Kansas Federation of Labor AFL-CIO

National Labor Relations Board - Board Decisions

May 26, 2004

341 N.L.R.B. 1015 (N.L.R.B. 2004)

KANSAS AFL–CIO 1015
Kansas AFL–CIO and Office & Professional Employ-
ees International Union Local No. 320. Case 17–
CA–22178
May 26, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On February 23, 2004, Administrative Law Judge Bur-
ton Litvack issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record1
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,
and to adopt the recommended Order.3
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) of the Act by eliminating
a bargaining unit position, the Volunteers in Politics di-
rector, and terminating the employee who held that posi-
tion, Connie Stewart, without providing the Union prior
notice and an opportunity to bargain.
Contrary to the Respondent’s contention, the record
establishes that the Union represented the Respondent’s
unit employees at the time that Stewart’s position was
eliminated. In fact, the record shows that the Union has
been the collective-bargaining representative of the Re-
spondent’s office employees—including employee Stew-
art—for more than 25 years. The Respondent has de-
ducted dues from these employees’ paychecks and remit-
ted those dues to the Union since the early 1990s. Al-
though the Union’s business agent visited the Respon-
dent’s facility only sporadically over the years, this is

1 The Respondent’s motion for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties. The Respondent’s motion to reopen the record on the issue
of the purported posthearing retirement of Connie Stewart is also de-
nied. We shall leave that issue to the compliance stage of this proceed-
ing.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent contends that the evinced bias by denying its mo-
tion to dismiss for lack of jurisdiction. On careful examination of the
judge’s decision and the entire record, we are satisfied that the conten-
tion is without merit.
3 We shall substitute a new notice to employees to conform to the
language in the judge’s recommended Order.
largely because the Union authorized the employees to
negotiate for themselves in regard to changes in terms
and conditions of employment. Thus, over the years,
Stewart and the other office employees bargained collec-
tively with the Respondent over terms and conditions of
employment, and received the agreed-upon wage raises
and other changes in benefits.4 In essence, the Union
designated the employees as the Union’s agent for nego-
tiating purposes. However, the Union remained the prin-
cipal. And, as noted, the Respondent treated it as such.
Further, the record shows that the Respondent ac-
knowledged the existence of its collective-bargaining
obligations when it eliminated Stewart’s position. First,
the Respondent referenced the requirements of “Article 5
of the office contract” in the termination letter. Second,
after the Union’s business manager wrote a letter to the
Respondent protesting the circumstances of Stewart’s
termination, the Respondent’s executive secretary, Jim
DeHoff, did not question the business agent’s capacity or
status in acting on the employee’s behalf. Rather, De-
Hoff responded to the Union’s concerns in a letter that
ended by stating that if the Union “still had concerns
about the propriety of [the Respondent’s] actions con-
cerning the reduction-in-force, please advise. . . .”
With particular emphasis on the facts we cite here, we
agree with the judge that the Respondent was obligated
to bargain with the Union concerning the elimination of
Stewart’s position and her termination. We, therefore,
adopt the judge’s finding that the Respondent’s failure to
do so violated Section 8(a)(5) and (1) as alleged.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kansas AFL–CIO, Topeka,
Kansas, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
4 Although the judge found that there existed a 1977 collective-
bargaining agreement between the Respondent and the Union, the judge
made no finding as to whether there was a collective-bargaining agree-
ment in effect when the Respondent eliminated Stewart’s position. The
existence of a contract is not critical to our result. The critical fact is
the existence of a bargaining relationship in which the Union is the 9(a)
representative.
341 NLRB No. 131
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1016

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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT eliminate bargaining unit positions be-
cause of reduced work and budgetary concerns without
giving prior notice of such to the Union, Office & Pro-
fessional Employees International Union Local No. 320,
and affording it an opportunity to bargain regarding the
decision and the effects of the elimination of said posi-
tions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Connie Stewart full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Connie Stewart whole for any loss of
earnings and other benefits suffered as a result of the
unlawful elimination of her position.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful elimination of Connie Stewart’s job, and WE WILL,
within 3 days thereafter, notify Stewart, in writing, that
we have done so and that we will not use the elimination
of her job against her in any way.
WE WILL, on request, bargain with the Union in good
faith about the decision to eliminate Stewart’s job and
about the effects of that act.

KANSAS AFL–CIO

Michael E. Werner, Esq., for the General Counsel.
A.J. Kotich, Esq. and Glenn Griffeth, Esq., of Topeka, Kansas,
for the Respondent.
Janice Mammen, Business Agent, of Independence, Kansas, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Office & Pro-
fessional Employees International Union Local No. 320 (the
Union) filed the unfair labor practice charge in the above-
captioned matter on April 15, 2003.1 Based upon an investiga-
tion of the unfair labor practice charge, on June 27, 2003, the

1 Unless otherwise stated, all events herein occurred during 2003.
Regional Director for Region 17 of the National Labor Rela-
tions Board (the Board), issued a complaint, alleging that Kan-
sas AFL–CIO (Respondent), engaged in, and continues to en-
gage in, unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
Respondent timely filed an answer, denying the commission of
the alleged unfair labor practices. Based upon a notice of hear-
ing, the unfair labor practice allegations came to trial before the
above-named administrative law judge on September 4 and 5,
2003, in Overland Park, Kansas. At the hearing, all parties
were afforded the opportunity to examine witnesses, to cross-
examine witnesses, to offer into the record all relevant evi-
dence, to argue their legal positions orally, and to file posthear-
ing briefs. Each party filed a posthearing brief, and those
documents have been carefully scrutinized. Accordingly, based
upon the entire record herein, including the posthearing briefs
and my observation of the testimonial demeanor of each of the
several witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent maintains an office and place of business located
in Topeka, Kansas. While, in its answer, Respondent admitted
it is a labor organization, it does not appear that Respondent
represents any employees or is an organization in which em-
ployees participate, engages in collective bargaining, or assists
other labor organizations in collective bargaining. Rather, the
record establishes that Respondent, a chartered affiliate of the
AFL–CIO, is an unincorporated association, which lobbies on
behalf of constituent labor organizations before the legislature
of the State of Kansas, engages in political activities by provid-
ing financial and other support to candidates for public office in
Kansas, and assists its affiliated labor organizations by provid-
ing information on candidates for public office and coordinat-
ing activities in strike situations. The record further establishes
that, as a fee for Respondent’s services, each constituent labor
organization pays to it per capita dues in the amount of 75 cents
per member per month; that substantially all of Respondent’s
annual revenue comes from the foregoing per capita dues pay-
ments; and that, for its fiscal years ending August 31, 2001, and
August 31, 2002, the annual per capita dues payments to Re-
spondent by its constituent labor organizations totaled $383,286
and $392,612, respectively. The record also discloses that, for
the year ending August 31, 2003, International Association of
Machinists District Lodge 570 made per capita dues payments
to Respondent totaling $102,000; International Brotherhood of
Electrical Workers Local Union No. 394 paid per capita dues in
the amount of $14,765, and United Auto Workers Local Union
No. 31 made per capita dues payments totaling $9000 and that,
during the same time period, District Lodge 570 made monthly
per capita dues payments to the International Association of
Machinists, whose main office is located in Upper Marlbor-
ough, Maryland, in the amount of $50,000, Local Union No.
394 made monthly per capita dues payments to the Interna-
tional Brotherhood of Electrical Workers, whose office is lo-
cated in Washington, D.C., in the amount of approximately
$18,000, and Local Union No. 31 made monthly per capita

KANSAS AFL–CIO 1017
dues payments to the United Auto Workers, whose office is
located in Detroit, in the amount of approximately $85,000.
Counsel for the General Counsel argues that the Board should
assert jurisdiction over Respondent on three bases—(1) it meets
the Board’s discretionary nonretail standard for asserting juris-
diction, (2) it represents labor organizations, and (3) it is an
affiliated member of a multistate organization. Having consid-
ered the matter, I believe that jurisdiction should be asserted
over Respondent as, in the conduct of its business operations,
Respondent annually exceeds the Board’s discretionary indirect
outflow, nonretail jurisdiction standard.
In its seminal decision, Siemons Mailing Service, 122 NLRB
81 (1958), the Board announced that, in response to the Su-
preme Court’s decision in Guss v. Utah Labor Relations Board,
353 U.S. 1, 10 (1957), in which the Court had adverted to “a
vast no-man’s-land” wherein labor disputes were not subject to
regulation by any agency or court, it had reappraised its policies
and would thereafter expand the reach of its statutory jurisdic-
tion “so that more individuals, labor organizations, and em-
ployers may invoke the rights and protections afforded by the
[Act].” Siemons Mailing Service, supra at 82–83. In order to
accomplish this expansion of its jurisdiction, rather than em-
ploying an ad hoc or case-by-case approach, which might result
in confusion and uncertainty as to “where the dividing line[s]
[would] be drawn in particular cases,” the Board announced
that it would utilize revised jurisdictional standards, “simply”
drawn and “few in number,” for such would significantly re-
duce the time, energy, and funds necessary to investigate and
resolve jurisdictional issues. Id. at 83. Moreover, the Board
noted, as it is not possible to assert jurisdiction in every case
and over every employer, “its discretion to decline to assert
jurisdiction is more reasonably exercised by the utilization of
the revised jurisdictional standards . . . .” Id. at 84. Accord-
ingly, in line with its desire to expand the reach of its jurisdic-
tion and to avoid ad hoc litigation, the Board announced that
jurisdiction would be “asserted over all nonretail enterprises
which have an outflow or inflow across State lines of at least
$50,000, whether such outflow or inflow be regarded as direct
or indirect.” Id at 85. Both the Supreme Court and the Board
have long held that labor unions should be treated like any
other employer with regard to their own employees. Office
Employees Local 11 v. NLRB, 353 U.S. 313, 316 (1957); Air-
line Pilots Assn., 97 NLRB 929 (1951). In this regard, during
the year ending August 31, 2003, Respondent received per
capita dues payments in excess of $123,000 for its lobbying and
political activities on behalf of International Association of
Machinists District Lodge 570, International Brotherhood of
Electrical Workers Local Union No. 304, and United Auto
Workers Local Union No. 31, and, during the same time period,
the three labor organizations collectively paid per capita dues in
excess of $50,000 directly to their international unions, each of
which is located outside the State of Kansas. Clearly, pursuant
to Carpenters Local 925, 279 NLRB 1051, 1052 (1986); 153
NLRB 252, 253 (1965), and Laundry Workers Local 26, 129
NLRB 1446 fn. 2 (1961), the three above-mentioned labor or-
ganizations, when acting as employers concerning their respec-
tive employees, constitute employers engaged in commerce
within the meaning of the Act. Accordingly, Respondent meets
the indirect outflow, nonretail standard for the assertion of ju-
risdiction by the Board.
Respondent argues that the Board does not have jurisdiction
over Respondent or, in the alternative, that it should decline to
assert jurisdiction over Respondent given its status as a lobby-
ing/political action organization whose actions are predomi-
nantly limited to Kansas. As to its first argument, counsels for
Respondent contend that the Board is precluded from exercis-
ing jurisdiction over a lobbying/political action organization,
such as Respondent, by the first amendment to the Constitution
of the United States. In this regard, Respondent relies upon
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979),
which concerned the Board’s assertion of statutory jurisdiction
over teachers in church-operated schools. In ruling that the
Board had incorrectly construed the Act to permit it to assert
jurisdiction over such entities, the Supreme Court initially
noted that “the values enshrined in the First Amendment plainly
rank high ‘in the scale of our national values,’” that “it [was]
incumbent on [it] to determine whether the Board’s exercise of
its jurisdiction . . . would give rise to serious constitutional
questions,” and that “if so, [it] must first identify ‘the affirma-
tive intention of the Congress clearly expressed’ before con-
cluding that the Act grants jurisdiction.” Id. at 510. Thereafter,
finding that “our examination of the statute and its legislative
history indicates that Congress simply gave no consideration to
church-operated schools,” the Court concluded “that the
Board’s exercise of its jurisdiction over teachers in church-
operated schools would implicate the guarantees of the Relig-
ion Clauses” of the First Amendment. Id. at 504, 507. Then,
citing Buckly v. Valeo, 424 U.S. 1 (1976), counsel for Respon-
dent notes that the First Amendment offers broad protection to
discussion of public issues and debate on the qualifications of
candidates of candidates for office and that it protects political
association as well as political expression and asserts that there
is nothing in the legislative history of the Act establishing that
Congress considered broadening the Board’s jurisdiction to
cover organizations, such as Respondent, primarily engaged in
lobbying/political action activities. Contrary to counsels’ ar-
guments, however, I note that, in Ohio Public Interest Cam-
paign, 284 NLRB 281 (1987), the Board decision primarily
relied upon by Respondent, the Board specifically refused to
adopt the Administrative Law Judge’s decision “. . . to the ex-
tent that it [could] be read to indicate that the nature of the Re-
spondent’s activity, i.e., the fact that it is a nonprofit corpora-
tion engaged in consumer lobbying, is a basis for declining to
assert jurisdiction.” Id. at 281. In this regard, in Ohio State
Legal Services Corp., 239 NLRB 594 (1978), the Board as-
serted jurisdiction over an entity, which engages in lobbying
the State of Ohio legislature on matters concerning the poor.
Moreover, the fact that an organization may be engaged in ac-
tivities protected by the First Amendment is not itself a bar to
the assertion of jurisdiction by the Board. Thus, notwithstand-
ing Catholic Bishop of Chicago, supra, the Board has continued
to assert jurisdiction over college institutions, with church rela-
tionships, where such institutions are primarily concerned with
providing secular educations rather than inculcating particular
religious values. Thiel College, 261 NLRB 580 (1982); Bar-
ber-Scotia College, 245 NLRB 406, 407 (1979). Moreover, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
Board has asserted jurisdiction over an enterprise, which pro-
vides cleaning and maintenance services to facilities, owned by
the Archdiocese of New York, and over an Italian language
school, established by parishioners of the Roman Catholic
Church and located on church property. Casa Italiana Lan-
guage School, 326 NLRB 40 (1998); Ecclesiastical Mainte-
nance Services, 325 NLRB 629 (1998). Further, in Associated
Press v. NLRB, 301 U.S. 103 (1937), the Supreme Court found
that, as there was nothing to suggest that any infringement upon
the guarantees of press freedoms would result, the First
Amendment was no bar to the Board’s assertion of jurisdiction
over an entity, which is engaged in the collection and dissemi-
nation of information and news throughout the world. Id. at
131–132. Finally, unlike in Catholic Bishop of Chicago, in
which the individuals directly involved in the entities’ First
Amendment activities, the teachers, were those covered by the
Board’s assertion of jurisdiction, the individuals, who would be
covered by the Board’s assertion of jurisdiction herein, Re-
spondent’s office employees, are not those directly involved in
Respondent’s First Amendment-privileged activities.
As to Respondent’s alternative argument, that Respondent’s
operations are limited to lobbying the State of Kansas legisla-
ture on matters affecting only the citizens of Kansas and to
supporting candidates for public office in Kansas and, there-
fore, jurisdiction should not be asserted, its attorneys rely upon
the Board decisions in Ohio Public Interest Campaign, supra,
and Seattle Real Estate Board, 130 NLRB 608 (1961), for sup-
port. According to Respondent’s attorneys, in both decisions,
the Board “clearly disregarded” its discretionary monetary
standards and the controlling issues were the “nature” of each
organization and the “effect on interstate commerce” of the
respective employers. Having carefully analyzed the cited
decisions, it is apparent that counsels have misunderstood the
import of the cited Board’s rulings. In Seattle Real Estate
Board, the respondents were real estate brokers primarily en-
gaged in selling residential real estate in the State of Washing-
ton with a combined gross annual income in excess of
$2,00,000 [sic]. In the 2 years during which their business
incomes and expenses were examined, for the sale of real estate
in Hawaii to Washington residents, one of the respondents re-
ceived commissions, totaling in excess of $14,000, from a Ha-
waiian real estate company. In Ohio Public Interest Campaign,
the respondent was a State of Ohio company, which provided
lobbying services on consumer issues for residents of that State.
To that end, the respondent solicited funds directly from resi-
dents of Ohio and other entities within the State in order to
lobby state legislators on such issues as plant closings, corpo-
rate responsibility, tax fairness, and utility regulation. In 1982,
the respondent had gross revenues in excess of $1,300,000 and
direct out-of-state purchases totaling $36,000. Contrary to
counsel, in neither case did the respondent meet any of the
Board’s discretionary nonretail standards for asserting jurisdic-
tion. I believe that this factor and the absence of discretionary
jurisdictional standards for the particular industries involved2

2 As such effectuates the policies and the purposes of the Act, the
Board has asserted, and continues to assert, jurisdiction over classes of
employers, which do not meet any of its nonretail standards. For such
forced the Board, in each decision, irrespective of the nature of
each business, to undertake analysis of the effect of the busi-
ness upon interstate commerce in order to determine whether
jurisdiction should be asserted over the class of employer in-
volved. Thus, in Seattle Real Estate Board, the Board recog-
nized that, while the $14,000 in commissions paid to it directly
from the Hawaiian company may have established “legal juris-
diction” over Respondent, it had “never asserted jurisdiction
over the type of business engaged in by the Respondents—that
of a real estate broker . . . .” Id. at 609. In those circumstances,
where the respondent failed to meet the discretionary nonretail
standard for asserting jurisdiction and where no discretionary
standard existed for real estate brokers, the Board considered
whether it would effectuate the policies of the Act to establish a
specific discretionary monetary standard for that industry and
concluded that, as the services of a real estate broker “. . . are
rendered primarily at the local level and are therefore essen-
tially local and have at best only a remote relationship to inter-
state commerce . . . ,”3 asserting jurisdiction over that business
was not warranted. Id. at 610. Likewise, in Ohio Public Inter-
est Campaign, the respondent’s business failed to meet the
Board’s discretionary nonretail standard, and the Board had
never established a discretionary monetary standard for assert-
ing jurisdiction over employers, primarily engaged in lobbying.
Thus, after stating that the nature of the respondent’s business
(consumer lobbying) was not a basis for declining jurisdiction,
the Board noted that, notwithstanding whether the entity is a
profit or a nonprofit organization, the only basis for asserting or
declining jurisdiction would be the effect upon interstate com-
merce of the respondent’s business.4 Put another way, as in
Seattle Real Estate Board, the Board was confronted with
whether to establish a discretionary jurisdictional standard for a
consumer lobbying organization, such as the respondent, and it
concluded “that the nature of the [r]espondent’s operations and
its impact appear to be almost, if not exclusively, limited to
matters concerning issues of public concern affecting Ohio
residents and without a general impact on interstate com-
merce.” Therefore, discretionary jurisdiction over that class of

industries, including, for example, day care centers, cemeteries, and
hotels, the Board uses its discretion to establish a monetary standard for
the assertion of jurisdiction. Catholic Cemeteries, 295 NLRB 966
(1989); Salt & Pepper Nursery School, 222 NLRB 1295, 1296 (1976);
Penn-Keystone Realty Corp., 191 NLRB 800, 801 (1971). Usually, for
such businesses, the Board requires only more than a de minimus
amount of out-of-state purchases for legal jurisdiction.
3 The Board asserts jurisdiction over businesses, which are clearly
local in nature, if such meet any of its nonretail standards for the asser-
tion of jurisdiction. Thus, in Contemporary Guidance Services, 291
NLRB 50, 51–52 (1988), the Board asserted jurisdiction over a busi-
ness, which provides services to developmentally disabled individuals
in New York City, and which met the indirect outflow, nonretail stan-
dard.
4 The Board utilized a coincident analysis in Marty Levitt, 171
NLRB 739 (1968). Therein, the issue was whether to assert jurisdiction
over a bandleader, whose orchestra played mainly club dates. The
Board concluded that it was unnecessary to establish a monetary stan-
dard for bandleaders or orchestras and that, while the business was
essentially local in nature, the test for asserting jurisdiction would be
whether the business met a nonretail standard. Id. at 741.

KANSAS AFL–CIO 1019
employer was not asserted. Ohio Public Interest Campaign,
supra at 281. Herein, as I have previously concluded that Re-
spondent’s business operations meet the Board’s indirect out-
flow nonretail standard for the assertion of jurisdiction, analysis
of the effect of Respondent’s business operations upon inter-
state commerce and whether the Board should establish a par-
ticular jurisdictional standard for Respondent’s type of business
is not required. Accordingly, I believe, and find, that Respon-
dent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
At all times material, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The complaint alleges that Respondent engaged in conduct,
violative of Section 8(a)(1) and (5) of the Act, by laying off its
employee, Connie Stewart, without prior notice to the Union
and without affording the latter an opportunity to bargain with
it concerning the layoff or, in the alternative, laying off Stewart
without utilizing seniority as required by the existing collec-
tive-bargaining agreement between Respondent and the Union.
Respondent denies that it engaged in the alleged unfair labor
practices, contending that there is no enforceable collective-
bargaining agreement between the Union and it.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent, which, on behalf of its affiliated local unions,
engages in lobbying of the State of Kansas legislature and pro-
vides financial and other assistance to candidates for public
office in Kansas, maintains its office and place of business in
Topeka, Kansas. The record reveals that Jim DeHoff has been
the executive secretary/treasurer of Respondent since 1987; that
Will Leiker is its executive vice president; and that also work-
ing in Respondent’s office are Karen Maas, the book-
keeper/office manager, and Dona Anderson, a secretary. Fur-
ther, until March 3, along with Maas and Anderson, Connie
Stewart worked in Respondent’s office as the volunteers in
politics (VIP) director.5 The record further reveals that, at all
times material, Maas, Anderson, and Stewart have been mem-
bers of the Union and that each became a member upon com-
mencing her job with Respondent.6

5 Regarding her job duties, Stewart worked with local unions on
voter registration drives, get-out-the-vote campaigns, and other political
matters. In addition, Stewart drafted speeches given by DeHoff, coor-
dinated Respondent’s activities with the AFL–CIO offices in Washing-
ton, D.C. and maintained Respondent’s affiliated union membership
list.
6 Respondent had employed Stewart for 26 years. Maas and Ander-
son have been employed by Respondent for 14 and 21 years respec-
tively.
There is no dispute that the amount of each employees’ monthly un-
ion dues is deducted her paycheck and is mailed directly to the Union.
Stewart testified that the employees instituted this system on their own,
“but with Jim’s approval,” in the early 1990s. DeHoff failed to deny
this testimony.
Connie Stewart testified that she reported for work on the
morning of March 4; that DeHoff asked her to come into his
office, and that he handed her a letter, dated February 28, which
read, in part:

Due to factors in the office that include cut-backs in
the volume of work on political activities by the Kansas
AFL-CIO because of the National AFL–CIO assuming
more responsibility we are eliminating the VIP position.
The officers of the Kansas AFL–CIO will handle future
political activities. . . .
Under Article 5 of the office contract I am giving you
30 days written notice of reduction of force effective
March 4, 2003.

According to Stewart, “[DeHoff] said that he was giving me
this letter. That he was going to do a reduction in force, and he
was doing away with the VIP position. . . . I said to him, I don’t
think you can do that, because that is a violation of the Union
contract . . . . He said it would be up to me, but I had thirty days
. . . .” Stewart continued to insist that DeHoff was acting in
violation of the contract, but DeHoff merely replied that he did
not want to argue about it. Stewart added that, at one point in
the conversation, DeHoff used the term “layoff” but immedi-
ately corrected himself, saying, “No, it is not a layoff. It is a
reduction in force.”7 Stewart left Respondent’s office and tele-
phoned Janice Mammen, the Union’s business manager and
secretary/treasurer. Six days later, on March 10, Mammen
wrote to DeHoff, arguing that Respondent’s act against Stewart
was in violation of article 6 of the collective-bargaining agree-
ment and noting that “the appropriate 30 day notice was not
given, otherwise, the employee being laid off would have been
allowed to continue to work for that period of time.”8 DeHoff9
responded to Mammen with a letter, dated March 11. In his
second paragraph, he wrote that “I proceeded in the manner that
I did, upon advice of legal counsel that Article VI of the Agree-
ment (which by the way does not appear to ever have been
signed) does not apply to reductions of forces under Section 3
of Article V.”10 Concluding, DeHoff wrote, “If you still have
concerns about the propriety of my actions concerning this
reduction-in-force, please advise.”
7 To Stewart, DeHoff was engaging in “semantics” as whatever one
terms it, “I am laid off. I have no job.”
8 Stewart filed a grievance over her dismissal by Respondent.
9 Three days after he informed Stewart that her job had been elimi-
nated, DeHoff wrote to Respondent’s executive board, explaining “. . .
that the Kansas AFL–CIO had a reduction in our workforce. Connie
Stewart was given 30 days notice . . . in accordance with the terms of
the collective-bargaining agreement we are signatory to. . . . it simply
did not make sense to continue this position at a time we are facing
budget concerns due to massive layoffs.”
10 In his letter, DeHoff wrote that, while he paid Stewart for 30 days,
he did not permit her to work during the 30 days after her dismissal
because of her asserted “disruptive behavior” after being advised of the
reduction in force.
Jerry Helmick, a member of Respondent’s executive board, testified
that he spoke to DeHoff subsequent to the latter’s termination of Stew-
art and that DeHoff defended his decision, stating, at one point, “. . .
that Connie didn’t fall underneath the collective bargaining agreement,
that she was not a secretary.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020
Significant issues, with regard to Respondent’s elimination
of Stewart’s position, concern the existence of a bargaining
relationship between Respondent and the Union and whether, in
fact, on March 4, 2003, a collective-bargaining agreement,
between the parties, in fact, existed. In these regards, Stewart
began working for Respondent in April 1977. She testified
that, at the time, Ralph McGee was Respondent’s executive
secretary/treasurer and Gretchen Blumenstock was the office
manager; that, upon being hired, Blumenstock informed her the
Union handled the employees’ “contract;”11 and that she was
required to join the Union.12 She added that, in 1977, McGee
and Larry Green, a business agent for the Union, negotiated a
successor collective-bargaining agreement and that she at-
tended the bargaining “because Larry wanted somebody from
the office to be in on all of the negotiations.” After initially
testifying that the 1977 collective-bargaining agreement was
unsigned as “we had one already in the files,” Stewart changed
her testimony, stating, “Well, I think that they probably did”
execute it. “I think it was probably signed in 1977.”13 She
believed that an old, yellowed copy of this executed collective-
bargaining agreement remained in a file, entitled “office con-
tract file,” located in Respondent’s office file cabinet until, at
least, the day her job was terminated by Respondent.14 After
the 1978 contract negotiations,15 according to Stewart, “. . .
Gretchen felt . . . that Ralph was making it an adversarial posi-
tion and that we would do better on our own, so we talked to
Larry and we were given authorization to negotiate the con-
tracts ourselves.” Thereafter, commencing in 1979, whenever
they desired changes in their terms and conditions of employ-
ment, the office employees negotiated on their own behalf with
Respondent. Asked if anyone advised Respondent of this au-
thorization, Stewart replied, “Well, I would imagine. I think
we would probably have informed Ralph of that. . . . He would
have asked about that.” Asked if Green ever gave written no-
tice to Respondent of the Union’s authorization to the employ-

11 There is no evidence in the record as to the manner of Respon-
dent’s initial recognition of the Union as the bargaining representative
of its office employees or, of course, if such recognition was ever ex-
tended to the Union. In any event, the General Counsel contends that
such recognition was extended in or about 1977 and that such has been
embodied in successive collective-bargaining agreements.
12 The instant complaint defines the bargaining unit, assertedly rep-
resented by the Union, as including all full-time and regular part-time
employees performing office work in the business office but excluding
executives, guards, and supervisors as defined by the Act.
13 The collective-bargaining agreement was executed by representa-
tives of Respondent and the Union.
14 Stewart initially testified that what was in Respondent’s file was
the “original” collective-bargaining agreement between the parties but
later stated she thought it was the 1977 agreement. In any event, she
stated that it was “a signed document.” According to her, by the time
of her layoff, the document was so old, it was yellowed.” Counsel for
the General Counsel subpoenaed copies of all collective-bargaining
agreements for the trial. Karen Maas testified that she and DeHoff
gathered documents pursuant to the subpoena but were unable to locate
this old, yellowed contract. Mammen testified that the Union does not
have a copy in its files. Thus, other than testimony, there is no record
evidence as to its existence or its contents.
15 According to Stewart, Green and McGee were negotiating one-
year contracts at the time.
ees to bargain on their own behalf, Stewart said, “I would have
thought that they had and that [it] would have been in the file,
but I can’t swear that was the case.” However, during cross-
examination, she was definite that the Union’s written authori-
zation was in Respondent’s office files; that it stated, “`We, the
employees of the AFL–CIO had authority to negotiate our con-
tract;’” and that the document was signed by Green.16 Stewart
testified that Mammen replaced Larry Green as the Union’s
business agent, and, as to the office employees continuing to
bargain directly with Respondent, “we had discussed it with
Jan. She knew that we were authorized to negotiate on our
own, and she had no problem with it. . . . She told us she had no
problem with it.”17 As to whether DeHoff was aware of the
Union’s authorization to the office employees to directly nego-
tiate with Respondent, Stewart averred, “I don’t know what Jan
might have told him.” Asked if DeHoff ever suggested it
seemed odd to bargain directly with the employees rather than
Mammen, Stewart answered, “No. . . . he told us that he pre-
ferred it that way when we talked about the possibility of bring-
ing Jan in.”18 On this point, Stewart denied that DeHoff ever
demanded some sort of authorization prior to bargaining di-
rectly with the office employees.
Stewart testified that, since 1979, the direct negotiations be-
tween the office employees and Respondent have mostly in-
volved wage increases and, on one occasion, the employees’
paid holidays and vacations. With regard to raises, Stewart
recalled that the office employees have received several in-
crease in their rates of pay since 1979 and that the parties did
not “necessarily” sit down and negotiate on each occasion;
rather, the employees usually presented a proposal to McGee or
DeHoff, and they either accepted or rejected the employees’
proposal—“and we would go from there.”19 For example, in
16 If such a document exists, neither counsel for the General Counsel
nor the Union’s representative offered it as corroboration of Stewart’s
testimony.
17 Asked if Mammen ever authorized Respondent’s office employees
to bargain directly with Respondent on their own behalf, Dona Ander-
son replied, “I don’t recall an authorization.” Asked if, as a group,
Mammen ever said they could continue bargaining with Respondent,
she replied, “No.” Asked if she knew anything about the employees
being authorized to bargain directly with DeHoff, Maas said, “No. I
guess not. I didn’t know we weren’t authorized. I mean no one ever
talked to me about the contract and I’ve been there over 14 years.”
18 This occurred sometime in the mid-1990s after the employees ex-
perienced difficulty in discussing a raise with DeHoff and mentioned
bringing in Mammen to do the bargaining. DeHoff “. . . did not want
that done.” DeHoff failed to specifically deny Stewart’s testimony in
these regards.
19 Anderson and Maas corroborated Stewart on the informal nature
of the bargaining between DeHoff and the office workers. According
to the former, “[W]e never sat down formally and discussed our wage
increases.” Rather, the three employees would together decide on what
they thought was an appropriate raise and submit it to DeHoff, who
“. . . would either approve it or disapprove.” She added that DeHoff
would sometimes give the employees a counteroffer, and “there were
times when we would maybe counteract the figure.” According to her,
“I believe one time we did go to the basement,” but “it really was no
different than what we had done in the past on a piece of paper. I just
don’t feel that we ever have done true bargaining or negotiating in that
office.” Also, the changes in the holidays and vacations were likewise

KANSAS AFL–CIO 1021
1999, “we gave Jim a proposal. . . . [He] gave it back to us, and
we made a counterproposal on it. We then again gave it to him,
and . . . he told us that he wanted to meet with us.” The three
office workers and DeHoff then met “in the basement” at Re-
spondent’s office facility. “We had a discussion, and the offi-
cers . . . offered us around $22. We asked to be excused to go
upstairs and talk about it . . . and we came back down and we
. . . asked for $30. And they got up and said the offer that was
on the table was the last one that we were going to get, and left
the room.” The employees accepted $22 per hour. As to the
changes in the employees’ holidays and vacations, these oc-
curred in approximately 1992, and “we negotiated it.” The
changes in the employees’ holidays involved a change of days
from Columbus Day to Good Friday and the addition of the
employees’ birthdays. The vacation changes involved permit-
ting employees to have 3 weeks of vacation after 3 years of
employment rather than after 5 years and 8 weeks after 20 years
of employment. She added that, as the employees’ wage rates
were not set forth in the 1977 collective-bargaining agreement,
the amounts of any wage increases were never noted on the old
collective-bargaining agreement in the office files. However,
as to the holiday and vacation changes, these were handwritten
onto the document.20
Stewart, Anderson, and Maas were corroborative that, in ap-
proximately 1999, Anderson retyped the contents of the old,
brittle collective-bargaining agreement into a computer file, and
Anderson identified General Counsel’s Exhibit 3, allegedly a
computer printout of what Anderson typed, as being “very
similar,” if not identical, to what she typed into the office com-
puter. According to Stewart, the first time she observed Gen-
eral Counsel’s Exhibit 321 “probably” was in 1999, and she
knew “that Dona had retyped [it] . . . from the original contract
that was in the files. She retyped [it], and she put changes in
that we had negotiated over the years. The original document
did not have the same vacations or holidays . . . .” Stewart

“informal.” Maas, who could not recall the employees ever actually
sitting across a table from DeHoff and bargaining, said that, for raises,
“the three girls would decide what we wanted to ask him for and some-
times if Mr. DeHoff wasn’t there, I’d write a sticky note or type it on a
piece of paper.”
20 As to whether these were initialed by the parties, Stewart was not
sure, and Anderson could not recall any initials. However, Stewart
testified that any time DeHoff agreed to something in writing, he would
place his initials next to it, and the document would be filed.
21 Paragraph one of article I of GC Exh. 3 states, “This Agreement
shall cover all classifications of office work in the business office of the
Employer, except executives.” Article V, sec. 1 of the document states,
“The Employer has the right to lay-off, dismiss, or discharge any em-
ployee for sufficient cause, however, the employee or his Union repre-
sentative shall, upon request, be informed of the reasons for such lay-
off, dismissal, or discharge.” Sec. 3 of the same article reads, “In the
reduction of force, employees filling permanent positions shall be given
a thirty (30) calendar day notice, prior to such reduction.” Finally, art.
VI provides that “seniority or length of service shall prevail in all pro-
motions, layoffs, and in rehiring, provided, qualifications are sufficient”
and that an employee’s seniority rights are “broken” only if he or she
“voluntarily resigns or leaves the employ of the Employer, is justifiably
discharged, or refuses to return to work with the Employer within ten
(10) calendar days after being requested by the Employer to return to
work . . . .”
added that Maas asked Dona to retype the contract so that the
employees would have a “cleaner” copy. Close scrutiny of
General Counsel’s Exhibit 3 discloses that its heading is
“AGREEMENT” and that the first paragraph states, “This
Agreement made and entered into the 16th day of March 1999,
by and between Kansas AFL–CIO (Executive Secretary-
Treasurer’s Office) . . . and Office and Professional Interna-
tional Union, Local No. 320 . . . .” There is no record of bar-
gaining between Respondent and the Union in 1999, and, asked
the derivation of the March 16, 1999 effective date, Stewart
replied that the three employees decided upon the date “because
we thought that was the date that we were going to begin nego-
tiating the next time” as that is when “our current contract was
due.” She added that, previously. the collective-bargaining
agreement was “due” in October, but, as there had been prob-
lems regarding raises, “Jim . . . said . . . that meant the contract
was dated in March from then on out.”22 According to Ander-
son, she typed the contents of General Counsel’s Exhibit 3 into
an office computer.23 “There was an old, brittle [document] in
the file and I typed from that. . . . It was very yellowed, very
brittle”24 and “we just thought it would be good to have it into
the computer so if we needed a decent copy, we would have
it.”25 Anderson added that what she typed into the office com-
puter was an exact copy, incorporating all the handwritten
changes on the old document. Further, Anderson denied sub-
mitting a copy of General Counsel’s Exhibit 3 to DeHoff for
his approval and, when asked why she placed the Union’s name
on the signature page, she replied, “[B]ecause I am a member.
When we type letters or anything, we put that at the bottom.”
Denying that she suggested or instructed Anderson to type Gen-
eral Counsel’s Exhibit 3 into a computer and believing she did
not know what Anderson had done until “after the fact,” office
manager Maas then recalled seeing an old, yellow document,
bearing the heading “Agreement,” in an office file and Ander-
son copying it into an office computer. Also, Maas recalled
seeing a copy of General Counsel’s Exhibit 3 in the same of-
fice file. Finally, with regard to General Counsel’s Exhibit 3,
no signatures appear on the document, and there is no conten-
tion that DeHoff ever executed it on behalf of Respondent.
Turning to Janice Mammen’s asserted contacts with Respon-
dent’s three office employees and with Respondent in her ca-
pacity as a union representative,26 she testified that she as-
sumed her position in 1987 and that, while she has never nego-
22 Stewart believed that the effective date change resulted from nego-
tiations on the employees’ 1998 raise, which occurred in March, and
from DeHoff telling the employees such would “automatically” change
the contract date.
DeHoff specifically denied ever agreeing to an effective date for GC
Exh. 3 or any other collective-bargaining agreement.
23 Art. XIII of the alleged collective-bargaining agreement contains
the following language regarding the term of the agreement—“If nei-
ther party desires a change, then this Agreement shall remain in effect
from year to year thereafter.”
24 Anderson did not believe it was signed.
25 The old, brittle contract contained handwritten changes to some of
the provisions. Anderson did not believe these had been initialed.
26 Mammen conceded there exists no document designating the Un-
ion as the bargaining representative of Respondent’s office employ-
ees—“I don’t have any documentation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022
tiated a collective-bargaining agreement on behalf of the Un-
ion27 with Respondent, “my predecessor . . . informed me that
the staff of Kansas AFL–CIO preferred to negotiate the contract
on their own”28 and that, “when I initially then went in to visit
the staff at the office, I found out that things had always gone
very well for them in negotiations.”29 As to the number of
times she has visited Respondent’s office between 1987 and
2003, according to Mammen, “I would say nine or ten times
and that, of these 10 visits, “I would say on at least seven or
eight occasions I was there pretty much as a representative of
the Union . . . .” She added that “when I would come in and
visit the staff . . . I let it be known to them that . . . if they
wanted to go to [DeHoff] with anything, that was fine with
me.”30 When asked if she ever advised DeHoff he was author-
ized to bargain directly with Respondent’s office employees,
Mammen said “[T]o the best of my recollection, I don’t recall
specifically saying anything . . . like that to him.” Further,
other than on behalf of Stewart, Mammen admitted never filing
a contractual grievance against Respondent on behalf of an
employee.31 Nevertheless, Mammen believed DeHoff was well
aware of her capacity as the bargaining agent for Respondent’s
employees. In this regard, she said that, over the years, DeHoff
has never questioned here authority to ask questions about the
office employees and, on this point, described a 1996 or 1997
meeting with DeHoff at a banquet in Topeka at which the sec-
retary of the national AFL–CIO appeared. The dinner occurred
in a hotel banquet room, and “I specifically recall telling [De-

27 The Union has been one of the labor organizations affiliated with
Respondent.
28 Mammen conceded not being able to locate an executed collec-
tive-bargaining agreement, between Respondent and the Union, in the
latter’s files.
Mammen testified that, besides Respondent’s office employees,
there are approximately 20 other bargaining units, which are responsi-
ble for negotiating their own collective-bargaining agreements. As to
these, she added that the Union’s bargaining position is a unique one as
her presence during bargaining “makes some labor leaders uncomfort-
able and they get more argumentative with me than they would with
their staff . . . .”
29 She recalled being told this by Stewart, Anderson, and Maas in
1987. Given her 14-year tenure with Respondent, Maas could not have
met with Mammen in 1987. Clearly, Mammen knew little of the bar-
gaining unit employees’ negotiations with Respondent. Thus, she
admitted she never gave advice; the employees never requested assis-
tance, and she did “not always” know what they were negotiating.
Moreover, while claiming she knew the employees received raises once
a year, she did not know if these were negotiated raises, and she admit-
ted, “I did not receive any copies” of whatever the employees negoti-
ated.
30 According to Mammen, this authority was not limited to bargain-
ing over wages—“They would have been able to negotiate anything
that they could.”
31 Asked if any employee ever asked her to file a grievance, Mam-
men could not recall the year but stated, on one occasion, “I came into
the office and was talking with the office staff when they mentioned to
me that they were having a problem with mice and would I go to Mr.
DeHoff. . . . I just kind of laughed and went to Mr. DeHoff and told
him that the staff had a concern about the mice in the basement. . . . He
. . . indicated that he would have it taken care of.” Both Anderson and
Maas denied Mammen’s account of the mice incident.
Hoff] that I was very much appreciative of the way that he
worked with his office staff and how he treated [them]. And I
recall telling him that I never had any problems with them be-
cause I knew they could always work things out among them-
selves and that I wished that more of my employers were as
good as he was. . . . He said to me that was the way things had
always been with them and [that he] had a good staff.” Also,
according to Mammen, within the last “couple of years,” she
spoke to DeHoff on occasion when they met at meetings of the
“Tri-county Labor Council,”32 and “I would ask him if he had
any complaints about the staff. He would say, no, do they have
any complaints about me? No.” DeHoff failed to specifically
deny Mammen’s accounts of their asserted conversations at the
Topeka banquet and at the Tri-County Labor Council meetings.
Finally, Mammen conceded that she never authorized Stewart,
Anderson, or Maas to place the Union’s name on General
Counsel’s Exhibit 3.
With regard to Mammen’s representation of Respondent’s
office employees on behalf of the Union, Connie Stewart testi-
fied that she knew Mammen was a union business agent and the
employees’ bargaining representative because “she has been in
the office several times . . . ,” and “she would just generally
come in and ask us if we were having any problems, if there
was anything she needed to talk to us about.” She estimated
Mammen visited the office to speak to the employees “five or
six times” in the previous 7 or 8 years. Contrary to Stewart,
according to Dona Anderson, she never felt that the Union ever
represented her “because [Mammen] has never contacted us to
do bargaining.” She added, “[Mammen] has been to our office
but never discussed . . . our benefits or salaries.”33 In the same
regard, Karen Maas testified that, during the years of her em-
ployment by Respondent, Mammen has been to the office no
more than “three maybe four times” and that these visits have
been to speak to DeHoff. Asked if, during these visits, Mam-
men ever inquired about the employees’ working conditions or
discussed negotiating, Maas initially replied, “never” but later
conceded Mammen “may have said how are you guys doing.”
Respondent contends that, at no material time, has there been
a collective-bargaining agreement in effect between the Union
and it, and Jim DeHoff denied ever being told that Respon-
dent’s office employees were represented by any labor organi-
zation or anyone ever referring to a collective-bargaining
agreement, to which Respondent assertedly was a party, in
conversations with him. As to whether he ever met with Jan
Mammen to discuss the office employees, while initially reply-
ing “not the employees, definitely not,” DeHoff later changed
his testimony on this point, saying “[J]ust the one time I can
ever remember anything was . . . in 1987 . . . she did ask about
how the office personnel were doing” and, as noted above,
failed to specifically deny Mammen’s accounts of their meet-
ings since 1987. Concerning his use of the terms office con-
tract or agreement in correspondence, DeHoff replied, “I’ve
32 This is an entity comprised of unions, which represent employees
located in the five counties of eastern Kansas. The meetings occur in
Kansas City.
33 Asked if she knew the purpose of Mammen’s visits, Anderson re-
plied, “just to step in and say hello, I guess.”

KANSAS AFL–CIO 1023
always felt like I did have some sort of agreement . . . with the
employees in the office and so, when I wrote letters to different
people, being from the labor movement, I’d use terms like con-
tract, agreements . . . . That’s all I knew.” On this point, under
questioning by me, while denying it was a collective-bargaining
agreement, DeHoff admitted that, for the past 15½ years, he has
been aware an “unsigned” agreement has been in Respondent’s
files. Specifically, with regard to General Counsel’s Exhibit 3,
DeHoff admitted that he “saw it before I gave notice to Connie
Stewart [on] the elimination of her position” and that “I had . . .
either Dona or Karen dig it out of the files.” He explained he
asked for the document, which he referred to as the “office
contract,” as “I was just asking for a document, pertaining to
how you lay off someone, eliminate a position,”34 and “I just
knew that . . . Dona Anderson went in and typed something on
her own and that might be it.” Asked if he adhered to its terms,
while continuing to fervently deny it was a collective-
bargaining agreement, DeHoff responded, “Yeah. What else
would I follow?” Further, for matters involving the office
workers’ terms and conditions of employment, DeHoff knew to
ask “. . . . because of the fact that they have always used the
document. . . . A document similar to this one . . . .”35 How-
ever, he denied knowing where the office employees kept the
document. Regarding discussions with them concerning their
terms and conditions of employment, DeHoff conceded dis-
cussing wage increases with the three women, saying, “[W]ell,
I am sure . . . over fifteen and a half years . . . the four of us . . .
would be sitting in the office just discussing what they ought to
have . . . .”36 As to whether there have been proposals and
counterproposals, “the standard thing was there was a lot of
verbal talk, like ‘Oh, we would like to have five percent.’ I
would say, ‘you know, we don’t have to give you five percent,’
and that type of thing.” With regard to the employees’ holi-
days, DeHoff said that “they have mentioned holidays, but I
don’t think there was any bargaining over it . . . . I have heard
comments through the years that Martin Luther King’s birthday
ought to be a holiday, but it is all said in jest . . . .” As to
whether he ever negotiated with the employees on vacation
pay, DeHoff replied, “I think one time, the two officers decided
to give an extra week of vacation, but I am not real positive on
that. It has been a few years ago.”37
B. Legal Analysis
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act in two aspects—by laying off its
employee, Connie Stewart, a mandatory subject of bargaining,

34 Asked if he examined the document, DeHoff admitted, “I looked
at [it], but it has been the procedure over the years that the secretaries—
due to the fact that there was no negotiations . . . just typed up a docu-
ment, and I have never signed the document, and so . . . it is not a con-
tract of any sort.”
35 DeHoff admitted reading GC Exh. 3 on prior occasions. For ex-
ample, he admitted scrutinizing the vacation pay provision in early
2001.
36 DeHoff denied the existence of any written authorization from the
Union for him to engage in such discussions.
37 Significantly, after conceding Respondent’s vacation policy is out-
lined in GC Exh. 3, DeHoff averred, “[It was outlined before I got
there, I guess . . . .”
without affording prior notice to the Union, which is the collec-
tive-bargaining representative of its office employees, and af-
fording it an opportunity to bargain with regard to the decision
and its effects or, in the alternative, by failing to continue in
effect all the terms and conditions of its existing collective-
bargaining agreement with the Union by laying off Stewart
without utilizing seniority as required by the collective-
bargaining agreement. At the outset, I find, and there is no
dispute, that, on March 4, 2003, rather than laying her off, Re-
spondent eliminated Connie Stewart’s position and, thereafter,
terminated her employment without prior notice to the Union or
affording the latter an opportunity to bargain over its decision
to eliminate her position and the effects of the act. With regard
to the General Counsel’s contention that Respondent was obli-
gated to have provided prior notice to the Union and afforded it
an opportunity to bargain over its elimination of Stewart’s job,
counsel contends that, at some point, more than 25 years ago, in
some indeterminate manner, Respondent extended recognition
to the Union as the collective-bargaining representative of its
office employees and that such recognition has been embodied
in successive collective-bargaining agreements. On these
points, the testimony of Connie Stewart is crucial, and, there-
fore, her credibility is directly at issue. In this regard, I note
that she was inconsistent in certain aspects of her testimony, in
particular regarding execution of the 1977 collective-bargaining
agreement between the parties and the existence of a written
and executed authorization from the Union authorizing the
employees to engage in collective bargaining on their own be-
half, contradicted by Dona Anderson as to whether the old,
brittle document, entitled “Agreement,” had been executed, and
uncorroborated as to other points, including the existence of the
aforementioned authorization, permitting the office employees
to directly engage in collective bargaining with Respondent.
Nevertheless, Stewart’s demeanor, while testifying, was that of
a veracious witness, and, noting that the events occurred more
than 20 years ago, I feel confident in relying upon her uncon-
troverted testimony regarding the events of the late 1970s.
Accordingly, I find that, while there is no record evidence as to
Respondent’s extension of recognition to the Union as the ex-
clusive bargaining representative of its office employees, at the
time of Stewart’s hire in 1977, Respondent and the Union were,
in fact, parties to a collective-bargaining relationship concern-
ing the former’s office employees. This must be so; for, ac-
cording to Stewart, in 1977, she was informed, upon being
hired, that the Union was the office employees’ bargaining
representative and Larry Green, representing the Union, di-
rectly negotiated a successor collective-bargaining agreement,
covering the office employees, with Respondent’s then execu-
tive secretary/treasurer, Ralph McGee. As corroboration, ac-
cording to Dona Anderson, General Counsel’s Exhibit 3 is a
replica of the old, brittle document, which, according to Stew-
art, whom I credit on this point, was a copy of the 1977 collec-
tive-bargaining agreement38 and which, according to the latter,
38 Stewart’s testimony was contradictory as to whether this docu-
ment was an executed copy of the contract, and Anderson did not be-
lieve that it was signed. However, Board law is clear that, when parties
have been found to have agreed to the substantial terms of a collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
Dona Anderson, and Karen Maas, remained deposited in one of
Respondent’s office files through, at least, March 4. General
Counsel’s Exhibit 3, in its introductory paragraph, states that
the document it is an agreement between Respondent and the
Union, and, pursuant to Rule 1004(3) of the Federal Rules of
Evidence, I find that the introductory paragraph of the 1977
collective-bargaining agreement between the parties contained
the identical language and establishes their bargaining relation-
ship and the Union’s representative status.
Moreover, I believe the record evidence warrants the conclu-
sions that, since 1979, the Union has never repudiated its status
as the exclusive bargaining representative of Respondent’s
employees and that Respondent has always been aware of, and
continues to recognize, the Union’s representative status. In
these regards, I am cognizant that the Union has effectively
ceded all bargaining responsibility to Respondent’s employees
themselves and that, over the past 16 years, its current business
manager and secretary-treasurer, Janice Mammen, has rarely
appeared at Respondent’s office to meet with the office em-
ployees. Nevertheless, since 1989, Respondent’s current ex-
ecutive secretary/treasurer, Jim DeHoff, has permitted the of-
fice employees to deduct the amount of their union dues from
their paychecks and remit the amounts to the Union. Further, I
credit Connie Stewart that, in 1979, the Union ceded bargaining
responsibility to Respondent’s office employees at the behest of
the employees themselves, and, DeHoff failed to deny that, in
the mid-1990s, after the employees mentioned bringing the
Union into negotiations, rather than raising representational
issues, he merely said he “preferred” direct bargaining with the
employees and “did not want” to bargain with the Union.39
Also, DeHoff admitted speaking to Mammen in 1987 regarding
the welfare of Respondent’s office employees and failed to
specifically deny Mammen’s testimony40 that, at a 1996 or
1997 banquet in Topeka, she mentioned to him “that I never
had any problems with [his office employees] because I knew
they could always work things out among themselves and that I
wished that more of my employers were as good as he was. . . .
He said to me that was the way things had always been with
them . . . .” Further, DeHoff failed to specifically deny conver-
sations, regarding Respondent’s office employees, with Mam-
men at meetings of the Tri-County Labor Council. Finally,
DeHoff’s most trenchant acknowledgement of the Union’s
status as his office employees’ exclusive bargaining representa-
tive was his March 11 written response to Mammen’s letter,
questioning the propriety of Respondent’s actions regarding
Stewart. Thus, rather than questioning Mammen’s capacity or

bargaining agreement, they are bound to said terms even though not
reduced to writing. H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941);
Johnson Printers, 257 NLRB 45, 50 (1981).
39 While I acknowledge that neither Anderson nor Maas corrobo-
rated Stewart as to what DeHoff said, Stewart was not an inherently
unreliable witness, and DeHoff had an opportunity to deny the occur-
rence of the incident and failed to do so.
40 While her demeanor was that of a basically trustworthy witness, I
believe Mammen did fabricate portions of her testimony, including the
complaints of Respondent’s office employees regarding the infestation
of mice in their office facility. Neither Anderson nor Maas corrobo-
rated her story.
status in acting on the employee’s behalf, DeHoff responded to
all her concerns and ended by stating, “If you still have con-
cerns about the propriety of my actions concerning this reduc-
tion-in-force, please advise . . . .”41
In its defense, the attorneys for Respondent assert that “the
evidence unequivocally establishes that the Union had aban-
doned the employees of [Respondent] and/or that Jim DeHoff
had reason to believe . . . the Union was defunct in his office
. . . .” It is apparent that whether the Union abandoned Re-
spondent’s employees is a close question. In this regard, it is
clear that, after Janice Mammen became the Union’s business
manager and secretary/treasurer and Jim DeHoff became Re-
spondent’s executive secretary/treasurer in 1987, Respondent’s
office employees continued to represent themselves in bargain-
ing, and Mammen exhibited a seeming, distinct lack of inter-
est42 in the concerns of Respondent’s bargaining unit employ-
ees.43 Thus, the record discloses that,
after her appointment, she rarely met with and inquired about
the concerns of Respondent’s office employees, offered them
41 Of course, DeHoff himself admitted to having a conversation with
Mammen in 1987 regarding the office employees.
42 While the Union’s continued representation of Respondent’s of-
fice employees appears deficient, Mammen’s explanation, that her
presence makes union officials, who are acting in the capacity of em-
ployers, “uncomfortable,” appears to be reasonable.
43 Echoing my questions of counsel to General Counsel at the hear-
ing, in their posthearing brief, Respondent’s counsels contend that,
inasmuch as the bargaining units, described in par. 5(a) of the instant
complaint and, by dint of Rule 1004(3) of the Federal Rules of Evi-
dence, art. I the 1977 collective-bargaining agreement between Re-
spondent and the Union, are not identical, counsel for the General
Counsel has failed to establish the “proper” bargaining unit. While the
complaint and contractual unit descriptions do not track each other
word for word, they are virtually identical. Thus, it is clear that, in both
descriptions, included in the bargaining unit are Respondent’s office
workers and no other employees and that excluded are executives and
individuals who would be classified as supervisors within the meaning
of the Act. While it is true that guards are not specifically excluded in
the contractually recognized bargaining unit, such is not fatal to the
finding of an appropriate unit herein. Thus, I believe the General
Counsel has proven the existence of a bargaining unit.
Counsels for Respondent also posit that, based upon her job descrip-
tion, Stewart’s job may not be included in the bargaining unit or cov-
ered by the collective-bargaining agreement. However, the contention
is contrary to the record evidence that, for 26 years, Respondent con-
sidered Stewart as being included in the bargaining unit. Thus, she
participated in bargaining on behalf of the Union in 1977, engaged in
bargaining with the other office employees subsequent to 1979, re-
ceived the same raises as other office employees, along with the other
office employees had her Union dues deducted from her paycheck and
was covered by the negotiated changes in vacations and holidays, and,
on March 4, 2003, was subject to a reduction-in-force pursuant to the
terms of GC Exh. 3. Thus, while it may be true that Respondent’s
executives assumed her job duties after her job was eliminated, Re-
spondent always treated her as a bargaining unit employee, and she
shared a community of interests with the other office employees and
worked in close proximity to them. Further, contrary to the wording of
the contractual bargaining unit, unlike other executives, there is no
evidence that Stewart was authorized to hire or discharge. Accord-
ingly, I think that Stewart’s job duties were included within the bar-
gaining unit, and I reject counsel’s contention.

KANSAS AFL–CIO 1025
no advice or instructions on bargaining, apparently was un-
aware of the specifics of any wage increases or other changes in
their terms and conditions of employment over the years, and
never received copies of any contractual changes. Regardless
of the foregoing, there is no record evidence establishing that
Respondent’s office employees themselves have ever felt aban-
doned by the Union. On this point, notwithstanding Mammen’s
paucity of contacts with them, they have continued to have their
union dues deducted from their paychecks and remitted to the
Union; there is no record evidence that any of the office em-
ployees has ever indicated dissatisfaction or expressed to Re-
spondent a desire to no longer be represented by the Union; and
they have never sought to decertify the Union as their bargain-
ing representative. Unlike the employees in White Castle Sys-
tem, 224 NLRB 1089 (1976), the Board decision upon which
Respondent’s attorneys rely, given the identity of the employer
for whom they work, I am convinced that, had they ever truly
felt abandoned by the Union and desired to extirpate them-
selves from representation by the Union, Respondent’s office
employees, well aware of their rights under the Act, would
have petitioned for removal of the Union as their bargaining
representative at some point in the past 25 years. Further, the
fact that, during this time period, Respondent’s office employ-
ees essentially have represented themselves in bargaining is not
evidence of abandonment by the Union. In this regard, the
Board has held that a bargaining representative may designate
any agent as its bargaining representative (Ball Corp., 322
NLRB 948 at 948 (1997), and I have previously held that, in
1979, at their own behest, the Union authorized the office em-
ployees to represent themselves in bargaining with Respondent.
Moreover, I find the record evidence insufficient to warrant a
finding that Jim DeHoff44 ever believed the Union had aban-
doned Respondent’s office employees as their bargaining repre-
sentative. Thus, not only did DeHoff himself admit speaking to
Mammen in 1987 about the office employees but also I have
previously found that, at a banquet in Topeka, Mammen spoke
to him regarding the lack of employment “problems” involving
the office employees, her knowledge that he managed to “al-
ways work things out” with them, and how much she appreci-
ated his excellent relationship with the office employees and

44 DeHoff impressed me as being particularly lacking in candor. In
particular, I found his testimony regarding his use of GC Exh. 3 and as
to whether he ever engaged in bargaining with his office employees,
labored, unconvincing, and utterly deceitful. In these circumstances,
while there is no record evidence establishing that DeHoff was ever
explicitly informed that the office employees had been authorized to
bargain on their own behalf, given he admitted speaking to Janice
Mammen in as early as 1987 regarding the welfare of the office em-
ployees and being aware of the existence of the old copy of the 1977
collective-bargaining agreement for at least 15 years and his approval
of a union dues-checkoff procedure for them, I believe he has always
been aware his employees were represented by the Union. In these
circumstances, notwithstanding the informal nature of any bargaining
with the employees, as one experienced in the labor movement, he
knew it would have been unlawful for him to have engaged in direct
dealing with the employees in disregard of the Union unless they were
authorized to do so. In these circumstances, that he continued to meet
with them and discuss their wages, holidays, and vacations, in my view,
speaks volumes.
that, at meetings of the Tri-county council, they spoke about the
office employees. As to whether the Union had ever become
defunct as the office employees’ bargaining representative,
counsel for the General Counsel is correct that the Board’s test
for such is whether the putative bargaining representative “is
unable or unwilling to represent the employees.” Hershey
Chocolate Corp., 121 NLRB 901, 911 (1958). Herein, there is
no record evidence to establish that the Union has ever demon-
strated an inability to represent Respondent’s bargaining unit
employees. Further, at worst, Janice Mammen’s behavior dis-
closes a conscious disinclination to interfere with the amicable
relationship between Respondent and its office employees, and
her above-described meeting with DeHoff and her actions im-
mediately after Respondent terminated Stewart’s job demon-
strate the Union’s clear willingness to assert its status as the
bargaining representative when necessary. In these circum-
stances, I reject Respondent’s defense that the Union had be-
come defunct as Respondent’s employees’ bargaining represen-
tative.
Based upon the foregoing, I find that, since at least 1977, the
Union has been, and remains, the exclusive bargaining repre-
sentative of Respondent’s office employees, and I have previ-
ously found that Respondent failed to give prior notice to the
Union and afford it an opportunity to bargain over the effects of
its decision to eliminate Connie Stewart’s job. The law is well
settled that, pursuant to Section 8(a)(1) and (5) of the Act, an
employer violates its duty to bargain with the exclusive repre-
sentative of its employees by unilaterally, without prior notice
and affording it an opportunity to bargain, implementing
changes in the employees’ wages, hours, and terms and condi-
tions of employment—the mandatory subjects of bargaining.
NLRB v. Katz, 369 U.S. 736 (1962).45 As, according to De-
Hoff’s letter to Stewart, Respondent’s decision to eliminate the
latter’s job resulted from “cut-backs in the volume of work”
and budget concerns, I believe that Respondent’s act was ame-
nable to collective bargaining and, therefore, fell within the
second category of management decisions, such as the order of
succession for layoffs and recalls, production quotas and work
rules, which, as described in First National Maintenance Corp.
v. NLRB, 452 U.S. 666 (1981),46 involve the mandatory sub-
jects of bargaining. Kajima Engineering & Construction, 331
NLRB 1604, 1620 (2000); Winchell Co., 315 NLRB 526 at 526
fn. 2 (1994). In this regard, the Board has long considered the
elimination of bargaining unit positions as a mandatory subject
of bargaining. Crane Corp., 244 NLRB 103, 114 (1979). Ac-
cordingly, I find that Respondent eliminated Connie Stewart’s
position and terminated her employment unilaterally without
affording the Union prior notice and an opportunity to bargain
about its decision or the effects of its decision and that, by fail-
ing to do so, Respondent engaged in conduct violative of Sec-
45 It is clear that the bargaining obligation requires preimplementa-
tion notice. Geiger Ready-Mix Co. of Kansas City, 315 NLRB 1021
(1994).
46 These are subjects, which are “almost exclusively `an aspect of the
relationship’ between employer and employee.” First National Main-
tenance Corp., supra at 676–677.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
tion 8(a)(1) and (5) of the Act. Kajima Engineering & Con-
struction, supra; Crane Corp. supra.47
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times since, at least 1977, based upon Section 9(a)
of the Act, the Union has been the exclusive representative for
the purpose of collective bargaining of all employees working
in Respondent’s Topeka, Kansas office; excluding executives,
supervisors within the meaning of the Act, and guards.
4. By eliminating Connie Stewart’s position and terminating
her employment without affording the Union prior notice and
an opportunity to bargain over the decision or its effects, Re-
spondent engaged in acts and conduct violative of Section
8(a)(1) and (5) of the Act.
5. The aforementioned unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has committed no violations of the Act unless
expressly found herein.
REMEDY
Having found that Respondent has engaged in, and continues
to engage in, serious unfair labor practices, violative of Section
8(a)(1) and (5) of the Act, I shall recommend that it be ordered
to cease and desist from engaging in such acts and conduct and
to take certain affirmative actions designed to effectuate the
purposes and policies of the Act. I have concluded that Re-
spondent unlawfully eliminated Connie Stewart’s job and con-
sequently terminated her employment without notice to the
Union or affording it an opportunity to bargain over the deci-
sion and its effects, I shall recommend that it be ordered, upon
request, to bargain with the Union with regard to its decision to
eliminate Stewart’s job and its effects. As is customary for
such violations of the Act,48 I shall also recommend that Re-
spondent be ordered to offer to Stewart immediate and full
reinstatement to her former position or, if the job no longer
exists, to a substantially equivalent position and to make her
whole for any loss of earnings and other benefits suffered as a
result of its unlawful unilateral action. Backpay shall be calcu-
lated in the manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest to be computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended49

47 Given my finding that Respondent violated Sec. 8(a)(1) and (5) of
the Act by failing to provide prior notice to the Union and an opportu-
nity for it to bargain over the effects of its decision to eliminate Connie
Stewart’s position, I need not consider the General Counsel’s alterna-
tive contention that Respondent did so in violation of its collective-
bargaining agreement with the Union.
48 Kajima Engineering & Construction, supra.
49 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The Respondent, Kansas AFL–CIO, Topeka, Kansas, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Eliminating bargaining unit positions because of reduced
work and budgetary concerns without giving prior notice of
such to the Union and affording it an opportunity to bargain
regarding its decision and effects of the elimination of those
positions.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Connie
Stewart full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Connie Stewart whole for any loss of earnings and
other benefits suffered as a result of the unlawful elimination of
her position in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful elimination of Stewart’s
job and, within 3 days thereafter, notify Stewart, in writing, that
it has done so and that it will not use its elimination of her job
against her in any way.
(d) On request, bargain with the Union in good faith about
the decision to eliminate Stewart’s job and about the effects of
that act.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its of-
fice in Topeka, Kansas, copies of the attached notice marked
“Appendix.”50 Copies of the notice, on forms provided by the
Regional Director for Region 17, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
50 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

KANSAS AFL–CIO 1027
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 4, 2003.
(g) 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.