. Dexter again said that the Union demanded that the Respondent bargain about
the impact and effects of the decision to terminate Williams, and Galeaz said that the meeting
was over. There was no bargaining about the decision to terminate Williams.
Galeaz testified that she and Graham decided on the evening of November 13 that
Williams would be suspended and she was discharged on November 19. These decisions were
based upon her discussions with Viveros, Royster, Burley and Austin Murphy and the
statements that they wrote for her. At the meeting on November 19, she explained the reasons
why they were meeting and gave the Union copies of the statements they had received and
asked if there were any witness accounts that the Union wanted to present or if Williams wanted
to give her version of the incident. The only response was that Williams handed Galeaz the
three statements that she had obtained, she read them and handed them to Flowers, who also
read them. They took them to Graham and decided that the decision to terminate Williams
stood. They considered it a Critical Offense, as it involved the use of foul and abusive language
threatening employees and was gross misconduct, which provided for termination. Galeaz
testified that they didn’t interview anyone other than the four individuals who gave statements on
November 13 because:
To those that were in the group in the parking lot when I went out to the parking lot, that
those were the only staff that were out there, and…all of their statements to me stated
that there was no one else in the area.
Although normally she would ask the employee involved to give her a statement of what
occurred, in this case she determined that there was no need to ask Williams for a statement
based upon what she learned from the four statements that she had received. In addition, the
three statements that Williams gave her on November 19 did not refute the facts regarding the
Critical Offense that she was charged with.
Flowers testified that at the November 19 meeting, Galeaz handed the Union the four
statements and asked if Williams had anything to provide, and Williams gave her the three
statements that she had obtained. After Galeaz read each one she passed it to Flowers, who
also read them. Dexter asked them to make copies of the statements and they went to
Graham’s office and told her of the statements. Graham asked if Williams had provided her side
of the incident and Galeaz said that she only provided the three statements. Graham testified
that after the November 13 incident, they asked the individuals who gave them statements if
there was anybody else in the parking lot who would have knowledge of the events and
“…every one of the people that gave the statements said there was no one else that was out
there that seen it from the beginning to the end.” She testified that the initial decision to suspend
Williams was a joint decision made by her, Galeaz, and counsel based upon the November 13
incident.
Request for Information
On November 16, Dexter wrote to Graham, inter alia:
AFSCME Council 31 has been notified recently regarding discipline being issued to
Kankakee County Training Center Employee and Union activist Priscilla Williams. It is
our understanding that this unilateral discipline occurred on or about 11/13/2015 . The
decision to discipline Priscilla Williams obviously has an impact on this employees hours,
wages and working conditions. With that in mind AFSCME Council 31 demands to
bargain over the decision, impact and effects of this decision. In addition it is AFSCME’s
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position that if the Employer refuses to bargain with the Union and move forward with its
discipline and /or proposed discipline, that decision will be in violation of the National
Labor Relations Act (NLRA) and will subject the Employer to an Unfair Labor Practice.
To avoid such a scenario, we request that you retract the discipline of Priscilla Williams,
and cease and desist such actions until such time as the Employer and the Union have
met and bargained to a mutually satisfactory resolution of this issue. Please provide me
with dates that you or your representatives is available to meet to begin the bargaining
process over this issue.
Should you refuse to respond to this demand to bargain and /or move forward with this
unilateral decision to discipline Ms. Williams, AFSCME Council 31 will view such refusal
as a refusal to bargain and will seek resolution through the National Labor Relations
Board.
In addition, Please provide any and all information relating to discipline being considered
and administered including but not limited to:
All Employees /persons involved in the alleged incident;
All witnesses the Employer will be interviewing;
The Union steward(s) who will be present during managements interview of the
alleged incident;
The names, job titles, and last known address of all persons with knowledge of
relevant facts concerning this matter;
The date of hire of all persons who are alleged to have been involved in the alleged
incident;
A copy of each of the affected employee’s evaluations and personnel file;
The date(s) of interviews that are to be conducted and the Union Official /Steward
who will be attending the interviews of witnesses relating to the alleged incidents;
The Union steward(s) who will be present during managements interview of the
alleged incident;
Documentation concerning alI the affected employee’s prior discipline, if any;
Copies of all written or otherwise recorded statements made to the Employer
concerning this matter;
Copies of all investigatory reports concerning this matter;
Copies of all rules, regulations, laws, or standards which the employee is alleged to
have violated in this matter;
Copies of all records of any pre -disciplinary meetings which were held concerning this
matter;
A Complete and concise statement of the charges which were issued concerning
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this matter;
The names, job titles, and last known address of all persons with knowledge of
relevant facts concerning this matter;
Copies of any documents which the Employer considered as support for this
disciplinary action;
Copies of any and all documents and a list of witnesses the Employer relied on to
issue this discipline.
Please respond within two (2) days of receipt of this letter.
On November 17, Graham sent an email to Dexter stating:
Meeting about this is not a problem at all. We scheduled the predisciplinary meeting for
Wednesday for that reason. I will give you copies of the statements and the policy that
was violated tomorrow.
Dexter testified that the Respondent replied to two of these items, the rules, regulations,
and standards requested and the employees’ statements. He also testified that he receives a list
of Respondent’s bargaining unit employees every 3 months and had last received the list in
about October. Graham testified that prior to the pre-disciplinary meeting she called Dexter, told
him what information she was going to provide, and offered to sit down with him to talk
regarding his request, but he never responded to this offer.
Failure to Bargain Regarding Subcontracted and Outsourced Work
Mazzuchi testified that in about September he worked with about 10 temporary
employees who were employed by Agente Staffing. They performed the same work as he did,
and they remained employed by the Respondent for 3 or 4 months. Dexter testified that in about
November he was told by Mazzuchi that the Respondent was using temporary employees to
perform bargaining unit work.4 He told Dexter that they employed about 10 temporary
employees who were performing bargaining unit work that he normally does and that the
Respondent has continued to use these employees to perform bargaining unit work. Dexter was
asked if he requested that the Respondent bargain about the use of these employees, and he
testified: “We had an ongoing proposal from the initial point as it relates to the use of, or lack
thereof, use of non-bargaining unit personnel that we had been representing since January
2015.” He testified that this proposal related to both outsourcing and the use of temporary
employees. Graham testified that in 2015 the Respondent used Agente and Kelly Services to
provide temporary employees to perform production work, when needed. They used between
five and 10 of these temporary workers when needed, depending upon the workload and used
additional temporary employees in about April 2016. She testified that she had a conversation
with Dexter about it in August: “We also talked about it in contract negotiations that because of
the way that our business works, that there are times that we have to use temps.” The

4 This work is also performed by the clients at the Respondent’s facilities as training for
possible future employment. It often involves assembling products and it is performed by the
clients and the Respondent’s employees. Because it is an important tool to use for training the
clients, it is important not to lose this work so the Respondent used the temporary employees to
help complete the work on a timely basis.
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Respondent has used these temporary employees to perform this work very frequently in the
past, as well. Graham also testified that at a negotiating session in April, she told the Union how
important it is for them to use temps because of the business fluctuations, and he said that it
would not be a problem and that they would negotiate an agreement on the use of temps. She
testified that there was a TA on the use of temporary employees, but no overall contract agreed
to with the Union. Dexter testified that he did tell Graham that he would agree to the use of
temporary workers as part of an overall collective bargaining agreement, but no such agreement
has been reached.
The other issue involving subcontracting work involves the Respondent’s IT Department.
Graham testified that in October, Sherry Gregg, the Respondent’s IT person and member of the
bargaining unit, resigned and at the same time their computers and servers crashed. On
October 14 she sent an email to Dexter stating:
As of last week we don’t have an IT person as she has resigned. This is very important
position here and we will be looking at options with this. At the present time we don’t
have anyone in house with the skills or qualifications for this job. We are looking at
outsourcing this right now until we see which way is cost effective for KCTC. I want you
to have notice that we are looking at a company maintaining the computers as it’s
needed at this time until we decide what is best.
Dexter responded:
As I am sure you are aware, outsourcing of work without an agreement with the Union is
a unilateral change. While the Union understands the situation, it does not negate the
Employer’s responsibility to negotiate with the Union over this issue.
Graham responded:
Yes. Until we sit and talk, we have to have someone. The computers have went down
and KCTC funding is billed through the computer systems, plus all communication as
you know. We have the need for them to be fixed and running. We can either schedule
to meet right away or wait until October 21st.
Graham testified that after Gregg resigned, their computers crashed and that they couldn’t do
their billing because their systems were down. Because she didn’t hear anything further from
Dexter about bargaining on the subject, about a week later the Respondent employed Duratech
to correct the situation and they worked on the computer system at the facilities for about 2
weeks. In about June 2016, one of the Respondent’s servers crashed and they employed
another company, Megaplex, to repair it and to make required changes in their computer
system. However, the Respondent has not employed anyone to replace Gregg. Dexter testified
that at a bargaining session on October 21, the Union repeated its position that they were
“entitled to the integrity of the bargaining unit” as it related to temporary employees and that
“when we should get an agreement, with integrity of bargaining, how that would apply for
subcontracting.” No final agreement was ever reached on this issue.
III. Analysis
The principal allegation is that Respondent suspended Williams on November 13 and
discharged her on November 19 in retaliation for her Union and protected concerted activities, in
violation of Section 8(a)(1) & (3) of the Act. The evidence clearly establishes that Williams was
one of the most (or the most) active supporter of the Union during the organizational drive from
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September through December 2014 and she has continued her support for the Union as the
chief steward and member of the Union’s Bargaining Committee. The question therefore is
whether she was suspended and discharged because she engaged in this activity, or whether
she was discharged because of her actions on November 13. Under Wright Line, 251 NLRB
1083, 1089 (1980), in Section 8(a)(1) or 8(a)(3) cases turning on employer motivation, the
General Counsel must first make a prima facie showing sufficient to support the inference that
the protected conduct was a “motivating factor” in the employer’s decision. If that is established,
the burden shifts to the employer to demonstrate that the same action would have been taken
even in the absence of the protected conduct.
Clearly, the Respondent was aware of Williams’ extensive union activity, if not before the
election, then certainly after the election when she was on the Union’s bargaining committee
and was selected to be the chief steward. That the Respondent suspended her shortly after the
incident and did not question any employee other than Viveros, Royster, Murphy, Flowers and
Burley and discharged her on November 19, without disciplining Viveros establishes the prima
facie showing required by Wright Line, supra. Whether the Respondent would have suspended
and discharged her even in the absence of her protected activity is a much more difficult
question, requiring difficult credibility determinations regarding the events of the afternoon of
November 13. In making these findings I have taken into consideration, and find that,
considering the nature of the dispute between Williams and Viveros, Williams instigated the
incident after learning from Flowers that Viveros asked her whether what Williams said about
her alleged influence at the facility was true as Williams and Royster each testified that when
Viveros came outside Williams asked her if they told Flowers that Williams said that she
(Flowers) couldn’t fire anyone. I have also taken into consideration the lack of evidence of union
animus on the part of the Respondent. During the campaign, the Respondent only had one
meeting of the employees where Mitchell asked why they wanted a union and that he felt that
they didn’t need one. In addition, Graham told Williams that it didn’t bother her either way
whether the employees had a union or didn’t have a union. What I haven’t considered is the
Union’s argument that Williams’ actions on November 13 were not grounds for termination
because it occurred after she clocked out. As the incident occurred at the Respondent’s facility,
I reject this argument.
Based upon the above, and my observation of the witnesses, I found Burtis and Flowers
to be the most credible and I credit Flowers’ testimony over that of Mazzuchi and find that she
counseled him for interrupting work, rather than talking about the Union and therefore
recommend that this Section 8(a)(1) allegation be dismissed. As regards the November 13
incident, although I do not believe that Viveros’ actions were as innocent as is portrayed in his
and Royster’s testimony, I credit Flowers’ testimony that when she got there, she saw Gary in
the area and Williams was calling Viveros a fucking liar and was threatening to hit him. And,
although she stood between them, it took a while before she could convince Williams to leave
and go to her car. Based upon this credited testimony, I find that the Respondent has satisfied
its Wright Line burden and recommend that this allegation that Williams was suspended and
discharged in violation of Section 8(a)(1)(3) of the Act be dismissed. Counsel for the General
Counsel’s brief requests that I find that the Respondent violated Section 8(a)(1)(5) of the Act by
failing to bargain with the Union over Williams’ suspension and discharge. However, as this is
not alleged in the Complaint, I will not make such a finding.
The Complaint next alleges that the Respondent violated Section 8(a)(5) by failing and
refusing to provide the Union with certain of the information that it requested on November 16: a
copy of the personnel files, evaluations and past discipline of all bargaining unit employees, and
a copy of Williams’ personnel file, evaluations and past discipline. The evidence establishes that
after receiving the Union’s information request, the Respondent gave the Union a copy of the
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statements that it received as well as their Rules and Regulations, but not the other information
requested, including the two items stated above. Section 8(a)(5) requires an employer to furnish
the Union representing its employees with information that is relevant to the union in the
performance of its bargaining responsibilities. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979) and information about terms and conditions of employment of bargaining unit employees
is presumptively relevant and must be produced. It is well established that an employer must
provide a union with requested information “if there is a probability that such data is relevant and
will be of use to the union in fulfilling its statutory duties and responsibilities as the employees’
exclusive bargaining representative.” Associated General Contractors of California, 242 NLRB
891, 893 (1979), enfd 633 F.2d 766 (9th Cir. 1980). The personnel files, evaluations, and past
discipline of Williams and all bargaining unit employees would have been relevant to the Union
in attempting to establish disparate treatment of Williams at the November 19 meeting. By
failing to furnish the Union with this information prior to the meeting, the Respondent violated
Section 8(a)(5) of the Act.
The final allegation is that by subcontracting bargaining unit work and using temporary
employees to perform the work, and by outsourcing the IT work after Gregg left its employ,
without prior notice to, or bargaining with, the Union, the Respondent violated Section 8(a)(5) of
the Act. As regards the allegation that the Respondent failed to bargain with the Union about
outsourcing the IT work to Duratech, the Board recognizes an exception in these Section
8(a)(1)(5) cases where the employer can establish a “compelling business justification,” for the
action taken. Winn-Dixie Stores, Inc., 243 NLRB 972, fn. 9 (1979), or where “economic
exigencies compelled prompt action.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991). The
Board recognizes as “compelling economic considerations” only those “extraordinary events”
which are “an unforeseen occurrence, having a major economic effect [requiring] the company
to take immediate action.” Angelica Healthcare Services, 284 NLRB 844, 852–853 (1987);
Hankins Lumber Co., 316 NLRB 837, 838 (1995), and the employer carries a heavy burden of
demonstrating that this particular action had to be implemented promptly. Triple A Fire
Protection, Inc., 315 NLRB 409, 414 (1994); Our Lady of Lourdes Health Center, 306 NLRB
337, 340 fn. 6 (1992). Even where the employer has satisfied these requirements, it must also
demonstrate that the exigency was caused by external events beyond its control or was not
reasonably foreseen. RBE Electronics of S.D., Inc., 320 NLRB 80, 82 (1995).
I find that the Respondent has established a “compelling business justification” for
subcontracting the IT work to Duratech after Gregg resigned. The evidence establishes that its
computer system crashed curtailing its ability to bill for work performed and, presumably, obtain
funding for its operations, and without funding, they would be unable to pay their employees.
This is similar to the facts in Central Rufina, 161 NLRB 696 (1966), where the employer was in
the business of grinding sugarcane into raw sugar, a seasonal operation. After its mill developed
major mechanical difficulties, greatly decreasing its grinding operation, in order to avoid spoilage
of the sugarcane, the employer decided to cease grinding at a loss and to subcontract the
grinding work to other mills. In reversing the trial examiner, and finding no violation, the Board
stated:
Unlike Fibreboard and related cases, the Respondent in the instant case was not
seeking to gain an economic advantage at the expense of its employees or of the Union.
Rather, the Respondent was faced not only with the inability to operate efficiently
because of matters beyond its control, but also, in view of the curtailment of its bank
credit on which the Respondent’s operation was completely dependent, with the inability
to operate at all. It would appear, therefore, that in the circumstances of this case, the
factors which lead to the Respondent’s decisions to subcontract and to terminate its
grinding are not “peculiarly suitable for resolution within the collective bargaining
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framework [citing Fibreboard, 379 U.S. 203, 213–214];” on the contrary, it seems certain
that no amount of give-and-take in the bargaining negotiations could have forestalled the
Respondent’s inevitable decision to cease operations for the season.
As I find the Respondent’s dilemma analogous to that of the employer in Central Rufina, I
recommend that this allegation be dismissed.
The remaining issue is whether the Respondent subcontracted bargaining unit work to
temporary employees without prior notice to the Union and without affording the Union an
opportunity to bargain about it, in violation of Section 8(a)(1)(5) of the Act. The evidence
establishes that in September, Mazzuchi reported to Dexter that the Respondent was employing
temporary employee to perform work that is performed both by Respondent’s clients and by
bargaining unit employees. At the time, the Union had an outstanding bargaining proposal that
would have restricted the Respondent from using such employees and the Respondent had not
previously notified the Union that it had obtained temporary employees from Kelly to perform
this work. In Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB 458
(2004), the Board stated: “the Board has held that subcontracting is a mandatory subject of
bargaining if it involves nothing more than the substitution of one group of workers for another to
perform the same work and does not constitute a change in the scope, nature and direction of
the enterprise.” Further, even where the employer had a past practice in the performance of its
work, when a union has been newly certified, the employer must bargain with the union about
“the subsequent implementation of those practices that entail changes in wages, hours, and
other terms and conditions of employment of unit employees,” rather than continuing the
practice, as it did here. Mackie Automotive Systems, 336 NLRB 347 (2001). By employing
temporary employees to perform the work that unit employees regularly perform, without notice
to, or bargaining with, the Union, the Respondent violated Section 8(a)(1)(5) of the Act.
Conclusions of Law
1. Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. By refusing to furnish to the Union all the information that it requested on November
16, which information was relevant to the Union as the collective bargaining representative of
certain of the Respondent’s employees, the Respondent violated Section 8(a)(1)(5) of the Act.
4. By subcontracting certain bargaining unit work to temporary employees, in about
September, without prior notice to or bargaining with the Union, the Respondent violated
Section 8(a)(1)(5) of the Act.
5. The Respondent did not violate the Act as further alleged in the Consolidated
Complaint.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that the Respondent cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. In this regard, I recommend that the Respondent
be ordered to negotiate with the Union prior to employing temporary employment agency
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employees and, if any temporary employees are still employed by the Respondent in this unit, to
restore the status quo ante by restoring the unit to where it would have been absent the
employment of these temporary employees. Further, I would leave for the compliance stage the
determination of whether backpay is due because of the employment of these temporary
employees. Gunderson Rail Services, LLC, 364 NLRB No. 30 (2016). I would also recommend
that within 20 days of receipt of this Decision, the Respondent furnish the Union with a copy of
the personnel files, evaluations, and past discipline of all bargaining unit employees and a copy
of Williams’ personnel file, evaluations, and past discipline.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, Kankakee County Training Center for the Disabled, Inc., its officers,
agents, successors and assigns, shall:
1. Cease and desist from
(a) Failing and refusing to notify and bargain with the Union over the use of temporary
employees.
(b). Failing to furnish the Union with information that it requested, which information was
relevant to the Union as the bargaining representative of certain of the Respondent’s
employees.
(c) In any like or related manner, interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Notify and bargain with the Union prior to the employment of temporary employees to
perform work performed by the bargaining unit employees.
(b) Within 20 days from the receipt of this Decision, furnish the Union with copies of the
personnel files, evaluations and past discipline of all bargaining unit employees, including
Williams.
(c) Within 21 days after service by the region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the region attesting to the steps that
the Respondent has taken to comply.
(d) Within 14 days after service by the region, post at its facility in Kankakee, Illinois,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by

5 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.
6 If this Order is enforced by a judgment of a United States court of appeals, the words in the
Continued
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the Regional Director for Region 25, 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.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 1, 2015.
Dated, Washington, D.C. September 14, 2016
_____________________________
Joel P. Biblowitz
Administrative Law Judge
_________________________
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(NY)–33-16

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 employ temporary employees in bargaining unit positions without first notifying
and bargaining with American Federation of State, County and Municipal Employees (AFSCME)
Council 31, AFL–CIO (“the Union”).
WE WILL NOT refuse to furnish the Union with information that is relevant to it as the collective
bargaining representative of certain of our employees.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the rights
guaranteed to you by Section 7 of the Act.
WE WILL notify and bargain with the Union prior to employing temporary employees in
bargaining unit positions.
WE WILL furnish the Union with the information that it requested on November 16, 2015.
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC.
(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.
575 North Pennsylvania Street, Federal Building, Room 238
Indianapolis, Indiana 46204–1577
Hours: 8:30 a.m. to 5 p.m.
317–226–7382
JD(NY)–33-16

The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/25-CA-166729 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., 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, 317–226–7413.