Michigan State Employees Association d/b/a American Federation of State County 5 MI Loc Michigan Sta

National Labor Relations Board - Administrative Judge Opinions

Mar 27, 2013

07-CA-053541 (N.L.R.B. Mar. 27, 2013)

JD(ATL)–07–13
Lansing, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
MICHIGAN STATE EMPLOYEES
ASSOCIATION
and CASES 07-CA-053541
07-CA-060319
CENTRAL OFFICE STAFF 07-CA-060320
ASSOCIATION 07-CA-065560
07-CA-065681
07-CA-069475
07-CA-079382
07-CA-081500
Judith A. Champa and Scott R. Preston, Esq.,
for the General Counsel.
Brandon W. Zuk, Esq. (Fraser, Trebilcock,
Davis & Dunlap, P.C.), of Lansing, Michigan,
for the Respondent
DECISION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. Respondent, itself a labor union,
engaged in conduct aimed at eliminating the union which represented its own employees, in
violation of Section 8(a)(1), (3), and (5) of the Act.
Procedural History
This case began on March 10, 2011, when the Central Office Staff Association (the
Charging Party or COSA) filed the initial charge against Michigan State Employees Association,
doing business as American Federation of State, County and Municipal Employees, Local 5,
AFL-CIO (the Respondent or MSEA) with Region 7 of the National Labor Relations Board,
which docketed the charge as Case 07-CA-053541. The Respondent admits receiving service of
this charge on or about the same date. On May 6, 2011, the Charging Party amended this charge,
and served the amended charge on the Respondent on or about the same date.
JD(ATL)–07–13
2
On June 7, 2011, the Regional Director for Region 7, acting for and pursuant to authority
delegated by the ’Board’s Acting General Counsel, issued a complaint against the Respondent in
Case 07-CA-053541. The Respondent filed a timely answer.
On June 14, 2011, the Charging Party filed two charges against the Respondent. They 5
were docketed as Cases 07-CA-060319 and 07-CA-060320, and served on the Respondent on
about June 16, 2011. The Charging Party amended the charge in Case 07-CA-060319 on July
22, and served a copy of the amended charge on Respondent on or about July 26, 2011. The
Charging Party again amended the charge in Case 07-CA-060319 on October 25, and served
Respondent with a copy of the amended charge on about October 26, 2011.10
On August 31, 2011, the Regional Director for Region 7, on behalf of the Board’s Acting
General Counsel, issued an order consolidating cases, consolidated amended complaint and
notice of hearing, in Cases 07-CA-053541, 07-CA-060319, and 07-CA-060320. The
Respondent filed a timely answer.15
On September 28, 2011, the Charging Party filed charges against the Respondent in
Cases 07-CA-065560 and 07-CA-065681 and served copies on the Respondent on about
September 28 and 29, 2011, respectively. The Charging Party amended both charges on
December 27, 2011, and served copies of the amended charges on the Respondent on about 20
December 28, 2011.
On November 22, 2011, the Charging Party filed a charge against the Respondent in Case
07-CA-069475, and served a copy of it on the Respondent on about November 23, 2011. The
Charging Party amended this charge on January 31, 2012, and served a copy of the amended 25
charge on the Respondent on about the same date.
On December 30, 2011, the Regional Director for Region 7, on behalf of the Board’s
Acting General Counsel, issued an order consolidating cases, third consolidated amended
complaint and notice of hearing, in Cases 07-CA-053541, 07-CA-060319, 07-CA-060320, 07-30
CA-065560, and 07-CA-065681. The Respondent filed a timely answer.
On January 31, 2012, the Regional Director for Region 7, on behalf of the Board’s Acting
General Counsel, issued an order consolidating cases, fourth consolidated amended complaint
and notice of hearing, in Cases 07-CA-053541, 07-CA-060319, 07-CA-060320, 07-CA-065560, 35
07-CA-065681, and 07-CA-069475. The Respondent filed a timely answer.
On April 23, 2012, the Charging Party filed a charge against the Respondent in Case 07-
CA-079382 and served the Respondent with a copy of this charge on April 24, 2012.
40
On May 21, 2012, the Charging Party filed a charge against Respondent in Case 07-CA-
081500 and served Respondent with a copy of it on May 22, 2012. The Charging Party amended
this charge on June 20, 2012, and served the Respondent with a copy of the amended charge on
the same date. The Charging Party amended this charge again on July 26, 2012, and served
Respondent with a copy of this second amended charge on the same date.45
JD(ATL)–07–13
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On August 10, 2012, the Regional Director for Region 7, on behalf of the Board’s Acting
General Counsel, issued an order consolidating cases, fifth consolidated amended complaint and
notice of hearing, in Cases 07-CA-053541, 07-CA-060319, 07-CA-060320, 07-CA-065560, 07-
CA-065681, 07-CA-069475, 07-CA-079382, and 07-CA-081500. The Respondent filed a timely
answer.5
On August 27, 2012, a hearing opened before me in Lansing, Michigan. On this date and
on August 28-31, September 24-28, October 29-31, and November 8, 2012, the parties presented
testimony and other evidence. After the hearing closed, counsel submitted briefs, which I have
carefully considered.10
Background
Employees of the State of Michigan have the right to be represented by a labor
organization and engage in collective bargaining in accordance with rules of that State’s Civil 15
Service Commission. The Respondent is a union primarily representing such employees. COSA
is a much smaller labor organization which represents the Respondent’s own employees.
In recent years, the State of Michigan has employed fewer people and, consequently,
Respondent’s membership has declined. With fewer members paying dues, Respondent has felt 20
the need to tighten its own budgetary belt. Obviously, the union representing its own employees
seeks to minimize the impact on those it represents.
Because the Respondent is a membership organization, its management may change as a
result of elections, and precisely such a change occurred in July 2010, when the MSEA general 25
assembly selected Kenneth Moore as the new president. Moore’s election brought a different
management approach. He came into office determined to eliminate the laxity which he
perceived in the Respondent’s operations. In doing so, Moore had to deal with the board of
directors and with other officers, independently elected, who did not always agree with him.
Therefore, management of the organization had a more “political” flavor than might be apparent 30
in a typical corporation.
In essence, this case concerns whether Moore’s efforts to change Respondent entailed the
commission of unfair labor practices, and whether they included elimination of COSA and the
bargaining unit it represented.35
Admitted Allegations
In its answers, the Respondent admitted a number of allegations. Based on those
admissions, I make the following findings: 40
The charges and amended charges were filed and served as alleged in subparagraphs 1(a)
through 1(p) of the order consolidating cases, Fifth consolidated amended complaint and notice
of hearing (the complaint) dated August 10, 2012. The Respondent did not admit that the
various charges and amended charges had been filed on the dates alleged but denied these 45
allegations “for lack of knowledge.” However, it did admit receiving service of the charges and
amended charges on or about the dates alleged.
JD(ATL)–07–13
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Moreover, it did not present evidence challenging any of the alleged filing dates or
otherwise disputing the dates shown on the charges themselves. Under these circumstances, and
considering the presumption of administrative regularity, I find that the government has proven
the allegations in complaint subparagraphs 1(a)—(p).5
Respondent has admitted, and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, as alleged in complaint paragraph 4, and that
it meets the Board’s standards for the assertion of jurisdiction, as alleged in complaint paragraph
3. Based on these findings, I conclude that jurisdiction properly has been asserted in this case.10
Because Respondent has admitted the allegations raised in complaint paragraph 2, I find
that its business is that of a labor organization. However, the complaint does not allege that it
committed violations of Section 8(b) of the Act in its capacity as a labor organization but rather
that it has committed unfair labor practices in its capacity as an employer, and thereby has 15
violated certain provisions of Section 8(a) of the Act.
Based on Respondent’s admissions, I find that its president, Kenneth Moore, is its
supervisor within the meaning of Section 2(11) of the Act and its agent within the meaning of
Section 2(13) of the Act. Further, based on Respondent’s admissions, I find that Donna Spenner 20
occupied the position of Respondent’s vice president until some time in July 2012. Respondent
has not admitted that Spenner was its agent at any time.
Respondent has admitted that Tim Schutt was its treasurer and its agent until July 2011. I
so find. Respondent also admits that Chris Little was its region 2 director and agent until May 25
2011. I so find.
Respondent also has admitted that, at all material times, Ron Damuth and Frank Gonzales
were bargaining committee members and Respondent’s agents. I so find.
30
Respondent has admitted, and I find, that the following employees of Respondent
constitute a unit appropriate for collective-bargaining within the meaning of Section 9(b) of the
Act:
All full-time, part-time and temporary employees who are employed by 35
Respondent for more than 30 calendar days, excluding the assistant to the
president, guards, and supervisors as defined by the Act.
Respondent has admitted that the Charging Party in this case, COSA, is a labor
organization within the meaning of Section 2(5) of the Act and is the designated exclusive 40
bargaining representative of the employees in the unit described above, within the meaning of
Section 9(a) of the Act. I so find. Further, based on the Respondent’s admissions, I find that this
recognition has been embodied in successive collective-bargaining agreements between
Respondent and COSA, including an agreement effective from October 1, 2008, through
September 30, 2011.45
JD(ATL)–07–13
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The Respondent has admitted certain other allegations which will be addressed below as
they pertain to specific unfair labor practice allegations.
The Alleged Violations
5
Independent 8(a)(1) Allegations
Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in section 7” of the Act. 29
U.S.C. § 158(a)(1). Other subparagraphs of Section 8(a) describe particular types of employer 10
conduct which violate the Act. Because all such employer unfair labor practices inherently
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, such
conduct also violates Section 8(a)(1).
When an employer’s unfair labor practice interferes with, restrains, or coerces employees 15
in the exercise of Section 7 rights but is not alleged also to violate another provision of the Act, it
often is described as an “independent” 8(a)(1) violation. Complaint paragraphs 8 and 9 allege
two such violations.
Complaint paragraph 8 alleges that since about October 8, 2010, the Respondent has 20
maintained an overly broad directive to employees that “all employee concerns regarding any
MSEA issues are to be presented, and addressed, directly by the President.” The Respondent
denies this allegation.
Complaint paragraph 9 alleges that on about February 9, 2012, the Respondent required 25
an employee to complete a questionnaire that contained language prohibiting the employee from
disclosing the contents of this questionnaire to other employees, and threatened her with
immediate discharge for any breach of confidentiality regarding the questionnaire. Respondent
has admitted this allegation but further stated that the confidentiality language also informed the
employee she could discuss the questionnaire in union representation.30
Complaint paragraph 43 alleges that the conduct described in complaint paragraphs 8 and
9 violates Section 8(a)(1) of the Act, which Respondent denies.
Complaint Paragraph 835
On October 8, 2010, Respondent’s president, Kenneth Moore, issued a one-sentence
memo to all staff, including members of the bargaining unit. It stated:
Effective immediately, all employee concerns regarding any MSEA issues are to 40
be presented, and addressed, directly by the President.
The General Counsel argues that this limitation extends to—or reasonably might be
understood to include— activities protected by Section 7 of the Act. Thus, the General Counsel
considers the words “regarding any MSEA issues” broad enough to encompass wages, hours,45
and other working conditions. In general, an employer lawfully may not prohibit employees
from discussing such matters among themselves and, with certain exceptions, may not restrict
JD(ATL)–07–13
6
employees from seeking the support of others. (Indeed, the iconic example of protected activity,
a picket line, involves employees’ concerted efforts to make the public aware of their work-
related concerns.)
The Board has held that an employer violates Section 8(a)(1) when it maintains a work 5
rule that reasonably tends to chill employees in the exercise of their Section 7 rights. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998). In determining whether a challenged rule is unlawful,
the Board must, however, refrain from reading particular phrases in isolation, and it must not
presume improper interference with employee rights. Therefore, it has developed a multistep
inquiry to determine the lawfulness of the language in question. Lutheran Heritage Village-10
Livonia, 343 NLRB 646 (2004).
First, the Board examines whether the rule explicitly restricts activities protected by
Section 7 of the Act. If so, the rule is unlawful.
15
If the rule does not explicitly restrict activities protected by Section 7, the Board then
examines the evidence to answer three questions: (1) Would employees reasonably construe the
rule’s language to prohibit activities protected by Section 7? (2) Was the rule promulgated in
response to union activity? (3) Has the rule been applied to restrict the exercise of Section 7
rights? If the answer to any question is yes, then the rule is unlawful. Lutheran Heritage Village-20
Livonia, 343 NLRB at 646—647.
In the present case, the October 8, 2010 memo did not explicitly restrict activity protected
by Section 7 of the Act. Therefore, I must test it with the three questions.
25
Examining the rule’s language, I must answer the first question in the negative. Although
the phrase “employee concerns regarding any MSEA issues” is rather vague, I will assume that it
reasonably would be read to include wages, hours, and other terms and conditions of
employment. However, the rule stops short of prohibiting employees from discussing such
matters among themselves.30
Instead, the rule simply says such matters “are to be presented [to], and addressed,
directly by the President.” It was necessary to infer that the drafter intended to include the word
“to” which appears above in brackets, because without that preposition, the rule would suggest
that only the Respondent’s president could present employee concerns, which clearly would be 35
nonsensical. Even with that added word, the intended meaning is not entirely clear. However, I
conclude that employees reasonably would understand the language to mean that they should
take their concerns directly to Respondent’s president, rather than to someone else.
The one-sentence memo does not include an express prohibition of any conduct. 40
Moreover, it does not threaten, or even mention the possibility of disciplinary action for a
violation of the rule. Accordingly, I must conclude that employees reading the rule would not
reasonably construe it to prohibit Section 7 activity.
The second question asks whether the rule was promulgated in response to union activity. 45
The record includes evidence that Respondent’s president, Moore bore animus towards COSA,
the union representing Respondent’s employees. Specifically, Benny Poole Jr., who continued to
JD(ATL)–07–13
7
serve as one of Respondent’s stewards at the time of the hearing, testified that on one occasion
Moore repeatedly said, “[Y]ou have to help me get COSA.”
Poole’s testimony indicates that he understood “get COSA” to mean “get rid of COSA,”
and that he believed Moore made this request because the Respondent’s collective-bargaining 5
agreement with COSA cost a substantial amount in pay and benefits. Based on my observations
of the witnesses, I credit Poole’s testimony rather than Moore’s denial. However, the testimony
falls short of establishing that Respondent promulgated the rule in question in response to union
activity.
10
Based on Poole’s credited testimony, I find that Moore made the “get COSA” statement
in April 2011, about 6 months after issuance of the rule. Because Moore made the statement so
long after the promulgation of the rule, it does not shed light on the motivation for the rule.
Moore’s explanation as to why he issued the October 8, 2010 memo suggests he was 15
concerned that employees were not coming to him to request vacation time but instead were
going to others, such as the Respondent’s vice president. At that point, Moore had only been
Respondent’s president for about 3 months. Certain other union officers, such as the vice
president, were elected by the MSEA general assembly rather than appointed by Moore, so they
did not necessarily share his management philosophy and potentially could undermine his 20
wishes; for example, by allowing employees to take leave when Moore believed they were
needed at work. It seems both plausible and in character that Moore would want a single
manager, himself, to make all decisions.
In these circumstances, I cannot conclude that Moore issued the October 8, 2010 memo 25
in response to union activity. Therefore, I must answer the second question in the negative.
The General Counsel argues that even if the answer to the first two questions is “no,” the
answer to the third is “yes.” Thus, the General Counsel’s brief states that “Respondent applied
this rule in an overbroad manner when it discharged [employee Nancy] Durner pursuant to this 30
rule because she had a discussion with an MSEA board member regarding a COSA issue.”
The complaint alleges that Respondent’s termination of Durner’s employment was an
unfair labor practice, and the lawfulness of that discharge will be addressed below. At this point,
I examine the evidence simply to determine whether Respondent discharged Durner for violation 35
of the October 8, 2010 instruction and, if so, whether this application of the rule restricted the
exercise of Section 7 rights.
Respondent admits that it discharged employee Nancy Durner on about July 12, 2011.
On that date, Respondent’s president, Moore, issued a letter effecting the discharge and giving 40
reasons for it. The letter stated, in part, as follows:
The investigation brought to light several issues that have resulted in this
determination for dismissal.
JD(ATL)–07–13
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These issues include, but are not limited to:
– Political activities (2)5
– Conduct unbecoming
– Insubordination or Disregard for Authority
On its face, this discharge letter does not refer to Moore’s October 8, 2010 memo.
However, it is possible that the references to “conduct unbecoming” and to “insubordination or 10
disregard for authority” might refer to a failure to follow the instruction in the memorandum.
Durner filed a grievance to contest her discharge and COSA took it to arbitration.
Although the arbitral award could be clearer, it does not appear that Respondent disciplined
Durner specifically for violating the October 8, 2010 memo.15
The arbitrator found that the Respondent had promulgated work rules which prohibited
its employees from engaging in internal MSEA politics. These work rules were separate from
the October 8, 2010 memorandum. The arbitrator concluded that Respondent had failed to prove
that Durner had violated the prohibition on such “political activity.”20
On the other hand, the arbitrator found that Durner had told a member of Respondent’s
board of directors that the board members “lacked balls” to oppose President Moore’s decision to
install a new telephone system. The arbitrator considered this statement to be disrespectful and
therefore to constitute insubordination and, derivatively, “conduct unbecoming.”25
Although the arbitrator’s award includes a reference to the October 8, 2010 memo, I
cannot conclude that the Respondent argued to the arbitrator that it had discharged Durner for
violation of the instruction in this memo. Likewise, it does not appear that the arbitrator
sustained the discipline based on a violation of the October 8, 2010 memo. Rather, the arbitrator 30
considered the “lack balls” statement attributed to Durner (and which Durner denied) sufficiently
vulgar and disrespectful to justify a suspension, although not a discharge.
Moore’s testimony during the unfair labor practice hearing does not resolve the question
of whether Respondent discharged Durner for violating the October 8, 2010 directive. The 35
following exchange occurred during Moore’s cross-examination by the General Counsel:
Q. Okay, my question is was one of the bases for discharging Nancy Durner
that she violated your directive?
A. She was insubordinate to this directive, correct? 40
The General Counsel did not pursue the matter further. Because Moore’s answer was
itself a question, I do not find it to be an admission. Moreover, it appears clear from other parts
of Moore’s testimony that he based his decision to discharge Durner not on a violation of his
October 8, 2010, but rather on a violation of general work rules applicable to bargaining unit 45
employees. (Whether such work rules had been implemented validly is an issue to be discussed
further below, but the evidence suggests that Moore sincerely believed that they were.)
JD(ATL)–07–13
9
Before imposing discipline, Moore made an effort to determine whether the work rules
actually had been implemented by one of his predecessors, and received information that they
had been. If he had based the disciplinary action on a breach of his October 8, 2010 memo, then
it would not have been necessary for him to ascertain whether the work rules were in force. 5
After being satisfied that the work rules were in effect and that Durner had signed a receipt for a
copy of them, he decided to discharge her. Moore testified, in part, as follows:
Q. Thank you. And based on your investigation, Mr. Moore, what did you
conclude?10
A. That she was in violation of the existing work rule, that her direct activity
with Mr. Little was an attempt to make a direct influence on the board
and/or decisions as there was still the controversy over the phone systems
that I reinstalled. So I found her in violation of the work rules.
Q. And what did you do in terms of—15
A. Forgive me for that. What I—I found her in violation of conduct
unbecoming, political activity, and it’s not coming to me what the third
rule was because I don’t have nothing to refer to.
Q. Yeah. That’s fine. What sanction did you impose? What disciplinary—
A. I dismissed her.20
Q. All right. Why did you decide to dismiss her?
A. Because the elements that affecting the board of directors concerning an
issue without coming to the president and/or the administration to address
the issue I felt was egregious.
25
Based on this testimony, I conclude that the evidence falls short of establish that
Respondent disciplined Durner for violating the October 8, 2010 memo rather than for violating
Respondent’s separate rule prohibiting staff from engaging in internal union politics. Therefore,
I must reject the General Counsel’s argument that the facts fall within the third part of the
Lutheran Heritage Village-Livonia test. 30
In arguing that the October 8, 2010 memorandum is unlawful, the General Counsel also
cites Kinder-Care Learning Centers, 299 NLRB 1171, 1171 fn. 1 (1990). In that case, the Board
found violative a rule which stated as follows:
35
Subjects such as local government regulations, the condition of center facilities,
and the terms and conditions of employment are not to be discussed by you with
parents and should always remain the responsibility of the Center Director.
40
. . . .
If you have a work related complaint, concern, or problem of any kind, it is
essential that you bring it to the attention of the Center Director immediately or
use the company problem solving procedure set forth in this handbook. Failure to 45
JD(ATL)–07–13
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abide by this policy statement may constitute grounds for disciplinary action up to
and including termination.
The Board found this rule unlawful not only because it interfered with the employees’
right to discuss working conditions with each other, but also because it prohibited them from 5
communicating their work-related concerns to third parties. Thus, the Board stated:
Under Section 7 of the Act, employees have the right to engage in activity
for their “mutual aid or protection,” including communicating regarding their
terms and conditions of employment. It is well established that employees do not 10
lose the protection of the Act if their communications are related to an ongoing
labor dispute and are not so disloyal, reckless, or maliciously untrue as to
constitute, for example, “a disparagement or vilification of the employer’s product
or reputation.” For example, the Board has found employees’ communications
about their working conditions to be protected when directed to other employees, 15
an employer’s customers, its advertisers, its parent company, a news reporter, and
the public in general.
299 NLRB at 1171 (footnotes omitted).
20
Significantly, the Board found that the rule interfered with employees’ right to
communicate their work-related concerns to third parties not through an explicit prohibition of
such communication but by imposing on employees the requirement that they bring such
concerns to management. Thus, the Board stated:
25
Although the rule does not on its face prohibit employees from
approaching someone other than the Respondent concerning work-related
complaints, it provides that employees first report such complaints to the
Respondent “immediately or use the company problem solving procedure” and
that it is “essential” for the employees to do so. Furthermore, the rule provides 30
that the failure of employees to abide by this policy may result in discipline,
including discharge. In these circumstances, we find that the Respondent's rule
does not merely state a preference that the employees follow its policy, but rather
that compliance with the policy is required. We further find that this requirement
-which has no basis in either the language or the policy of the Act-reasonably35
tends to inhibit employees from bringing work-related complaints to, and seeking
redress from, entities other than the Respondent, and restrains the employees’
Section 7 rights to engage in concerted activities for collective bargaining or other
mutual aid or protection.
40
Id. at 1172 (footnote omitted).
However, I believe the present facts are sufficiently different that Kinder-Care Learning
Centers can be, and should be, distinguished. Unlike the rule in Kinder-Care, the one-sentence
statement in the October 8, 2010 memo does not compel compliance by threatening disciplinary 45
action for its breach.
JD(ATL)–07–13
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Additionally, employees reading the Kinder-Care rule reasonably would understand it to
bar communications with third parties because it specifically mentions such third parties.
However, the October 8, 2010 memo includes no such explicit reference.
5
Moreover, the wording of the October 8, 2010-that employee concerns “are to be
presented”— leaves some doubt as to whether the memo simply is setting forth what is good
practice-the way things ought to be done— or setting forth a rule enforceable by discipline.
Another document, a February 9, 2012 questionnaire discussed below, illustrates that
Respondent could issue an order in no uncertain times. That document includes phrases such as 10
“you are hereby mandated” and “shall remain confidential” and “will result in immediate
termination of employment.” Respondent clearly uses strong, unequivocal language when it
intends to shout “thou shalt.” The much milder tone of the October 8, 2010 memo, and the
absence of any threat of disciplinary action, indicates that it was setting a standard rather than
demanding absolute, unwavering obedience.15
One other point may bear mention. In general, whether or not a particular statement
violates Section 8(a)(1) of the Act does not depend on the intent of the person who made the
statement. Rather, the Board considers how employees reasonably would understand the
statement. I have applied such an objective standard here and have not taken into account 20
Moore’s motivation in issuing the October 8, 2010 memo.
On the other hand, it is relevant, indeed necessary, to consider the totality of
circumstances because those circumstances will affect how employees will understand the
words. Those circumstances include the difference between Respondent, which is a membership 25
association, and the typical corporate employer. Moore held his position because elected by the
MSEA general assembly, which also elected the vice president. Thus, the vice president did not
depend on the president for his job, and, as Moore testified, the president could not discharge the
vice president.
30
This situation created the possibility that the vice president would give staff members
instructions which conflicted with those of the president. The record leaves little doubt that
when Moore took office he took steps to make sure that he was in charge and that others, such as
the vice president, did not undermine his authority. Issuing the October 8, 2010 memo was one
such step. Respondent’s employees in the COSA-represented bargaining unit would be well 35
aware of this situation and reasonably would understand the memo in this light.
For all the reasons stated above, I conclude that the October 8, 2010 memo did not violate
the Act.
40
Complaint Paragraph 9
Complaint paragraph 9 alleges that on about February 9, 2012, Respondent required an
employee to complete a questionnaire that contained language prohibiting disclosing the
questionnaire’s contents to other employees, and threatened her with immediate discharge for 45
any breach of confidentiality regarding the questionnaire. Respondent’s answer admitted this
JD(ATL)–07–13
12
allegation but further stated that the prohibition also included language informing the employee
that she could discuss the questionnaire “in union representation.”
On January 27, 2012, Respondent’s president, Moore, issued a memorandum placing
employee Audrey Johnson on administrative leave, ostensibly “pending further investigation of 5
incidents brought to my attention.” As part of this investigation, Respondent required Johnson to
complete a series of questionnaires, including one dated February 9, 2012, which included the
following language, set forth below verbatim and without grammatical corrections:
DISCLOSURE:10
This investigatory questionnaire is in response to an open investigation of alleged
misconduct and the results may result in discipline, up to and including discharge.
You are hereby mandated to answer all of the questions within this investigatory
questionnaire; its contents shall remain confidential and is not to be discussed 15
outside union representation. All answers/responses are to be submitted
truthfully, openly and acutely. A proven dishonest response, malice intent or
breach of confidentiality will result in immediate termination of employment.
This prohibition on discussing the contents of the questionnaire, which Respondent 20
admits, clearly is overbroad and violates the Act. The qualifying words “outside union
representation” fall short of redeeming the rule, which still prohibits a wide range of
communication protected by the Act.
The Board has made clear that employees have the statutory right to discuss their work-25
related concerns with each other and to voice them to third parties. See Kinder-Care Learning
Centers, above. Here, the prohibition prevents the exercise of this right.
It is true that in rare circumstance, the Board has found lawful a rule enforcing
confidentiality during an investigation. See Caesar’s Palace, 336 NLRB 271 (2001) (employer 30
did not violate Sec. 8(a)(1) by maintaining and enforcing confidentiality rule during ongoing
investigation of alleged illegal drug activity, where confidentiality directive was given to each
employee who was separately interviewed, the investigation involved allegations of a
management cover-up and possible management retaliation, as well as threats of violence, and
the confidentiality rule was intended to ensure that witnesses were not put in danger, evidence 35
was not destroyed, and testimony was not fabricated.) However, such circumstances are not
present here. Phoenix Transit System, 337 NLRB 510 (2002).
In Banner Estrella Medical Center, 358 NLRB No. 93 (2012) the Board left no doubt
that an employer bears the burden of establishing that the particular circumstances have created 40
legitimate reasons for a rule prohibiting disclosure. The Board stated, in part:
To justify a prohibition on employee discussion of ongoing investigations,
an employer must show that it has a legitimate business justification that
outweighs employees’ Section 7 rights. See Hyundai America Shipping Agency, 45
357 NLRB No. 80, slip op. at 15 (2011) (no legitimate and substantial
JD(ATL)–07–13
13
justification where employer routinely prohibited employees from discussing
matters under investigation). In this case, the judge found that the Respondent’s
prohibition was justified by its concern with protecting the integrity of its
investigations. Contrary to the judge, we find that the Respondent’s generalized
concern with protecting the integrity of its investigations is insufficient to 5
outweigh employees’ Section 7 rights. Rather, in order to minimize the impact on
Section 7 rights, it was the Respondent’s burden “to first determine whether in
any give[n] investigation witnesses need[ed] protection, evidence [was] in danger
of being destroyed, testimony [was] in danger of being fabricated, or there [was] a
need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed 10
to meet those requirements.
358 NLRB No. 93, slip op at 2.
In its brief, Respondent notes that the Board, in Banner Estrella Medical Center, had 15
found unlawful blanket rules prohibiting disclosure in a wide range of circumstances and then
points out that the prohibition at issue here was not such a blanket prohibition. Instead, it was
directed at a specific employee who was under investigation.
Although the Board did distinguish, in Banner Estrella Medical Center, between blanket 20
and individualized prohibitions, that distinction is not the central point, which concerns an
employer’s duty to justify its effort to prohibit communication which otherwise would be
protected. In other words, such an infringement on employees’ Section 7 rights is extraordinary,
and there must be extraordinary circumstances to justify it. As a result of this reasoning, blanket
prohibitions necessarily must be unlawful, because they apply to all situations, the ordinary as 25
well as the extraordinary.
Thus, showing that a particular prohibition is not a blanket rule does not carry an
employer’s burden of establishing extraordinary circumstances. Here, credible evidence has not
demonstrated that witnesses needed protection, evidence was in danger of being destroyed, 30
testimony was being fabricated, or that there was a need to prevent a cover-up.
Respondent’s brief, after quoting the portion of the Banner Estrella Medical Center
opinion listing these factors, argued that MSEA did have such business justifications. However,
Respondent did not point to any evidence giving it cause to believe that witnesses needed 35
protection, that evidence risked destruction, that testimony was being fabricated, or that there
was a need to prevent a cover-up. Instead, Respondent’s brief stated as follows:
First, as noted previously with regard to this very small unit, employees
have exploited the frequent changes in leadership to their advantage, even to the 40
point of denying that the Work Rules have been promulgated, despite the strong
evidence to the contrary. The investigation involved matters that potentially were
within the knowledge of other members of the bargaining unit; to protect integrity
of the investigation, the confidentiality directive was proper under the
circumstances.45
JD(ATL)–07–13
14
Respondent’s argument begins by assuming a fact not in evidence that employees had
“exploited frequent changes in leadership to their advantage.” Although the record does reflect a
dispute as to whether Respondent actually had promulgated work rules or only drafted them,
such a disagreement certainly does not constitute evidence that employees were seeking to take 5
advantage of changes in union leadership.
Moreover, the fact that “the investigation involved matters within the knowledge of other
members of the bargaining unit” does not suggest that employees would destroy evidence or
fabricate testimony. After observing the employees witnesses and listening to their testimony, I 10
find no reason to believe they would do such things. Respondent certainly has not presented
evidence to establish either such an inclination or sufficient grounds for Respondent reasonably
to believe that it existed.
Respondent’s brief includes a transcript citation to certain parts of MSEA President 15
Moore’s testimony, but this testimony is conclusory and without specifics. Thus, Moore
testified, in part, as follows:
Q. All right. Can you explain the purpose of those statements?
A. The purpose was to assure that there was an open dialogue to protect the 20
integrity of the investigation. There is a-it is a small group that works at
MSEA central, not to mention the volunteers that come and go with
MSEA so it was a mere attempt to keep the confidentiality and protect the
integrity of the investigation.
25
Neither this testimony nor other evidence establishes facts which would support a finding
that extraordinary circumstances were present which would justify a curtailment of employees’
Section 7 rights. Accordingly, I conclude that Respondent violated Section 8(a)(1) of the Act by
the conduct alleged in complaint paragraph 9.
30
Allegations of Unlawful Discrimination
Section 8(a)(3) of the Act prohibits an employer from encouraging or discouraging
membership in any labor organization by discrimination in regard to hire or tenure of
employment or any term or condition of employment. See 29 U.S.C. § 158(a)(3). Section35
8(a)(4) makes it unlawful for an employer “to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under this Act.” 29 U.S.C. §
158(a)(4).
Paragraphs 27— 35 of the complaint describe alleged conduct which, the General 40
Counsel asserts, violates both Sections 8(a)(3) and 8(a)(4) of the Act, as well as Section 8(a)(1).
Suspension and Discharge of Nancy Durner
Complaint paragraphs 27 and 28 allege, respectively, that Respondent suspended its 45
employee Nancy Durner on about June 2, 2011, and discharged her on about July 12, 2011.
Complaint paragraphs 43 and 44 allege that by these actions, Respondent violated Section
JD(ATL)–07–13
15
8(a)(3) and (4). Respondent has admitted that it suspended Durner and later discharged her, as
alleged, and I so find. However, Respondent denies that it did so for unlawful reasons. It also
denies that the suspension and discharge violated the Act.
Nancy Durner began work as a part-time employee of Respondent in June 2008 and 5
became a full-time employee about 2 months later. At all times she has performed clerical duties
and her job title is administrative assistant. Her immediate supervisor is Respondent’s president,
Kenneth Moore.
Durner is active in COSA and was elected secretary/treasurer of that union in February 10
2011. She has also been a member of the Union’s bargaining committee which negotiated with
Respondent for a collective-bargaining agreement to succeed the contract expiring September 30,
2011.
Durner also has filed a number of grievances. Many complained that Respondent had 15
transferred bargaining work out of the bargaining unit. These include a grievance dated
November 15, 2010, concerning the sorting of incoming mail; a grievance dated March 11, 2011
concerning the copying and mailing of documents to members of Respondent’s board of
directors; an April 18, 2011 grievance alleging a similar violation; and an April 26, 2011
grievance alleging a similar violation.20
In addition to the grievances which Durner signed, COSA filed another grievance which
pertained directly to her. This January 2011 grievance concerned Durner no longer answering
the telephone and routing calls, duties which, COSA asserted, were bargaining unit work.
25
Durner also provided affidavits to the Board in connection with its investigation of unfair
labor practice charges. To take one of these affidavits, the Board agent came to Respondent's
offices and interviewed Durner there.
On April 28, 2011, Respondent’s board of directors met at its offices in Lansing. One of 30
the directors attending this meeting was Christopher Little. Respondent has admitted that Little
was its agent until May 2011, when he resigned. (Little, a Michigan State employee, had
accepted a promotion and would no longer be in the bargaining unit of State employees which
Respondent represents.)
35
After the board of directors meeting, but before leaving Respondent’s offices, Little had a
conversation with Durner, who congratulated him on his promotion. According to Little, she
then told him that things were “getting really bad” around the office and attributed the problems
to Respondent’s president, Moore. Little further testified as follows:
40
Q. All right. What else do you recall about that conversation?
A. It was following the board meeting. It might have been why we were
down there too, I don’t think it was, but it was— she had mentioned the
fact that working around Ken in the office was really hard and then he was
making things difficult for them. He was taking away their jobs and 45
giving them to non-union workers and kind of removing duties from them.
One of the things that she had commented—and she had told me that she
JD(ATL)–07–13
16
said, well, I know it was you that voted to take the phones - to make the
phone service automated. And I told her I said it wasn’t me that voted to
take the - you know, to enable the phone service. I said I’m the one that
called the question which ended debate on the subject during the board
meeting, so then it was voted on, and then it was approved. [Emphasis .]5
Little gave this testimony on direct examination for the Respondent. His spontaneous use
of the words “for them” and “their” and “from them,” which I have italicized above, indicates
that he understood Durner to be expressing the work-related concerns not only of herself but also
of other bargaining unit members. That conclusion is consistent with Durner’s status as COSA’s 10
secretary-treasurer. Moreover, Durner’s complaint that Respondent’s president was taking
bargaining unit jobs and “giving them to non-union workers” clearly is a concern which a union
would raise to protect the work of the employees it represented.
Other parts of the record make clear that Durner was not just speaking for herself when 15
she complained to Little about the telephone system. Answering the telephone and routing calls
had been bargaining unit work before Respondent installed a “voicemail” system in late 2010. In
January 2011, COSA had filed a grievance concerning bargaining unit employees no longer
performing telephone answering duties, but the diminution of bargaining unit work was not the
only reason the new system had become a bone of contention. Difficulties in the system caused 20
frustration both for those who called Respondent’s offices seeking to speak with a staff member
and for the staff members who could not be reached. Thus, the voicemail system had affected
the working conditions of the staff members, who were employees in the COSA-represented
bargaining unit.
25
Additionally, a recorded greeting on the new telephone system stated that calls might be
recorded and employees were concerned about that possibility. On February 16, 2011, about 2
months before Durner’s conversation with Little, COSA had sent the Respondent a request for
information about the monitoring of telephone calls. Ten days later, Respondent had replied. At
one point in this February 26, 2011 response Moore had stated: “To the best of my knowledge, 30
no employee(s) have had their phone communications monitored and/or recorded.” However,
Moore’s letter stopped short of disavowing any intent to monitor and record in the future, stating
only that “no notice has been sent to employees that the Employer intends to monitor and/or
record phone conversations.”
35
Thus, for a number of reasons, bargaining unit employees were quite concerned about the
new telephone system and, I conclude, Durner was voicing those concerns when she raised the
subject with Little. According to Little, Durner also said that he and “the rest of the board had
no balls because we were following Ken [Moore] blindly.” Durner denied making this “no balls”
statement and, based on my observations of the witnesses, I credit Durner’s denial.40
Little considered Durner’s comments improper and complained to Moore, who conducted
an investigation and then discharged Durner. Moore’s testimony concerning the reason for
terminating Durner’s employment is set forth above in the section of this decision concerning
complaint paragraph 8.45
JD(ATL)–07–13
17
Moore’s testimony establishes that he sought to justify the decision to discharge Durner
by asserting that she had violated a rule prohibiting Respondent’s staff from engaging in
Respondent’s internal political activities. However, Moore’s testimony also shows that his
claimed justification for discharging Durner was not quite the same as his motivation for doing
so.5
When Respondent’s counsel asked Moore why he had decided to dismiss Durner, Moore
answered, “Because the elements that affecting the board of directors concerning an issue
without coming to the president and/or the administration to address the issue I felt was
egregious.” That style of speaking typified Moore’s testimony, which at times could be hard to 10
follow. In essence, Moore felt it was “egregious” for Durner to go over his head to the board of
directors.
Moore rested his decision to discharge Durner on her supposed violation of a “no
political activity” rule. Whether such a rule actually was in effect, and whether Respondent had 15
implemented it unilaterally, are separate issues which will be discussed later in this decision.
However the 8(a)(3) and (4) discrimination allegations now under consideration may be resolved
without deciding the validity of the rule itself. The rule stated as follows:
POLITICAL ACTIVITIES20
Internal MSEA Political Activity is prohibited. No MSEA employee except
elected officers of MSEA shall engage directly or indirectly in internal MSEA
political matters.
25
As used in this rule, “internal MSEA political matters” shall include:
1. The election of MSEA officers, members of the Board of Directors
(including both Regional Directors and Alternate Regional Directors),
Delegates and Alternate Delegates to the General Assembly, Department 30
Spokespersons, Alternate and/or Co Department Spokespersons and Chief
Stewards. .
2. The formulation, lobbying for or voting on any amendment to the MSEA
Constitution or any other matter properly before the General Assembly, 35
the State Board of Directors, the Executive Council or the officers of
MSEA.
This rule is intended to prohibit all activities which are political in nature,
including, nomination of candidates for MSEA elected office (“Candidates”), 40
lobbying or seeking support for Candidates or potential Candidates; preparing
campaign materials for Candidates; or any other activity intended to, or resulting
in, influencing any internal MSEA political matter.
Violation of this rule shall be considered a serious matter and shall result in 45
disciplinary action up to and including termination.
JD(ATL)–07–13
18
The Respondent has not claimed that Durner campaigned for or assisted any candidate
for MSEA office and the record would not support such an assertion. Rather, if her conduct
violated any portion of the rule, it would have to be the prohibition on “influencing any internal
MSEA political matter.”
5
Were I analyzing the facts using the framework which the Board established in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), it might become necessary to consider whether assertion of the rule against political
activities constituted a pretext. However, I conclude that it is not appropriate to apply a Wright
Line analysis because Respondent discharged Durner for engaging in conduct which the Act 10
clearly protects. Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006). If an
employer’s rule prohibits conduct which the Act protects, the rule must yield to the law.
Here, the Act protected Durner’s complaint to Little that the Respondent was diminishing
the bargaining unit’s work, and her voicing the concerns of bargaining unit members about 15
working conditions, including the automated telephone system, every bit as much as it protected
the grievance discussion in Beverly Health & Rehabilitation Services. Accordingly, as the Board
stated therein, the appropriate inquiry is whether, during the course of her protected activity,
Durner engaged in any conduct which removed her from the protection of the Act.
20
Based on Durner’s testimony, which I have credited, I find that she did not tell Little that
he and the other board members had “no balls” or lacked the “balls” to go against the MSEA
president. However, even if Durner had made this statement, it was not so egregious that it
deprived her of the Act’s protection. See, e.g., Phoenix Transit System, 337 NLRB 510 (2002).
25
Moreover, the testimony of Respondent’s official who made the discharge decision,
President Moore, leaves no doubt that he decided to terminate Durner’s employment because she
had failed to bring her complaints directly to him and instead had gone over his head to the board
of directors. Although the arbitrator focused on the purported “no balls” statement in deciding
that Durner deserved some discipline short of discharge, the record here establishes that Moore 30
terminated Durner’s employment not for vulgar or insulting speech but rather for going over his
head to a member of the board of directors.
However, an employer lawfully may not limit employees’ Section 7 rights in this manner.
Just as employees may take their complaints about working conditions to the public, so they may 35
raise them at higher levels of management.
Durner’s discussion with Little was not heated. Tempers did not flare. The only possibly
offensive language was the “no balls” remark which, I have found, Durner did not make.
Accordingly, I find that Durner did not lose the protection of the Act.40
Durner performed clerical functions and did not fall within the meaning of “key paid
employee,” so I need not perform the sort of analysis applied in Service Employees Local 1, 344
NLRB 1104 (2005), and Operating Engineers Local 370, 341 NLRB 822 (2004).
45
Respondent’s brief stresses that it discharged Durner because she violated a work rule,
namely, the rule against political activities discussed above. A later section of this decision will
JD(ATL)–07–13
19
focus on whether the rule in question had validly been implemented, but even if it had been, an
employer’s work rule cannot repeal the protection of Federal law.
If the work rule had plainly and specifically prohibited the conduct for which Respondent
punished Durner— raising employee complaints about working conditions with a management 5
official other than the president— it would have violated Section 8(a)(1) on its face. In any
event, whether or not the rule’s language, considered by itself, interfered with, restrained, or
coerced employees in the exercise of Section 7 rights, the rule as applied to Durner certainly did.
In sum, I conclude that Respondent violated Section 8(a)(3) and (1) of the Act by 10
suspending and then discharging Durner for union and concerted activities which plainly fall
within the Act’s protection. Because the evidence so clearly ties the discharge decision to
Durner’s protected activity on April 28, 2011, I do not conclude that Respondent also
discriminated against her because she gave affidavits to the Board, in violation of Section
8(a)(4).15
In this instance, the arbitral award finding Durner insubordinate, and therefore not
entitled to backpay, is not entitled to deference. The arbitrator neither considered the unfair
labor practice issue nor discussed it in the arbitral award. Motor Convoy, Inc., 303 NLRB 135
(1981). Moreover, even had the arbitral award addressed the unfair labor practice issue, I would 20
conclude that the result was palpably wrong, as the Board used that term in Kvaerner
Philadelphia Shipyard, 346 NLRB 390 (2006).
The General Counsel argues that the Board should adopt a new deferral standard.
However, changing the standard is not within my authority. In this instance, it also would not 25
alter my determination that deferral to the arbitral award is not appropriate.
Investigation and Discharge of Employee Audrey Johnson
Complaint paragraphs 29 and 30 allege, respectively, that the Respondent placed 30
employee Audrey Johnson on administrative leave on about January 27, 2012, and discharged
her on about June 14, 2012. Respondent has admitted taking these actions and, based on those
admissions, I so find.
Complaint paragraphs 43 and 44 allege that this conduct violated Sections 8(a)(3) and 35
8(a)(4), respectively, as well as Section 8(a)(1) of the Act. Respondent denies these allegations.
Audrey Johnson began work for Respondent in June 2006 as a membership services
representative, a position in the bargaining unit represented by COSA. In about April 2008, she
became a labor relations specialist, which gave her the added responsibility of representing 40
MSEA grievances in arbitrations.
In 2007, Johnson became secretary/treasurer of COSA and served in that union office
until replaced by Durner in 2011. After Respondent suspended and discharged Durner in the
summer of 2011, Johnson resumed the duties of secretary/treasurer on an interim basis. She was 45
also a member of the bargaining team which negotiated COSA’s 2008-2011 contract with
Respondent.
JD(ATL)–07–13
20
Johnson furnished four affidavits in Board investigations. For one of them, the Board
agent interviewed Johnson in conference room at the MSEA offices.
On December 15, 2011, Johnson’s job duties involved representing a State employee in 5
an arbitration in Detroit. This arbitration did not take place at a single location but involved
travel to different physicians’ offices to receive testimony. She had forgotten to take her wallet
which contained her personal credit cards, but she did have the MSEA credit card, which she
kept separately in her work bag. Although she had been issued the credit card when she began
work for the Respondent 5 years earlier, she had never used it to purchase gasoline.10
Also in December 2011, she charged on the MSEA credit card the purchase of a Franklin
Planner to use in her work.
Johnson testified that when she received the credit card the person who was then 15
Respondent’s president, Jack Yoak, told her that it was to be used to buy office supplies. She
further testified that MSEA Vice President Craig Tuck told her that for any charge more than
$100 she should fill out a requisition form and get approval in advance.
A month later, Respondent’s treasurer, Timothy Schutt, asked Johnson to surrender her 20
MSEA credit card to him. He also gave her a memo dated January 18, 2012, which stated as
follows:
In review of the current credit card billing statement dated 01/10/12 it
appears that there are inappropriate credit card purchases on the credit card with 25
the account ending in 1718, which is prohibited by Policy and/or IRS Regulations.
The use of the MSEA credit card to purchase fuel for a personal is not allowed in
any circumstances. The use of a MSEA credit card to purchase office supplies is
subject to prior approval from the President or Treasurer of MSEA, however,
these items can be purchased upon request on a office holder’s credit card other 30
than your individual card. With this in mind, at receipt of this letter I am
suspending use of your credit card and am requesting the card be surrendered,
pending further investigation.
There is no dispute that Johnson gave Schutt the credit card, as he had requested. 35
However, the testimony of Schutt and Johnson conflict concerning another part of this encounter.
This conflict concerns whether Johnson gave Schutt an explanation for why she used the credit
card to purchase gasoline. According to Schutt, Johnson said that she had charged gasoline to
the MSEA credit card because when she had submitted a voucher for reimbursement of expenses
for previous travel, Moore had denied it. Specifically, Schutt testified:40
[S]he brought up the fact that she used the credit card. I told [her] we couldn’t
allow it because of those IRS regulations that I learned about over in Maryland
and then she proceeded to tell me that she did it—when I asked about it, she did it
because the last voucher was denied, and she wasn’t about to ask about mileage 45
reimbursement again, so she just used the credit card, she needed gas, and so she
filled it up, and she also said it was allowed in the past.
JD(ATL)–07–13
21
Q. All right. Did she say anything about having lost her purse or her wallet
or misplaced her purse or her wallet on the day she used the MSEA credit
card for fuel?
A. No.5
Johnson unequivocally denied making the statement which Schutt attributed to her. On
cross-examination by Respondent, she testified, in part, as follows:
Mr. Schutt refused to hear any explanation regarding my credit card charge 10
because he said— he threw his hands up and said it was coming from the back.
He didn’t allow me the opportunity to explain anything.
Q. All right. And isn’t it true that you told Mr. Schutt that you made the fuel
purchase because you had mileage reimbursement that was due from a 15
previous travel voucher that the president had denied?
A. No, I didn’t.
In resolving this credibility conflict, I consider two competing factors. On the one hand,
Johnson’s demeanor as a witness particularly impressed me. On the other hand, a nearly 20
contemporaneous document is consistent with Schutt’s version of his January 18, 2012 meeting
with Johnson. Shortly after his exchange, Schutt sent Moore an email describing it. In this
email, Schutt stated: “I specifically ask[ed] about the fuel purchase and she stated ‘it was for
mileage reimbursement because Ken denied a previous voucher[’] and also she wasn’t about to
ask to get permission to represent members.”25
Absent other factors, I would be inclined to credit Schutt because of the corroborating
email. It would seem unlikely that Schutt would knowingly make an untrue statement in this
nearly contemporaneous email unless Respondent was intent upon discharging Johnson and
grasping for evidence to make a case. Such a motive should not be ascribed to anyone absent 30
evidence. Here, the record does include evidence suggesting the existence of such a motive.
One of Respondent’s members, Benny R. Poole Jr., attributed statements to Respondent’s
president, Moore, which, if true, indicate an intention to destroy COSA by discharging its
members. Poole has been a member of MSEA for two decades or more and continues to serve as 35
a chief shop steward. He testified that in April 2011 he and Moore were alone in Moore’s office:
Q. And what was the purpose for being there?
A. To check on I had [sic] a grievance that was going to go to arbitration, and
I wanted to find out the date of that.40
Q. Okay, and what was your conversation at that time?
A. Well, at that time Mr. Moore told me—he picked up a big old binder and
threw it and said that you’ve got to help me get COSA.
. . . .
Q. BY MR. PRESTON: Did he say anything to help your understanding that he 45
wanted to get rid of COSA?
JD(ATL)–07–13
22
A. As far as the amount of money in their contract and benefits, that’s what it
was.
Q. One second. Okay, and what was your response to what he said?
A. I didn’t say anything. I just wanted my date of my arbitration. The
secretary came in at one point. On his computer, she punched it up. They 5
gave me a copy of it, and I proceeded to leave the office. But before I left,
he pointed at the wall and stated once again, “You’ve got to help get
COSA,” and he pointed across to the wall.
Q. And what wall are we talking about? What did that separate?
A. It separated from his office to Mr.Manning’s office on the other side.10
At that time, Clyde Manning was COSA’s president and worked for the Respondent in
the COSA-represented bargaining unit.
Poole also testified that Moore voiced his intention to get rid of COSA during meetings 15
of Respondent’s board of directors:
Q. BY MR. PRESTON: But did he give, during these conversations, did he
express anything as to what would happen with COSA?
A. Yes, he stated that he was going to get rid of them. And as far as on some 20
occasion, he spoke and he gave the names of a couple that he’s going to
fire and get rid of COSA.
Q. Okay, and who are these individuals he mentioned?
A. One was Audrey Johnson.
Q. And who else?25
A. And one was Nancy and Mary.
Q. Okay, do you know when he made those statements as to each individual?
A. Roughly it was at this year’s board meetings. I think one was in April of
this year, and some was last year.
Q. Okay, the one as to April, which person did he mention?30
A. That was Audrey Johnson.
Q. And you said last year. Who did he mention last year?
A. Last year it was Nancy.
Q. Okay, and what about— you did mention, you mentioned Mary. When
did he mention Mary?35
A. That was, I believe, in one of the earlier board meetings either the last part
of last year or the beginning of this year when they were talking about
cutting back and laying off people and getting rid of COSA members.
Poole testified on August 31, 2012, so his reference to April “of this year” means April 40
2012. His references to “Nancy” and “Mary” are to Nancy Durner and Mary Groves, both of
whom are alleged in the complaint to be victims of Respondent’s unlawful discrimination,
matters which will be addressed later in this decision. My observations of the witnesses lead me
to conclude that Poole’s testimony is more reliable than that of Moore, who denied making the
“get COSA” statement. Crediting Poole, I find both that Moore made the statements Poole 45
attributed to him and that he also threw the binder, as Poole described.
JD(ATL)–07–13
23
In addition to his testimony about statements attributed to Moore, Poole also described a
conversation he had with a volunteer working in Respondent’s offices. At some point,
Respondent had begun using unpaid volunteers to perform some of the work done by
Respondent’s employees in the COSA-represented bargaining unit. One of these volunteers was
Fidencio (Frank) Gonzales, who had retired from his job with the State of Michigan at the end of 5
2010, freeing him to contribute much of his time to Respondent.
During his 35 years as a member of MSEA, Gonzales had held a number of offices in that
union, including shop steward, chief steward, local president, and the chair of various
committees. Additionally, while on a leave of absence from his job with the State of Michigan, 10
Gonzales had worked as a paid employee of Respondent in the COSA-represented bargaining
unit. The complaint alleges, and Respondent’s answer admits, that Gonzales is Respondent’s
agent within the meaning of Section 2(13) of the Act. Accordingly, Poole’s testimony quoting
Gonzales is not hearsay and Gonzales’ statements are imputable to Respondent.
15
According to Poole, in April 2012, during a break in one of Respondent’s board
meetings, he spoke with Gonzales. Poole testified as follows:
Q. Okay. And what was this conversation, or what was his statement?
A. Well, there was talk about firing all COSA in that meeting.20
Q. Right.
A. People were talking, and all of a sudden when I talked to Frank Gonzales,
he said they’re going to fire them all. And he stated that the ones to take
over would be him, Ron, I think Schneider, Russ—
Q. Russ who?25
A. Waters. These are probably the ones taking over COSA duties.
Q. Okay. Yesterday there was some mention by Respondent as to meetings
going long. Do you know what he could be referring to?
A. The board meeting, starting since Ken Moore was president, they started
lasting until 10:00, 11:00—too long, 10 hours or more. And sometimes 30
he’d postpone at a given time until the next day on Sunday, which is
unusual through the past years. It did not last that long. And the reason
for it is because the whole board meeting was talked about COSA, all of
COSA, and they couldn’t get the other business of the Union done in time
because they talked about COSA.35
Poole testified emphatically and, based on my observations, I believe he was a reliable
witness. Additionally, when Gonzales testified, some 4 weeks after Poole, he did not deny the
statements attributed to him by Poole. Therefore, I find that Gonzales did make the “going to
fire them all” statement, as Poole testified. 40
Additionally, in the rather unusual circumstances of this case, Respondent stood to gain
by eliminating the jobs in the COSA-represented bargaining unit. Its 2008-2011 collective-
bargaining agreement with COSA included an article setting ground rules and deadlines for
bargaining together with the following “interest arbitration” language:45
JD(ATL)–07–13
24
Therefore, all Articles may be pursued to arbitration in such manner to assure an
award by AUGUST 1, the decision of the arbitrator will be final and binding on
both parties.
Thus, the 2008-2011 contract provided that if the Respondent and COSA could not agree 5
on a particular contract term for the next contract, a neutral arbitrator would have the authority to
make a binding decision.
Such interest arbitration clauses, seldom seen in private sector collective-bargaining
agreements, are more common in contracts between public employees and their government 10
employers. A strike by civil servants harms the public and is, in many jurisdictions, unlawful.
Interest arbitration serves as a substitute.
In the private sector, if an employer’s management concludes that it is in a good
economic position to weather a strike, it may take a tough stance at the bargaining table. 15
Similarly, if a private sector employer believes that a union will not strike, it may decide not to
make certain concessions, increasing the possibility of a deadlock. If a lawful impasse does
occur, the employer then may implement its final offer.
However, a binding interest arbitration clause takes these options away from the 20
employer. If the parties do reach impasse, the employer cannot unilaterally implement the terms
it prefers. Instead, an arbitrator decides.
For this reason, private sector employees usually do not agree to interest arbitration
provisions. But here, the Respondent, although itself an employer in the private sector, 25
represents State workers and enters into collective-bargaining agreements with State
government. Such contracts include interest arbitration clauses more often than do private sector
collective-bargaining agreements. At some point, the practice of including such clauses migrated
from Respondent’s negotiations with government to its bargaining with its own employees.
30
The Respondent’s previous leadership, whom Moore replaced when he took office in
2010, had agreed to the interest arbitration clause, but Moore was stuck with it. Meanwhile, the
Respondent’s membership was declining, resulting in less dues revenue and a perceived need for
belt tightening. However, Moore could not insist on concessions to impasse because a deadlock
would result in the arbitrator making the decision 35
As noted above, Moore had come to office determined to run things differently and had
taken steps to assure that he, not other elected officers, held the reins. Yet the interest arbitration
clause prevented him from bargaining to impasse and unilaterally implementing the terms he
desired. 40
Someone with Moore’s “take charge” personality would not find this situation easy to
accept and might decide that the only remaining way to regain control was to eliminate COSA.
Based on Poole’s credited testimony, I find that Moore did make the “get COSA” statements
which Poole attributed to him.45
JD(ATL)–07–13
25
Additionally, based on Poole’s uncontradicted testimony, I have found that Gonzales, an
admitted agent of Respondent, did state that the employees in the COSA unit would be fired and
that he, Gonzales, and some others would be taking over their duties.
Such animus against the COSA unit employees increases the likelihood that the statement 5
attributed to her by Schutt—that she had charged gasoline on the MSEA credit card because a
previous travel voucher had been rejected—is a fabrication to support her discharge.
Moreover, the manner in which Respondent investigated the credit card charge leads me
to believe that Respondent was fishing, with a large net, for anything it could use against 10
Johnson. On January 20, 2012, President Moore’s administrative assistant gave Johnson an
“investigative questionnaire” to complete and return, which she did. Three days later, the
administrative assistant gave Johnson another questionnaire, which Johnson also completed and
returned.
15
Respondent’s president, Moore, also asked Respondent’s audit committee, chaired by
Kay Ryzenga, to investigate. Ryzenga sent Moore a January 25, 2012 report which concluded
that it appeared “Ms. Johnson has violated several memorandums, COSA contract articles and a
work rule by purchasing fuel for her personal car by using the MSEA credit card and for working
at home without prior authorization—then billing MSEA for reimbursement for mileage via 20
voucher for such unapproved travel.”
By memo dated January 27, 2012, Respondent’s president, Moore, placed Johnson on
administrative leave “pending further investigation of incidents that were brought to my
attention.” Moore’s memo notifying Johnson of that decision gave no reason other than 25
“pending further investigation of incidents that were brought to my attention.” Johnson credibly
testified that when she asked Moore for the reason he “informed me that I was being investigated
for misconduct, but he didn’t go into any details.”
On February 9, 2012, Johnson attended an investigatory conference at Respondent’s 30
offices. Moore gave Johnson another questionnaire to complete. The questions ranged well
beyond the credit card charge. For example, questions 9 and 10 on the questionnaire stated as
follows:
9. Did you on September 8, 2011 forward an e-mail to staff members with 35
the subject line “Missing Keys”?
10. Within your e-mail dated September 8, 2011 did you stated [sic] “My
office keys are missing”. . . . ”Please advise if you have seen a set of keys
with a blue wrist bungee card and a red flash drive attached.”40
(Emphasis in original.) Moore admitted on cross-examination that Johnson had sent the
September 8, 2011 email about the missing keys to all staff members, including Moore, and that
another email 16 minutes later announced that the keys had been located. It seems odd that
Moore would bring up this trivial incident in a questionnaire 5 months later. When asked about 45
it on cross-examination, Moore had no ready answer:
JD(ATL)–07–13
26
The loss of the keys and the recovery I believe is what I was attempting to
document. I’m trying to put the thought process back when this questionnaire
was created. I’m having some difficulty doing that.
Another questionnaire which Moore had Johnson complete asked her, among other 5
things, if she had worn track suits to the office. However, Moore admitted that he had never
issued a directive concerning the wearing of such apparel and the record otherwise does not
establish that there was a prohibition on any such attire.
These “investigatory questionnaires” supposedly were to gather information concerning 10
suspected wrongdoing. The inclusion of questions unrelated to such possible wrongdoing is
particularly difficult to understand because Moore already had the information the questionnaires
sought. He had received the emails concerning when the keys were lost and found and he
obviously would have known that Johnson sometimes wore a tracksuit to work because he and
she worked at the same location.15
The tenor of the questionnaires, considered together with Moore’s failure to explain to
Johnson why she was being placed on administrative leave, suggests that Moore was intent on
firing Johnson but was looking for a reason to justify that decision. Such a conclusion also
would be consistent with Moore’s “get COSA” statements to Poole.20
The conclusion that Moore was trying to scavenge some reason to discharge Johnson also
draws support from the fact that, as Moore himself essentially admitted on cross-examination, he
never told Johnson the nature of the allegations being investigated until the day he discharged
her. His failure to inform her of the allegations makes no sense if his true motive were to find 25
out the facts. Rather, it suggests that Moore was still looking for some allegations he could use.
This conclusion— that Moore was looking for a reason to justify Johnson’s discharge but
having trouble finding one— also would be consistent with the long period of time Johnson
remained on administrative leave, which did not end June 12, 2012. It would appear that Moore 30
needed the time to drum up support for a discharge decision.
Moore explained that Respondent had “three bodies that address charges in our
organization. It’d be the executive council if there’s a complaint or charge on staff. It’s the
steward and training [committee] if it’s a complaint or a charge on a steward or chief steward. 35
And then if you’re a region director. . . . president, vice president, state secretary, treasurer, then
those forums would be addressed in our constitutional elections committee.” Moore further
testified:
[A]ctually I had put charges in front of the constitutional elections committee, and 40
they sent them back without sufficient merit. That’s when I put it in front of the
audit committee to compile the documents because I merely pointed at a specific
date that I was aware of on a fuel usage versus a voucher usage which would
simply indicate double-dipping which is a violation of the law simply. And I had
addressed that. Well, unfortunately I didn’t have a copy of the voucher, and I 45
didn’t have a copy of the credit card log. So when I got that back, I sent it back to
JD(ATL)–07–13
27
audit, and I asked for a full-blown investigation. The acting chair of that
committee chose not to put it in front of the audit committee, which I didn’t find
out about for another 60 days.
Thus, Moore’s effort to discharge Johnson, based on Johnson’s onetime use of the credit 5
card for gasoline, met with opposition from others in Respondent’s organization. However,
Moore persisted.
On June 13, 2012, the day after Johnson returned to duty, she attended another
disciplinary conference. When she came to work on June 14, 2012, Moore gave her the choice 10
of resigning or being discharged. She chose the latter and Moore gave her a termination letter
dated June 13, 2012. The letter gave the following reasons:
– Use of position for personal gain (theft);
– Conduct Unbecoming; and, 15
– Insubordination or Disregard for Authority
The letter gave these claimed reasons without any elaboration or explanation of their
factual basis. On cross-examination, Moore asserted that he had explained these reasons to
Johnson when he gave her the letter. On cross-examination, the General Counsel asked Moore 20
about the reasons for Johnson’s discharge:
Q. Okay, can you explain to me right now what were the actions that
A. The use of personal gain, the investigation revealed a denial of a travel
voucher. Insubordination in the mindset of the, “I’m going to use the 25
credit card even though you denied the voucher,” is insubordination; it’s
actually theft because it’s not an approved process that’s ever been
participated in MSEA with her, and it’s an unacceptable practice. It’s
compensation versus reimbursement, justifies theft. Insubordination and
disregard for authority, the directives were put out there, the manipulation 30
of the calendar, and all the elements that were part of the investigation
revealed the complete disregard for authority.
Q. Okay, I’m sorry. Manipulation of calendar, I don’t believe there’s any
evidence that’s been shown anywhere about manipulation of a calendar.
What are you referring to?35
A. I believe the report reflects that her calendar, her Microsoft calendar was
checked on the Tuesday of that week, so it must have been when,
November 14th, and when it was checked in, the 19th, which was a
Friday, it showed there’d been a change; that’s manipulation of the
calendar from my perspective.40
The “manipulation of calendar” allegation concerned the electronic calendar Johnson
kept on her computer for her personal use. Moore admitted that it was not used for timekeeping
purposes and the record does not show that Respondent used it to track or assign employees’
work. Although Moore testified that he also checked it, he did not point to any specific instance 45
of doing so and did not make any claim that he had been misled by any entry in it.
JD(ATL)–07–13
28
As to Johnson’s use of the credit card on a single occasion to purchase gasoline, “There is
no procedure, there’s no acceptable application of credit card use for personal fuel; that’s theft.”
It would have been understandable for Moore to characterize this purchase as “theft” if 5
Johnson also had submitted a voucher claiming the mileage expense for reimbursement. Had she
done so, she would have been seeking a duplicate payment for the same mileage. However, she
did not seek such reimbursement. In these circumstances, Moore’s calling the charge for
gasoline “theft” is inexplicable.
10
As to the discharge letter’s reference to “insubordination,” Moore pointed to an instance
when Johnson had worked out of the office without getting approved in advance, in accordance
with a directive he had issued.
In determining whether Johnson’s discharge violated the Act, I will follow the framework 15
the Board set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must establish four
elements by a preponderance of the evidence. First, the General Counsel must show the
existence of activity protected by the Act. Second, the General Counsel must prove that
Respondent was aware that the employees had engaged in such activity. Third, the General 20
Counsel must show that the alleged discriminatees suffered an adverse employment action.
Fourth, the General Counsel must establish a link, or nexus, between the employees’ protected
activity and the adverse employment action. More specifically, the General Counsel must show
that the protected activities were a substantial or motivating factor in the decision to take the
adverse employment action. See, e.g., North Hills Office Services, Inc, 346 NLRB 1099 ( 2006).25
In effect, proving these four elements creates a presumption that the adverse employment
action violated the Act. To rebut such a presumption, the respondent must persuade by a
preponderance of the evidence that the same action would have taken place even in the absence
of the protected conduct. Wright Line, 251 NLRB 1083, 1089; Hyatt Regency Memphis, 296 30
NLRB 259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th Cir. 1991). See also Manno
Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). However, if Respondent’s asserted reasons for
its action are pretextual, it cannot carry the rebuttal burden. A finding of pretext defeats any
attempt by the Respondent to show that it would have discharged the discriminatees absent their
union activities. Rood Trucking Co., 342 NLRB 895 (8952004); Austal USA, LLC, 356 NLRB 35
No. 65 (2010).
The evidence clearly establishes all four elements which the General Counsel must prove.
Johnson was not only a union member, she was COSA’s secretary/treasurer and a member of
COSA’s 2008 negotiating team. In a small bargaining unit of half a dozen employees, who made 40
up most of the employee complement at Respondent’s offices, Johnson’s union activity would be
well known to management. Respondent discharged Johnson, and that certainly constitutes an
adverse employment action.
The credited testimony of Benny Poole establishes the fourth element, the link 45
connecting the protected activity with the adverse action. Based on Poole’s testimony, I find that
Moore was so upset with COSA that he threw a heavy binder as well as voicing his intent to
JD(ATL)–07–13
29
eliminate the bargaining unit. Additionally, based on the statements made to Poole by Gonzales,
an admitted agent of MSEA, I find that Respondent intended to discharge the bargaining unit
employees and replace them with volunteers.
Because the General Counsel has established all 4 of the initial Wright Line elements, the 5
burden shifts to Respondent to show that it would have discharged Johnson in any event,
regardless of protected activity. However, Respondent cannot meet this burden because the
reasons it gave for the discharge were pretextual. Rood Trucking Co., above; Austal USA, LLC,
above. Based upon the evidence discussed above, I conclude that Respondent’s President Moore
intended to fire Johnson because she was a COSA member and set about to find reasons which 10
would justify such a discharge. These reasons were not the real reason, which was the desire to
eliminate COSA by discharging the bargaining unit employees.
Accordingly, I conclude that Respondent, by placing Audrey Johnson on administrative
leave and then discharging her, violated Section 8(a)(3) and (1) of the Act. The General Counsel 15
has also alleged that Respondent took these actions because she gave affidavits during the
Board’s investigation of unfair labor practice charges. Although it is true that Johnson did give
such affidavits, the evidence does not establish that her cooperation with the Board was a
motivating factor. Therefore, I do not recommend that the Board find that Respondent also
violated Section 8(a)(4) of the Act.20
Alleged Isolation of Employees
Complaint paragraph 31 alleges that since about March 2012, Respondent isolated COSA
officers from bargaining unit employees by failing to move their office spaces when Respondent 25
moved its employees to another floor in Respondent’s building. Complaint paragraph 32 alleges
that since about March until June 12, 2012, and then from about June 14until about July 9, 2012,
Respondent physically isolated Rhonda Westphal away from her coworkers by failing to move
her office to another floor in Respondent’s building. The Complaint further alleges that these
actions violated Section 8(a)(3), (4), and (1) of the Act. Respondent denies these allegations.30
Respondent owns a building with more than one story and the first floor is partially
underground. Respondent’s board of directors decided to move all of its operations to the first
floor, which is less desirable as rental space, so that the upper floor could be leased out.
35
On the weekend of March 17-18, 2012, Respondent moved the offices of most of the
employees who worked on the second floor but Respondent’s president had told two full-time
employees, Clyde Manning and Rhonda Westphal, that they would have to wait because of a
problem with the furniture. Manning and Westphal were, respectively, COSA’s president and
vice president.40
The desk of Audrey Johnson remained on the second floor but, as noted above, she was
on administrative leave. The desk of Respondent’s treasurer, Timothy Schutt, also remained on
the second floor. However, he was not in the COSA-represented bargaining unit and only
worked one day a week.45
JD(ATL)–07–13
30
Several days later, Manning injured his back and took medical leave. Although Westphal
requested that her desk and computer be taken downstairs, Moore refused. Westphal continued
to work on the second floor until July 2012, when Respondent moved her and Manning (now
returned from medical leave) to the first floor. In the meantime, while the desks of Westphal and
Manning remained on the second floor, Respondent hired two new employees and assigned them 5
to work on the first floor.
Moore testified that Respondent had intended to buy office furniture manufactured by
inmates in prison industries. Such furniture only can be sold to governments and to nonprofit
organizations which qualify. According to Moore, the Respondent discovered belatedly that it 10
did not qualify and could not purchase the prison-made furniture.
Moore is an experienced cabinetmaker and decided to build some of the furniture
himself. However, doing so took time.
15
The General Counsel argues that during this period of time the second floor had the
appearance of a construction site and that it constituted unlawful discrimination to leave the
desks of COSA’s two top officers there while moving others downstairs. In examining the
evidence, I will again apply the Wright Line framework.
20
Clearly, both the president and vice president of COSA had engaged in union activities
and Respondent was aware of those activities. Thus, the General Counsel has satisfied the first
two Wright Line requirements.
Third, the General Counsel must prove that the alleged discriminatees suffered some 25
adverse employment actions. Certainly, in certain instances, subjecting particular employees to
working conditions not shared by other workers can constitute an adverse employment action.
However, I conclude that the relatively minor inconvenience experienced by Westphal for a
period of about 4 months does not rise to that level. Because Manning was on medical leave for
most of this period, he had to work in this less-than-ideal environment only for a short time.30
The record does not establish that this environment exposed either Westphal or Manning
to any hazards such as coal dust or increased the risk of accidental injury. It also does not
establish that either Westphal or Manning, as a result of remaining on the second floor during
this period, suffered any diminution in wages, benefits, or other compensation. Accordingly, I 35
conclude that the General Counsel has failed to prove the third Wright Line element, an adverse
employment action.
Because the General Counsel must prove all four elements, its failure to prove that an
adverse employment action occurred ends the analysis. The General Counsel has not proven that 40
the alleged conduct violated either Section 8(a)(3) or (4) of the Act.
However, I must also consider whether the Respondent independently violated Section
8(a)(1) by interfering with, restraining, or coercing employees in the exercise of their Section 7
rights. Clearly, separating union officers from the other bargaining unit employees with whom 45
they usually worked could constitute such interference if it made the employees’ access to their
union officers unduly difficult or impossible. However, the present record does not establish that
JD(ATL)–07–13
31
maintaining their working space on the second floor significantly impaired the ability of these
two union officers to communicate with other members of the COSA bargaining unit or
significantly interfered with the performance of union duties. Accordingly, I conclude that the
Respondent did not violate Section 8(a)(1).
5
Therefore, I recommend that the Board dismiss the allegations raised by complaint
paragraphs 31 and 32.
Termination of Mary Groves’ Recall Rights
10
Complaint paragraph 33 alleges that on about April 2, 2012, Respondent terminated Mary
Groves’ recall rights, effectively discharging her. Respondent’s answer admits this allegation.
However, Respondent denies the further complaint allegations that the termination of Groves’
recall rights violated Section 8(a)(1), (3), and (4) of the Act.
15
Groves began working for Respondent as a temporary employee in May 2009 and
became a full-time employee about 2 months later. She worked in the bargaining unit
represented by COSA, to which she belonged.
In March 2011 she became a member of COSA’s bargaining committee, along with 20
COSA President Manning and Vice President Westphal. The committee negotiated with
Respondent for a new collective-bargaining agreement to succeed the one expiring September
30, 2011.
In early November 2011, the Respondent notified COSA that it intended to lay off 25
employees “due to lack of funds, operating revenues and administrative efficiency.” Respondent
laid off Groves effective December 5, 2011. The General Counsel does not allege that this layoff
violated the Act, but only that Respondent later committed an unfair labor practice when it
terminated Groves’ recall rights.
30
Respondent’s president, Moore, sent Groves a March 22, 2012 notice of recall. It stated:
Pursuant to the provisions of Article 13, Section F of the COSA Contract,
this is to offer recall to you in the classification of Accounting Assistant at MSEA
Central Office, performing duties similar to those you did prior to your layoff. 35
Your rate of pay will be the same rate you received prior to your layoff. The
hours of work will be 1:00 p.m. to 5:00 p.m, Monday through Friday.
You must respond whether you accept or decline recall of this position
prior to April 2, 2012. You may respond in writing by either email 40
(kmoore@msea.org/troberts@msea.org) or fax to 517/3947376. Failure to
respond within this time frame will result in your recall rights being terminated.
When Groves received this letter, she was considering another possible job, but one
which would have been temporary and would not have offered the extensive benefits she had 45
received while working for Respondent. Moore’s recall letter had not indicated a starting date or
JD(ATL)–07–13
32
what benefits she would receive. Since the work would be part time—only 4 hours a day—
Groves was concerned that it might not include her previous benefits.
Groves contacted Respondent’s treasurer, Timothy Schutt, but Schutt was unaware that
Moore had sent Groves a recall letter and could not provide any information. At this point, 5
COSA President Manning was still on medical leave, so Groves contacted COSA Vice President
Westphal, who provided some information about language in the collective-bargaining
agreement but could not answer all of Groves’ questions.
On March 29, 2012, Groves sent Moore a letter (incorrectly dated March 30, 2012) 10
stating that it was impossible for her to make an informed decision based on the information in
the March 22, 2012 notification. It further stated:
The [recall] notification did not include a starting date. Also, I would like
a little clarification as to whether this is a permanent recall or just temporary. I 15
am assuming, because the notice did not state otherwise, that it is to be permanent
but I would like it clarified as my layoff notice also stated that my employment
was terminated and my position within MSEA would be vacated.
Please provide answers and clarification in writing and I will be glad to 20
respond, once I have received them, within the time frame set forth within Article
13, Section F of the COSA contract.
On April 2, 2012, Groves followed up by sending Moore an email which attached her
letter, quoted above. The email stated, in part, “I would also like to reiterate that I am 25
considering returning return [sic] to MSEA but am unable to make an informed decision as there
was not a start date is [sic] identified and I would also like to know whether the position is
permanent or temporary.” The email then asked Moore to clarify these issues as soon as possible.
Moore sent Groves an April 2, 2012 letter informing her that her recall rights had been 30
terminated. The letter stated as follows:
I am in receipt of your correspondence dated March 30, 2012. I would
like to refer you back to the language of the COSA Contract:
35
“171.e employee shall have ten (10) calendar days from the date
oft he mailing to respond to his/her intentions to accept or refuse
recall to the proposed position”.
As well as refer you to the recent receipt of Arbitrator Van Degens’40
Interest Arbitration decision adopting the following change to Article 13, Section
G:
“The employee shall have Five (5) calendar days from the receipt
of certified mailing to respond to his/her intentions to accept or 45
refuse recall to the proposed position”.
JD(ATL)–07–13
33
As you are well aware, as you were part of the COSA Bargaining team,
the Union was adopting said language and the arbitrators decision is retroactive
back to the successor agreement. Even though the arbitrator adopted the
following change as listed above, I gave you ten (10) days to respond to the
Recall notice. Furthermore, the correspondence you were forwarded on March 5
22, 2012, clearly outlined the classification, duties to be performed, work hours
and rate of pay. Prior to the correspondence received from you today we have
received no other communications either by email, facsimile, or USPS first class
mail; therefore, by your application, your recall rights are hereby terminated. We
have marked our files as such and wish you well in the future. 10
(Emphasis in original.)
Moore’s testimony about this matter does not fit well with other evidence. He explained
that he decided to recall Groves after making a decision to buy and use a software program 15
called “QuickBooks Premium” which other local unions were using. Moore testified that he and
Respondent’s treasurer bought the program online:
`
It was that evening that we got online and purchased that, and then from
that point we started strategizing how to implement, and the intent was to bring 20
Mary Groves back, implement, and run it parallel with the KI system so there was
there would be no hiccup in operations.
Q. Okay. And how important was it that this be done quickly?
A. It was very important. 25
Moore gave this testimony well after Schutt had taken and left the witness stand.
Although Schutt, in describing his qualifications, had testified that he used the QuickBooks
program, he did not mention that he and Moore ordered it online or had a plan which involved
recalling Groves to run it. Moreover, according to Groves, Schutt told her that he knew nothing 30
of the decision to recall her.
Certainly, if the plan Moore described had existed, Schutt would have told Groves when
she called him to inquire about the terms of recall. After all, according to Moore, he and Schutt
wanted to implement the new program quickly and contemplated using Groves to do it. 35
Therefore, Schutt would have had every reason to tell Groves “we need you right away” when
she asked about the starting date. He would have had no reason to deny knowledge of the recall
notice which Groves had received.
Because Moore’s testimony is inconsistent with this other evidence, I do not credit it. 40
Further, I conclude that Groves’ supposed failure to respond by the deadline is merely a pretext.
She did, in fact, respond by contacting the treasurer, who had been her supervisor before the
layoff and who would supervise her again if she accepted the recall.
Following the Wright Line framework, I find that the General Counsel has established all 45
four of the initial elements. Groves’ service on COSA’s bargaining team involved face-to-face
dealings with Respondent’s management; clearly, Respondent knew about Groves’ union
JD(ATL)–07–13
34
activities. Indeed, Moore’s April 2, 2012 letter to Groves mentions her service on the COSA
negotiating team. Termination of recall rights certainly is an adverse employment action.
Moreover, based on Poole’s testimony concerning Moore’s “get COSA” statements, I
find a link between the protected activity and the adverse employment action. Respondent 5
therefore bears the burden of showing that it would have canceled Groves’ recall rights in any
event, even absent protected activity. It cannot meet this burden because its proffered
explanation is pretextual.
In sum, I find that Respondent’s termination of Groves’ recall rights violates Section 10
8(a)(3) and (1) of the Act.
Alleged Refusal to Allow Clyde Manning to Return to Work
Clyde Manning has worked for Respondent since 1999 and has been president of COSA 15
for about a decade. On March 21, 2012, he had to be taken to the hospital for back pain. In a
March 29, 2012 email to Respondent’s president, Moore, Manning reported on his condition and
noted that he hesitated to return to work while still taking “thought blurring” pain medication.
Manning kept Respondent advised of his progress and, on April 26, 2012, sent the 20
following email to Moore’s assistant:
My physician has released me to return to work, without restrictions,
effective Monday, April 30, 2012. I will bring a copy of the release when I
return.25
Look forward to returning.
However, when Manning reported for work on April 30, Moore’s assistant gave him a
notice that he was being placed on administrative leave. That same day, Manning sent Moore an 30
email asking for an explanation. More than 3 weeks letter, Moore replied. This May 25, 2012
letter stated, gave the following explanation:
As you are aware, per Article 17, Section D
35
“Nothing herein shall prevent the Employer from referring the
employee to another physician or practitioner for a second opinion
in the same field (doctor equal to or greater than) for a second
opinion, provided however, the Employer and the Association
mutually agree upon the selection of such physician or 40
practitioner, not to exceed two refusal by Association”.
Under the provisions of the contract, cited in part above, the Employer is
exercising its right to obtain a second opinion.
45
(Emphasis in original.) However, it should be noted that, in quoting this particular provision of
the collective-bargaining agreement, Moore’s letter omitted the first sentence, which stated “An
JD(ATL)–07–13
35
employee receiving worker’s compensation or Long Term Disability (LTD) benefits may elect to
supplement such benefits with the use of sick leave and annual leave credits to the extent of the
difference between the benefits and the employee’s regular salary or wage.” The language
quoted by Moore thus did not pertain to Manning’s situation. Moore’s May 25, 2012 letter did
not offer a reason for his decision to have Manning undergo an evaluation.5
Manning also received a notice, signed by Moore, informing him that he was being sent
for an examination in the occupational health services department of a Lansing hospital. It also
instructed him to complete forms authorizing the release of medical information.
10
When Manning arrived at the hospital on June 7, 2012, he discovered that the
examination which Moore had requested was a psychological examination. Finally, on June 23,
2012, Respondent notified Manning that he could return to work on June 25, 2012.
To explain its action, Respondent argues that Manning’s reference to “thought blurring” 15
pain medication raised concerns about his mental functioning. Additionally, Moore testified that
he did not learn about Manning being sent for a psychological evaluation until after the fact:
I found out in a later date that there was another evaluation that was done.
I happened to be in Los Angeles at the time for a national convention when I was 20
told that Mr. Manning had endured an evaluation, a psychological evaluation.
That had been raised to me prior to me departing to L.A., and I indicated to
Sparrow Health Services that I had no intent of taking it to that level. I simply
wanted to make sure that Mr. Manning had no impairments whether being on
medication and is able to perform the duties of this job.25
To believe Moore’s testimony would require superhuman credulity and a disregard of his
modus operandi. Moore’s actions, such as his October 8, 2010 memo that employees should
bring all concerns directly to him, consistently reveal Moore to be someone with a strong
compulsion to be in control of all aspects of Respondent’s operations. This compulsion 30
manifested itself both in the changes Moore made in Respondent’s operations, such as having all
incoming mail delivered to a locked box, and also in his refusal to provide information about
those changes, a matter which will be discussed further below. Additionally, both Moore’s
testimony and his actions, such as drafting extensive “investigative questionnaires,” create the
impression of someone who pays exceedingly close attention to detail. It would have been out of 35
character for Moore to have taken a “hands off” approach when it came to referring Manning for
evaluation.
Moreover, in this instance as in others, Moore appeared uninterested in actually obtaining
information from the employee. Instead, he used correspondence in an almost ritualistic way. It 40
would have been quite easy, and much simpler, to ask Manning, when he returned to work, if he
were still taking pain medication. (Likewise, when Moore learned that Mary Groves was
interested in accepting the recall but had some questions, it would have been easy to contact her
and ask when she could report for duty.) Moore’s lack of interest in obtaining information
needed to achieve his ostensible objective demonstrates that his actual goal differed from the 45
asserted one.
JD(ATL)–07–13
36
In sum, I do not credit Moore’s denial of knowledge that his office had arranged for
Manning to undergo a psychological examination. Instead, I conclude that Moore’s asserted
concern about Manning’s medication was a pretext used to delay his timely return to work.
The General Counsel has proven all four of the initial Wright Line elements. Respondent 5
obviously knew Manning was the union president. A delay in allowing an employee to return to
work clearly constitutes an adverse employment action. Moore’s “get COSA” statements,
proven by Poole’s credited testimony, establishes the link between the protected activities and
the adverse employment action.
10
Because Respondent’s asserted reason for the delay in restoring Manning to duty is
pretextual, it cannot rebut the General Counsel’s case. Therefore, I conclude that Respondent
unlawfully refused to allow its employee, Clyde Manning, to return to work between April 30
and June 25, 2012. Further, I recommend that the Board find that Respondent thereby violated
Section 8(a)(3) and (1) of the Act.15
Discipline of Employee Rhonda Westphal
On June 18, 2012, after a disciplinary conference, Respondent issued a written reprimand
to Rhonda Westphal, an employee in the COSA-represented bargaining unit and also vice 20
president of COSA. The reprimand, in the form of a memo from Moore, stated in part as
follows:
This is an official written reprimand due to your failure to seek pre-
approval prior to performing out-of-office work on May 18, 2012. Consequently, 25
a Disciplinary Conference was held on today’s today (June 14, 2012) and after re-
consideration, I have elected to issue this written reprimand due to your failure,
after numerous President’s Directives, to seek pre-approval for any/all out-of-
office work performed.
30
Your actions are a direct violation of MSEA work rules (dated February
26, 2007), specifically Insubordination or Disregard for Authority when you
failed to seek prior approval prior to performing out of office work on the above-
captioned date.
35
(Emphasis in original.) The reprimand concluded by stating that “further inappropriate conduct
may result in further disciplinary action up to and/or including discharge.”
More had not previously received discipline for performing out-of-office work without
first getting approval and the credited evidence does not establish that Respondent had 40
disciplined any other employee for such conduct. Additionally, Westphal had assumed, with
some reason, that she had Moore’s tacit approval. Moore had issued a directive requiring
employees to submit reports each week detailing their work schedule for the week to come.
Westphal had submitted such a report, which indicated that she planned out-of-office travel in
connection with an MSEA member’s grievance. When she received no response, she had 45
assumed that Moore did not object.
JD(ATL)–07–13
37
The record suggests that Westphal had followed the usual practice. In the absence of
some specific instruction to the contrary, Westphal understandably might assume that filing the
weekly report describing contemplated activity the following week— itself a new requirement
under Moore— would comply with the instruction to obtain approval in advance for out-of-
office work. The fact that other employees had not been disciplined gave Westphal additional 5
reason to believe she was following acceptable procedure.
Without doubt, the General Counsel has established the first three of the initial Wright
Line elements. Westphal was COSA’s vice president and dealt with Moore on union-related
matters. Moreover, a written reprimand certainly constitutes an adverse employment action.10
Whether the General Counsel has satisfied the fourth requirement, proving a link between
the protected activity and the adverse employment action, is a more difficult issue. Certainly,
credited evidence establishes that Moore intended to eliminate the need to deal with COSA by
discharging bargaining unit employees and replacing them with volunteers. Not merely Moore’s 15
statements but his actions reek of such animus.
However, the fact that Moore was bent on diminishing COSA’s presence to the vanishing
point does not mean that every single thing he did was in furtherance of this goal. For whatever
psychological reason, Moore demonstrated a compulsion to control his environment and, 20
particularly, to be in total charge of MSEA’s daily work. Whatever the healthiness or
unhealthiness of this compulsion, it is not, by itself, antiunion animus.
An action Moore took in connection with Westphal’s out-of-office work is telling.
Moore had learned about this work after the MSEA treasurer, Schutt, had approved her travel 25
voucher. Although Moore could discipline staff members, he had no authority to impose
sanctions on the treasurer, who, like Moore, was an elected MSEA officer. Nonetheless, Moore
sent the treasurer a memo directing that he explain why he had approved Westphal’s voucher
when she had not obtained preapproval for the travel.
30
Moore’s impulse to control thus exists apart from his antiunion animus and extends
beyond the COSA-represented bargaining unit. This compulsion, rather than antiunion animus,
appears to be the motivation for reprimanding Westphal.
However, the fourth element of the Wright Line framework does not require the 35
government to show that antiunion animus was the sole or even the dominant motivation, but
only that it was a “substantial or motivating factor” in the decision to discipline. Desert Toyota,
346 NLRB 132 (2005). Therefore, I conclude that the General Counsel has proven the fourth
element, shifting the burden to Respondent to show that it would have taken the same action in
any event, regardless of protected activity.40
In this instance, Respondent has not offered a pretext. Particularly considering the
decline in MSEA membership and consequent reduction in revenue, the Respondent had
legitimate reasons to reduce unnecessary travel and travel expenses. Tightening its belt involved
tightening its procedures.45
JD(ATL)–07–13
38
In reaching the conclusion that the reason for the discipline was not pretextual, I also take
into account my finding, discussed later in this decision, that no valid work rules were in effect
when Respondent announced such a rule on about July 12, 2012. That clearly implies, and I
would conclude, that no work rules were in effect on June 14, 2012, when Respondent
disciplined Westphal for violating one.5
Ordinarily, it would sound pretextual to assert that an employee was disciplined for
violating a work rule at a time when no work rules were in effect. However, in this instance, I
conclude that Respondent’s president, Moore, genuinely believed that work rules were in effect.
He held this mistaken belief based on incorrect information given to him by former MSEA 10
President Roberto Mosqueda, as will be discussed further below. In these unusual
circumstances, I conclude that Respondent’s assertion that Westphal was disciplined for
violating a work rule is not pretextual.
If Moore could not discipline employees who failed to follow his instructions, he would 15
lack the authority needed to make Respondent’s operations more efficient. Although Westphal
appears to have been the first person disciplined for failing to seek advanced approval for out-of-
office work, Moore obviously had to start somewhere. In a bargaining unit as small as COSA’s,
the fact that Moore chose to discipline a COSA officer does not compel the conclusion that he
singled her out because of her association with the Union.20
Accordingly, I conclude that Respondent would have taken the same action even if
Westphal had not been a union official. Because Respondent has carried its rebuttal burden, I
further conclude that the written reprimand issued to Westphal did not violate Section 8(a)(3) of
the Act.25
One other matter related to Westphal’s discipline should be addressed. The reprimand
specifically cited Westphal for violation of work rules. The complaint includes an allegation that
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing work rules
on about July 12, 2011. As discussed above, Moore based his reprimand on the honestly30
mistaken belief that work rules were in effect.
However, the General Counsel has not alleged that Respondent unlawfully discharged
Westphal for violating a work rule which was invalid because unilaterally imposed. Moreover,
the complaint has not alleged a unilateral implementation of a work rule in connection with the 35
Westphal reprimand, but rather alleges a unilateral implementation of work rules about a month
later.
Therefore, I conclude that there is no allegation before me that Respondent’s reprimand
of Westphal was unlawful because pursuant to an invalid work rule, and such an issue was not 40
litigated. Accordingly, I do not reach it.
Summary of 8(a)(3) and (4) findings
For the reasons discussed above, I have found that Respondent violated Section 8(a)(3) 45
and (1) of the Act by the following actions: Suspending Nancy Durner on June 2and discharging
her on July 12, 2011, as alleged in complaint paragraphs 27 and 28, respectively; placing Audrey
JD(ATL)–07–13
39
Johnson on administrative on January 27 and discharging her on June 14, 2012, as alleged in
complaint paragraphs 29 and 30, respectively; terminating Mary Groves’ recall rights on April 2,
2012, as alleged in complaint paragraph 33; and refusing to allow Clyde Manning to return to
work during the period April 30 to June 25, 2012, as alleged in complaint paragraph 34.
5
However, I do not conclude that these actions also violated Section 8(a)(4) of the Act. To
support an 8(a)(4) theory of violation, the General Counsel points in particular to a transcript of
an April 28, 2012 meeting of Respondent’s board of directors. However, I believe Moore’s
comments recorded in this transcript are too vague to demonstrate an intent to retaliate against
employees because they gave affidavits or otherwise cooperated in the Board’s investigation of 10
unfair labor practice charges.
The General Counsel’s brief also points to Moore’s testimony at the hearing: “Moore
admitted that he didn’t like that COSA sought protection from the NLRB. He believes that it
should have used the contractual grievance process instead. (Tr 2037.) ” However, voicing a 15
preference for the negotiated dispute resolution process or even saying that he “didn’t like”
COSA going to the Board does not compel a finding that he would engage in unlawful
retaliation. In general, people obey even those laws they don’t like.
From the record, a clear picture emerges of Respondent acting with one predominant, 20
indeed single-minded purpose: Ridding itself of the Union. Because I do not believe that
retaliation for assisting the Board was a substantial motivating factor, I do not recommend that
the Board find 8(a)(4) violations.
Additionally, I conclude that the General Counsel has not proven that Respondent 25
violated any section of the Act by the following conduct: Isolating COSA officers from unit
employees, since about March 2012, by failing to move the office spaces of the COSA officers
while moving other unit employees, as alleged in complaint paragraph 31; from about March
2012 until June 12, 2012, and then from about June 14 until July 9, 2012, isolating Rhonda
Westphal from her coworkers, as alleged in complaint paragraph 32; and issuing Rhonda 30
Westphal a disciplinary warning on about June 14, 2012, as alleged in complaint paragraph 35.
Therefore, I recommend that the Board dismiss these allegations.
Allegations Concerning Requests for Information
35
An employer’s duty to bargain collectively and in good faith with the exclusive
representative of its employees includes the duty to furnish, on request, information relevant to
and necessary for the union to perform its representation functions. Postal Service, 337 NLRB
820 (2002), citing NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), and NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956).40
Complaint paragraphs 10—18 describe specific information requests made by COSA,
beginning about October 11, 2010. In its answer, Respondent admits that the union did make
these requests, as alleged.
45
However, Respondent has denied that the requested information is relevant for and
necessary to COSA’s performance of its duties as exclusive bargaining representative. It also
JD(ATL)–07–13
40
denies the allegation, in complaint paragraphs 21, that it has failed and refused to provide all of
the requested information except that described in complaint subparagraph 12(b). It also has
denied the allegation, in complaint paragraph 21, that it unreasonably delayed in providing the
requested information described in complaint paragraph 12(b).
5
October 11, 2010 Information Request
COSA’s information requests reflect the Union’s particular concerns at various points in
time. After Moore became president in July 2010, the number of volunteers doing work at the
MSEA offices increased. Foremost among these volunteers was Fidencio Gonzales, who had 10
held various offices in MSEA over a span of more than three decades. As discussed above,
Gonzales had stated that MSEA was going to fire the COSA-represented employees and that he
and other volunteers would be doing the work.
Whether or not this particular statement by Gonzales got back to COSA-represented 15
employees at the time, they clearly had reason to be concerned about the impact of volunteers on
the bargaining unit because one position within the unit— for a membership service
representative— remained unfilled even though Respondent had promised, in a settlement
agreement, to do so.
20
On October 11, 2010, COSA filed a grievance concerning the matter and also an
information request seeking information about the kind and amount of work Gonzales was doing.
Moore’s October 26, 2010 response stated (with grammar and capitalization as in the original) as
follows:
25
There is not an entitlement of information request concerning from Central
Office Staff Association request on October 11, 2010. Once again, I assure you
that I am and will continue to uphold the collective agreement of Central Office
staff Association, and the Employer, Michigan State Employee Association.
30
In Unity
Respondent still has not furnished the requested information.
Generally, information pertaining to employees within the bargaining unit is 35
presumptively relevant. Caldwell Mfg. Co., 346 NLRB 1159 (2006); CalMat Co., 331 NLRB
1084, 1095 (2000). COSA had a clear interest in making sure that Respondent assigned
bargaining unit work to employees in the bargaining unit, and its request sought information
needed to determine whether and to what extent someone outside the bargaining unit was doing
it. Moreover, the request sought information in connection with a grievance concerning the 40
matter. There can be no doubt that the information request was necessary for and relevant to the
Union’s performance of its representation function.
Accordingly, I conclude that Respondent violated Section 8(a)(5) of the Act by failing
and refusing to provide the requested information.45
JD(ATL)–07–13
41
Information Requests About Incoming Mail
Respondent’s president issued an October 1, 2010 directive that all incoming mail be 5
delivered to his assistant, who would sort and forward it to the correct recipients. Sometime
later, Respondent instructed the Postal Service to deliver its mail to a locked box, thus assuring
that only the MSEA president or his assistant had access to the incoming mail. These changes
removed the work of processing mail from the bargaining unit.
10
The October 1, 2010 directive also stated that MSEA President Moore would review all
outgoing mail and approve it before it left the office. On October 11, 2010, COSA filed two
grievances concerning the changes. Additionally, the bargaining unit member who had
performed the mail sorting filed a grievance about a month later.
15
On December 22, 2010, COSA submitted a written request seeking information related to
the pending grievances. Respondent did not reply to this request. On February 10, 2011, COSA
filed a second information request seeking the same information:
1) Any/all documents, records, notes, memoranda, policies, procedures, etc. 20
which the Employer relied in making its determination to remove the duty
of receiving, reviewing, recording and/or distributing all incoming mail
from the bargaining unit employee ,who has normally performed the work.
2) The Employer’s written rationale for disallowing receipt. recording,
distribution of incoming mail by the Administrative Assistant 25
3) Who specifically, is currently retrieving, reviewing, sorting and/or
distributing incoming mail? The Employer’s written rationale for this
assignment. A (written) description of the specific steps, tasks, duties.
procedures taken and/or followed by this person in receiving, reviewing,
determining which pieces of mail warrant distribution and which do not. 30
recording, and/or distributing incoming mail
4) Confirmation that the Employer advised the U.S. Postal Service to NO
LONGER deliver mail to the Administrative Assistant but instead to
ONLY use recently installed “drop box.” How was this request made? In
writing? If so, please provide a copy of that communication. If verbally ... 35
to whom was request made? Why was the request made? Who,
specifically, has access to the contents of the “drop box?”
5) Why does the Administrative Assistant not have access to all incoming
mail/the contents of the drop box?
6) Is the Employer claiming that incoming mail contains “confidential” 40
communications and thus the Administrative Assistant should no longer
have access to such? If so, what constitutes “confidential” mail? Have
these “confidential” mailing only recently been received in the office?
What specifically are these “confidential” mailings? What criteria/factors
were/are used to determine what mail is “confidential?”45
7) Any/all documents, including supervisory files, counseling
memorandums, performance evaluations, disciplinary actions, etc.
JD(ATL)–07–13
42
concerning the work performance of the Administrative Assistance, viz.,
Ms. Nancy Durner.
8) The Employer’s argument(s) and justifications(s) in support of its decision
to remove the complained of work from the bargaining unit.
5
Respondent did not reply to this information request and has not furnished the requested
information.
The requested information relates directly to the grievances which had been filed and to
the preservation of work within the bargaining unit. I conclude that it was necessary for COSA 10
to perform its representation function. Accordingly, Respondent’s failure and refusal to furnish
the information violated Section 8(a)(5) and (1) of the Act.
Information Related to Insurance Policies
15
By January 31, 2011 letter, COSA notified Respondent it wished to negotiate a
collective-bargaining agreement to succeed the one expiring September 30, 2011. By February
3, 2011 letter, COSA requested information about insurance programs under the expiring
collective-bargaining agreement. The request included the following:
20
(a) A listing of employees currently receiving retiree benefits.
(b) A listing of employees eligible to receive a retirement benefit, summary
plan descriptions, certificates, notes, invoice and bills, for current health
care, dental and optical plans.
25
Respondent’s answer admits these allegations. However, its answer denies that it failed
and refused to provide the information listed in complaint paragraph 12(a) and also denies that it
delayed unreasonably in furnishing the information requested in complaint paragraph 12(b), as
alleged in complaint paragraphs 20 and 21, respectively.
30
Complaint paragraphs 12(a) and 20, on the one hand, and 12(b) and 21 on the other, raise
different issues which need to be addressed separately. Therefore, I will begin with the issues
associated with the information described in complaint paragraph 12(a), a “listing of employees
currently receiving retiree benefits.”
35
In a February 14, 2011 reply, Respondent acknowledged the February 3, 2011
information request and promised a “response and/or the requested documents” in the “near
future.” However, it did not communicate further about the matter until bargaining began on
April 1, 2011. At that time, Respondent delivered to COSA a letter dated March 30, 2011, and
signed by Moore, which attached much of the information requested except for the 40
documentation related to retirees, that is, the information described in complaint paragraph 12(a).
The Respondent’s post-hearing brief states, “MSEA responded to this request on the first
day of bargaining, April 1, 2011, by providing the large packet regarding employee and retiree
benefit information; all of the information requested. GC Ex 84.” (Emphasis added.) That might 45
suggest that Respondent indeed had furnished COSA with the information described in
complaint paragraph 12(a), but I do not find support in the record for such an assertion.
JD(ATL)–07–13
43
Although Respondent cites General Counsel’s Exhibit 84 to support its statement that all
of the requested information had been provided, this exhibit does not itself include such
information. To the contrary, it indicates that Respondent was denying the portion of COSA’s
request which sought information about retiree benefits.5
Thus, Moore’s March 30, 2011 letter stated, “I do not believe that your request for any
retiree information is relevant to bargaining and also believe that it is of a confidential nature.
Please state the relevance of this request with greater specificity.”
10
COSA replied that the information regarding retiree benefits was relevant because the
collective-bargaining agreement covered retirees. When Respondent explained that its
confidentiality concerns pertained to the disclosure of Social Security or other identifying
number, COSA said it would accept the information with such numbers redacted. Respondent
has not provided this information.15
In Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157 (1971), the Supreme Court
held that retiree benefits were not a mandatory subject of collective bargaining. However, the
requested information remains relevant because the cost of retiree benefits affects the amount of
money available to fund wages and benefits for bargaining unit employees.20
Moreover, Respondent’s revenue does not come from profit but from dues, and its
membership base has been shrinking. Thus, COSA has an interest in assuring that benefits
funded through its collective-bargaining agreement are used efficiently and by the intended
beneficiaries. Therefore, I conclude that the requested information, as described in complaint 25
paragraph 12(a) was both necessary and relevant and that Respondent had a duty to provide it
notwithstanding that it pertained to retirees rather than current employees.
Further, I find that Respondent never provided this information, as alleged in complaint
paragraph 20. Accordingly, I conclude that Respondent violated Section 8(a)(5) and (1) of the 30
Act by the conduct alleged in complaint paragraphs 12(a) and 20.
Now, I turn to the separate issues raised by complaint paragraphs 12(b) and 21. As noted
above, complaint paragraph 12(b) sought information which pertained not to retirees but to
current bargaining unit employees. The record establishes that Respondent did provide this 35
information, but not until April 1, 2011.
Complaint paragraph 21 alleges that from about February 3 to about March 30, 2011,
Respondent unreasonably delayed in providing the information. The General Counsel’s brief
states, in part, as follows: “Whether information is provided in a timely fashion depends on the 40
existing circumstances in each case, but the Board has held that a delay as short as four weeks
can be unlawful. U. S. Postal Service, 308 NLRB 547, 550 (1992).”
In determining whether an employer has unlawfully delayed responding to an
information request, the Board considers the totality of the circumstances surrounding the 45
incident. “Indeed, it is well established that the duty to furnish requested information cannot be
defined in terms of a per se rule. What is required is a reasonable good faith effort to respond to
JD(ATL)–07–13
44
the request as promptly as circumstances allow.” Good Life Beverage Co., 312 NLRB 1060,
1062 fn. 9 (1993).
Further, in evaluating the promptness of the response, “the Board will consider the
complexity and extent of information sought, its availability and the difficulty in retrieving the 5
information.” Samaritan Medical Center, 319 NLRB 392, 398 (1995); West Penn Power Co.,
339 NLRB 585 (2003).
In principle, reasons might exist which would make the 7-week delay here reasonable.
However, the record does not establish any. Moreover, if Respondent had indeed been 10
experiencing difficulties gathering the requested information, it could have explained the
problem to COSA and requested more time. It did not.
The Act, not the parties’ contract, imposes on an employer the duty to provide relevant
and necessary information requested by its employees’ exclusive representative. However, it 15
may be noted in passing that in article 4, section G of its collective-bargaining agreement with
COSA, Respondent “agrees to furnish, in response to reasonable requests, information which is
necessary for [COSA] to develop negotiations proposals.”
The collective-bargaining agreement also sets out a specific framework and timetable for 20
negotiating. Thus, the parties manifested a fine sensitivity to the bargaining process, as might be
expected when the employer itself is a labor organization. In view of this sensitivity, it does
seem more likely that had Respondent encountered a problem which delayed its assembling the
requested information, it would have told COSA about the difficulty.
25
Based on Respondent’s failure to inform COSA, before the first day of bargaining, that
some problem existed which made compliance with the information request difficult, and based
on the absence of evidence indicating the existence of such a problem, I conclude there was no
such problem. Moreover, the complexity and extent of the information requested does not
appear to be so great or burdensome that it would take 7 weeks to comply.30
Accordingly, I cannot conclude that Respondent made a reasonable, good-faith effort to
respond to the request as promptly as circumstances allowed. Therefore, I further conclude that
Respondent delayed unreasonably in furnishing the requested information and thereby violated
Section 8(a)(5) and (1) of the Act.35
February 9, 2011 Request Regarding Job Duties
On February 9, 2011, COSA requested detailed descriptions of the job duties of the
MSEA president, assistant to the president, vice president, and of those job duties and activities 40
of the communication director which were not associated with the publication of a newsletter.
Of these four positions, only that of communications director was within the bargaining unit.
Information about that latter position is presumptively relevant and that presumption has not
been rebutted. However, no presumption of relevance attaches to the request for information
about the duties of the MSEA president, assistant to the president, and vice president.45
JD(ATL)–07–13
45
Under the rather unusual circumstances of this case, I conclude that the requested
information was relevant. In a typical corporation, the respective duties of the chief executive
and the members of the bargaining unit would be rather obvious and not easily confused.
However, in the present case, the bargaining unit employees represented State workers in
grievance proceedings and arbitrations, and the line between their duties and those of MSEA 5
elected officers easily became blurred.
Moreover, at this particular time, MSEA was using volunteers more than previously,
further blurring the contours of bargaining unit work. Also at this time, MSEA and COSA were
starting the process of negotiating a new collective-bargaining agreement, which afforded an 10
opportunity for the parties to resolve any ambiguities in what was and what was not bargaining
unit work. Certainly COSA, which suspected that bargaining unit work was being transferred
out of the unit, intended to raise the matter during negotiations.
Clarifying what was and what was not bargaining unit work entailed the equivalent of 15
drawing a Venn diagram which showed the duties of unit employees, those of non-unit
personnel, and the area of overlap. Such a diagram necessarily would require information about
the duties of individuals outside the bargaining unit. Therefore, I conclude that the requested
information was both relevant to COSA’s representation function and necessary for that purpose.
20
Although Respondent acknowledged the information request, it has never complied with
it. I conclude that its failure to do so violated Section 8(a)(5) and (1) of the Act.
February 10, 2011 Request About MSEA Volunteers
25
As mentioned above, COSA was concerned about the influx of volunteers and the extent
to which they were doing bargaining unit work. It appears that some of these volunteers had
retired from their jobs with the State of Michigan, but others were able to take extended leaves
from their government jobs and use that time as MSEA volunteers. Obviously, members of the
COSA-represented bargaining unit would be concerned that use of such volunteers would result 30
in layoffs.
On February 10, 2011 it requested information regarding whether certain named
volunteers worked on matters concerning representation and, if so, sought details about that
work. It also asked for the names of other MSEA members released from their State 35
employment to do volunteer work for MSEA, details about the work they did, and documents
regarding MSEA meetings that had an impact on the terms of conditions of employment of any
bargaining unit employees. COSA requested this information both to police the collective-
bargaining agreement and to prepare for negotiations with the Respondent. Under the
circumstances, I conclude that the requested information was both relevant to and necessary for 40
COSA to perform its representation function. However, the Respondent has not provided any of
the requested information.
Accordingly, I conclude that Respondent violated Section 8(a)(5) and (1) of the Act.
JD(ATL)–07–13
46
February 16, 2011 Request Regarding Hiring of Gonzales
In mid-February 2011, COSA received word that Respondent had hired Fidencio 5
Gonzales, who had been working as a volunteer in the MSEA offices. Gonzales, in fact, had
been hired to file a vacant position in the bargaining unit, but worked for less than 30 days.
On February 16, 2011, COSA submitted a request for information about the details of
Gonzales’ employment, the manner of his hire, and related matters. I conclude that this 10
requested information, about an employee in the bargaining unit, was presumptively relevant.
Although Respondent acknowledged receiving the information request, it never provided
the information. I conclude that Respondent’s failure to do so violated Section 8(a)(5) and (1) of
the Act.15
Information Request About Phone and Email Monitoring
After Respondent installed a new voicemail system, COSA learned that it was telling
callers that their telephone conversations might be recorded. Because the collective-bargaining 20
agreement allows COSA to use Respondent’s telephones and email for union business, COSA
submitted a February 16, 2011 information request to find out when Respondent began using this
recorded telephone greeting, whether Respondent monitored email communications and, if so,
the dates when Respondent began doing so and the names of employees whose email had been
monitored, the Respondent’s rationale or business necessity for monitoring emails, and any 25
written communications sent to employees advising them that their email might be monitored.
Respondent’s president, Moore, replied by February 26, 2011 letter, but it failed to
provide the date when the phone system began advising callers that their conversations could be
monitored. Moreover, Respondent refused to provide information about whether it monitored 30
email. Instead, Moore’s letter stated that “The computers and MSEA.org email domains are the
property of MSEA and the Employer is well within its Managements.” As of the date of the
unfair labor practice hearing, Respondent hadn’t provided the information.
Even if, as Moore’s letter stated, Respondent owned the computers which the employees 35
used and the MSEA.org domain, such ownership does not affect Respondent’s duty to provide
the requested information concerning the monitoring of email communications. Presumably, any
employer owns much of the equipment used by its employees, but such ownership does not
allow it to refuse to provide relevant and necessary information about working conditions
involving its use.40
Additionally, Respondent’s February 26, 2011 letter confuses the legal principles
concerning when an employer may act unilaterally with the principles about the duty to provide
information. Even assuming for the sake of analysis that COSA had waived its right to bargain
about this condition of employment, and that Respondent was “within its Managements” when it 45
installed the electronic equipment, a right to make a unilateral change in a condition of
JD(ATL)–07–13
47
employment doesn’t affect either the union’s entitlement to information about the change or the
employer’s duty to provide that information.
Nor does a management right to act unilaterally affect the relevance or necessity of the
requested information. Even if a union had waived the right to bargain about such a change 5
during the term of a contract, it might still wish to reopen the subject during negotiations for the
next agreement. Moreover, a union might well need the information to decide whether to file a
grievance.
The requested information concerned working conditions of bargaining unit employees 10
and Respondent has not rebutted the presumption of relevance. Therefore, I find that
Respondent’s refusal to provide the information violated Section 8(a)(5) and (1) of the Act.
Unilateral Change Allegations
15
Complaint paragraph 22 alleges that on about July 12, 2011, Respondent unilaterally
implemented certain work rules described by Respondent as “Employee Work Rules.”
Complaint paragraph 23 alleges that on about November 7, 2011, Respondent unilaterally
eliminated its practice of providing cell phones or cell phone subsidies to bargaining unit
employees. Respondent’s answer admits both allegations. However, later in its Answer, 20
Respondent denied that it took the actions alleged in complaint paragraphs 22 and 23 “without
providing prior notice” to COSA. It also denied that it failed to afford an opportunity to bargain
over the effects of these actions.
If a contemplated change makes a material, substantial, and significant change in 25
employees’ terms and conditions of employment and concerns a mandatory subject of
bargaining, an employer has a duty both to notify the exclusive representative of its employees of
the contemplated change and to bargain with this representative, on request, concerning the
change and its effects. Thus, the term “unilateral change” may refer either to a change made
without prior notice or to a change made without affording an opportunity to bargain on request, 30
as well as to a change made without both.
Complaint paragraph 22 specifically alleges that Respondent “unilaterally implemented”
certain work rules and complaint paragraph 23 specifically alleges that Respondent “unilaterally
eliminated” its practice of providing cell phones. For the reasons stated in the paragraph above, I 35
conclude that the word “unilaterally” conveys the meaning that Respondent acted either without
giving prior notice or without affording an opportunity to bargain, or both. Because
Respondent’s answer states that it gave prior notice, and also asserts that it afforded an
opportunity to bargain about the effects, but does not state that it afforded an opportunity to
bargain about the changes themselves, I conclude that Respondent has admitted that it made the 40
changes without providing an opportunity to bargain.
Alleged Unilateral Implementation of Work Rules
To prove that there was a “unilateral change,” the General Counsel must first show that 45
something changed. Obviously, if working conditions remained in all ways the same, there
would be no change, whether unilateral or not. Respondent vigorously insists that work rules
JD(ATL)–07–13
48
already were in place before July 12, 2011. On the other hand, the General Counsel asserts that
no work rules had been implemented before that date.
Immediately before Kenneth Moore became MSEA president in July 2010, Scott Dianda
held that office. Dianda testified that the parties had been bargaining about work rules but that 5
he never implemented them:
Q. Okay. But what was the resolution as to your negotiation on work rules?
A. I did not implement work rules in that contract.
Q. Did you ever tell the union that?10
A. Yes, I did. COSA, I told them—
Q. COSA, yes.
A. [W]hen we negotiated that I just felt that myself coming from the State
knowing what we have to do showing up— you know, they’d hire us to
come in and do a job, you show up at a certain time and you do your job. 15
So I wasn’t really looking at going back to trying to micromanage a lot of
those things that were discussed before I came in there. That’s just the
way I felt about it.
When Dianda testified that “I wasn’t really looking at going back to trying to 20
micromanage a lot of these things,” his words had the ring of truth. His personality differed
from that of his successor, Kenneth Moore, who demonstrated quite an inclination towards
micromanagement and believed it was needed. Dianda, on the other hand, found the prospect of
work rules distasteful. Indeed, it would seem that, in the 2010 MSEA election, the pendulum
swung from one extreme to the other.25
Before Dianda became MSEA president in 2008, Roberto Mosqueda held that office. His
testimony is particularly significant because he originated a February 12, 2007 memo to all
members of the COSA-represented bargaining unit, which attached a copy of work rules. The
memo stated:30
In accordance with Article 36 of the Collective Bargaining Agreement
between the Michigan State Employees Association (MSEA) and the Central
Office Staff Association (COSA), attached, please find your copy of MSEA’s
Employee Work Rules.35
At this time, I would like to thank you for your input and let you know
that I have taken all input into consideration.
These rules will be implemented beginning Monday, February 26, 2007.40
Respondent points to this memo as evidence that work rules already were in effect at the
time of the alleged unilateral change on July 12, 2011. However, Mosqueda’s testimony
indicates that the work rules, although proposed, were not implemented:
45
I remember that Mr. Moore had called me and asked me about the work rules, and
I think I believe I told him that they were implemented at the time, I then did
JD(ATL)–07–13
49
some soul searching and talked with my vice president and realized that I
basically misspoke at the time, that we had presented these work rules to Clyde,
who was ahead of the COSA unit at that time, and we were back and forth, and I
did, I believe I did send this out to try to implement them, and then they said they
needed more time to look at them. I said okay, so I backed up off of it and said, 5
“Well, we’ll just talk.”
Q. Okay.
A. It wasn’t really no—it wasn’t nothing really to push it through. And then
what happened was is I ended up losing at the next GA, and from there I 10
think they just fell by the wayside.
Q. Okay, so is it your position that those were never implemented?
A. Well, let me put it this way, I know that we had talked about implementing
them and that, you know, I had given them indications that I wanted to
implement them, but then COSA came to me and said they’d like to look 15
at them more, and I said, “Okay, go ahead.” So it wasn’t like I was a -
Q. Okay.
A. it’s a now or never.
Q. Okay, so after they talked, they asked for more time, did you ever come
back and rediscuss the issue before you left office?20
A. No, I don’t think so— I think we got— I got involved in GA and
everything else that was getting prepared for that, and I really never did,
no.
Q. And who succeeded you in office?
A. Scott Dianda.25
The term “GA” refers to MSEA’s General Assembly, at which Dianda was elected to
succeed Mosqueda. Thus, it appears that the pendulum swung from an MSEA president who
favored work rules, Mosqueda, to one who did not, Dianda, and then back to one who did,
Moore.30
From the testimony of both Dianda and Mosqueda, which I credit, I find that Mosqueda
never implemented the proposed work rules and Dianda did not want to do so. Therefore, I
further conclude that no work rules were in effect on July 12, 2011. However, Moore may have
believed they were in effect because Mosqueda provided him erroneous information.35
On the other hand, COSA learned that Respondent considered the rules to be in effect
when Respondent cited them as grounds for discharging Durner. Since the rules previously had
not been in force, Respondent’s reliance on them to discharge an employee amounted to a
unilateral implementation of the rule.40
The collective-bargaining agreement then in effect afforded Respondent a limited right to
implement some rules unilaterally but required Respondent to present proposed work rules to
COSA within 10 days, to allow COSA to review and comment on them. Respondent did not
comply with this requirement, perhaps because Moore may have believed that the work rules 45
already had been adopted.
JD(ATL)–07–13
50
Additionally, another article of the collective-bargaining agreement provided that “if the
Employer exercises its right to make changes which, to a substantial degree, adversely impact the
bargaining unit and/or its individual members, the modification and remedy of such resulting
impact shall be subject to collective bargaining.” Therefore, I conclude that COSA did not waive
its right to bargain about the rule.5
Further, I find that Respondent did not afford COSA notice and an opportunity to bargain
about the rule before Respondent applied it to discharge Durner. Moreover, the fact that the rule
could result and indeed did result in the discharge of an employee leads me to conclude that it
effected a material, substantial, and significant change in working conditions.10
For these reasons, I conclude that Respondent’s announcement and application of the rule
on July 12, 2011, violated Section 8(a)(5) and (1) of the Act.
Change in Providing Cell Phones15
Respondent has admitted the allegation, in complaint paragraph 23, that on about
November 7, 2011, Respondent unilaterally eliminated its practice of providing cell phones or
cell phone subsidies to bargaining unit employees. However, it denies that this practice was a
mandatory subject of bargaining, as alleged in complaint paragraph 25.20
Respondent’s brief acknowledges that “MSEA eliminated the practice [of providing cell
phones] as a cost-cutting measure, necessitated by the undisputed decline in dues income.” The
brief then argues that the collective-bargaining agreement never refers to cell phones as a benefit:
25
They were never provided as an employee benefit or term or condition of
employment. Instead, they were provided as a tool for conducting MSEA
business, same as an office computer or office furniture. MSEA switched to
reimbursing employees on a per-call basis. Hence, the change does not affect a
term or condition of employment and, therefore, constitutes no violation of the 30
Act. Even assuming, arguendo, that it did, members suffered no damages because
reimbursement for their calls continued in a different form.
With respect to Respondent’s first argument that the collective-bargaining agreement
didn’t refer to cell phones, the Board’s case law does not limit the unilateral change doctrine 35
only to those instances in which a contractually agreed-upon benefit is changed. Rather, the
doctrine applies to any established term of employment. Unilateral elimination of a past practice
violates the Act even if the practice has not been embodied in a term of a collective-bargaining
agreement. Arvinmeritor, Inc., 340 NLRB 1035, 1039 (2003).
40
Respondent also argues that cell phones were merely a tool, analogous to a computer or a
desk. However, the elimination of either might well constitute a material, substantial and
significant change in a term or condition of employment. To take an extreme example, if
employees had a practice of doing their work on laptops while seated at their desks, it would be
difficult to argue the insignificance of requiring them to use quill pens while standing up.45
JD(ATL)–07–13
51
Moreover, in actual practice, bargaining unit employees had a choice of receiving a cell
phone or a $50-monthly stipend. Changing to a system of per-call reimbursement in lieu of the
stipend certainly constituted a material, substantial, and significant change. Respondent’s brief
described the change as a “cost-cutting measure,” and presumably Respondent would not have
taken this step if the savings were insignificant. However, by eliminating the stipend, 5
Respondent unilaterally diminished the employees’ compensation.
In sum, I conclude that elimination of the cell phone past practice constituted a material,
substantial, and significant change in a mandatory subject of bargaining. I further conclude that
Respondent’s doing so unilaterally, without affording COSA notice and an opportunity to 10
bargain, violated Section 8(a)(5) and (1) of the Act.
Alleged Removal of Unit Work
Complaint paragraph 24 alleges that in about January 2012 Respondent unilaterally 15
removed pre-arbitration settlement work from the bargaining unit. Respondent denies this
allegation and also denies that such work was a mandatory subject of bargaining, as alleged in
complaint paragraph 25.
Complaint paragraph 26 alleges that Respondent engaged in this conduct without 20
providing prior notice to COSA and without affording COSA an opportunity to bargain with
Respondent regarding this conduct and the effects of this conduct. Respondent’s answer to
complaint paragraph 26 states, in pertinent part, as follows:
Respondent denies that it engaged in the conduct described in Paragraphs 25
22 through 24 without providing prior notice to the Charging Union. It denies the
allegation or implication that bargaining was required with regard to the described
actions, and denies that it denied an opportunity to Respondent [sic] to bargain
over the effects of these actions. Moreover, the allegations in Paragraph 26 are
not applicable to the allegations in Paragraph 24, for the reason that Respondent 30
denies that it unilaterally removed prearbitration settlement work from the unit.
Stated another way, Respondent answers that it gave COSA notice and an opportunity to
bargain over the effects but not the decision itself and that there was no duty to bargain over this
decision; further, because Respondent did not remove pre-arbitration settlement work from the 35
bargaining unit, it follows that it could not have failed to provide notice before doing so.
Thus, there is a factual dispute regarding what actually happened with respect to the work
performed by employees in the COSA-represented bargaining representatives. Did the
Respondent remove pre-arbitration settlement work from the bargaining unit or not?40
As a union representing employees of the State of Michigan, the Respondent must decide
which of these employees’ grievances should be taken to arbitration and which seem so
unwinnable that it would not be worth the expense. A committee of MSEA members, called the
Litigation and Arbitration Committee, performs this function. However, if the committee 45
decides not to take a particular grievance to arbitration, the grievant can appeal that decision to
Respondent’s president.
JD(ATL)–07–13
52
In August 2010, a month after Moore took office as Respondent’s president, Fidencio
Gonzales became chair of the Litigation and Arbitration (or Lit-Arb) Committee. The record
suggests that Gonzales is allied with Moore in Respondent’s internal politics, and thus shared
Moore’s desire to make operations most efficient. It concerned Gonzales to hear that staff 5
members no longer were sending out letters to advise each grievant whether the committee had
decided to take the grievance to arbitration, so Gonzales began sending out such letters himself.
In 2011, Respondent, in its capacity as the union representing state employees, negotiated
a new collective-bargaining agreement with the State of Michigan which changed the arbitration 10
procedure. Previously, Respondent and the State had obtained arbitrators through the American
Arbitration Association, which charged fees for its services. The new agreement established a
procedure to use arbitrators on a panel maintained by the Office of State Employer.
Respondent had an established practice of using its paid staff, employees in the COSA-15
represented bargaining unit, to represent the grievants both in arbitration hearings and at earlier
stages in the grievance procedure. In the most challenging arbitration hearings, Respondent
would retain a lawyer, and COSA had not objected to its doing so. Even then, a labor relations
specialist from the COSA-represented bargaining unit might also attend the arbitration to assist
the attorney and provide the grievant with “moral support” (the term Moore had used in 20
describing Audrey Johnson’s presence at such a hearing).
Labor Relations Specialist Rhonda Westphal credibly testified that in January 2012 she
and other labor relations staff members received a memo advising them that the American
Arbitration Association would no longer be used and directing them to turn in all the current 25
cases that had not yet been scheduled for arbitration. Westphal estimated that pursuant to this
instruction, staff members turned in about 35 cases.
Previously, bargaining unit employees would receive case assignments soon after the
Litigation and Arbitration Committee decided that a grievance should go to arbitration. The 30
number of such assignments diminished greatly, starting in January 2012, but this decrease was
not proportional to the number of cases being approved for arbitration. Westphal testified that
more than 70 cases had been approved for arbitration between January and August 2012, but she
had received only 4 such case assignments in that period.
35
Respondent’s new collective-bargaining agreement with the State of Michigan created a
new procedure, called an “Article 8 meeting,” in which representatives would meet to work out a
settlement, if possible, to eliminate the need for arbitration. Respondent’s president, Moore,
and/or Gonzales, as chair of the Litigation and Arbitration Committee, usually attended such
meetings, but a bargaining unit staff member did not.40
Credited evidence establishes that the amount of pre-arbitration settlement work given to
bargaining unit employees decreased dramatically beginning in January 2012. Although elected
MSEA officers, such as the president, always could meet with State of Michigan management
concerning a grievance, the regular attendance of Moore and Gonzales at the pre-arbitration 45
meetings constituted a new development.
JD(ATL)–07–13
53
Respondent’s brief discusses the new “Article 8 meeting” process and then argues that to
“read these processes as impinging on COSA’s exclusive bargaining unit work, or constituting a
unilateral change, is grossly inaccurate. It would subordinate MSEA’s obligation to bargain with
the State of Michigan to an alleged (and nonexistent) obligation to give unnecessary work to
COSA.”5
Notwithstanding this argument, I conclude that Respondent did make a unilateral change
and, in fact, did so precisely to remove work from the bargaining unit because Respondent did
not believe bargaining unit employees were doing it well. This conclusion is consistent with a
statement made by Respondent’s counsel during the hearing while arguing for admission of a 10
proffered exhibit:
[T]here’s been a claim in the complaint that the Respondent has eroded the
bargaining unit or taken away bargaining unit work by taking away selection of
arbitrators and turning them over to an arbitration panel. This document is 15
relevant towards explaining why that decision was made and why we think it was
justified.
It’s also an example of something that’s already been touched upon in this
hearing, but you’re going to hear a lot more testimony about it, and that is the 20
repeated difficulty that MSEA’s membership and leadership has had in getting
information out of its paid staff. Now, that’s been an issue so far for instance in
the claims that MSEA was very dilatory in making bargaining proposals. We’re
going to be establishing that the reason why there were delay in proposals,
especially on financials, was that MSEA was dependent, hostage if you will, to its 25
own staff getting the information it needed to make bargaining proposals at the
table with COSA.
(Emphasis added.) Moreover, the record reveals that Respondent’s president, Moore, had a
nearly visceral hostility to COSA which manifested itself in the unfair labor practices found 30
above and the Respondent’s conduct at the negotiating table, addressed below. Based on the
credited testimony of Benny Poole Jr., I have found that Moore harbored not merely animus but
an abiding intention to get rid of COSA by discharging its members. Eliminating the bargaining
unit work, I conclude, was part of that plan.
35
It is well established that an employer violates Section 8(a)(5) when it diverts bargaining
unit work without bargaining with the union, irrespective of whether the diverted work is
performed by statutory employees, independent contractors, supervisors, managers, or any other
workers. Quickway Transportation, Inc., 354 NLRB 560 (2009); Naperville Ready Mix, Inc.,
329 NLRB 174 (1999), enfd. 242 F.3d 744 (7th Cir. 2001); Torrington Industries, 307 NLRB 40
809 (1992). The category of “any other workers” certainly would include volunteers.
Further, the record does not establish that COSA waived its right to bargain over the
decision or its effects.
45
JD(ATL)–07–13
54
Complaint paragraph 26 alleges that Respondent refused to bargain about both the
unilateral change alleged in complaint paragraph 24— the elimination of bargaining unit work—
and about the effects of that change. Respondent’s answer, quoted above, asserted that
complaint paragraph 26 was “inapplicable” because it had not made a unilateral change.
5
Having found that Respondent did, indeed, make a change without notifying COSA or
affording it an opportunity to bargain, I further conclude that it also failed and refused to bargain
about the effects. Respondent would hardly bargain about the effects of change which, it
maintained, did not occur. Moreover, the record does not establish any such effects bargaining.
10
In sum, for the reasons stated above, I conclude that Respondent’s elimination of
bargaining unit work— the representation of grievants before arbitration— without notifying
COSA and affording it the opportunity to bargain about the change and its effects, breached the
Respondent’s duty to bargain in good faith and violated Section 8(a)(5) and (1) of the Act.
15
Bad-Faith Bargaining Allegations
Complaint paragraphs 40 and 41(a)–(g) allege that Respondent, from about April 1 to
December 31, 2011, engaged in various bargaining-related conduct which the General Counsel
has characterized as a “pattern of bad faith bargaining.” Respondent denies these allegations.20
The General Counsel notes that the 2008-2011 collective-bargaining agreement included
an article which set out ground rules for negotiating a contract to replace it, and that on April, 1,
2011, the first day of bargaining, Respondent proposed different rules.
25
The existing 2008-2001 collective-bargaining agreement included, as an appendix, job
descriptions for various positions in the bargaining unit. Early in the 2011 negotiations,
Respondent proposed eliminating these descriptions from the contract.
COSA President Manning sent Moore a May 17, 2011 memo asking “if it is the 30
Employer’s intent to remove yet maintain the existing position descriptions, or, instead, to
rewrite the position descriptions.” Moore replied 2 days later with a memo stating, in part, “The
existing position descriptions in the COSA agreement are recognized by the employer as
current.” The memo did not answer Manning’s question. Moreover, the record does not indicate
that Respondent ever gave COSA any reason for its proposal to remove the position description 35
from the contract other than a desire to have more flexibility.
Although the Respondent did not appear to have compelling reasons for wanting to
remove the descriptions from the contract, COSA strongly wanted them to remain in the contract
because of its belief that Respondent was having volunteers perform bargaining unit work.40
As I have found, above, based in part on the “get COSA” remark Moore made in the
presence of Benny Poole, Moore was intent upon eliminating COSA by decreasing the size of
the bargaining unit to zero. Moore also had embarked upon a plan to use volunteers to perform
functions formerly done by bargaining unit members. In these circumstances, I conclude that 45
Respondent’s proposal to remove the position descriptions from the collective-bargaining
agreement was not bargaining in good faith but rather part of the “get COSA” scheme.
JD(ATL)–07–13
55
The General Counsel argues that Respondent was slow to make proposals and slow to
respond to COSA proposals. The General Counsel notes that although COSA made its initial
wage proposal on May 31, 2011, Respondent didn’t make a wage proposal until September 28.
5
Respondent argues that members of the COSA-represented bargaining unit had control
over access to computer records it needed to formulate bargaining proposals, thereby causing
delay in Respondent’s making proposals. However, credible evidence does not establish the
existence of any significant tug-of-war between management and employees concerning access
to information. Absent more specific, persuasive evidence, I must reject this asserted defense.10
The General Counsel argues that Respondent engaged in delaying tactics by taking
frequent caucuses and by often arriving late for bargaining sessions. The General Counsel states
that 20 bargaining sessions were held between April 1 and May 31 but the longest meeting lasted
only about an hour and a half. “Although both parties took caucuses, Respondent’s took them 15
more frequently,” the General Counsel’s brief states, “and their caucuses were significantly
longer in length.”
Considered by itself, the evidence concerning the length of bargaining sessions and
number of caucuses does not seem particularly indicative of bad faith. However, the Board 20
focuses on the totality of conduct rather than bits and pieces in isolation. See, e.g., Overnight
Transportation Co., 296 NLRB 669, 671 (1989).
If a piece of the puzzle does not fit with the rest, it may have more evidentiary
significance than if it merely is consistent with them. Here, this one factor, the number of 25
meetings and their duration, fits the overall pattern emerging from a totality of the factors— the
pattern of an employer bargaining without intending to reach agreement—but this one factor
certainly is not the brightest star in the constellation.
On the other hand, it is telling that on at least three occasions early in the bargaining, 30
Respondent’s negotiators called a caucus and then did not return, leaving the members of the
COSA bargaining team waiting and wondering. The significance of this conduct does not inhere
in its rudeness but in its reflection on the intentions of the management negotiators.
A party who really is trying to reach agreement must either convince the other side to 35
accept an unpalatable proposal or else modify or drop the proposal, and in that respect,
bargaining involves salesmanship skills. It is difficult to imagine an automobile salesman telling
a prospective customer, “I’ll be right back” and then disappear without returning. At the very
least, the salesman somehow would get word to the potential buyer that he could not return. He
certainly wouldn’t leave the potential customer feeling jilted because a potential customer feeling 40
jilted does not remain a potential customer.
Here, Respondent’s negotiators left the COSA team with the impression that after a short
time they would return to the table, but then failed either to return or notify the COSA bargainers
that they would not be coming back. Such conduct communicates contempt. Even if 45
Respondent’s negotiators felt personal ill will towards those on the other side, they would try to
JD(ATL)–07–13
56
suppress those feelings in the interest of reaching agreement. More accurately, they would
suppress such personal feelings if they really had an intention of reaching a deal.
Respondent’s negotiators were not amateurs. After all, Respondent’s primary “business,”
its reason for being, was to engage in labor negotiations and related matters. These experienced 5
professionals knew how to treat the other side if they wanted and expected to reach agreement.
Instead, they acted in a rude manner which foreseeably would make the negotiation process more
difficult and less likely to succeed. That is not the signature of someone bargaining in good
faith.
10
The General Counsel points to a number of other factors that may have little odor
individually but all together create the stench of bad faith. These factors include Respondent’s
failure to respond to a COSA request to bargain about work rules. The Respondent’s unilateral
implementation of such rules had made them a significant issue. Respondent’s failure to address
COSA’s request is consistent with a finding that it did not take its bargain obligation seriously.15
Likewise, Respondent’s refusal to bargain about the status of a temporary employee takes
on additional significance considering that COSA feared that the Respondent was transferring
work out of the bargaining unit. Again, such a refusal does not suggest a good-faith intention of
reaching an agreement.20
Additionally, Respondent’s other unfair labor practices reflect on Respondent’s good
faith, or lack of it, at the bargaining table. Respondent unlawfully discharged a member of the
COSA bargaining committee, Nancy Durner, for engaging in union and protected concerted
activity.25
Even more telling, Respondent repeatedly failed and refused to furnish COSA with
requested relevant and necessary information, itself a breach of the duty to bargain in good faith
and an impediment to reaching agreement. From the totality of Respondent’s conduct, both at the
negotiating table and away from it, a consistent picture emerges of a party not interested in 30
reaching an agreement.
However, in one sense, the Respondent’s conduct puzzles me because it occurs in an
atypical setting. As noted above, although Respondent is a private sector employer here subject
to the Board’s jurisdiction, its mission is to represent employees in the public sector, mostly 35
employees of the State of Michigan but also employees of some county governments. Were the
field of labor relations a garden, public sector bargaining would be a different cultivar, if not an
entirely different species. A fundamental distinguishing factor concerns the role of strikes.
The National Labor Relations Act seeks to reduce industrial strife but nonetheless treats 40
the economic strike as a legitimate means of exerting economic pressure and thereby, ultimately,
reaching agreement. On the other hand, strikes by government employees evoke widespread
disapproval and frequently are illegal. Public sector negotiators therefore seek alternatives to the
strike, such as allowing an arbitrator to decide the terms of a contract should the parties’
deadlock.45
JD(ATL)–07–13
57
Respondent’s collective-bargaining agreement with the State of Michigan, on behalf of
the public employees which it represents, includes a provision requiring such interest arbitration
when the parties cannot reach agreement. Such a provision is not novel in the public sector.
However, when Respondent turned from bargaining with the State to negotiations with its own
employees, it agreed to a similar interest arbitration provision in that contract. Such an article is 5
rare in private sector agreements.
The presence of this unusual interest arbitration provision in a private sector labor
agreement changes the dynamic of bargaining. Under the Act, if the parties reach a good-faith
impasse in the absence of unfair labor practices, an employer may implement its final offer 10
unilaterally. A typical motivation, when a private sector employer crosses the line from “hard
bargaining” into bad-faith bargaining, is the employer’s intention to force an impasse so that it
may implement its offer unilaterally.
However, the interest arbitration clause changes the destination: Instead of freeing an 15
employer to implement its offer, with terms it favors and the union does not, the impasse leads to
an arbitration in which a third party decides what the contract should contain.
In the present case, therefore, it would seem unlikely that the Respondent was trying to
force an impasse because that would result in arbitration and not in freedom to implement terms 20
unilaterally. Indeed, ultimately, an arbitrator did examine each contract term on which the
parties could not agree and, in each instance, chose either the management or union proposal.
The General Counsel’s brief suggests that the Respondent forced COSA into the interest
arbitration because COSA was a small union which could ill afford its share of the expense of 25
the arbitrator. Perhaps that is true.
However, I believe it more likely that Respondent failed to bargain in good faith with
COSA because Respondent already had embarked on a plan to eliminate COSA by reducing the
bargaining unit to zero employees and transferring the work elsewhere. Since the Respondent 30
believed COSA was “living on borrowed time,” it saw no need to take its bargaining obligation
seriously. Likewise, it appears likely that Moore believed that COSA soon would be a thing of
the past and therefore saw little need to suppress his contempt.
In sum, I conclude that Respondent engaged in a pattern of bad-faith bargaining, as 35
alleged in the complaint, and thereby violated Section 8(a)(5) and (1) of the Act.
Remedy
To remedy the harm caused by the violations found herein, the Respondent must post the 40
notice to employees attached as Appendix and take affirmative actions. These actions include
offering immediate and full reinstatement to employee Audrey Johnson and making employees
Audrey Johnson and Nancy Durner (who previously was reinstated) whole, with interest, for all
losses they suffered because Respondent unlawfully discharged them.
45
Respondent also must restore the recall rights of Mary Groves and make her whole, with
interest, for all losses she suffered because Respondent unlawfully terminated those rights.
JD(ATL)–07–13
58
Similarly, Respondent must make employee Ralph Manning whole, with interest, for all losses
he suffered because Respondent refused to permit him to return to work after he became able to
do so.
Respondent also must make all affected employees whole, with interest, for all losses 5
they suffered because of Respondent’s unlawful unilateral changes: Discontinuing the practice
of providing bargaining unit employees with cell phones or cell phone subsidies and transferring
pre-arbitration settlement work out of the bargaining unit.
Moreover, in addition to rescinding its unilaterally imposed work rules, Respondent must 10
rescind any discipline issued under those rules, and make all such disciplined employees whole,
with interest, for all losses they suffered because of the discipline.
The “make-whole” remedy described herein should be in accordance with appropriate
Board formulae and practice which would, of course, take into account interim earnings and 15
interim expenses.
Conclusions of Law
1. The Respondent, Michigan State Employees Association, is an employer engaged 20
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Central Office Staff Association, is a labor organization
within the meaning of Section 2(5) of the Act.
25
3. The following employees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All full-time, part-time and temporary employees who are employed by
Respondent for more than 30 calendar days, excluding the assistant to the 30
president, guards, and supervisors as defined by the Act.
4. At all material times, the Charging Party has been the exclusive collective-
bargaining representative, within the meaning of Section 9(a) of the Act, of the appropriate unit
described above in paragraph 3.35
5. Respondent violated Section 8(a)(1) of the Act by requiring an employee to
complete a questionnaire that contained language which prohibited disclosing to other employees
the contents therein and which threatened her with immediate discharge for a breach of
confidentiality regarding the questionnaire.40
6. Respondent violated Section 8(a)(3) and (1) of the Act by the following conduct:
Suspending and thereafter discharging employee Nancy Durner; placing on administrative leave
and thereafter discharging employee Audrey Johnson; terminating the recall rights of laid-off
employee Mary Groves; and refusing to authorize employee Clyde Manning to return to work. 45
JD(ATL)–07–13
59
7. Respondent violated Section 8(a)(5) and (1) of the Act by repeated refusals to
provide the Charging Party with requested information which was necessary for and relevant to
the Charging Party’s performance of its functions as exclusive bargaining representative, and by
unreasonable delay in the furnishing of such information, as discussed in this decision.
5
8. Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
implementing work rules, by unilaterally eliminating its practice of providing cell phones or cell
phone subsidies to employees in the bargaining unit, and by removing pre-arbitration settlement
work from the bargaining unit, without affording the Charging Party notice and an opportunity to
bargain about the changes and their effects, as discussed in this decision.10
9. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
bargain collectively and in good faith with the exclusive representative of its employees by a
pattern of conduct described in this decision.
15
10. Except as set forth above, Respondent did not violate the Act in any manner
alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record in this case, I
issue the following recommended120
ORDER
The Respondent, Michigan State Employees Association, Lansing, Michigan, its officers,
agents, successors, and assigns, shall25
1. Cease and desist from
(a) Interfering with, restraining, and coercing its employees in the exercise of
their Section 7 rights by prohibiting them from disclosing the contents of disciplinary documents 30
including investigative questionnaires.
(b) Suspending, placing on administrative leave, discharging, or otherwise
disciplining employees because they engaged in union activities or other concerted activities
protected by the Act.35
(c) Refusing to allow an employee to return to work because the employee
was a union officer, had engaged in union activities or in other concerted activities protected by
the Act.
40
(d) Failing and refusing to furnish, or unreasonably delaying in furnishing,
information requested by the exclusive representative of a unit of its employees and which is
necessary for and relevant to the performance of that union’s representation duties.

1
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, these findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)–07–13
60
(e) Unilaterally implementing work rules, eliminating the practice of
providing cell phones or subsidies to unit employees, removing from the bargaining unit work
performed by bargaining unit employees, or otherwise making any material, significant, and
substantial change in a term or condition of employment which is a mandatory subject of 5
collective bargaining without first giving the employees’ exclusive representative notice of the
contemplated change and a reasonable opportunity to bargain about the change and its effects.
(f) Engaging in bad-faith bargaining with the Charging Party in the conduct
of negotiations for a collective-bargaining agreement or other agreement affecting the wages, 10
hours, and working conditions of bargaining unit employees.
(g) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing, or to engage 15
in concerted activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.20
(a) Rescind and cease giving effect to prohibitions against disclosure
contained in “investigatory questionnaires” or other documents issued to employees, and remove
any reference to any breach of such prohibition or breach of confidentiality from the files of any
and all affected employees. 25
(b) Rescind and cease giving effect to the work rules unilaterally implemented
on about July 12, 2012, and notify all bargaining unit employees in writing of the rescission;
rescind any disciplinary actions taken against bargaining unit employees for violations of such
rules, reinstating any employees discharged pursuant to the work rules, notifying affected 30
employees individually in writing that it has taken these actions and that any discipline or
discharge issued to them in reliance in the work rules will not be used against them in the future
in any manner, and make whole unit employees for any loss of earnings or benefits they may
have suffered as a result of the implementation and/or application of such rules, with interest
computed in accordance with Board policy.35
(c) Restore the practice of providing cell phones or cell phone subsidies to
bargaining unit employees as it existed before Respondent’s unlawful unilateral change, and
make affected employees whole, with interest, for all losses they suffered because of
Respondent’s unlawful discontinuation of this practice.40
(d) Restore to bargaining unit employees the pre-arbitration settlement work
unlawfully removed from the bargaining unit, and make all affected employees whole, with
interest, for all losses they suffered because of Respondent’s unlawful removal of this work.
45
(e) Offer Audrey Johnson immediate and full reinstatement to her former
positions of employment or, if her respective position no longer exist, to a substantially
JD(ATL)–07–13
61
equivalent position, without prejudice to her seniority or other rights or privileges previously
enjoyed and make employees Audrey Johnson and Nancy Durner (who previously was
reinstated) whole for any loss of wages or benefits suffered as a result of the discrimination
against them by payment of backpay, and reimburse them for any out-of-pocket expenses they
may have incurred while searching for work, with interest calculated in accordance with Board 5
policy, and remove from its files and records any reference to their suspensions and discharges,
and advise them, in writing, that it has done so and will not use these disciplinary actions against
them in the future.
(f) Restore the recall rights of employee Mary Groves and make her whole 10
for any loss of wages or benefits suffered as a result of the unlawful termination of those rights,
with interest calculated in accordance with Board policy, remove from its files any reference to
the unlawful termination of recall rights, and advise her, in writing, that it has done so.
(g) Make employee Clyde Manning whole, with interest calculated in 15
accordance with Board policy, for all losses because Respondent failed and refused to allow him
to return to work on April 30, 2012.
(h) As part of the remedy for the violations addressed in paragraphs (e), (f),
and (g), immediately above, reimburse Nancy Durner, Mary Groves, Audrey Johnson, and Clyde 20
Manning amounts equal to the difference in taxes owed upon receipt of a lump-sum payment and
taxes that would have been owed had there been no discrimination, and submit the appropriate
documentation to the Social Security Administration so that when backpay is paid, it will
allocated to the appropriate periods.
25
(i) With respect to the make-whole relief ordered in paragraphs (b), (c), (d),
(e), (f), (g), and (h) above, backpay shall be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), plus daily compound interest as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
30
(j) Furnish to the Charging Party, without further delay, the necessary,
relevant information requested by the Charging Party, as described in this decision, which has
not yet been provided to the Charging Party.
(k) On request, bargain collectively and in good faith with the Charging Party 35
Union as the exclusive collective-bargaining representative of the unit.
(l) Within 14 days after service by the Region, post at its facilities in Lansing,
Michigan, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 7, after being signed by the Respondent’s 40
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

2 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the
notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–07–13
62
employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. J. Picini Flooring, 356 NLRB No. 9 (2010). 5
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since October 11, 2010.
10
(m) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Regional Director
attesting to the steps that the Respondent has taken to comply.
Dated Washington, D.C. March 27, 201315
____________________________________20
Keltner W. Locke
Administrative Law Judge
JD(ATL)–07–13
63
JD(ATL)–07–13
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT prohibit you from discussing with your coworkers the contents of
questionnaires we require you to complete or other documents related to disciplinary
investigations and WE WILL NOT threaten you with discharge or other disciplinary action for
discussing the contents of questionnaires we require you to complete or other documents related
to disciplinary investigations.
WE WILL NOT discharge you because of your union membership or activities or because you
engaged in other concerted activities protected by the National Labor Relations Act.
WE WILL NOT place you on administrative or other leave because of your union membership
or activities.
WE WILL NOT terminate your recall rights because of your union membership or activities.
WE WILL NOT refuse to allow you to return to work because of your union membership or
activities.
WE WILL NOT otherwise discipline you because of your union membership or activities or
because you engaged in other concerted activities protected by the National Labor Relations Act.
WE WILL NOT refuse to bargain in good faith with the Union, Central Office Staff
Association (COSA), as the exclusive collective-bargaining representative of our employees in
JD(ATL)–07–13
the following appropriate unit:
All full-time, part-time and temporary employees who are employed by
Respondent for more than 30 calendar days, excluding the assistant to the
president, guards, and supervisors as defined by the Act.
WE WILL NOT fail to furnish or unreasonably delay in furnishing the Union with information
it has requested which is necessary for and relevant to its performance of its duties representing
bargaining unit employees.
WE WILL NOT unilaterally end our practice of providing bargaining unit employees with cell
phones or cell phone subsidies.
WE WILL NOT unilaterally implement work rules and WE WILL NOT discharge or
otherwise discipline bargaining unit employees based in whole or part on work rules which we
have implemented unilaterally, without having given their exclusive representative notice and an
opportunity to bargain about the rules or their effects.
WE WILL NOT unilaterally remove pre-arbitration settlement work from the bargaining unit.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to employee Audrey Johnson and make her
whole, with interest, for all loses she suffered because of our unlawful discrimination against her.
WE WILL make Nancy Durner, who previously was reinstated, whole, with interest, for all
loses she suffered because of our unlawful discrimination against her.
WE WILL immediately restore the recall rights of employee Mary Groves and make her whole,
with interest, for all losses she suffered because we unlawfully terminated those rights.
WE WILL make employee Ralph Manning whole, with interest, for all losses he suffered
because we unlawfully refused to allow him to return to work.
WE WILL remove from our files all references to the suspension and discharge of employee
Nancy Durner, and WE WILL notify her individually in writing that we have taken this action
and that the suspension and discharge of her will not be used against her in any way.
WE WILL remove from our files all references to the placement on administrative leave and
discharge of employee Audrey Johnson, and WE WILL notify her individually in writing that
we have taken this action and that the placement on administrative leave and discharge of her
will not be used against her in any way.
JD(ATL)–07–13
WE WILL remove from our files all references to our refusal to allow employee Ralph Manning
to return to work, and WE WILL notify him individually in writing that we have taken this
action and that the refusal to allow him to return to work will not be used against him in any
way.
WE WILL rescind the work rules we unlawfully implemented unilaterally, rescind the
discipline of any employee disciplined under those rules, expunge all references to such
discipline from our files, and make each such unlawfully disciplined employee whole, with
interest, for all losses he or she suffered because of our unlawful action.
WE WILL restore the practice of providing bargaining unit employees with cell phones or cell
phone subsidies, at their option, and WE WILL make all affected employees whole, with
interest, for all loses they suffered because we unlawfully discontinued this policy unilaterally.
WE WILL restore to bargaining unit employees the pre-arbitration settlement work which we
unlawfully transferred out of the bargaining unit and will make all employees whole, with
interest, for all losses they suffered because of our unlawful action.
WE WILL furnish to COSA, the exclusive bargaining representative, without delay, all
information that union has requested which is necessary for and relevant to the performance of
its functions representing bargaining unit employees.
WE WILL bargain collectively and in good faith with COSA, as the exclusive bargain
representative of the employees in the appropriate unit described above.
MICHIGAN STATE EMPLOYEES ASSOCIATION
(Employer)
Dated: ________________ By:___________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
http://www.nlrb.gov/
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8 15a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.