Long Island Day Care Services

National Labor Relations Board - Board Decisions

May 28, 1991

303 N.L.R.B. 112 (N.L.R.B. 1991)

112
303 NLRB No. 13
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions have been filed to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and(1) by failing to provide information on employees
that had been requested by the Union and that it violated Sec. 8(a)(3) and (1)
by disciplining employee Cook. We also note that no exceptions were filed
to the judge’s dismissal of the 8(a)(1) interrogation allegation.
2 The parties have excepted to the judge’s credibility findings. The Board’s
established policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence con-
vinces 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.
3 New Horizons for the Retarded, 283 NLRB 1173 (1987).
Long Island Day Care Services, Inc. and District
Council 1707, Community and Social Agency
Employees Union, American Federation of
State, County and Municipal Employees, AFL–
CIO. Cases 29–CA–13305, 29–CA–13433, 29–
CA–13767, and 29–CA–13901
May 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 17, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. Coun-
sel for the Respondent, the General Counsel, and the
Charging Party filed exceptions and supporting briefs,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions, as modified, and to modify the remedy,3
only to the extent consistent with this Decision and
Order.
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1) by delaying the sub-
mission of a conditionally approved collective-bar-
gaining agreement to its board of directors for a ratifi-
cation vote until May 5, 1988. We also agree with his
finding that the Respondent violated Section 8(a)(5),
(3), and (1) by paying cash bonuses only to non-
strikers, and that it violated Section 8(a)(3) and (1) by
giving a disciplinary warning letter to former striker
Linda Morning. However, as explained below, we find
merit in certain of the General Counsel’s exceptions to
the judge’s dismissal of other complaint allegations
and, consequently, we find that the Respondent vio-
lated Section 8(a)(5) and (1) by making unilateral
changes regarding employee furloughs and a 4.75-per-
cent cost-of-living adjustment and that it violated Sec-
tion 8(a)(3) and (1) by disciplining employees Ramsey
and Garcia.
Alleged Unilateral Changes: Procedural and
Impasse Defenses
1. The judge recommended dismissal of the General
Counsel’s complaint allegations regarding unilateral
changes in terms and conditions of employment be-
cause he found that these allegations, offered at the
hearing by amendment to the complaint, were not
closely related to the allegations in the underlying
charge and, therefore, were time-barred by Section
10(b) of the Act. We find merit in the General Coun-
sel’s exceptions regarding the 10(b) ruling and for the
following reasons we shall consider the complaint
amendments on the merits.
As the judge found, the charge in Case 29–CA–
13305, filed December 3, 1987, alleges that the Re-
spondent violated Section 8(a)(1) and (5) by refusing
to execute an agreed-upon contract. Paragraph 12(e) of
the complaint in that case, which issued January 13,
1988, alleges that since October 23, 1987, the Re-
spondent has violated Section 8(a)(5) and (1) by mak-
ing certain unilateral changes without notice to the
Union or its consent. At the hearing on April 26, 1989,
the judge requested that the General Counsel ‘‘indicate
exactly what it is she’s alleging with respect to para-
graph 12(e) of Complaint 29–CA–13305.’’ At the next
hearing date, May 23, 1989, the General Counsel
moved to amend paragraph 12(e) as follows:
(e) At all times material herein, since on or
about October 23, 1987, Respondent has unilater-
ally implemented certain terms of the agreement
described above in paragraph 11 without prior no-
tice to, or consent of, the Union, as follows:
(i) In or about January 1988, Respondent
granted employees Martin Luther King’s Birth-
day as a paid holiday and in about October,
1988, withdrew Columbus day as a paid holi-
day.
(ii) In or about February, 1988, Respondent
withdrew a February furlough program and in
or about July, 1988 instituted a July-only fur-
lough program.
(iii) On or about September 15, 1988, Re-
spondent granted a 2% additional cost-of-living
adjustment to employees.
The General Counsel also moved to add as renumbered
paragraph 13, the following:
13. On or about August 10, 1988, Respondent
granted a 4.75% cost-of-living increase to its em-
ployees without notice to, or bargaining with, the
Union.
The judge found that those charge and complaint al-
legations do not meet the ‘‘closely related’’ test set
forth in the Board’s decision in Nickles Bakery of Indi-
113LONG ISLAND DAY CARE SERVICES
4 294 NLRB 506 (1989). See also Brownsville Garment Co., 298 NLRB 507
(1990).
5 We also note that the complained-of unilateral changes correspond with
certain provisions in the unratified collective-bargaining agreement.
6 The General Counsel and the Respondent stipulated that the Respondent
unilaterally implemented the 2-percent and 4.75-percent cost-of-living adjust-
ments (COLAs) without prior notice to or the consent of the Union.
7 The fact that the Respondent was aware of the allegations of unilateral
changes before the hearing and participated fully in the litigation of those alle-
gations, but did not interpose its bargaining impasse defense until after
issuance of the judge’s decision, raises questions about whether the defense
is timely raised.
ana, 296 NLRB 927 (1989). He noted that although
certain complaint allegations relating to the process of
creating a collective-bargaining agreement were closely
related to the charge, unilateral changes were of a dif-
ferent character because the referenced changes were
made well after contract negotiations had ended. He
recommended dismissal of the complaint amendments
because they were not based on the same legal theory
as the underlying charge, did not arise from the same
factual circumstance or sequence of events, and would
require the Respondent to raise a completely different
legal defense.
Contrary to the judge, we find merit in the General
Counsel’s contention that this case is controlled by the
Board’s holding in Roslyn Gardens Tenants Corp4 In
that case, the Board held that a charge alleging a ‘‘re-
fusal to execute an agreement’’ was ‘‘closely related’’
to original and amended complaint allegations of uni-
lateral changes because both were similarly directed at
circumvention of the collective-bargaining process. The
Board cited NLRB v. Fant Milling Co., 360 U.S. 301,
307 (1959), in which the Supreme Court held that a
charge alleging a general refusal to bargain encom-
passed a later unilateral wage increase because that in-
crease is ‘‘within the same class of violations as those
set up in the charge.’’ Clearly that holding applies
here. We therefore find, in accord with Roslyn Gar-
dens, supra, that the allegations of unilateral changes
in the subject complaint are closely related to the un-
derlying charge and therefore not barred by Section
10(b).5
2. We likewise find no merit in the Respondent’s
contention that the General Counsel’s complaint
amendment deprived the Respondent of its right to due
process. When the General Counsel moved to amend
the complaint on May 23, 1989, in order to particu-
larize what previously had been generally alleged as
unlawful unilateral changes in the January 13, 1988
complaint, the Respondent objected vehemently on the
grounds of surprise and Section 10(b). The judge de-
ferred action and further argument on the motion to
amend until May 31, 1989. On that date, the parties,
after brief argument on the motion, entered into some
factual stipulations relating to the proposed amend-
ments,6 and the Respondent subsequently adduced evi-
dence bearing on them in its case-in-chief. The Re-
spondent made no effort to gain a continuance prior to
submitting evidence on these allegations. Accordingly,
we are satisfied that the amended complaint allegations
were fully and fairly litigated without prejudice to the
Respondent, and we shall proceed to consider them on
the merits.
3. On the merits, the Respondent argues that imple-
mentation of the previously agreed-to contract terms
was lawful because a bargaining impasse occurred in
December when Negotiator Mayne told Respondent
President Simmons ‘‘we seem to be at an impasse,’’
and the Union subsequently canceled further negotia-
tions. We arguably need not consider this defense;7 in
any event, on consideration of it we find that these
events did not give rise to an impasse in bargaining.
Based on the judge’s findings, which we have
adopted, the Respondent’s negotiator, Ann Coates, had
the authority to enter into an agreement subject only
to approval by the Respondent’s board of directors.
Pursuant to that authority, Coates reached an accord
with Mayne, her counterpart union negotiator, and on
October 20, 1987, the two representatives executed a
fully negotiated memorandum of agreement that was
conditioned only on ratification by the Union’s mem-
bership and the Respondent’s board of directors. With-
in a few days after execution, the Union’s membership
ratified the agreement; however, Simmons declined to
submit the agreement to her board of directors for ap-
proval because of her position that Coates exceeded
her authority by agreeing to binding arbitration and
superseniority for shop stewards.
As a consequence of Simmons’ conduct, Coates re-
signed her position during the first week in December
and the Union, on December 3, filed a charge alleging
that the Respondent refused to execute the agreement
it had reached with the Union. Mayne received a letter
from Coates announcing Coates’ resignation as the Re-
spondent’s attorney, and on December 7 Mayne called
Simmons to arrange a meeting for December 11.
According to Mayne’s testimony, on December 11
Simmons expressed her objection to top seniority for
shop stewards and also showed Mayne a letter from
the regional Head Start office that she said proved that
Head Start workers were not entitled to binding arbi-
tration as the final step in their grievance procedure.
Mayne said she refuted Simmons’ position with a 1977
letter showing that the issue of binding arbitration for
Head Start workers in New York City had already
been worked out years ago. Simmons mentioned with-
out elaboration that the board of directors had met and
‘‘they went crazy,’’ and that they were going to meet
again to discuss any other objection they may have.
Mayne testified that she set another date to meet with
Simmons because she was hoping to get this straight-
ened out.
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The judge does not mention the statement in his decision and thus did not
resolve whether it was uttered.
9 Simmons testified that she was unable to implement the holiday exchange
in 1987 because Martin Luther King’s birthday had already passed by the time
of her commitment.
10 Simmons also testified that she was required to submit a calendar reflect-
ing the holiday exchange to the Head Start regional office in September 1987.
Simmons testified that Mayne telephoned in early
December saying, ‘‘[W]e seem to be at an impasse,’’
and asking for a meeting. On December 11, Mayne
and Simmons met. Mayne asked how Simmons
‘‘would feel about discussing our whole situation that
we have.’’ Simmons stated she replied that she did not
feel comfortable discussing anything because of the
memorandum of agreement, but that it had to be clari-
fied and put to bed. Thereafter, she and Mayne pro-
ceeded to discuss the memorandum at length. Accord-
ing to Simmons, the meeting ended with Mayne sug-
gesting that they have one-on-one discussions to come
to conclusions on outstanding items that had not been
resolved, like dates of the contract and ‘‘stuff like
that.’’ Before any further meeting was held, Union Di-
rector of Organizing Stevenson informed Simmons that
Mayne did not have the authority to meet with her and
said, ‘‘Until you agree to sign the memorandum of
agreement there is nothing to talk about.’’
It is clear from the foregoing that Mayne’s alleged
impasse statement, even if made,8 was not offered as
an admission that the parties had reached an impasse
in bargaining. Rather, it was simply her way of depict-
ing, perhaps inartfully, the effect of Simmons’ rejec-
tion of the parties’ memorandum agreement and her
failure to have submitted it to the board of directors
for their consideration. No other conclusion is plau-
sible where, as here, Mayne made the alleged state-
ment after an accord between the parties had been
reached. Further, no meeting between Simmons and
Mayne had as yet occurred that might serve as a predi-
cate for finding a bargaining impasse. Consequently,
no basis exists for finding that Mayne was signaling
the existence of a formal impasse in bargaining by her
alleged statement.
Similarly, we find no impasse occurred because of
their December 11 meeting. The meeting took place
after bargaining had been concluded and an agreement
had been executed. Thus, when they met there was
nothing further for them to bargain about concerning
the employees’ terms and conditions of employment.
In addition, both were aware that the Union’s member-
ship had ratified the agreement, and that the Union be-
lieved the agreement was binding because of the re-
fusal-to-execute charge it had just filed against the Re-
spondent. The meeting, therefore, could not reasonably
be considered by either of them as a reopening of con-
tract negotiations. Nor could Simmons reasonably con-
strue Mayne’s participation in the meeting as indi-
cating that the Union was retreating from its position
that an agreement existed.
Moreover, both Mayne’s and Simmons’ versions of
the meeting demonstrate that it was held to explore the
possibility of resolving the dispute over the agreement.
Mayne’s testimony establishes that Simmons identified
two objections to the agreement—the provisions for
binding arbitration and superseniority for stewards—
and that Mayne’s efforts to allay Simmons’ fears with
respect to those provisions were to no avail. Similarly,
Simmons testified that they reviewed the memorandum
agreement in an attempt to clarify certain of its terms.
Although she also averred that Mayne suggested future
discussions to resolve such matters as contract duration
and ‘‘stuff like that,’’ she does not claim that Mayne
indicated that the Union would agree to any changes
in the agreement’s terms and conditions of employ-
ment. In any event, any notion of Simmons that her
meeting with Mayne may have represented a return by
the Union to the bargaining table was quickly dispelled
when Stevenson informed Simmons that Mayne had no
authority to meet with her and that no further talks
would take place until the Respondent agreed ‘‘to sign
the agreement.’’
Accordingly, we discern no grounds for finding that
the parties were at impasse after the December 11
meeting, and we shall thus proceed to examine the
specific circumstances surrounding each of the Re-
spondent’s alleged unilateral changes.
Holidays
Uncontradicted testimony by President Simmons
shows that in a January 1986 employee meeting the
employees demanded a holiday on Martin Luther
King’s birthday either in addition to, or in place of,
Columbus Day. She testified that she made no commit-
ment in 1986 because Martin Luther King’s birthday
was not then recognized as a national holiday, but that
when the employees repeated that demand in January
1987 at a staff meeting she said she could agree on the
spot to an exchange of these two holidays but that she
would have to clear it with the Head Start regional of-
fice9 Simmons explained that the Federal officials
would not allow an additional holiday but that she re-
ceived immediate telephone approval from her pro-
gram specialist for the exchange of holidays.10 This
substitution of holidays appears in the Union’s pro-
posed list of paid holidays and the parties’ October 20
written agreement.
The General Counsel asserts that Simmons’ testi-
mony about the Respondent’s having made the deci-
sion in January 1987 to change holidays is belied by
its inclusion as a bargaining subject in the contract ne-
gotiations later that year, and by the Respondent’s fail-
ure to produce any documentary evidence to corrobo-
rate her testimony about the holiday exchange, such as
the calendar reflecting that change that had to be sub-
115LONG ISLAND DAY CARE SERVICES
11 In light of this finding, we find no significance in the fact that the page
containing holidays in the Respondent’s Personnel and Procedures Manual is
missing from the exhibit in evidence. Furloughs
12 According to undisputed testimony by teacher Janie Ramsey, the 4 fur-
lough weeks on the annual calendar refer to Christmas Week, a week in Feb-
ruary for winter recess, and 2 weeks in July. She also testified that there was
a furlough in February 1987 but not in February 1988. It is implied elsewhere
that the February furlough was 2 weeks, but that is unclear on the record.
13 The Respondent asserts that its commitment is further substantiated by
minutes of a bargaining session in evidence showing that Goode, who assisted
the Respondent at the bargaining table, after speaking with Simmons by tele-
phone, stated that July was to be the furlough month; and by inclusion of the
following on the final negotiating list of approved items: ‘‘3. Furloughs—Be-
ginning Dec. 1, 1987 furloughs in existence to be in month of July.’’ The evi-
dence the Respondent relies on in support of this assertion, however, proves
only that the parties agreed to July as the furlough month during their contract
negotiations.
14 The personnel manual’s language that ‘‘[t]he furlough will occur during
four specified weeks’’ seems to accord with Ramsey’s testimony in that, at
least by implication, it appears to mirror the pre-1988 practice.
mitted to the Head Start regional office. We reject this
argument.
The undisputed evidence of the Respondent’s an-
nouncement of the exchange of holidays in January
1987 shows that the Martin Luther King observance
became a term of employment prior to the certification
of the Union and the onset of contract negotiations.
We therefore attach no significance to inclusion of that
holiday in the negotiated agreement, and we further
find that the lack of corroborative documentary evi-
dence does not constitute adequate refutation of Sim-
mons’ uncontradicted testimony. Because we find that
the General Counsel has failed to disprove the Re-
spondent’s evidence that its decision to exchange holi-
days was made and announced to employees in Janu-
ary 1987, we shall dismiss that 8(a)(5) and (1) unilat-
eral change allegation.11
Simmons described the Respondent’s change in fur-
lough scheduling by saying, ‘‘It’s the same cir-
cumstances as the Martin Luther King day,’’ in re-
sponse to questioning on direct examination about the
amended complaint allegations that the February fur-
lough was withdrawn in February 1988 and a July-
only furlough was instituted in July 1988.
The evidence pertaining to this issue is based pri-
marily on Simmons’ testimony on direct. Simmons ex-
plained that when the Respondent took over manage-
ment of the day care centers in January 1986 the pred-
ecessor agency had a 2-month furlough program, con-
sisting of unpaid leave for July and August. Simmons
testified that she announced at a staff meeting at the
time of the Respondent’s takeover, in January 1986,
that ‘‘the Feds had agreed that instead of being off for
the whole summer . . . that staff could come back in
August.’’ Simmons testified, ‘‘at that staff meeting,
staff complained that they would prefer the four weeks
of furlough left in July.’’ Simmons further stated,
‘‘[The employees] were happy about that [but] they
asked that the furlough four weeks be divided into four
other weeks throughout the year, rather than all in one
lump in July. I agreed reluctantly.’’
The Respondent’s counsel then asked, ‘‘Was this
commitment at the same staff meeting that the . . .
Martin Luther King’s holiday was substituted for the
Columbus day holiday?’’ and Simmons responded:
Yes. But I think the Martin Luther King holiday,
they asked for it then in 1986, but it didn’t come
up until, again, until the 1987. I think it was 1987
that, at that point when it was made a national
holiday, which I believe was 1987.
In addition to Simmons’ testimony, the Respond-
ent’s Personnel Policies and Procedures Manual states:
. . . it is Agency policy to furlough all appro-
priate staff for periods when the Head Start Pro-
gram is closed to children as scheduled each year.
The furlough will occur during four specified
weeks, in accordance with the annual school cal-
endars.12
The Respondent argues that the testimony of Sim-
mons substantiates its contention that she made a com-
mitment in January 1987 to change the furlough period
to July only.13 The Respondent further asserts that the
July-only furloughs were motivated by sound business
reasons rather than antiunion animus, and did not con-
stitute a material or significant change and so had no
real impact on the employees or their working condi-
tions. We make no finding as to animus, but we dis-
agree that this was not a material change.
At the outset, we find Simmons’ testimony on this
issue too confusing and unreliable to establish that the
Respondent made a commitment for July-only fur-
loughs prior to the Union’s certification on April 1,
1987. For example, in testifying to the events of the
staff meeting in which the subject of furloughs was
discussed, she had the employees indicating both that
they wanted the furlough ‘‘left in July’’ and that it ‘‘be
divided into four other weeks . . . rather than all . . .
in July.’’ Consequently, it cannot be ascertained what,
if anything, she ‘‘agreed reluctantly’’ to at this meet-
ing. Nor does counsel’s eliciting a ‘‘yes’’ from her to
his question suggesting that the commitment was made
at the same meeting in which she agreed to switch
holidays clear up the confusion in her testimony. To
the contrary, it only compounds it, given the uncer-
tainty regarding the nature of any commitment that
might have been made.
Assuming arguendo, however, that Simmons’ testi-
mony supports the interpretation urged by the Re-
spondent, it is clear that it was not implemented prior
to the 1987 negotiations. Employee Ramsey testified
that the Respondent’s practice prior to 1988 was to
furlough employees in December and February, as well
as in July, and that a furlough was taken by employees
in February 1987.14 The Respondent has presented no
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 NLRB v. Katz, 369 U.S. 736 (1962). Although it is true that the parties
reached a tentative agreement with respect to furloughs and other bargaining
subjects, the Respondent was not thereby privileged unilaterally to implement
such agreed-upon issues on a piecemeal basis. Here, until that agreement was
ratified and became effective as the final agreement of the parties, or failing
that, subsequent bargaining ended in an impasse, the Respondent was obligated
to give notice to the Union of its intent to implement the terms and conditions
of employment that tentatively had been agreed on and to obtain its consent
either by agreement or acquiescence before putting such terms and conditions
into effect.
16 There is no evidence of bargaining about the 4.75-percent COLA in the
1987 contract negotiations; however, Simmons testified that it was discussed
with the Union in a mediation session in April 1988 when she offered to use
the entire COLA award for salaries but the Union’s negotiating committee re-
jected the offer, stating that it was not enough money. We do not find that
this informal discussion with the committee constituted negotiations sufficient
to satisfy the Respondent’s bargaining obligation.
17 In accord with the allegations of the charge and complaint in Case 29–
CA–13767, the judge found, and we have adopted, 8(a)(1), (3), and (5) viola-
tions based on the Respondent’s payment of cash bonuses, with a portion of
the $116,978 COLA, only to employees who did not strike or who abandoned
the strike. Member Cracraft finds it unnecessary to address the finding that
the cash bonuses violated Sec. 8(a)(3) as such a finding would not affect the
remedy.
evidence to the contrary. Indeed, it has failed to ex-
plain why, having allegedly made and announced its
commitment to a July furlough in January 1987, the
employees were furloughed in February. Unlike the
holiday exchange commitment, which could not be im-
plemented in 1987 because the Martin Luther King
holiday had already passed, there was no such time
impediment to canceling the scheduled 1987 February
furlough and including it in July of that year.
In light of the foregoing, we find that the evidence
does not demonstrate that July-only furloughs had be-
come a term of employment prior to the Union’s cer-
tification in l987. Accordingly, because furloughs are
terms and conditions of employment and therefore a
mandatory subject of bargaining, we find that the Re-
spondent’s withdrawal of them in February 1988 with-
out prior notice to or the consent of the Union, irre-
spective of the Respondent’s motivation, violated Sec-
tion 8(a)(5) and (1) of the Act.15
The COLAs
The amended complaint alleges that the Respondent
violated Section 8(a)(5) and (1) by distributing 4.75-
percent and 2-percent COLAs to employees without
prior notice to, or bargaining with, the Union. Because,
as set forth infra, the record shows that the two grants
were markedly different from each other, we shall dis-
cuss them separately below.
1. The 4.75-percent COLA. It is undisputed that the
Federal Government is the Respondent’s primary
source of funding. On March 14, 1988, the Respondent
received a letter from the Department of Health and
Human Services (HHS) informing it, inter alia, that
funds for a COLA were available upon application for
the grant year beginning December 1, 1987, in the
amount of $116,978, and that 65 percent of that sum
would have to be applied to salary and or fringe bene-
fits. On April 7, 1988, the Respondent forwarded a
copy of the HHS letter to the Union with a covering
letter stating, in relevant part, ‘‘this is for your infor-
mation and sharing with your union members.’’ The
Respondent also informed the Union that it would file
a timely application for the $116,978.16 On July 6,
1988, the Respondent received a letter from HHS ap-
proving its application for a COLA in the amount of
$116,978, and on August 10, 1988, the Respondent
sent letters to striking and nonstriking employees—but
not the Union—announcing the board of directors’
vote to distribute 100 percent of this COLA in the
form of salary increases.17
The Respondent contends that it acted lawfully in
granting the 4.75-percent COLA because it was not
acting out of antiunion motives but was simply acting
in conformance with the status quo as required by the
Federal Government. The Respondent further contends
that it fulfilled any bargaining obligation by commu-
nicating to the Union what it knew about the COLA
and its intent to apply for it, and that the Union at no
time requested bargaining or even protested distribu-
tion of the COLA. None of these contentions has
merit.
The Respondent’s distribution of the 4.75-percent
COLA constituted a change in the terms and condi-
tions of employment of the unit employees, and was,
therefore, subject to the obligation of prior notification
to and bargaining with the Union, the certified bar-
gaining representative. NLRB v. Katz, supra. In so find-
ing, we acknowledge the Respondent’s dependence on
the Federal Government for funds from which to grant
increases in wages and fringes in the form of COLAs
or otherwise, and that its filing of an application for
the $116,978, i.e., 4.75-percent COLA, for increased
wages and fringes was in accordance with its commit-
ment to the Union in its April 7 letter. However, these
factors do not excuse the Respondent’s failure to rec-
ognize the Union’s legitimate role as bargaining rep-
resentative by notifying and affording the Union an op-
portunity to bargain or to give its consent prior to im-
plementing this COLA. We emphasize that there were
decisions within the Respondent’s discretion on which
bargaining could focus. Although 65 percent of the
Federal Government’s grant of the $116,978 COLA
had to be applied to salary and/or fringe benefits, there
remained, inter alia, questions as to the allocation of
the grant. How much of the 65 percent would be allot-
ted to salary and how much to fringe benefits? What
use should be made of the remaining 35 percent? The
Respondent was obligated to bargain with the Union
over these decisions.
Nor do we find that the Respondent fulfilled its bar-
gaining obligation to the Union by virtue of its sending
a letter to the Union on April 7, 1988, advising it of
the Respondent’s intent to apply for the available
117LONG ISLAND DAY CARE SERVICES
18 Thus, it is irrelevant in our consideration of the Respondent’s bargaining
obligations concerning this COLA that the Union could have requested bar-
gaining earlier on its receipt of the Respondent’s April 7 letter.
19 Simmons testified that the Respondent could not retain staff in Suffolk
County in Head Start because ‘‘as soon as we trained them . . . to do the
work well, they were enticed away by dollars.’’
20 This is also the letter in which HHS advised the Respondent of the avail-
ability of the 4.75-percent COLA, discussed supra.
21 Simmons testified that:
Our part of it was to survey all [13] of the school districts that
interacted with our 12 centers. And we surveyed, obtained detailed infor-
mation on classroom personnel. . . . We verified what we’ve been saying
all along, that our certified and noncertified teachers were earning less
than the going rate in the school districts in which we operate. . . . We
also discovered what I had been saying all along that teacher assistants
compared favorably to the [other] school districts.
22 The documentary evidence contains various expressions of management’s
concerns about the employees’ strike activities, particularly at Central
Brookhaven, as well as statements attributing a number of the Respondent’s
problems involving funding, enrollment, and reputation, to the strike. For ex-
ample, the minutes of the board of director’s May 5, 1988 meeting contains
a heated discussion about whether the Respondent’s existing personnel policies
and procedures could be used to terminate strikers.
23 Under the separate heading, ‘‘Available Forms of Discipline,’’ is listed:
‘‘1. Verbal warning. 2. Written warning using Agency Counseling Form.’’
$116,978 COLA. The Respondent appears to contend
that the Union’s failure to respond to that letter after
its receipt constituted a waiver of its bargaining rights
rendering further notification unnecessary. The Union,
however, had no obligation to request bargaining about
the COLA until it had notice that the Respondent’s ap-
plication had been approved. Only upon such notice
would it have become incumbent on the Union to pur-
sue bargaining on the 4.75-percent COLA, because
only then could the Union be sure that there was
something concrete and definite about which to bar-
gain.18 In this regard, the Respondent neither notified
the Union of the July 6, 1988 approval of its applica-
tion nor of its decision, as announced in its August 10,
1988 letter sent only to the employees, to apply all of
that COLA to salary increases. Moreover, even had the
Union received the letter, any bargaining request
would have been futile because that letter presented the
distribution of the COLA as a fait accompli.
Accordingly, we find that the Respondent unilater-
ally granted the 4.75-percent COLA in violation of
Section 8(a)(5) and (1).
2. The 2-percent COLA. Simmons testified that she
had sought a salary adjustment from HHS for certain
staff members who for years had been receiving less
than similarly situated employees in the local school
districts or at other Head Start agencies.19 According
to Simmons, the March 14, 1988 letter from HHS,20
was responsive to that effort. That letter informed her
that if additional funds were available at the end of the
Federal Government’s year in September they might
be used for differential salary increases, the amount of
which would be based on the Respondent’s answers to
a questionnaire designed to reflect whether it was truly
unable to compete with the 13 local school districts re-
garding wage comparability.21 Thus, Simmons advised
the Union of her intention to participate in the wage
comparability study, in her April 7, 1988 letter to the
Union in which she also stated she would apply for the
4.75-percent COLA.
Undisputed testimony reveals that, unlike the 4.75-
percent COLA, HHS’ ultimate offer of additional mon-
eys was accompanied by a directive that the moneys
must be added as a 2-percent permanent addition to the
salaries of all its employees, in the form of a salary
differential or enhancement. And, unlike the case of
that COLA, the Respondent had no say over how
much money would be awarded or how the funds
would be allocated, i.e., as between salary and fringe
benefits. Simmons’ uncontroverted testimony reveals
that the Respondent’s sole discretion was the ‘‘choice
of taking what they offer or sending it back.’’ The Re-
spondent’s decision to accept the 2-percent offer was
announced in its September 13, 1988 letter to the em-
ployees and the Union, i.e., that the employees would
be receiving a 2-percent permanent salary differential
beginning with their September 15 paychecks.
We find from the foregoing that the Respondent’s
total lack of discretion over implementation of the so-
called 2-percent COLA (really a salary enhancement)
clearly demonstrates that there was nothing of sub-
stance to bargain about concerning it. Accordingly, we
find that the Respondent’s failure to notify or bargain
with the Union concerning implementation of the 2-
percent ‘‘COLA’’ was not unlawful, and we shall
therefore dismiss this allegation of the complaint.
Disciplinary Warnings
As the judge found, the Respondent’s employees en-
gaged in a strike from April 11 to August 22, 1988,
and some members of the Respondent’s board of direc-
tors expressed strong negative reactions to the employ-
ees’ strike action.22 One of the highest percentages of
striker participation occurred at the Central
Brookhaven facility where the alleged discriminatees
Cook, Morning, Ramsey, and Garcia all worked under
the supervision of Program Manager Angus.
On or about September 26–28, 1988, Federal offi-
cials conducted an audit of the Respondent, which in-
cluded visits to classrooms in the centers and inspec-
tion of files and records. An audit report placed in evi-
dence discloses incidents involving health and safety
of the children and administrative matters. The Re-
spondent’s usual practice following similar prior audits
was to pass out copies of the audit to employees in an
informal group setting, and to suggest appropriate cor-
rective measures rather than to apply the following dis-
ciplinary procedure set forth in the company manual:
G. Procedures for Administering Discipline23
1. The supervisor must first ensure that dis-
cipline is both necessary and appropriate.
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 As noted supra at fn. 1, the Respondent has not excepted to the judge’s
findings regarding Cook.
25 We note the lack of counseling preceding the warning or use of coun-
seling forms, and that copies of all four letters were sent to the personnel de-
partment for inclusion in the employee personnel files and also to all or some
of the following: Board of Directors, Parent Policy Council, President Sim-
mons, Deputy Director for Program Goode, and Deputy Director for Adminis-
tration Baer. The published disciplinary procedure refers to informing higher
levels of management (and in some cases the Parent Policy Council) ‘‘before
a second warning is issued to an employee . . . before an employee is put
on disciplinary probation or is terminated.’’
26 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). 27 Indeed, Ramsey’s photograph appeared in the Union’s newspaper.
2. The supervisor should counsel with the em-
ployee to get his/her side of the story, if pos-
sible. . . .
3. The supervisor should consider the past
record of the employee. . . .
4. An employee whose performance is deemed
unsatisfactory shall receive a warning, in writing,
at least one month prior to a termination. During
such period an employee shall be on disciplinary
probation. . . . All written warnings shall be
signed by both employee and supervisor . . . one
copy should be sent to the Personnel Depart-
ment. . . . The employee may respond, in writ-
ing, to the initial warning.
Following the visitation and written report by Fed-
eral officials, Program Manager Angus issued written
notices of work deficiencies on September 29–30,
1988, to Family Counselors Cook and Morning and to
teacher Janie Ramsey and teacher assistant Carmen
Garcia.
As to Cook and Morning, the judge found, and we
agree, that their disciplinary warnings violated Section
8(a)(3) and (1).24 He based his findings on the overall
circumstances, including the Respondent’s animus to-
wards employee strike and picketing activity; the tim-
ing of its notices to otherwise satisfactory employees
shortly after their return from striking; the language of
the notices, which threatened further disciplinary ac-
tions unless the stated deficiencies were corrected
within a specified timeframe; and that the Respond-
ent’s resort to written warning letters was a marked de-
parture from both its established practice of holding in-
formal group discussions with employees and its own
published disciplinary procedures.25 The judge con-
cluded that the General Counsel established a prima
facie violation, and the Respondent failed to meet its
burden of establishing that it would have imposed
those disciplinary actions even in the absence of their
protected concerted activity.26
As to teacher Janie Ramsey and teacher assistant
Carmen Garcia, however, the judge dismissed similar
allegations arising from Angus’ September 29, 1988
written notices of their work deficiencies because he
found that they were not warnings of disciplinary ac-
tion. We find merit in the General Counsel’s excep-
tions and find the notices to Ramsey and Garcia un-
lawful for the following reasons.
The record shows that Ramsey and Garcia, like
Cook and Morning, were known picketers of the Cen-
tral Brookhaven facility27 who had clean employment
records prior to the subject letters of deficiencies. Ac-
cordingly, the prima facie showing found by the judge
of the Respondent’s animus toward Cook and Morning
for their strike and picketing activity and the timing of
its notices to them as otherwise satisfactory employees
applies with equal force to Ramsey and Garcia. The
judge’s dismissal as to Ramsey and Garcia focuses on
his finding that the Respondent took dissimilar action
against them. Thus, he found that the language in the
letters to Ramsey and Garcia could not be construed
as a warning but rather ‘‘essentially reiterated the Fed-
eral Evaluator’s comments [and therefore] is little dif-
ferent from [the Respondent’s] past practice’’ (of dis-
cussing the report and correcting individual defi-
ciencies in a group meeting).
Contrary to the judge, we find that the Respondent’s
action towards Ramsey and Garcia was similar to that
taken against Cook and Morning, notwithstanding the
differences in the language of the respective letters.
Thus, all the letters amounted to formal written notifi-
cation and were inserted in the employees’ personnel
records. This latter act reveals the true disciplinary na-
ture of the Respondent’s action, i.e., management’s in-
tent that these notices fulfill the first step of its dis-
ciplinary process. All four letters, therefore, served the
identical purpose of establishing a predicate for subse-
quent disciplinary action and thereby constituted a
marked departure from the Respondent’s past practice.
From the foregoing, we find that the Respondent’s im-
position of written notices of deficiencies to Garcia
and Ramsey constitute disciplinary warnings in retalia-
tion for their protected concerted activity, in violation
of Section 8(a)(1) and (3) of the Act. We shall there-
fore amend the Order by directing the Respondent to
remove the written notices from the personnel files of
Garcia and Ramsey and to notify them that this has
been done and will not be used as the basis for future
personnel action against them.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 6.
‘‘6. By issuing disciplinary warnings to Linda Morn-
ing, Janie Ramsey, and Carmen Garcia on September
29 and 30, 1988, the Respondent violated Section
8(a)(1) and (3) of the Act.’’
2. Insert the following as Conclusion of Law 7, re-
numbering the subsequent conclusions of law accord-
ingly.
‘‘7. By unilaterally implementing a July-only fur-
lough program and a 4.75-percent cost-of-living adjust-
119LONG ISLAND DAY CARE SERVICES
28 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ment award, the Respondent violated Section 8(a)(1)
and (5) of the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Long Island Day Care Services, Inc.,
Patchogue, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unduly delaying the submission of a collective-
bargaining agreement negotiated by its agent to the
board of directors for a ratification vote.
(b) Unduly delaying the voting by the board of di-
rectors on the aforementioned agreement.
(c) Failing to furnish the Union an updated list of
its employees with their addresses, job classifications,
wage rates and dates of hire.
(d) Paying cash bonuses to nonstrikers while with-
holding such bonuses from employees who engaged in
a strike.
(e) Issuing disciplinary warnings to employees,
threatening employees with discharge, and placing em-
ployees on probation because they supported District
Council 1707, Community and Social Agency Employ-
ees Union, American Federation of State, County and
Municipal Employees, AFL–CIO, or engaged in other
concerted activities for mutual aid or protection.
(f) Unilaterally, without giving the Union timely no-
tice or opportunity to bargain, changing employee fur-
loughs, and granting them a cost-of-living adjustment.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, submit to the board of
directors for a ratification vote, the agreement dated
October 20, 1987.
(b) Alternatively, on request, bargain with the Union
for 6 months thereafter, as if the initial year of certifi-
cation had not expired, as the exclusive representative
of the employees in the following appropriate unit con-
cerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in
a signed agreement:
All full-time and regular part-time certified
teachers, educational specialists, nutrition coordi-
nators, social services coordinators, mental health
coordinators, non-certified teachers, parent coordi-
nators, training and development coordinators,
educational coordinators, handicapped services co-
ordinators, health coordinators, accountants, fam-
ily counselors, teacher assistants, cooks, cook as-
sistants, health specialists, custodians, bus drivers,
administrative assistants, senior secretaries, secre-
taries, secretaries/central administrators, clerk typ-
ists, and clerk/bookkeepers, employed by the em-
ployer at its Suffolk County, New York facilities,
exclusive of all confidential employees, guards,
managerial employees, deputy directors, control-
lers, program managers, acting program managers,
and all other supervisors as defined in Section
2(11) of the Act.
(c) Furnish to the Union an updated list of all bar-
gaining unit employees, their addresses, job classifica-
tions, dates of hire, and rates of pay. Additionally, on
request, furnish to the Union any other information rel-
evant for bargaining.
(d) Pay to each of the full-time unit employees who
engaged in the 1988 strike $80 plus interest, and pay
to each of the part-time unit employees who engaged
in the strike $40 plus interest.
(e) Rescind the unilateral changes it made in em-
ployee furloughs and cost-of-living award in 1988, if
the Union requests such rescission.
(f) Remove from its files any reference to the un-
lawful disciplinary actions taken against Ernestine
Cook, Linda Morning, Janie Ramsey, and Carmen Gar-
cia, and notify them in writing that this has been done
and that the disciplinary actions will not be used
against them in any way.
(g) Post at its facilities in Patchogue, New York,
copies of the attached notice marked ‘‘Appendix.’’28
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 the National labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The charge in Case 29–CA–13305 alleged that in November 1987 the Re-
spondent violated Sec. 8(a)(1) and (5) of the Act by refusing to execute an
agreed-upon contract.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT unduly delay the submission of an
agreement negotiated by our agent to the board of di-
rectors.
WE WILL NOT unduly delay the voting by the board
of directors on an agreement negotiated by our agent.
WE WILL NOT fail to furnish to the Union an up-
dated list of our employees with their addresses, job
classifications, wage rates, and dates of hire.
WE WILL NOT pay cash bonuses to nonstrikers while
withholding such bonuses from employees who engage
in a strike.
WE WILL NOT issue disciplinary warnings to our em-
ployees, threaten our employees with discharge, or
place our employees on probation because they support
District Council 1707, Community and Social Agency
Employees Union, American Federation of State,
County and Municipal Employees, AFL–CIO, or be-
cause they engage in concerted activities for mutual
aid and protection.
WE WILL NOT change employee furloughs or grant
a cost-of-living adjustment without giving the Union
timely notice and opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
quaranteed you by Section 7 of the Act.
WE WILL, on request of the Union, submit to the
board of directors for a ratification vote the agreement
dated October 20, 1987.
WE WILL alternatively, on request, bargain with the
Union for 6 months thereafter, as if the initial year of
certification had not expired, as the exclusive rep-
resentative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time certified
teachers, educational specialists, nutrition coordi-
nators, social services coordinators, mental health
coordinators, non-certified teachers, parent coordi-
nators, training and development coordinators,
educational coordinators, handicapped services co-
ordinators, health coordinators, accountants, fam-
ily counselors, teacher assistants, cooks, cook as-
sistants, health specialists, custodians, bus drivers,
administrative assistants, senior secretaries, secre-
taries, secretaries/central administrators, clerk typ-
ists, and clerk/bookkeepers, employed by the em-
ployer at its Suffolk County, New York facilities,
exclusive of all confidential employees, guards,
managerial employees, deputy directors, control-
lers, program managers, acting program managers,
and all other supervisors as defined in Section
2(11) of the Act.
WE WILL furnish to the Union an updated list of all
bargaining unit employees, their addresses, job classi-
fications, dates of hire, and rates of pay. Additionally,
on request, WE WILL furnish to the Union any other in-
formation relevant for bargaining.
WE WILL pay to each of our full-time unit employ-
ees who engaged in the 1988 strike $80 plus interest,
and pay to each of our part-time unit employees who
engaged in the strike $40 plus interest.
WE WILL rescind the 1988 unilateral changes in em-
ployee furloughs and cost-of-living adjustment, if the
Union requests such rescission.
WE WILL remove from our files any references to
the unlawful disciplinary actions taken against Ernes-
tine Cook, Linda Morning, Janie Ramsey, and Carmen
Garcia, and notify them in writing that this has been
done and that the disciplinary actions will not be used
against them in any way.
LONG ISLAND DAY CARE SERVICES, INC.
Elizabeth Orfan, Esq., for the General Counsel.
Alexander A. Miuccio, Esq. (Altieri, Kushner, Miuccio &
Frind, P.C.), for the Respondent.
Vicki Erenstein, Esq. (Sipser, Weinstock. Harper and Dorn),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Brooklyn, New York, on various dates from
April to June 1989.
The charge in Case 29–CA–13305 was filed on December
3, 1987. Based on that charge,1 the Regional Director issued
a complaint on January 13, 1988, which alleged in substance:
1. The refusal by the Respondent to submit for ratification
to its board of directors, an agreement made by the Respond-
ent’s chief negotiator on October 8 and 20, 1987. It also is
alleged that Respondent violated the Act by refusing to rec-
ommend the agreement to its board of directors.
2. That the Respondent bargained in bad faith by with-
drawing the authority of its negotiator, Ann Coates, on Octo-
ber 23, 1987.
3. That the Respondent bargained in bad faith by reneging
on the agreement made on October 8 and 20 insofar as bind-
ing arbitration, superseniority for shop stewards and union
visitation rights.
4. That since October 23, the Respondent has unilaterally
implemented certain terms of the agreement made on Octo-
121LONG ISLAND DAY CARE SERVICES
2 The charge in Case 29–CA–13767 alleged, in substance, that the Respond-
ent violated Sec. 8(a)(1), (3), and (5) of the Act in the following manner:
1. That the Respondent paid an $80.00 bonus to non strikers while
withholding such payments to those employees who engaged in a strike.
2. That the Respondent since September 1, 1988, discriminated as to
the working conditions of LaVerne James, Dora Callier, and Doris Sands.
3. That the Respondent on or about September 29, 1988,
discriminatorily imposed discipline on Ernestine Cook, Carmen Garcia,
Linda Morning, Jane Ramsey and LaVerne James.
4. That the Respondent since on or about October 12, 1988, discrimi-
nated against Ida Lenton.
5. That the Respondent since on or about October 3, 1988, was in-
volved in a campaign to decertify the Union.
On April 19, 1989, the Regional Director approved the Union’s request to
withdraw pars. 2 through 5 of this charge.
3 It appears that the Union also filed a charge on December 29, 1988, in
Case 29–CA–13856 alleging certain violations against the Employer. That
charge is not part of this case.
4 The charge in Case 29–CA–13901 alleged that the Respondent violated
Sec. 8(a)(1) and (3) of the Act in the following manner:
1. That the Respondent in October 1988 interrogated, interfered with,
coerced and intimidated its employees.
2. That the Respondent in September 1988 discriminatorily imposed
discipline on and retaliated against Ernestine Cook, Carmen Garcia, Linda
Morning, Jane Ramsey, LaVerne James and Ida Lenton.
5 On May 23, 1989, the General Counsel filed a motion to amend certain
aspects of the complaints included therewith was a motion to delete pars. 12
and 13 of the complaint in Case 29–CA–13901 which alleged certain discrimi-
natory conduct against employees LaVerne James and Ida Lenton.
6 On January 5, 1989, the Board denied a Motion For Summary Judgment
filed by the Respondent. In the motion, the Respondent argued that it was not
an employer within the meaning of the Act, or alternatively, that it was a joint
employer with an exempt entity. These are the same contentions made in the
present case. Although Chairman Stephens stated that the Respondent would
not be precluded from raising an issue of statutory jurisdiction, the Board stat-
ed that the contentions made by the Respondent in its motion involved matters
of discretionary jurisdiction. The Board held that because the Employer had
stipulated that it was an Employer within the meaning of the Act in the rep-
resentation case, it could not raise, in the unfair labor practice proceeding, an
issue of discretionary jurisdiction which it could have raised and litigated in
the related representation case.
ber 20, 1987, without notice to or consent of the Union. It
is alleged specifically that:
(a) Respondent in January 1988 granted employees Martin
Luther King’s Birthday as a paid holiday, while withdrawing
Columbus Day as a paid holiday.
(b) Respondent in February 1988 changed its furlough pro-
gram from having furloughs in February and July to one with
furloughs only in July.
(c) Respondent in August 1988 granted a 4.75 percent
cost-of-living increase to its employees.
(d) Respondent in September 1988 granted to its employ-
ees an additional 2-percent cost-of-living adjustment.
The charge in Case 29–CA–13433 was filed on March 8,
1988, and resulted in the issuance of a complaint on April
19, 1988. The complaint, in conformity with the charge, al-
leged in substance that in February and March 1988, the Re-
spondent failed and refused to comply with the Union’s re-
quest for relevant information, to wit; ‘‘an updated list of all
employees, including their names, addresses, classifications,
dates of hire and wage rates The charge in Case 29–CA–
13767 was filed on October 26, 1988.2 A complaint was
issued in that case on January 31, 1989, and alleged, in sub-
stance:
1. That a strike which commenced on April 11,
1988, was an unfair labor practice strike.
2. That on or about August 10, 1988, the Respondent
violated Section 8(a)(1)(3)&(5) of the Act by paying
cash bonuses to employees who did not strike or who
abandoned the strike, while denying such payments to
strikers It is alleged that the bonuses consisted of
$80.00 to full time employees and $40 00 to part time
employees.
3. That in October 1988 the Respondent by Mattie
Angus unlawfully interrogated an employee concerning
her union sympathies.
On February 10, 1989, the Regional Director issued an
order consolidating cases in Cases 29–CA–13305, 29–CA–
13433, and 29–CA–13767.
On February 1, 1989, the Union filed another charge in
Case 29–CA–13901.3 Based on this charge4 the Regional Di-
rector issued a complaint on March 30, 1989. In substance,
this complaint as amended at the hearing,5 alleged:
1. That the Respondent, by Mattie Angus, for dis-
criminatory reasons;
(a) On or about September 29, 1988 issued a warn-
ing letter to Ernestine Cook, placed her on probation
and threatened her with discharge.
(b) On or about September 26, 1988 issued an oral
warning to Carmen Garcia.
(c) On or about September 29, 1988 issued a written
warning to Carmen Garcia.
(d) On or about September 29, 1988 issued a warn-
ing letter to Janie Ramsey.
(e) On or about September 29, 1988 issued a written
warning letter to Linda Morning.
On April 21, 1989, all the complaints were consolidated
for one hearing.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
Each of the complaints allege, and the respective answers
admit, that the Respondent annually provides services valued
in excess of $500,000 and that it annually purchases and re-
ceives at its New York facilities heating fuel, food, edu-
cational program supplies, and other products valued in ex-
cess of $50,000 directly from points located outside the State
of New York.
The Respondent contends, however, that the Board does
not have jurisdiction over its operations. In this regard, the
Respondent asserts that it is not an employer within the
meaning of Section 2(2) of the National Labor Relations Act
because the Federal Government provides virtually all of its
income and because the Government controls its labor rela-
tions policies.6
Section 2(2) of the Act exempts from the definition of an
employer, ‘‘the United States or any wholly owned Govern-
ment corporation, or any Federal Reserve Bank, or any State
or political subdivision thereof . . .’’ Further, pursuant to the
decision in National Transportation Service, 240 NLRB 565
(1979), the Board has declined to assert jurisdiction in those
circumstances where a private employer’s labor relations pol-
icy is so controlled by an exempt institution that effective
collective bargaining has been precluded. In such cir-
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cumstances, however, the Board has held that where a pri-
vate employer shares the exemption of a governmental body,
the Board’s lack of jurisdiction is a matter of discretion and
not statutorily required. Res-Care, Inc., 280 NLRB 670 fn 1.
(1986).
In the present case, the Union filed a petition for an elec-
tion in Case 29–RC–6748 on December 22, 1986. In connec-
tion with that petition, the parties signed and the Regional
Director approved a Stipulated Election Agreement. As part
of that agreement, pursuant to which an election was held on
March 5, 1987, the employer stipulated that it was an New
York corporation with gross revenues in excess of $500,000
and that it was an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
Having stipulated to being within the Board’s jurisdiction
in the earlier representation case, the Respondent may not
now put jurisdiction in issue as there is no genuine issue re-
garding the Board’s statutory jurisdiction. Thus, in Pollack
Electric Co., 214 NLRB 970 fn. 4 (1974), the Board, al-
though noting that legal or statutory jurisdiction may be
raised at any time, stated that an issue involving the Board’s
discretionary standards for asserting jurisdiction must be
timely raised. Accordingly, where discretionary jurisdiction is
at issue, an employer who stipulates to the Board’s jurisdic-
tion in a representation case may not in a subsequent unfair
labor practice case withdraw from its stipulation and contest
jurisdiction at the later stage. Gateway Motor Lodge, 222
NLRB 851 (1976).
Based on the above, it is my opinion that the Respondent
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Also as there is no dispute
as to the status of the Charging Party, I conclude that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE 10(B) ISSUE
The Respondent argues that certain of the allegations in
the complaint in Case 2–CA–13305 are barred by Section
10(b) of the statute. Specifically it contends that those por-
tions of that complaint alleging unilateral changes should be
dismissed because there is no unfair labor practice charge
filed which would support those allegations.
As noted above, the charge in Case 29–CA–13305 was
filed on December 3, 1987, and alleged that the Respondent
violated Section 8(a)(1) and (5) of the Act by refusing to
execute an agreed-upon contract. (The charge also contained
the boilerplate ‘‘by these and other acts’’ clause.)
The complaint which issued on January 13, 1988, alleged
at paragraph 12(e), that since October 23, 1987, the Re-
spondent had made certain unilateral changes without notice
to or consent of the Union.
At the opening of the hearing, I agreed with the Respond-
ent that paragraph 12(e) was imprecise and did not put the
Respondent on notice as to what the General Counsel was
specifically contending. I therefore gave the General Counsel
the opportunity to explicate the meaning of her allegation.
Thereafter, on May 23, 1989, the General Counsel moved
to amend paragraph 12(e) of the complaint in Case 29–CA–
13305 to allege that the Respondent in January 1988 unilat-
erally changed holidays; that in February 1988 it unilaterally
changed the furlough system; that in September 1988 it uni-
laterally granted a 2-percent cost-of-living increase; and in
August 1988 it unilaterally granted a 4.75-percent cost-of-liv-
ing increase.
In Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989),
the Board adopted the rule that in all 8(a) cases the allega-
tions of a complaint must be ‘‘closely related’’ to the allega-
tions of the underlying unfair labor practice charge. Thus, an
allegation in a complaint or an amendment to a complaint
which is not closely related to the charge, cannot be sus-
tained because the Act prohibits the Board from originating
complaints on its own initiative. The Board also noted:
Finally, we recognize that matters raising unfair
labor practice issues often are discovered or occur after
the original charge is filed. In those circumstances, it is
customary for a charging party to file an amended
charge or an entirely new charge. Obviously, nothing in
our decision today limits in any way a charging party’s
ability to file a timely new or amended charge. There-
fore, our holding will impose no significant hardship on
a charging party, who continues to remain free to raise
additional timely allegations for Board consideration.
In Redd-I, Inc., 290 NLRB 1115 (1988), which was cited
with approval by the Board in Nickles, the Board defined
what it meant by the term closely related. Essentially, the
Board held that it would seek to ascertain whether a com-
plaint allegation was closely related to the charge by looking
at the following factors: 1. Whether the allegation involves
the same legal theory as the allegation of the charge. 2.
Whether the complaint allegation arises from the same fac-
tual circumstances or sequence of events as the pending
charge. 3. Whether a respondent would raise similar defenses
to both allega tions.
In Red Food Store, 252 NLRB 116, 117–124 (1980),
which also was cited favorably in Nickles, Administrative
Law Judge Bernard Reis held that certain allegations of a
complaint were not closely related to the underlying charge.
Judge Reis after a comprehensive exploration of the cage law
(not repeated here) led him to the conclusion that there was
a high degree of ambiguity in determining whether a com-
plaint allegation was closely related to the charge. Neverthe-
less, my sense is that he determined that more recent cases
were construing the closely related test in a more strict and
less liberal fashion. See Asko, Inc., 202 NLRB 330 (1973),
and Allied Industrial Workers (Warren Molded Plastics), 227
NLRB 1541 (1977).
It is of course true that the unilateral change allegations
are founded in Section 8(a)(5) of the Act which is the same
Section of the Act on which the initial charge is based. On
the other hand, the initial charge alleged a single 8(a)(5) alle-
gation that was based on essentially a single transaction;
namely, the contention that the Respondent had refused to
execute a contract that had been agreed to by the parties dur-
ing negotiations.
The allegations of the complaint which allege that the Re-
spondent withdrew the authority of its negotiator, refused to
submit the contract for approval to its board of directors and
reneged on certain portions of that agreement are closely re-
lated to the allegations of the initial charge even though in-
consistent with it. The relationship arises from the fact that
both the charge and the complaint put in issue the contract
negotiations between the Union and the Company and raised
123LONG ISLAND DAY CARE SERVICES
issues concerning the process of creating a collective-bar-
gaining agreement.
The allegations relating to unilateral changes do not, how-
ever, relate to the process of making a contract and allege
violations, which, although under Section 8(a)(5) of the Act,
are of a different character altogether. In effect, these allega-
tions concern changes which the Company is accused of
making well after negotiations had ended. Moreover, the va-
lidity of the allegations does not really depend on the con-
tract negotiations which would, in this case, be legally irrele-
vant to a determination of the legality of the Company’s al-
leged unilateral changes.
In my opinion, the allegations involving unilateral changes
are not closely related to the allegation of the unfair labor
practice charge which asserted that the Respondent refuged
to execute a collective bargaining agreement. The unilateral
change allegations are not, in my opinion, based on the game
legal theory, they are do not arise from the same factual cir-
cumstance or sequence of events and would require Re-
spondent to raise a completely different legal defense. Ac-
cordingly, I shall recommend that paragraph 12(e) of the
complaint in Case 29–CA–13305 be dismissed.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Contract Negotiations
Pursuant to a Stipulation for Certification on Consent
Election, an election was held on March 5, 1987, which the
Union won. Consequently, the Union was certified as the
collective-bargaining representative on April 1, 1987, in the
following unit of employees:
All full-time and regular part-time certified teachers,
educational specialists, nutrition coordinators, social
services coordinators, mental health coordinators, non-
certified teachers, parent coordinators, training and de-
velopment coordinators, educational coordinators,
handicapped services coordinators, health coordinators,
accountants, family counselors, teacher assistants,
cooks, cook assistants, health specialists, custodians,
bus drivers, administrative assistants, senior secretaries,
secretaries, secretaries/central administrators, clerk typ-
ists, and clerk/bookkeepers, employed by the employer
at its Suffolk County, New York facilities, exclusive of
all confidential employees,guards, managerial employ-
ees, deputy directors, controllers, program managers,
acting program managers, and all other supervisors as
defined in Section 2(11) of the Act.
In mid-April the Respondent hired attorney Ann Coates to
be its negotiator. In the early part of May a meeting was
held between Coates, Respondent’s president Simmons and
Respondent’s board of directors to discuss the upcoming ne-
gotiations and to define Coates’ role. In the retainer agree-
ment dated May 7, 1987, it defines Coates as the ‘‘chief ne-
gotiator.’’ Also, it was established that Coates would rep-
resent the Company at the bargaining table and that Simmons
would not directly participate at the negotiations. In a memo-
randum given to Simmons by Coates entitled ‘‘Negotiating
A Labor Agreement’’ Coates stated:
One person speaks for each side; also need a man-
agement person familiar with the operation but not the
chief executive officer unless it is a very small oper-
ation and there is no one else; also need on the team
one person to take notes.
Role of CEO—Aside from continuing daily manage-
ment of program, must constantly remain in touch with
the negoti- ating team to assess progress, the need to
change posi- tions, inform Board as to status, provide
information to team as required.
Role of Board of Directors—establish in general the
parameters within which the negotiator may bargain
with reference to wages, hours and terms and condi-
tions of employment; determine in advance whether
willing to take a strike and if so over what matters; rec-
ognize the duty imposed by law to bargain in good
faith: recognize the added strain in working relations
and tensions caused by the stress of negotiations.
It must be agreed in advance that NO information as
to bargaining positions or progress is to be given to
anyone. Only the chief negotiator is permitted to dis-
cuss the negotiations with the public, press or staff.
Confidentiality is crucial!
Immediately prior to the commencement of the negotia-
tions the Respondent appointed the other members of its
management team to participate in the negotiations with the
Union. These persons were Annie Goode who was des-
ignated to assist Coates and Leslie Walker who was des-
ignated to take notes.
May 15, 1987, marked the outset of negotiations. At this
initial session, it was agreed that Renee Mayne would be the
person who spoke for the Union. Also at this meeting, the
Union presented a document containing their contract de-
mands which numbered about 54 proposal. Phyliss Simmons,
the Respondent’s president, did not attend this meeting nor
did she attend any other negotiation sessions. She was how-
ever active behind the scenes insofar as the Company was
concerned.
The testimony of Renee Mayne and Ann Coates (who was
a witness called by the General Counsel) established that it
was understood by both that any agreement they reached at
the bargaining table would be subject to ratification by their
respective principals. In the cage of the Union, this meant
that any agreement would have to be ratified by the employ-
ees. In the case of the Respondent, the evidence shows that
it was stated and understood at the bargaining table that any
agreement reached would be subject to approval by the Em-
ployer’s board of directors. In this regard, although the Re-
spondent asserts that any agreement would have to be ap-
proved by Simmons, the Parent Policy Council (a body con-
sisting of parents who have children enrolled in the program)
and the board of trustees, there was no evidence to contradict
the testimony of the two chief negotiators, Coates and
Mayne, that the expressed ground rules for the negotiations
required only the approval of the board of directors.
In relation to the authority of Coates, the evidence also
shows that at various times during the negotiations, the
Union asked Coates to produce Simmons at the bargaining
table whereupon Coates, in the presence of the other com-
pany representatives, assured the Union that she (Coates),
had the authority to speak for the Company and make agree-
ments subject only to ultimate ratification by the board of di-
rectors.
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It further was established that although Simmons played a
significant role behind the scenes on behalf of the Company,
it was stated and agreed between Coates and Mayne that
Coates was the Employer’s chief spokesman, that Simmons
would not be at the negotiations, and that Coates had author-
ity to make agreements, subject of course to ultimate ap-
proval by the board of trustees. There was in fact no one
presented by the Respondent who denied that such represen-
tations were made at the bargaining table and the Respondent
produced no documentary evidence, such as letters to the
Union, which purported to qualify Coates’ authority in any
other manner.
The Union, as part of its contract demands, included provi-
sions for binding arbitration and superseniority for shop
stewards. The Company’s position from the outset of nego-
tiations was that it would not agree to these specific de-
mands. As to superseniority, Simmons position as expressed
by Coates at the negotiation table was that the Company felt
that this was discriminatory, unfair and might have an ad-
verse impact on operations in the event that there was a cut-
back in the work force. As to arbitration, the Company took
the position that binding arbitration was inconsistent with
certain regulations of the United States Government which
funded the Employer. Specifically, the Employer took the
position that binding arbitration was inconsistent with Sec-
tion 70.2 of the relevant Federal regulations which, according
to the Company, required that the Parent Policy Council have
the final say as to hiring and firing.
Regarding section 70.2 the Union’s position was that it
was not inconsistent with binding arbitration and maintained
to the Company that it had contracts with other agencies
which had arbitration clauses. Although moving ahead of
ourselves, I note that in response to a request by Simmons
for an interpretation of this regulation, a Mr. Phipps from the
Department of Health and Human Services wrote a letter on
November 20, 1987, which stated in pertinent part:
We have received your letter of November 5, 1987
and given serious consideration to your questions re-
garding Transmittal Notice 70.2, ‘‘The Parents.’’ As
you can understand, we make no recommendations re-
garding the negotiation of the contract with District
Council 1707 of AFSCME except that you may not ar-
rogate the rights of the Policy Council and, by doing
so, limit the scope of 70.2.
. . . .
Any contract which is negotiated must recognize the
responsibilities of the Policy Council. Binding arbitra-
tion, even if approved by the Policy Council, could
cause a situation where the outcome is not consistent
with the immediate decision making of the Policy
Council on a specific issue.
. . .
We therefore conclude that a binding arbitration pol-
icy could be in violation of 70.2, in that the Policy
Council must approve or disapprove of the hiring and
firing of staff.
Regarding our position in administering 70.2, you
should expect us to fully implement the policy and re-
quirements established in that document. Failure of a
grantee to administer those requirements would result in
a finding of noncompliance to a performance standard
and, if remaining uncorrected, could be a basis for
defunding of a Head Start program.
It is our hope that Long Island Day Care Services,
Inc. and District Council 1707 can negotiate a contract
that fully recognizes the intent of the Department of
Health and Human Services to facilitate the involve-
ment of the parents of Head Start children in the devel-
opment, conduct and overall program direction at the
local level.
According to Mayne, at the bargaining session of August
31, 1987, Coates agreed in principle to binding arbitration,
albeit there was no agreement as to whether to use the Amer-
ican Arbitration Association or some other method of select-
ing an arbitrator.
Coates testified that in August, Simmons agreed to go
along with an arbitration clause provided it was qualified
with the understanding that the arbitrator would be restricted
by the rules and regulations of the granting agency. Coates
explains that this was intended to deal with Section 70.2 in
that if the Department of Health and Human Services (HHS)
determined that a binding arbitration clause, or part thereof,
was inconsistent with the Rule (and thereby jeopardized the
grant), the arbitration clause, to the extent inconsistent with
the Rule would automatically be revoked. (As far as I can
see, a binding arbitration provision would only be arguably
inconsistent with 70.2 as to grievances involving discharges
or hires. The Rule, as far as I am aware, would not affect
the arbitration of any other subjects under a collective-bar-
gaining agreement).
In any event, Simmons never denied Coates’ testimony
that in August she had authorized Coates to agree in prin-
ciple to binding arbitration with the qualification noted
above.
In support of the contention that agreement in principle
had been reached regarding arbitration, the General Counsel
notes the Company’s minutes regarding the negotiation ses-
sion of September 28. Those minutes state:
Grievance Procedure: Union wants elimination of
Step 5 as presently stated; after Step 4, wants Step 5
at arbitration. Union understands that in case of abuse
or drinking, employee would be immediately dismissed,
with grievance procedure to bypass first three steps and
go directly to Parent Policy Council and arbitration. In
addition, union does not now want named arbitrator,
wants to use AAA.
. . . .
At this point, Mrs. Goode speaks to Mrs Simmons,
via telephone, and after concluding conversation states
that July is to be furlough month. Mediator returns to
room and Coates states that regarding the Grievance
procedure, we agree that in cases of drug abuse, child
abuse, etc., management bypasses first three steps and
goes directly to Step 4, Parent Policy Council. Coates
adds that we assume that if union per se or Agency per
se were filing a grievance on its own behalf, that it
would go to Step 4 and then arbitration, on a normal
grievance.
. . . .
Regarding Arbitrator, Coates states management had
initially chosen AAA for the mediator because it is less
costly; we don’t have definitive answer on this as yet.
125LONG ISLAND DAY CARE SERVICES
Mediator cautions that management would have to
name Suffolk county labor Department or his designee
for free arbitration.
A final bargaining session was held on October 8, 1987,
at the offices of the Suffolk County Department of Labor.
According to Mayne, at some point later in the evening and
after Coates had spoken to Simmons on the phone, both
sides made an agreement and each signed the others notes
of the agreement. In essence Coates and Mayne agreed to a
group of items which in their opinion constituted a contract
which on the Union’s side was subject to employee vote and
on the employer’s side was subject to ratification by the
board of directors. The agreement which was set forth in
General Counsel’s Exhibits 6 and 7 was as follows:
1. Health plan—reopen 2nd year.
2. Wages. Cola 3.9% plus 2% on petition to be insti-
tuted on December 198.7. Second year 2% on petition
or elimination or furloughs.
3. Furloughs—Beginning Dec. 1, 1987 furloughs in
existence to be in month of July.
4. Agency shop.
5. Dues and initiation fee check off.
6. Grievance. Eliminate step 5 in current procedure
and substitute binding arbitration using AAA.
7. Pension study. Jt committee to study and rec-
ommend plan no later than 12/1/88. Agency to imple-
ment as soon as funds can be obtained .
8. Vacations. Professionals remain the same at 15
days during each of 1st 3 years, and 20 years after 3
yrs. Non professionals 10 days during first 3 years and
17 days thereafter.
9. Superseniority. Preference on layoff and recall.
With respect to the ‘‘agreement’’ made on October 8,
1987, Coates testified that although there was agreement to
use the AAA for arbitration, it also was agreed that arbitra-
tion would be qualified as noted above. Coates further testi-
fied that as to superseniority, she made this agreement with
the Union notwithstanding that Simmons did not give her ap-
proval on this item. That is, insofar as superseniority, Coates,
on October 8, agreed to the Union’s proposal without telling
Mayne that Simmons would not agree to a superseniority
clause.
Simmons testified that she received a phone call from
Coates during the evening of October 8. She states that
Coates said that they were coming down to the wire and had
to resolve this thing. According to Simmons, Coates told her
that she (Simmons) had to make up my mind on binding ar-
bitration and superseniority . Simmons testified that she told
Coates that her position hadn’t changed on either issue. Sim-
mons also testified that she and Coates talked again about the
Federal regulations with Coates claiming that Simmons mis-
understood the regulations. According to Simmons, she told
Coates that if HHS said it was okay for the contract to have
binding arbitration then we’d have to live with it, if the par-
ents wanted it; but that if HHS said it wasn’t okay, then we
were not obligated. Thus, Simmons in effect agreed with
Coates testimony to the effect that in August, Simmons
agreed to have arbitration with the qualification that it would
be subject to the Federal regulations.
Regarding superseniority, Simmons testified that Coates
said that superseniority didn’t cost anything, that it was a
noneconomic issue and that it didn’t place the grant in jeop-
ardy. According to Simmons, she told Coates that she had
to live with her staff and the fact that it was a noneconomic
issue had nothing to do with anything.
Coates testified that she spoke to Simmons on October 10.
She states that Simmons said that she was unhappy about
binding arbitration and superseniority. According to Coates,
she said that Simmons had agreed to arbitration earlier with
the qualification regarding legality whereupon Simmons said
that she had changed her mind. Coates testified that she told
Simmons that she couldn’t change her find at that point, an
assertion with which Simmon’s vehemently disagreed. As to
superseniority, Coates testified that she told Simmons that it
was a no cost item, would buy some good will and would
help to get the contact off to a good start.
In mid-October, Coates made an arrangement with Sim-
mons to present the ‘‘agreement’’ to the board of directors.
The date October 20 was set, but because Simmon’s husband
went into the hospital, that date was canceled. On October
20 Coates and Mayne met in the former’s office. On this oc-
casion, the two negotiators, using Coates’ word processor,
typed out the text of a complete contract. In pertinent part
the agreement provided for:
1. Binding arbitration at the fifth step of a grievance pro-
cedure. As to arbitration, the agreement provided that ‘‘The
arbitrator shall consider the performance standards and regu-
lations of any funding agency where pertinent.’’
2. An expedited grievance procedure where discharges
were effected without 2 weeks’ notice. (This is a new provi-
sion that had not been part of the previous agreement made
on October 8). It provides that in such discharges, the griev-
ance can be commenced at step 4 of the procedure.
3. Superseniority for shop stewards.
4. Visitation rights for union officials.
5. Term from October 20, 1987, to October 19, 1989
6. A savings clause which states: ‘‘In the event that any
federal, state of local legislation, governmental regulation or
court decision shall invalidate any Article or Section of this
Agreement, all other Articles and Sections not do invalidated
shall remain in full force and effect.’’
7. An ‘‘Agreement to Recommend’’ which read: ‘‘both
parties having negotiated in good faith, agreeing on the fol-
lowing issues and will recommend ratification to their re-
spective parties.’’ Like the expedited grievance procedure,
this was something new and had not previously been part of
the ground rules for negotiations. I also note that Coates tes-
tified that during the October 20 meeting, she told Mayne
that she (Coates) would recommend the agreement but did
not say that Simmons would recommend or ratify it.
On October 21, Coates sent copies of the aforementioned
memorandum of agreement to Simmons with a covering let-
ter asking that it be submitted to the board of directors. She
suggested that approval of the agreement should be sought
in the immediate future, ‘‘certainly no later than October
28th.’’
On October 22, the Union’s membership ratified the
memorandum of agreement, and Coates received notification
of the vote on October 23.
Simmons testified that on or about October 22 she first be-
came aware that Coates had signed a memorandum of agree-
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment. She states that she called Coates and told her that she
had no authority to sign anything for the agency; that she
had no right to bypass Simmons and that she didn’t think
that she could work with Coates any longer.
On October 30 Mayne spoke with Coates to complain that
she had been denied access to company premises. Coates
told her that there was a problem in that Simmons would not
go along with certain parts of the agreement. Coates specifi-
cally told Mayne that Simmons objected to the arbitration
and superseniority provisions and that she was going to rec-
ommend that the agreement not be ratified by the board. Ac-
cording to Mayne, Coates said that she (Coates) had exceed-
ed her authority.
On November 5, Simmons wrote to Wilfred R. Phipps, a
supervisor at HHS asking for an opinion regarding the com-
patibility of Section 70.2 with binding arbitration.
On November 6, 1987, Coates sent a letter to Simmons
which read:
This just a reminder that we agreed to get back to DC
1707 regarding binding arbitration no later than No-
vember 15th. You had assured me last week that that
would be the very outside date for determining whether
or not binding arbitration fits within the confines of
Sec. 70.2 of the regulations. . . .
On November 17, Simmons reported to the Parent Policy
Council the status of the contract negotiations. The minutes
of that meeting indicate that everything in the memorandum
of agreement was agreeable except for the provisions relating
to binding arbitration and superseniority.
On November 20, Phipps wrote to Simmons, answering
her November 5 letter. (This was quoted above.)
At the end of November 1987, Simmons made a report to
the Parent Policy Council which stated, inter alia:
Just prior to the Thanksgiving holidays the response
was received from Mr. Phipps of Region 11 regarding
our letter earlier this month requesting clarification re-
garding binding arbitration and 70.2. Final negotiations
of contract are suspended pending the required clari-
fication. A great deal of confusion ensued for the past
several weeks because of misunderstandings and cir-
culation by the union of the ‘‘unauthorized agreement.’’
Now that the required clarification from Region 11 has
been obtained, President will move forward in obtaining
bonafide draft of contractual document as otherwise ne-
gotiated. Subsequent review and approval by LIDCS
Parent Policy Council and by Board of Directors will
follow. A vote for or against ratification by staff in ti-
tles covered by the contract will then be necessary.
On December 2, Coates resigned as negotiator for the Em-
ployer.
On December 3, the Union filed the charge in Case 29–
CA–13305 alleging that the Employer refused to execute the
agreement allegedly made with the Union.
On December 4, Coates sent a letter to Jean Dember, then
the chairperson of the board of directors. This read as fol-
lows:
I find it necessary to resign as labor negotiator for
your agency. I regret having to do this as I expended
a great deal of my time and expertise in an effort to
gain for you a most advantageous contract with the
union representing the vast majority of your employees.
. . . .
I asked Ms Simmons many times for an opportunity
to meet with the Board of Directors but she has ada-
mantly and consistently refused my request. I would
have appreciated some time to discuss the negotiations,
both as they proceeded as well as after the signing of
the memorandum of agreement, which I presume has
been presented to you!
Between October 8 and December 4, Coates never met
with the Respondent’s board of directors to explain the
agreement or to recommend its approval as she had agreed
to do. The closest she came was on October 20, but that
meeting was canceled due to the illness of Simmons. After
her resignation, she was not invited to the board of directors
to state her opinion regarding the contract.
On December 11, 1987, Mayne met with Simmons in the
latter’s office. At this meeting, Simmons stated her objec-
tions to certain portions of the memorandum of agreement
and asserted that she would not recommend it to the board
of directors. At some point during the meeting, Mayne sug-
gested that she and Simmons sit down and try to work out
a resolution on the issues in dispute. As a result a meeting
was scheduled for January 1988.
On December 15, there was a meeting of the Respondent’s
board of directors. In part, the minutes of this meeting are
as follows:
Policy Council voted favorably on Board suggestion
to hold single-item agenda meeting to review draft of
union contract. . . . President states that after review,
clause by clause, of draft contract, ratification process
would be set up in each center where staff covered by
contract would have opportunity to vote. Implementa-
tion procedures and schedule dates will have to be set.
President advises board that labor attorney has re-
signed; response regarding impact of binding arbitration
on 70.2 received from Phipps; meeting with President
and union staff representative last Friday, where Presi-
dent outlined controversy. President states she will
work on draft of contract while away on vacation.
Perpetual Martinez, chairman of the board of directors,
testified that at the meeting of December 15, no formal vote
was taken with respect to the memorandum of agreement. In
this regard, she testified that the first time that the board of
directors actually voted on the agreement was on May 5,
1988.
Simmons in her president’s report given in December
1987, stated, inter alia:
Labor Relations
A meeting was held with Mrs. Renee Nayne as
planned and it was agreed to complete the final negotia-
tions of the contract on a one-to-one basis, in view of
the resignation of Mrs. Coates. President shared con-
cerns and required process with Mrs. Mayne and was
surprised to learn that she was unaware off the required
process involving Parent Policy Council and board. The
127LONG ISLAND DAY CARE SERVICES
clarification from R. Phipps of Region 11 regarding
binding arbitration and 70.2 were shared with her. Mrs.
Mayne agreed to enter in to the process, as suggested,
without further benefit of additional counsel.
The joint meeting of parent Policy Council and
Board of Directors will be scheduled as quickly as pos-
sible in January. This will be an evening meeting with
a single agenda, which is review of the draft of the
contract.
Simmons testified that after she met with Mayne in De-
cember, she received a phone call from union agent Gary
Stevenson who stated that Mayne had no authority to hold
any further negotiations. She states that he said that as far
as the Union was concerned, the contract that was signed on
October 20 by Coates and Mayne was binding on the Re-
spondent.
On January 13, 1988, the complaint was issued in Case
29–CA–13305.
According to Mayne, she spoke with Simmons on January
14, 1988, who said that the Employer was not budging and
there was nothing more to discuss. According to Mayne,
Simmons said that she was not going allow the employees
to have binding arbitration.
On January 28, the Employer held a special meeting of its
board of directors. In pertinent part, the minutes of that meet-
ing state:
Special meeting began at 7:27 p.m. President dis-
cusses motions made at the labor relations meeting of
January 19. President advised that she and Judith
McPhie met on Sunday and went over NLRB complaint
. . . .
. . . .
Renee Mayne has brought letter from Elizabeth
Ussery and DC 1707 memo around to the centers.
Mayne is stating that staff should convince parents to
vote for binding arbitration. . . . President feels that
once parents have understanding of the entire situation
and the meaning of binding arbitration, they would be
able to vote in an informed fashion. Mayne is inter-
preting the Ussery letter as go ahead for binding arbi-
tration.
. . . .
Frail questions how binding arbitration would be to-
tally contrary to 70.2. Discussion ensues on this. Frail
asked under what circumstances would binding arbitra-
tion be acceptable. Grievance procedures were detailed.
Board agrees that document has no validity because
it was not negotiated properly and due to the
uninvolvement of the Policy Council and Board. Eliza-
beth Frail moves no action be taken on the union con-
tract until Policy Council is fully informed and coun-
seled on 70.2 and the negotiated draft; Board will not
subvert Policy Council role by approving the negotiated
draft until the policy Council has been informed, delib-
erated and comes back with any recommendations.
Turpin seconds; eight members in favor, one abstention.
Discussion ensued on administrative costs for dues
check off. McPhie states that this is one of the good
faith efforts shown by management in negotiating.
The February 9, 1988 minutes of the Parent Policy Coun-
cil (not the board of directors) states, inter alia:
The meeting will be an exceptional Policy Council
Meeting for the purpose of reviewing the Labor Rela-
tions situations as it is pertinent to the problems we are
having with the Union. . . .
. . . .
Ruth Richardson makes a motion and it is seconded
by Thelma Legette to declare the document being cir-
culated by the Union as referred to as the ‘‘Memo-
randum of Agreement’’ as invalid and not accepted by
the Policy Council. The document does not reflect what
was negotiated and was not authorized for signature by
Ann Coates on 10/20/87. The Motion was passed and
approved unanimously.
On April 11, 1988, the Union commenced a strike at all
the Employer’s facilities.
In late April or early May a mediation panel made certain
recommendations regarding the possible settlement of the
outstanding issues between the Union and the Employer.
According to Perpetual Martinez, on May 5, 1988, the
board of directors for the first time actually voted as to
whether to accept or reject the October 20, 1987 memo-
randum of agreement. In relevant part, the minutes of this
meeting are as follows:
Regarding tonight’s business, President advises that
two major things must occur: attorney suggests that
Board vote on each of the items of the mediation pan-
el’s recommendations and then vote on the total rec-
ommendation package, accepting or rejecting whether
there should be binding arbitration.
. . . .
Turpin questions whether as employers, Board can
move to terminate striking staff if they do not return to
work, utilizing passages of the Personnel Policies and
Procedures. Turpin’s position is that some striking staff
have been out for almost four weeks and they should
be terminated if they do not return to work after a spec-
ified number of days. Heated discussion ensued; Farrar
and Nocisia explained this constituted a ‘‘lock out.’’
Turpin then asked what would happen if Board does
not agree with panel’s recommendations. President stat-
ed that technically, workers are still on strike but she
feels staff will continue to trickle in and added that the
children are also continuing to come back into the Pro-
gram. Turpin expressed her concern about a possible
‘‘about face’’ by the Regional Office regarding their
position on the issues. Dollman explained his concept
of mixed feelings of workers during a strike situation
. . .
. . . .
Farrar motions to reject super seniority; Abazis sec-
onds; 12 in favor, 2 abstentions; motion carried.
Dollman wishes to amend Farrar’s motion by adding
super seniority will be rejected unless shop stewards are
elected by the bargaining union members the shop
stewards represent. After discussion on amendment,
Martinez asked for a second on the amendment; no re-
sponse from group.
Turpin motions that Board reject grievance procedure
including binding arbitration, due to the fact that
LIDCS (ie. Respondent), has approved policies and pro-
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cedures which include detailed steps for grievance; Sec-
onded by Carrion; 12 in favor, 2 abstention; motion
carried.
B. Conclusions Regarding the Negotiations
The evidence establishes that each of the parties chief ne-
gotiators had the authority to make an agreement that would
be subject to ratification by their respective principals. Thus,
in the case of the Union, it is clear that Rene Mayne had
the authority to enter into an agreement subject to ratification
by the employees represented by the Union. Similarly, I con-
clude that Ann Coates was vested with authority to enter into
an agreement subject only to approval by the Respondent’s
board of directors.
The Respondent contends that Coates only had authority to
negotiate with the Union, but had no authority to enter into
an agreement unless specifically approved by Respondent’s
president (Simmons) and both the Parent Policy Council and
the board of directors. The evidence shows, however, that
Coates was designated by the Respondent as its chief spokes-
man and that on several occasions, in the presence of the
managerial employees assigned to assist her, she told the
Union that she had authority to make an agreement subject
only to ratification by the board of directors. As Coates was
placed at the head of the bargaining table by the Respondent
she was vested with apparent authority subject to whatever
ligitations she disclosed to the other side in the absence of
express limitations expressed to the Union before or during
the negotiations.
On the question of Coates’ authority, the Respondent re-
lies, inter alia, on NLRB v. Coletti Color Prints, 387 F.2d
298 (2d Cir. 1967). In that case, although sustaining the
Board’s conclusion that the employer was bound to execute
an agreement negotiated by its attorney, the court relied on
its conclusion that the company had actually ratified the con-
tract. On the issue of authority the court stated:
It does not necessarily follow that one hired by a com-
pany ‘‘to negotiate’’ a collective bargaining agreement
with a union has authority to bind the company to the
terms he negotiates without receiving subsequent ap-
proval of those terms by the company. Under our
present labor law, there certainly is no duty on the part
of an employer to be represented at the bargaining table
by a person with competent authority to enter into a
binding agreement with the employees, although the
bargainer’s lack of such authority is a factor to be con-
sidered in evaluating the employer’s good faith. There
being no evidence in the record that either Arvan or
Rains was specifically told by Coletti that he had power
to bind the Company, there is no substantial evidence
on the record as a whole to support a conclusion that
either of them possessed that power. What evidence
there is on the record only shows that Arvan reported
back to Coletti after the bargaining sessions and dis-
cussed the terms which were the subjects of bargaining.
This evidence clearly militates against the negotiators
having any power to bind. [Citations omitted.]
It seems to me that the court in NLRB v. Coletti Color
Prints was asked to deal with the issue of actual as opposed
to apparent authority. Moreover, I think that more recent
cases in this area are persuasive concerning the issue of
agency where a company designates an attorney or some
other person as its chief negotiating spokesperson. Thus, in
Metco Products v. NLRB, 884 F.2d 156 (4th Cir. 1989), the
company hired an attorney to conduct its labor negotiations.
The company’s president did not participate in the negotia-
tions and the union was not told that the attorney’s authority
to sign an agreement was subject to subsequent approval by
the company’s president. Thereafter, an agreement was
reached between the union negotiators and the attorney, but
the company refused to execute the agreement contending
that the attorney was not authorized to enter into an agree-
ment. The court stated:
In the context of collective bargaining, the NLRB
has adopted a clear and simple rule regarding the cre-
ation of apparent authority on the part of a labor nego-
tiator. The NLRB has long held that ‘‘when an agent
is appointed to negotiate a collective-bargaining agree-
ment that agent is deemed to have apparent authority to
bind his principal in the absence of clear notice to the
contrary. University of Bridgeport, 229 NLRB 1074.
See also Aptos Seascape Corporation, 194 NLRB 540
(1971), Medical Towers Limited, 289 NLRB No. 123
(1987), enf. granted without opinion, Medical Towers
Ltd. v. NLRB, 862 F.2d 309 (3rd Cir. 1988). The laud-
able purpose of this rule is to lessen the opportunities
for ambiguity and confusion by requiring a party who
chooses to negotiate through an agent to disclose any
limitations on the agent’s authority. Here Metco does
not dispute the fact that neither Saperstein nor any other
company official ever stated to the union the alleged
limitations on Pearlman’s authority. Metco’s omission
thus raises a rebuttable presumption in favor of the rea-
sonableness of the Union’s perception that Pearlman
had full authority to enter into an agreement on
Metco’s behalf.
Metco nonetheless argues that the evidence does not
support the ALJ’s finding that Pearlman had apparent
authority. Gordon, Carroll, and Clark each testified that
on a few occasions, Pearlman stated that he needed to
discuss specific proposals with Saperstein before agree-
ing to them. Metco contends that this testimony reveals
that the Union negotiators were aware of the fact that
Saperstein’s approval was required for all new pro-
posals. . . .
The testimony upon which Metco relies, however,
does not compel the conclusion that the Union nego-
tiators were aware of any such limitations. From the
testimony regarding Pearlman’s actions one could rea-
sonably infer that Pearlman, like any conscientious
agent, felt an occasional need to confer with his prin-
cipal before exercising his authority. . . .
Similarly in Ben Franklin National Bank, 278 NLRB 986
fn. 2 (1986), the Board stated:
We agree with the judge’s conclusion that under the
circumstances of this case, William Hart, the Respond-
ent’s president and a member or its board of directors,
obligated the Respondent to execute a collective bar-
gaining agreement upon the Union’s acceptance of the
complete contract offer communicated by Hart on 19
129LONG ISLAND DAY CARE SERVICES
June 1981, notwithstanding prior reservations of the
right of the Respondent’s president and board of direc-
tors to approve and ratify ‘‘any tentative agreement
reached and approved by the Bank’s negotiating com-
mittee.’’ It is well established that a principal may limit
its agent’s negotiating authority by affirmative, clear
and timely notice to the other party that any tentative
agreement is contingent upon subsequent ratifica-
tion. . . . An agent whose authority depends upon such
a contingency may have the apparent authority, how-
ever, to convey its satisfaction. . . . Hart’s status as the
Bank’s president would not per se bind the Respondent,
but for reasons fully set forth in the judge’s decision,
we find that Hart had the apparent authority to convey
the Respondent’s final and binding approval of the 19
June contract offer which the Union subsequently ac-
cepted. . . . To conclude otherwise would effectively
mean that an undisputed negotiator for the Respondent
had made a comprehensive, unconditional final contract
offer in bad faith, without any intention to be bound
thereby. [Citations omitted.]
In the present case, the record shows that Respondent’s
agent Coates entered into an agreement with the Union on
October 8, 1987, which was modified at a meeting between
herself and Mayne on October 20.
Inasmuch as Coates fulfilled her function on October 20
concerning the negotiation of a contract, the only impediment
to a binding agreement was ratification of the agreement re-
spectively by the employees (on the Union’s side) and by the
Respondent by its board of directors. In this respect, it is my
conclusion that the October 20 agreement was subject neither
to approval by Simmons nor by the Parent Policy Council.
In my opinion, it was therefore incumbent on Simmons to
promptly submit the agreement to the board of directors for
approval or rejection.
In my opinion, the Respondent violated Section 8(a)(5) of
the Act simply by not having a vote on the agreement by
its board of directors until May 5, 1988. Thus, instead of
submitting the agreement to the board of directors within a
reasonable period of time, a vote on this agreement was not
taken until more than 6 months after it had been negotiated.
Section 8(d) of the Act requires both parties to meet at
reasonable times and confer in good faith with respect to
wages, hours, and other terms of employment. Thus, under
Section 8(d) of the Act, it would be unlawful for an em-
ployer or a union to meet infrequently or to unreasonably
delay negotiations. Southside Electric Cooperative, 243
NLRB 390 (1979); Rhodes St. Clair Buick, 242 NLRB 1320,
1323 (1979). Analogously, it is my opinion that by unreason-
ably delaying the submission of the agreement for ratifica-
tion, this constituted an unwarranted and unjustified delay by
the Respondent in a crucial aspect of the bargaining process.
I do not however agree with the General Counsel’s conten-
tion that the Respondent violated Section 8(a)(5) by with-
drawing the authority of Ann Coates to negotiate a contract.
In fact, it is my opinion that Coates did negotiate a contract
(subject to Board ratification), and that she voluntarily re-
signed her retainer after it became apparent that she no
longer could work with Simmons.
I also do not find that the Respondent violated the Act by
‘‘reneging’’ on the October 8 and 20 agreements insofar as
arbitration, superseniority for shop stewards and union visita-
tion rights. As described above, these agreements, to the ex-
tent that they were included in the October 20 memorandum,
were only to be effective if and when they were approved
by the employees and by the Respondent’s board of direc-
tors. As already indicated, it is my opinion that it was the
responsibility of Simmons to submit the October 20 agree-
ment (as is) to the board of directors within a reasonable pe-
riod of time and for that body to vote one way or the other
regarding the agreement’s ratification. As this was not done
in a timely fashion, I shall order that if requested by the
Union, the October 20 agreement as signed by Coates and
Mayne be promptly submitted to Respondent’s board of di-
rectors and that a vote be taken on it.
The General Counsel also contends that Respondent vio-
lated Section 8(a)(5) of the Act, because contrary to the
terms of the October 20 memorandum of understanding,
Simmons did not recommend that the board of directors ap-
prove the contract. Notwithstanding the rather ambiguous
language of the memorandum of understanding, it seems
quite clear to me that at the October 20 meeting, Coates only
agreed that she personally would recommend the proposed
contract to the Respondent as both Mayne and Coates were
aware at the time that Simmons was not happy with certain
terms of the proposed agreement and had upbraided Coates
for agreeing to a superseniority clause which Simmons had
opposed from the outset of negotiations. I do not read into
the memorandum an intention by Coates to bind Simmons to
make a positive recommendation on the proposed contract to
the board of directors. For one thing, such a commitment
was clearly not part of the ground rules of the negotiations.
For another thing, I cannot imagine how such an alleged
commitment could be enforced. Finally, I note that Coates
did in effect recommend that the proposed contract be rati-
fied when she wrote to Jean Dember (chairperson of the
board), stating her reasons for resigning.
C. Alleged Refusal to Furnish Information
The charge in Case 29–CA–13433 alleges that since Feb-
ruary 5, 1988, the Respondent has refused to furnish relevant
information to the Union.
Before the commencement of negotiations, the Union
asked for and received certain information regarding the unit
employees. This included information as to their names, ad-
dresses, job titles, and dates of hire, plus information relating
to their wage and benefits. This information was furnished
in May 1987.
On February 4, 1988, the Union sent a letter to Simmons
requesting an updated list of the employees with their names,
addresses, classifications, wage rates, and dates of hire.
On March 4, Simmons replied by letter and enclosed a list
containing information. The problem is that the list, on its
face, contains information which is almost a year old as it
is for the period as of May 4, 1987.
On March 11, Mayne wrote to Simmons:
In reference to the union’s request of February 4 for an
updated employee list, we received an incomplete list
from your office today, March 11, 1988. There are nu-
merous names missing from each location, such as
Terry Woford in Amityville, Nora Callier in Hunting-
ton, and Wendy Carpenter in Central Brookhaven. The
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Respondent placed into evidence as R. Exh. 29 another list which in-
dicates that it contains information as revised on March 3, 1988. This list,
however, does not contain the employees’ addresses, and it does not appear
that the Respondent is claiming that this list was furnished to the Union.
8 During the course of 8 months, it would be reasonable to expect not only
employee turnover, but also some changes in addresses and job classifications.
9 Pursuant to Sec. 803(8) of the Federal Rules of Evidence, the HHS audit
report is receivable in evidence as an exception to the rules barring hearsay.
That portion of the rules provides that public records and reports are not ex-
cludable by the hearsay rule even where the declarant is available.
list appears to be missing at least 25% of the current
employees at LIDCS. Please forward a corrected em-
ployee list.
Simmons testified that when she received the Union’s
March 11 letter she instructed the clerks to check and correct
the list. According to Simmons, she was told that there were
three employees left off the list. It does not appear, however,
that a corrected list was sent by the Respondent sent to the
Union.7 Indeed the evidence indicates that the Respondent
simply ignored the Union’s March 11 letter.
Information regarding the names, addresses, job classifica-
tions, dates of hire, and wage rates are presumptively rel-
evant to the Union’s role as bargaining representative and as
such no showing of particularized need is necessary. Safelite
Glass, 283 NLRB 929, 948 (1987). Further, it seems to me
that it is not unreasonable for a union to request updated in-
formation from time to time. Thus, although the Company
did furnish much of this information at the commencement
of negotiations in May 1987, this does not obviate its obliga-
tion to furnish the Union with more current information
when it was requested in February 1988.8
In the present case, the Company in response to the
Union’s request for updated information simply transmitted
information that it had previously turned over the year be-
fore. When it was notified by the Union that it had not com-
plied with the request, the Respondent in effect, ignored the
Union. Accordingly I conclude that in this respect the Re-
spondent violated Section 8(a)(5) of the Act. 15th Avenue
Iron Works, 279 NLRB 643, 657 (1986).
D. Bonuses
The charge in Case 29–CA–13767 alleged, inter alia, that
the Respondent violated the Act when in July 1988 it granted
bonuses to those of its employees who did not engage in a
strike. (The Union commenced a strike against the Respond-
ent on April 11, 1988.)
Pursuant to a grant from the Federal Government, the Re-
spondent was given money and authorized to give a 4.75-
percent cost-of-living adjustment.
Pursuant to the grant, the Respondent had to allocate 65
percent of the money for pay increases but was given the op-
tion of applying the remainder for other purposes.
According to Simmons, despite the fact that the board of
directors voted to allocate 100 percent of the grant for pay
increases, the controller, for reasons of his own, held back
a certain amount of the money for other expenses. She testi-
fied that when it was discovered that he did this, there was
a sum of money that was left over and which was then di-
vided among the employees who had worked during the
year. According to Simmons, the strikers did not share in this
money because they did not work during the relevant period
of time.
In response to a Freedom of Information Act request, the
Union was provided with an audit report from the Depart-
ment of Health and Human Services. This report,9 based on
an audit conducted from September 26 to 28, 1988, stated:
Based on a review of personnel costs, a 4.75 COLA
adjustment was distributed across the board (filled and
unfilled positions). In addition, salary enhancement was
distributed in the same manner. Although the grantee
had the option of distributing 35% of the COLA to
‘‘other than personnel’’ costs . . . it was decided by
the grantee to distribute the entire amount awarded for
COLA to personnel . . .
It was discovered, that after the COLA funds have
been disbursed . . . $9,920 was left because the posi-
tions were unfilled at the time the benefits were earned.
In order to disburse the remaining COLA funds, the
grantee redistributed these funds to those employees
that were working during the period of the strike ($80
to full time and $40 to part time). The grantee felt this
was an incentive award for the hard efforts and work
performed by those employees who did not strike
. . . .
Notwithstanding the contention that the bonuses were paid
only to people who performed work during the relevant pe-
riod, the evidence establishes that this was not so. Thus, the
record shows that an employee Nancy Cerna, a nonstriker re-
ceived the $80 bonus even though she had been out from
work due to illness since before the strike commenced.
In Rubatex Corp., 235 NLRB 833, 834 (1978), the Board,
relying on Aero-Motive Mfg. Co., 195 NLRB 790 (1972),
enfd. 475 F.2d 27 (6th Cir. 1973), concluded that the re-
spondent had violated Section 8(a)(1) and (5) of the Act by
making bonus payments to employees who crossed picket
lines and worked during a strike. In pertinent part the Board
stated:
We considered the lawfulness of bonus payments to
employees who cross picket lines and work during a
strike in Aero-Motive Manufacturing Company, supra
. . . .
. . . .
[W]e found that the company violated Section 8(a)(1)
of the Act by granting the bonuses, reasoning that they
were grants of special benefits to employees who re-
frained from engaging in concerted activity and a denial
of such benefits to employees who chose to engage in
such protected activity. While not granted until after the
strike ended, the Board found that the bonuses dis-
advantaged the striking employees vis a vis the non
strikers and that this would have the impact of discour-
aging employees from engaging in protected activities
in the future.
. . . .
In Aero-Motive we found, additionally, that the com-
pany violated Section 8(a)(5) and (1) of the Act by
granting the bonuses unilaterally without prior negotia-
tions with the union . . . . Clearly, the payments were
additional compensation for services and therefore,
131LONG ISLAND DAY CARE SERVICES
were terms and conditions of employment about which
Respondent is obliged to bargain . . . .
In my opinion this case, insofar as the bonuses, is gov-
erned by Rubatex Corp., supra. Moreover, I note that as a
remedy, the Board in that case ordered the employer to pay
with interest, the same amounts of money to the strikers as
were paid to the employees who received the bonuses.
E. The Strike
The General Counsel contends that the strike was an unfair
labor practice strike. However, as all the strikers were rein-
stated to their former jobs on their requests for reinstatement,
a characterization of the strike as an economic or unfair labor
practice strike is essentially meaningless. As a determination
of this question has no practical meaning, I see no reason to
decide it.
F. Ernestine Cook
During the strike which lasted from April 11 to August 2,
1988, certain of the Respondent’s centers had more employ-
ees who participated in the strike than others. Among the
centers with the highest percentage of striker participation
was Central Brookhaven where Ernestine Cook, Linda Morn-
ing, Janie Ramsey, and Carmen Garcia were employed.
There is evidence that at least some of the board members
reacted very strongly to the strike. Thus, in the minutes of
the board of directors meeting of May 5, 1988, it is indicated
that Carolyn Woodard’s ‘‘initial reaction was to order staff
back to work or fire them.’’ Also the minutes state:
Turpin questions whether as employers, Board can
move to terminate striking staff if they do not return to
work, utilizing passages of the Personnel Policies and
Procedures. Turpin’s position is that some striking staff
have been out for almost four weeks and they should
be terminated if they do not return to work after a spec-
ified number of days. Heated discussion ensued; Farrar
and Nocisia explained this constituted a ‘‘lock out.’’
Turpin then asked what would happen if Board does
not agree with panel’s recommendations. President stat-
ed that technically, workers are still on strike but she
feels staff will continue to trickle in and added that the
children are also continuing to come back into the Pro-
gram. Turpin expressed her concern about a possible
‘‘about face’’ by the Regional Office regarding their
position on the issues. Dollman explained his concept
of mixed feelings of workers during a strike situation
. . . .
The strike ended on August 22, 1988, and the strikers, in-
stead of returning immediately to work, went for a 2-week
training program at Suffolk Community College. Thus, Cook,
along with all the other strikers did not actually resume her
duties until after Labor Day.
Ernestine Cook was employed as a family counselor.
Among her responsibilities was recruitment and the paper-
work attendant to that function. Ordinarily, intense recruit-
ment of children to participate in the Head Start program
takes place in the spring months. As the strike coincided
with this time of recruitment and as the people who replaced
the family counselors did not have the same degree of train-
ing as those who engaged in the strike, a good deal of re-
cruitment remained to be done when the strike was over.
Further, the evidence shows that much of the paperwork and
other work that the family counselors would ordinarily have
concluded by September had not yet been done.
Cook testified that when she returned to work on Sep-
tember 6, the office was in disarray. She testified that less
than a third of the children had been recruited, and that many
of the files for these children had not been completed. Thus,
according to Cook, many files showed that the initial home
visit had not taken place. Moreover Cook testified that many
of the files showed that the children recruited had not had
their required immunizations yet. (The job of the family
counselor is to remind parents to have their children immu-
nized as they are not allowed into the program until they
have the necessary shots. Although the family counselor can
and does nag a parent, he or she obviously can’t compel the
parent to take the child to a doctor.) Cook states that from
September 6, 1988, she spent her time, recruiting new chil-
dren for the program, conducting visits with parents in the
office as an alternative to home visits, reviewing, updating
and completing the files left to her by the replacements and
performing the paperwork on new files as new children were
recruited.
According to Cook, on September 19, 1988, she received
a phone call from Ava Torres, the social services coordi-
nator, who asked for the case number for a particular child.
Cook testified that after she told Torres that she had not
numbered the files yet, she got a call from Stone, the health
coordinator, who demanded to know when she (Cook) was
going to number the cases. Cook states that she told Stone
that she would do this as soon as possible and would give
this priority if there was a deadline on it. According to Cook,
the conversation got a bit testy whereupon she told Stone
that she did not appreciate being spoken to like a child. Cook
states that she told Stone that she would try to have the cases
numbered by Friday which was when Stone said she wanted
them done. With respect to this incident, neither Torres nor
Stone testified and Mattie Angus, program manager for the
Central Brookhaven Center, acknowledged that Cook com-
plained to her about the way Stone had spoken to Cook.
On September 25 and 26, 1988, the Federal Government
did an audit of the Respondent. In this regard, people from
HHS visited the centers, inspected files and records, and vis-
ited the classrooms. Included in this audit was an examina-
tion of the files worked on and maintained by Ernestine
Cook. There is no dispute that a review of the files showed
that many were incomplete and that some of the children
registered for the program had not yet received their required
immunizations. As noted above, Cook explained that the rea-
son the files weren’t complete was because of the extensive
backlog left by the replacements and the necessity to recruit
new children. Also, she had been back to work for only 3
weeks and the immunization problem is ultimately attrib-
utable to the parents who must make take their children to
a doctor.
On September 29, 1988, Mattie Angus placed Cook on 30
days’ probation. The memorandum addressed to Cook stated
in pertinent part:
You demonstrated a blatant disregard for the health
of the children at the Center by failing to maintain im-
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
munization records in each child’s folder. In addition,
you endangered the integrity of this Center, since you
Knew that these records are mandated by New York
State law and must be on file. Therefore a completed
immunization record . . . signed by a physician, must
be in each child’s folder for which you are responsible
by Wednesday, October 5, 1988, at 10:00 am. At this
time, you will also have documentation that each of
your children attending this Program has the minimum
requirement of one DPT one Polio and a MMR . . .
with an appointment for the next shots needed.
Also missing from your files, or incomplete, are enroll-
ment, first home visit and income verification forms for
each child’s entrance . . . . Therefore, this completed,
signed and documented information must be in each
child’s folder by Friday, October 7, 1988 at 10:00 am
as you jeopardized the continued participation of these
children in the Head Start Program by not having this
in place. If this documentation is not in place by Octo-
ber 7, I will be forced to terminate your employment.
On numerous occasions, you have been observed being
disrespectful and uncooperative while on the job.
On September 19, 1988 when the Agency’s Social
Services Coordinator called you to ask if you had as-
signed case numbers, you told her they were not done.
When she asked you when it would be completed, you
responded, ‘‘when you got around to it.’’ When she di-
rected you to have them competed by the next day, you
became hostile and argumentative.
On September 19, 1988, the Agency’s Health Coordi-
nator also called you to get your case numbers. You
said you were not doing it. You were told . . . it was
to be done before the child entered the Program. You
stated you would not do it.
Finally, on September 26, 1988, when Mr. Barry
Gordon was a guest at the Center to review Agency
documentation, your files were in disarray, required
infor-ation was missing and you were arrogant and un-
cooperative. Specifically, when asked to get files of the
validator, you responded, ‘‘If you want it, get it your-
self.’’ In addition, you were observed preparing re-
quired documentation and altering records during vali-
dation, in total disregard of Agency policy and proce-
dure.
During your period of probation, you will be ex-
pected to bring all required documentation up to date,
including parent contacts and needed health, social
services and handicapped services follow-up . . .
At the end of your probationary period, on October
31, 1988 you will be evaluated. Should these defi-
ciencies not improve, I will have no choice but to ter-
minate your employment . . . .
As noted above Cook credibly explained the September 19
incident and adequately explained why her files were not up
to date. She also denied the other specific allegations of the
memorandum. Cook made a detailed reply to the probation
memorandum by letter to Angus dated October 5. Thereafter,
Cook resigned her employment at the Respondent.
With respect to Cook I note that she had never received
any prior warnings or discipline. I also note that the Re-
spondent operates under a personnel policies manual which
provides for a progressive disciplinary procedure which was
not followed in the case of Cook.
In my opinion, the General Counsel has met her burden
of establishing, prima facie, that the Respondent took dis-
ciplinary action against Ernestine Cook because she partici-
pated in the strike and supported the Union. I note in this
regard, the evidence of animus shown by certain of Respond-
ent’s board of directors and the timing of the action which
took place soon after the strike ended. I am skeptical of the
reasons given by the Respondent for placing Cook on a 30-
day probation, which reasons I feel Cook has credibly chal-
lenged. Moreover, in view of the fact that the Respondent
had never previously disciplined or warned Cook and the fact
that the Respondent did not follow its own progressive dis-
ciplinary procedure I do not think that the Respondent has
met its burden of establishing that it would have imposed the
disciplinary action on Cook in the absence of her protected
concerted activity. Wright Line, 251 NLRB 1083 (1980).
G. Linda Morning
Linda Morning also was employed at the Central
Brookhaven Center as a family counselor. She therefore had
the game duties as Ernestine Cook. Morning had been em-
ployed for 5 years and had never received any previous
warnings or discipline.
Morning joined the Union in November or December 1987
and was an observer for the Union at the NLRB-conducted
election which the Union won. She participated in the strike
and engaged in picketing activities. (She also was inter-
viewed by Newsday during the second week of the strike.)
Like the other strikers she went for a 2-week training pro-
gram before returning to work after Labor Day. As she de-
scribes the situation on her return to work, the office was a
mess, there were files all over the place, and there was great
deal of missing information from the files. Also, according
to Morning, a number of the children recruited for the school
year had not yet had their physical examinations or immuni-
zations. Morning states that in addition to getting the existing
files up to date, she also had to engage in intensive recruit-
ment so as to get the desired number of children enrolled in
the program.
On September 30, 1988, after the Federal review, Mattie
Angus issued a warning to Morning as follows:
During the Federal Review the Validator said that
there are missing Immunization, Physical, Family needs
assessments and documentations on your case work log.
It has been documented that several trainings and tech-
nical assistance has been provided. Therefore, if you
need further assistance please inform me.
You have ten days to update your files, complete
with all the above. should this not be done within this
time frame further action will be taken.
According to Morning, she had worked on the files but
there was a great deal of work still to be done on them at
the time the Federal audit was conducted. She states that in-
sofar as immunizations and physicals, there is simply no way
for her to insure that these would be documented within 10
days, because although she could remind the parents to take
133LONG ISLAND DAY CARE SERVICES
their children to the doctor, it was up to the parents to do
so.
As in the case of Cook and for the same reasons, I am
of the opinion that that General Counsel has made a prima
facie showing of unlawful discrimination in the case of Linda
Morning. I am also convinced that the Respondent has not
satisfied its burden in this matter. Accordingly, I shall con-
clude that the Respondent violated Section 8(a)(1) and (3) of
the Act by giving a disciplinary warning to Morning.
H. Janie Ramsey
Ramsey is employed at the Central Brookhaven Center as
a teacher. She voted in the election, participated in the strike,
and had her picture in the union newspaper.
During the Federal audit, her classroom was visited and
the auditor pointed out two items. One was that there was
a pair of scissors within reach of the children. The other was
about children coming out of the bathroom without having
wiped their hands.
In late September, there was another occasion when Angus
complained to Ramsey about the toothbrushes not being
hung up and labeled properly. On September 29, 1988,
Angus wrote a letter to Ramsey with a copy sent to the per-
sonnel office. This letter, which the General Counsel asserts
was a discriminatorily motivated warning, reads as follows:
On September 26, 1988, during the Validation, I ob-
served a neglecting of performance. Are you instructing
your children to brush their teeth after meals?
School has been in operation for three weeks now,
and the tooth brushes remain unused in their cases. This
is a violation of Performance standards.
Mrs. Ava L. Torres . . . made name tags for each
child. There is no reason those brushes should not have
been in their appropriate places.
As a Teacher, you are responsible of the supervision
of that classroom. . . . All sharp or pointed objects
should be kept out of reach of children and not laid on
the table for easy access for children.
Please review your Job Description and Performance
Standards, especially those applying for Health and
Safety. In addition, when I am addressing another staff
member, please refrain from interfering.
Thank you for you cooperation. Any assistance you
need in respect to this training supplies, let me now im-
mediately.
The Respondent argues and I agree that the above letter
is not and should not be construed as a warning of any kind.
In this respect, I note that it is conceded by Ramsey that in
the past when an evaluation was conducted, a report was
written up and the staff was told of the audit including any
individual deficiencies. As such, the September 26 letter,
which essentially reiterated the Federal evaluator’s com-
ments, is little different from past practice. Moreover, there
is nothing in the letter itself which in my opinion can reason-
ably be construed as a warning of any present or future dis-
ciplinary action.
I. Carmen Garcia
Carmen Garcia also was employed at the Central
Brookhaven Center as a teacher’s assistant. She voted in the
election, went on strike and engaged in picketing.
During the inspection of September 26, 1988, the Federal
auditor mentioned that two of the children had gone to the
bathroom without being accompanied by an adult.
On September 29 Angus sent a letter to Garcia which the
General Counsel construes as a warning. This read:
On September 26, 1988, I observation you on your
performance as Teacher Assistant in the classroom
number 4 . . . .
No Child are to go to the bathroom alone. It must
be accompanies by you or Mrs. Ramsey the Teacher.
When the child has finished using the bathroom give
them a paper towel to dry their hands at the door.
As your Supervisor I am sure you will review and
observe the Safety Rules as it appears in the Perform-
ance Standards which governs the Program. Should you
have any questions, feel free to see me.
On October 5, Garcia sent a letter to Angus responding to
the above-noted letter. On October 13, Angus replied as fol-
lows:
Carmen, I am aware of your dedication to the Head
Start Program and to the development of children.
However, there are times when we need to review our
rules and regulation to update our knowledge and past
trainings. Each experience is part of the learning proc-
ess, and we want to keep open minds to learn, review,
and to obtain new and innovative ideas, which will en-
hance our job performance. If you have any further
questions or additional information, feel free to contact
me again.
As in the case of Janie Ramsey, I do not think that the
letters to Garcia amounted to a disciplinary warning. I there-
fore shall recommend that this allegation of the complaint be
dismissed.
J. Interrogation
Sometime in September 1988, an employee posted a peti-
tion on a bulletin board. This was in essence a petition seek-
ing signatures for a decertification petition (i.e., a petition to
get rid of the Union).
Carmen Garcia testified that on one occasion during the
lunch hour Angus asked her in passing if she had seen the
petition. Garcia said Yes. According to Garcia, Angus said
something to the effect of did anyone sign it or did you sign
it. According to Garcia she said no and that was it.
Based on the testimony of Garcia, I do not think that the
General Counsel has made out a case that the Respondent
engaged in coercive interrogation by the minimal transaction
described above. Rossmore House, 269 NLRB 1176 (1984).
CONCLUSIONS OF LAW
1. By unduly delaying the submission of an agreement ne-
gotiated by its agent on October 20, 1987, to the board of
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trustees, the Respondent violated Section 8(a)(1) and (5) of
the Act.
2. By unduly delaying the voting by the board of trustees
on the aforementioned agreement, the Respondent violated
Section 8(a)(1) and (5) of the Act.
3. By failing to furnish to the Union an updated list of its
employees with their addresses, job classifications, wage
rates, and dates of hire, the Respondent violated Section
8(a)(1) and (5) of the Act.
4. By paying cash bonuses to nonstrikers while with-
holding such bonuses to employees who engaged in a strike,
the Respondent violated Section 8(a)(1), (3), and (5) of the
Act.
5. By issuing a disciplinary warning to Ernestine Cook and
placing her on probation with a threat of discharge on Sep-
tember 29, 1988, the Respondent violated Section 8(a)(1) and
(3) of the Act.
6. By issuing a disciplinary warning to Linda Morning on
September 30, 1988, the Respondent violated Section 8(a)(1)
and (3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
8. Except to the extent found above, the Respondent has
not violated the Act in any other manner as alleged in the
amended complaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it just be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
In accordance with Sterling Sugars, 261 NLRB 651
(1977), it is recommended that the Respondent remove from
its files any references to the warnings to Cook and Morning
and that it rescind the probation of Cook. It further is rec-
ommended that Respondent notify each of these persons that
it has removed references to these actions from its files and
that evidence of these disciplinary actions will not be used
as a basis for future personnel action against Morning or
Cook in the event that she is ever reemployed by the Re-
spondent.
In relation to the bonuses, it is recommended that the Re-
spondent pay to the strikers the equivalent amount of money
as was paid to nonstrikers or those who abandoned the strike.
See Rubatex Corp., 235 NLRB 833, 836 (1978). This would
amount to $80 per person for full-time employees and $40
per person for part-time employees. Such payments shall also
include interest computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962).
I shall also recommend that the Respondent furnish to the
Union, on request, an updated list of the bargaining unit em-
ployees, their addresses, job classifications, wage rates, dates
of hire, and any other information which may be relevant to
the bargaining process.
Regarding the Respondent’s failure to timely present the
October 20 agreement for a ratification vote by its board of
directors, I shall recommend that it do so immediately if re-
quested by the Union. Additionally, because of the undue
delay caused by the Employer, I shall recommend that the
certification year be extended for 6 months so as to allow
for a reasonable time to bargain in the event the aforesaid
agreement is not ratified by Respondent’s board of directors.
Colfor, Inc., 282 NLRB 1173 (1987).
[Recommended Order omitted from publication.]