United Cerebral Palsy

National Labor Relations Board - Administrative Judge Opinions

Jul 7, 2003

02-CA-034551 (N.L.R.B. Jul. 7, 2003)

JD(NY)–36-03
White Plains, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH

UNITED CEREBRAL PALSY
ASSOCIATION OF WESTCHESTER
COUNTY, INC.

AND CASES
2-CA-34555-1
UNION OF NEEDLETRADES, 2-CA-34900-1
INDUSTRIAL AND TEXTILE 2-CA-35254
EMPLOYEES (UNITE), AFL-CIO,
CLC

Allen Rose Esq.,
for the General Counsel.
Andrew P. Marks Esq.,
for the Respondent.
Jessica Drangel Esq.,
for the Union.

DECISION

Statement of the Case

Raymond P. Green, Administrative Law Judge. I heard this case in New York, New
York on May 6 and 7, 2003. The charge in 2-CA-34555-1 was filed on April 22, 2002, the
charge in 2-CA-34900-1 was filed on September 20, 2002 and the charge in 2-CA-35254 was
filed on February 25, 2003. Complaints in the first two were issued on June 28, 2002 and they
were consolidated on March 7, 2003. Thereafter, an additional Consolidated Complaint was
issued on April 18, 2003.1 In substance, the allegations were as follows:

1. That on February 4, 2002, the Respondent unilaterally and without bargaining
implemented a break schedule for unit employees.

2. That in or about June 2002, the Respondent bypassed the Union and dealt directly
with employees by holding a vote among them in order to determine their preference regarding
their holiday schedule.

1 At the hearing, the Respondent agreed to go forward with this case notwithstanding the
fact that there was another charge, which had been filed by the Union and was in the process of
being investigated. Respondent explicitly waived any contention that it may have under
Jefferson Chemical Company, Inc., 200 NLRB 992, 994. In a related manner, the Union
although requesting that I hear the facts of this case, asked that I keep it open until after the
Region decides whether to issue a Complaint in the pending charge, and to consolidate this
case with any newly issued Complaint. As this would, in my opinion, unduly delay the
processing of this matter, I rejected the Union’s motion.

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3. That in or about November 2002, the Respondent unilaterally and without bargaining
reduced the work hours of Pamela Patterson.

4. That in or about November 2002, the Respondent unilaterally and without bargaining,
ceased providing holiday and bereavement pay to part-time employees in the day treatment
center.

5. That in or about January 2003, the Respondent unilaterally and without bargaining
discontinued the practice of releasing employees early on the Friday before a holiday occurring
on a Monday.

Based on the evidence as a whole, including my observation of the demeanor of the
witnesses and after consideration of the Briefs filed, I hereby make the following findings and
conclusions.

Findings and Conclusions

I. Jurisdiction

It is admitted that the Respondent is engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act. It also is admitted that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices
(a) Background

The Respondent operates a facility in Westchester, New York where it offers day
treatment programs for people with cerebral palsy and other severe disabilities. These people
are referred to by the parties as the “consumers.”

Pursuant to an NLRB election held on January 11, 2002, the Union was certified as the
exclusive collective bargaining representative in an appropriate unit consisting of all full time and
regular part time non-professional employees, including drivers, therapy aides, vocational
trainers, teacher’s aides, rehabilitation aides, habilitation trainers, recreational assistants,
maintenance employees, occupational therapy aides, day care aides, senior aides, program
assistants, support specialists, teacher’s assistants, child caseworkers, cooks, wait staff,
behavioral assistants and job coaches, employed by the Employer at and out of its facilities
located at 1186 King Street, Rye Brook, New York, 456 North Street, White Plains, New York
and Jack’s Brookside Café, Lincoln Avenue, Rye Brook, New York.

Following the Certification, contract negotiations began on January 31, 2002 but the
parties have not been able to reach and agreement by the time of this hearing. The contents of
those negotiations are not discussed here because there is no allegation that the Respondent
engaged in bad faith bargaining.

(b) Implementation of a Break Schedule

On February 4, 2002, John Garnett, the Manager of Team 3, (consisting of about 6 of
the 90 plus unit employees), posted a handwritten memorandum for his group stating;

Smoking breaks must be taken between the following times in order to

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minimize disruption to the team process and allow for maximum
programming to our consumers.
9:15 a.m. to 9:30 a.m.
11:25 a.m. to 11:40 a.m.
1:25 p.m. to 1:40 p.m.
2:15 p.m. to 2:30 p.m.
There will be allowed two smoking breaks per day from the above time
frame choices. (5 min. break)
Exceptions – extra recreation, early dismissal, trips, early lunch.
Please consult team manager or supervisor in charge for questions or
concerns.

The General Counsel presented one witness, Catherine Gillen, a senior aide on Team 3
who testified that before this memorandum, there was no formal system of taking short breaks;
that an employee would make sure that there was sufficient coverage and after telling the other
employees on duty, would go outside for five minutes to smoke a cigarette or get a snack.

According to Gillen despite the posting of the memorandum on February 4, there really
was no change because breaks could only be taken when circumstances with the consumers
allowed, and therefore it was impossible to fit these breaks into defined time slots.

JUDGE GREEN: … But after this memo, what if any changes were made?
THE WITNESS: It really didn't change the way staffing took breaks at all
because you had to be concerned about the consumers. And if there wasn't
time to take a break between 9:15 and 9:30 because we had to toilet a
consumer or something was happening or someone was having a behavior
problem you would take it at another time. As long as you had enough staffing
in the room you would just go to the other person in the room, "Listen, I'm going
to take five minute," and you would take your five-minute break.

There were no other witnesses concerning this subject and therefore I will take Gillen’s
testimony as accurate. And in accordance with her testimony, I conclude that notwithstanding
Garnett’s posting of the February 4 memorandum, which potentially affected only the employees
on Team 3, and which was immediately ignored thereafter, did not constitute a material change
in the terms and conditions of bargaining unit employees. Accordingly, I conclude that in this
respect, the Respondent did not make a unilateral change and did not violate Section 8(a)(5) of
the Act.

(c) Change in Pamela Patterson’s
Hours of Work

The claim here is that in or around November 10, 2002, Patterson was told by John
Garnett that her schedule would henceforth be from 10:00 a.m. to 2:00 p.m. (4 hours per day).
The General Counsel claims that although Patterson, when she was first hired, was scheduled
to work from 10:00 a.m. to 2:00 p.m., she was given, for a period of more than 2 years, a
schedule that was from 8:30 a.m. to 3:00 p.m. (6 ½ hours per day).

The General Counsel assets that this change entailed a reduction in Patterson’s normal
preexisting hours of work and therefore, the Respondent had an obligation to first notify and
bargain with the Union before doing this. (There is no dispute that the Respondent did not
notify the Union before making this change). It is not claimed that the Respondent made a
change in the work schedules of any other employees or that it changed the method of

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scheduling in a way that would affect unit employees in general.

Initially Patterson was hired by the Respondent to work as a part-time aide and worked
four hours per day, from 10 a.m. to 2 p.m. (Four hours). After some time, she was asked to
work additional hours. But although she often worked from 8:30 a.m. to 3:00 p.m. (6 ½ hours),
this was not consistent. Thus, her payroll records for the first three quarters of 2001 show that
there were many days when she worked 4 or fewer hours and many days when she worked in
excess of 4 hours per day. Nevertheless, starting around July 13, 2002, Patterson regularly
worked from 8:30 a.m. to either 2:30 or 3:00 p.m.

In the period from January 1, 2002 through September 11, 2002, the records show that
Patterson worked from 8:30 a.m. to 3:00 p.m. on 114 out of 149 days. On the other days she
worked a wide variety of other hours.

During the period from September 10, 2002, (before and after Patterson claims that her
work schedule was changed), the records show that on most days she worked from 10:00 a.m.
to 3:00 p.m. Thereafter, from November 14, 2002, the records show a consistent pattern of
Patterson working from 10:00 a.m. to 2:30 p.m.

It is noted that at one point, the Respondent offered Patterson a full-time job, but
Patterson refused because it interfered with her other job, which consisted of being an attendant
on a bus, which brought consumers to the facility, normally before 8:30 a.m.

The pattern of her work record shows that for a period of time after she began her
employment, Patterson normally worked from 8:30 a.m. to 3:00 p.m. But this pattern changed
in September 2002; at least two months before she alleges that she was told by Garnett that
she was no longer going to work more than from 10:00 a.m. to 2:00 p.m. Patterson testified
Garnett told her that the reason her hours were going back to 10:00 a.m. to 2:00 p.m., (her
original schedule), was because the Company had hired a new person and therefore, Patterson
was not needed for the extra hours.

The facts indicate that immediately before November 2002, Patterson, even if she did
not work a schedule from 8:30 a.m. to 3:00 p.m., usually worked more than 4 hours per day.
That is, during the period from September 12 to November 14, 2002, when her hours of work
were somewhat indeterminate, Patterson’s work schedule changed and became determinate
after November 14, 2002 when she essentially was given a fixed schedule that ran from 10:00
a.m. to 2:00 p.m. This resulted in a reduction in the number of hours that she normally worked.

The General Counsel and the Union’s counsel cite Millwrights, Conveyors and
Machinery Erectors Local Union No. 1031, 321 NLRB 30, (1996) and this seems to be
dispositive. In that case, the Board held that the Employer’s change in a single employee’s
hours of work had a “significant impact on her” and therefore that the Respondent violated the
Act when it made this change unilaterally. The Board stated:

Although not raised by the parties in this case, we note that the Board has
held in some prior cases, without any analysis or rationale, that a change in terms
or conditions of employment affecting only one employee does not constitute a
violation of Section 8(a)(5). See Mike O’Connor Chevrolet, 209 NLRB 701 (197);
Mark J. Leach Electrical Contractors, 251 NLRB 1100 (1980); and Santa Rosa
Blueprint Service, 288 NBLB 762 (1988). We find that this holding, which would
require the dismissal of the complaint in this case, is erroneous as a matter of law,
and we overrule those cases to the extent inconsistent with our decision in this

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case.

(d) Elimination of Holiday and Bereavement
Pay for Part Time Employees

The Respondent’s employee guidebook has a provision which states that regular full
time employees are eligible for certain benefits such as holiday pay. The guidebook also
establishes bereavement pay, but this is limited to circumstances where the death involves a
spouse, child, parent, grandparent, siblings or parents-in-law.

With respect to holiday pay, Tina Richmond announced in November 2002, that
employees who worked fewer than 20 hours per week are not entitled to holiday or
bereavement pay. No notice was given to the Union about these alleged changes and
thereafter, this group of employees no longer received holiday or bereavement pay.

The Company contends “the undisputed facts demonstrate that UCP consistently
applied, for the most part, its policy of providing holiday pay only to full-time employees.” It
argues that “the relatively few, sporadic instances in which this policy was misapplied do not rise
to the level of a change.” The Respondent maintains the same position vis a vis bereavement
pay.

Holiday Pay

Joint Exhibit 1 is a list of all the regular part-time employees who worked 20 or fewer
hours per week during the year 2001. There are eight people on this list including a person
named Andrea Schmitz who was assigned to the pre-school program. Where the exhibit has a
NA this means that the person on that day was either not employed or not employed in a
category covered by the bargaining unit.

With respect to Schmitz, the Charging Party asserted that I should not consider her as
part of the affected group because she worked in the pre-school program and the Union is not
claiming that any change was made to her holiday pay benefit. (She received zero paid
holidays). I am not sure I understand what the Charging Party Counsel means by this and if
the question here is whether there was a past practice that affected part-time employees and
that this practice was changed in November 2002, I don’t see why Schmitz’s experience should
be excluded, unless her job was not in the bargaining unit.

In any event, Joint Exhibit 1 shows the following:

Chantal Betamuriza did not work but was paid for Labor Day, Thanksgiving, the Day
after Thanksgiving, Christmas Eve, and Christmas Day. There were no holidays during 2001,
during the time that she worked, that she did not receive holiday pay.

Maria Cruz did not work but was paid for Thanksgiving, the day after Thanksgiving,
Christmas Eve, and Christmas Day. There were no holidays during 2001 during the time that
she worked, that she did not receive holiday pay.

Peggy Johnson did not work but was paid for July 4, Labor Day, Thanksgiving Day, the
day after Thanksgiving, Christmas Eve and Christmas Day. Joint Exhibit 1 also shows that
during the time of her employment, she did not work and was not paid for Memorial Day, Labor
Day, Rosh Hashanah, and Yom Kippur. It also shows that she worked and was therefore paid
for Columbus Day and that she was not credited with or paid for any floating holidays.

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Janet Malcolm did not work but was paid for New Years Day, Martin Luther King Jr. Day,
Memorial Day, July 4, Labor Day, Columbus Day, Thanksgiving, the day after Thanksgiving,
Christmas Eve, Christmas Day and New Years Eve. She worked on Presidents Day, Good
Friday, Rosh Hashanah and Yom Kippur and received pay for 2 floating holidays.

Andrea Schmitz. The exhibit shows that there were no holidays that she did not work
for which she received any pay. The exhibit shows that during her employment in 2001, she
worked on Good Friday without getting any equivalent paid time off and that she did not work
and was not paid for New Years Day, Martin Luther King Jr. Day, Presidents Day, Memorial
Day, July 4, Labor Day and Rosh Hashanah.

Mike Wiggins, during the time that he was employed in 2001, did not work but was paid
for Christmas Eve and Christmas Day.

Nicole Woodson, during the time that she was employed in 2001 she did not work but
was paid for Labor Day, Thanksgiving Day, the day after Thanksgiving, Christmas Eve, and
Christmas Day. In addition, the exhibit shows that although she worked on Rosh Hashanah
and Yom Kippur, she was paid for floating holiday days that she took off on October 30,
November 15 and November 16.

By my count, the total scheduled days off that were paid to this set of part time
employees was 40 days. On the other hand, the total number of holidays that were not paid to
this group was 15, with the most concentrated in one individual, Andrea Schmitz. (If we
excluded Schmitz, the total number of unpaid holidays would be seven).

Joint Exhibit 2 is a similar list for the year 2002. It includes the experience of the thirteen
part-time employees, (who worked 20 or fewer hours), to the extent that they were employed,
during the year, in bargaining unit job classifications. I note that the exhibit shows their
experience for the entire year including the period from Thanksgiving on, which is when the
Respondent stopped making holiday payments to this group of employees.

The exhibit showed the following:

Chantal Batamuriza, during the time that she was employed in 2002 and until
Thanksgiving, did not work but was paid for New Years Day, Martin Luther King Jr. Day,
Memorial Day, July 4, and the day after July 4. She was out sick on President’s day and
worked on floating holidays, Good Friday, Yom Kippur and Columbus Day. She received pay
for 2 floating holidays, these being on February 25 and June 10.

Maria Cruz, during the time that she was employed in 2002 and until Thanksgiving, did
not work but was paid for New Years Day, Martin Luther King Jr. Day, Memorial Day, July 4, the
day after July 4 and Labor Day. She worked on Good Friday, Yom Kippur and Columbus Day
but received pay for floating holidays on February 25 and June 10. She was sick on Presidents
Day. The exhibit also shows that she did not work and was not paid for Good Friday.

Charles Gadson, during the time that he was employed in 2002 and until Thanksgiving,
he did not work but was paid for Labor Day. He worked without getting equivalent days off with
pay on Yom Kippur and Columbus Day.

Dwight Hardware was a part-time employee but all of the entries are listed as not
applicable.

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Samuel Hudson, did not work on New Years Eve and was not paid. He worked on
Martin Luther King Jr. Day and did not receive any equivalent day off with pay.

Peggy Lee Johnson, during 2002 and until Thanksgiving, did not work but was paid on
New Years Day, Martin Luther King Jr. Day, Memorial Day, and July 4. The exhibit shows that
she worked on floating holidays Presidents Day and Good Friday and that she received a
floating holiday with pay on October 23. The exhibit also shows that she was on disability
during the period encompassing Labor Day, Yom Kippur and Columbus Day.

Sylvia Lewis, during the time she was employed in 2002 and until Thanksgiving, did not
work but was paid for Labor Day. She worked on Yom Kippur and Columbus Day, without
receiving any equivalent day off with pay.

Janet Malcolm, during the time she was employed in 2002 and until Thanksgiving, did
not work but was paid for New Years day, Memorial Day, July 4, and the day after July 4. She
worked on President’s Day and Good Friday, (floating holidays) and did not get an equivalent
day off with pay.

Jamie Marazio, during the time he was employed in 2002, did not work on any of the
holidays and did not get paid for any of them. (A total of eight). She is listed on the exhibit as
being in the pre-school program.

Lizzie Navarro, during the time that she was employed during 2002 and until
Thanksgiving, did not work but was paid for Labor Day. She did not work and was not paid for
Yom Kippur. The exhibit also shows that she worked on Columbus Day and did not receive
any equivalent day off with pay.

Pamela Patterson, during the time that she was employed in 2002 and until
Thanksgiving, did not work but was paid for New Years Day, Martin Luther King Jr. Day,
Memorial Day, July 4, the day after July 4 and Labor Day. She did not work and was not paid
for Good Friday. She worked on Yom Kippur and Columbus Day and received one floating
holiday with pay for October 24. The exhibit also indicates that she was out for the entire week,
which included Presidents Day and was not paid for that day.

Nicole Woodson, during the time that she was employed in 2002 and until Thanksgiving,
did not work but was paid for New Years Day, Martin Luther King Jr. Day, Memorial Day and
Labor Day. She did not work on July 4 and the day after July 4 and was not paid for those
days. (The exhibit indicates that she was out for two weeks so I assume that she was either
sick or on vacation or on some other kind of leave). Additionally, the exhibit shows that she
worked on four holidays, (President’s Day, Good Friday, Yom Kippur and Columbus Day), but
received floating holidays with pay for two days, April 4 and September 24.

By my count, during 2002 but before Thanksgiving, the total scheduled holidays that
employees in this set took off and were paid for, totaled 45 while the total number of holidays
that they either took off and were not paid, or worked and were not given equivalent days off
with pay, totaled 33. And in the latter category, the totals of unpaid holidays were skewed by
the inclusion of Samuel Harrison and Jaime Marazio, neither of who were paid for any holidays.
As noted above, Marazio is listed on Joint Exhibit 2 as being in the pre-school program. And
Harrison seems to have been employed for a very short time.

I am not counting from Thanksgiving on because it was at that point that the Company

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announced that part-timers in this category would not get holiday pay any longer. And in
looking at Joint Exhibit 2, it looks like the Respondent ceased paying these part-time employees
for holidays as of Columbus Day, (October 14), even before it made the announcement.

With respect to holiday pay, the joint exhibits hardly show that there were minimal or
sporadic instances where the Respondent mistakenly varied from the practice set out in its
employee handbook. For 2001, the pattern was that with the exception of Schmitz, regular
part-time employees who worked 20 or fewer hours, normally received holiday pay. And
although the pattern is less definite in 2002, this group of employees, except for Harrison and
Marazio, received holiday pay a majority of the time. For 2001 and 2002, (until Thanksgiving),
was the mistake in giving them holiday pay or was the mistake in not giving them holiday pay?

Since the only evidence presented by the Respondent on this question was the
summaries comprising Joint Exhibits 1 and 2, the evidence, in my opinion, tends to establish
that during that two year period of time, the Respondent, notwithstanding what was written in its
handbook, had a past practice of giving holiday pay to its regular part-time employees in the day
treatment but not the pre-school program, even if they worked fewer than 20 hours per week..
Thus, when the Respondent announced soon after Thanksgiving that holiday pay would no
longer be given to part-time employees who worked less than 20 hours per week, this was, in
my opinion, a change in a relatively long standing practice concerning a substantial term and
condition of employment. Therefore, as the Union was not given notice or an opportunity to
bargain about this change, I conclude that the Respondent, in this respect, violated Section 8(a)
(1) & (5) of the Act.

Bereavement Pay

The Respondent’s handbook permits full time employees to have a maximum of 3 days
of bereavement pay per year.

Joint Exhibit 1 shows that Pamela Patterson received bereavement pay for September
28 and October 1, 2001. It also shows that she took off from August 13 to 15 for bereavement
purposes and was not paid for those days.

Joint Exhibit 1 also shows that Nicole Woodson received bereavement pay for the days
that she took off on October 3 and 4, 2001.

Joint Exhibit 2 shows that Janet Malcolm took off from April 30 to May 2, 2002 for
bereavement purposes and was paid for 12 hours.

Joint Exhibit 2 also shows that Nicole Woodson took off from August 13 to August 15,
2002 for bereavement purposes and was not paid.

Joint Exhibits 1and 2 therefore show a somewhat mixed picture insofar as bereavement
pay. But without testimonial explanation, I can’t see which was the mistake; paying the
bereavement benefit or not paying it.

For the same reasons as discussed above with respect to holiday pay, I conclude that
the evidence tends to establish that for a substantial period of time, the Respondent had a past
practice of giving bereavement pay to certain part-time employees. As such it is my opinion,
that the General Counsel has established by a preponderance of the evidence that this practice
was changed on or after Thanksgiving 2002 and that in so doing, without notice or bargaining,
the Respondent violated Section 8(a) (1) & (5) of the Act.

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(e) Elimination of Early Release Before Holidays

The Company provides programs for disabled individuals who come to its facilities
during the day. However, from time to time, the consumers leave early on the days before
holidays and accordingly, there is nothing for the staff to do after the consumers leave. In such
circumstances, according to employee Catherine Gillen, the staff has been allowed to leave
early on a Friday, when the scheduled holiday occurred on the following Monday. In this
respect, Gillen testified that the staff would be allowed to leave only after the consumers leave
the facility and that the early release time depends on the time that the consumers go home.

The Respondent’s published Holiday Calendars for the years 2001 and 2002, state:

Program dismissal for adult consumers assigned to Day Treatment and the
Sheltered Workshop will be 2:00 p.m. the day before all holidays listed on this
schedule. This includes float holidays. Please note that as per Program
Operations Procedural Memorandum 99-1 (attached), the intent and purpose of
early dismissal is for the benefit of consumers. Staff are expected to work the
normal schedule unless notified by the program director.

For 2003, the Respondent changed the language described above to read as follows:

Program dismissal for adult consumers assigned to Day Treatment and the
Sheltered Workshop will be 2:00 p.m. the day before the following holidays:
July 4th, November 27th, and December 25th. This includes float holidays.
Please note that the intent and purpose of early dismissal is for the benefit of
consumers. Staff are expected to work the normal schedule unless notified by
the program director. (Underlined for emphasis).

The difference between the pre and post 2003 language is that the new language
restricted the possibility of early release to three specific holidays whereas the old language was
applicable to any holiday. Thus, potentially this change could result in a diminution of this
benefit to unit employees. As such, it is my conclusion that this was a change in a term and
condition of employment, that the change was not trivial or insubstantial and that it therefore
required prior notice and bargaining.

On January 20, 2003, Martin Luther King Day, (one of the listed holidays), took place on
Monday but the employees were not released early on Friday, January 17, 2003. On this
Friday, the consumers did not leave the facility early and therefore, the Respondent’s staff was
required to stay to the day’s normal quitting time.

With respect to January 17, 2003, it is not clear from this record why the consumers
were not sent home early on that day. I do not know if this was the result of a decision made
by the Respondent or if was made because of some decision or event outside the control of the
Respondent. In any event, that could be a matter determined at the compliance stage of this
proceeding.

(f) The Holiday Vote

For 2002, the holiday calendar that was posted in January, listed July 5 as a day off but
did not list December 23, 2002 as an off day. This was different from what had occurred in

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previous years, albeit the total number of holidays was the same.

On June 5, 2002, the Respondent by Stephen Madley, issued a memorandum, which
stated in pertinent part;

The question has been raised as to why we are scheduled to take July 5th off
and not Christmas Eve. In preparing the schedule, the administration looks at
the legal holidays for the year and attempts to provide more continuous time off
whenever possible. This year, July 4th falls on a Thursday and administration
felt that by giving the following day off employees would be then able to enjoy a
four-day weekend. Some employees have asked for an additional day off for
Christmas Eve, which is something that we are unable to do. However, in
response to your requests, I am asking you to vote on whether you would
prefer to have July 5th or Christmas Eve off. We will hold the vote on Friday
morning June 7th…. Results will be made available prior to the end of the day.

Subsequent to this memorandum, the Respondent conducted a vote and the employees
elected to retain the December 23 day off rather than have July 5th as their day off.

The fact that employees may have approached the Respondent about this issue, (and
another issue involving snow days), and that the Respondent may have acted without an intent
to breach its bargaining obligation, is irrelevant. The fact is that the Union and the Respondent
were engaged in collective bargaining as of June 5, 2002 and the issue of whether to take off
either December 23 or July 5 was not discussed or agreed upon by the Union and the
Company.

This may not have been the most earth shattering issue. But it was a matter which
concerned employee terms and conditions of employment. Moreover, the fact that the
employees voted to retain the old day off, thereby resulting in no change, is not relevant
because the issue here is not one of unilateral change but rather one of bypassing the
employees’ union representative. As such, it is the Respondent’s obligation to bargain with the
Union and not to bypass the Union and deal directly with the employees. Medo Photo Supply
Corp v NLRB, 321 U.S. 678 (1944); Harris-Teeter Super Mkts., 310 NLRB 216 (1993); The Dow
Chemical Company 227 NLRB 1005 (1977). According, I conclude that in this respect the
Respondent has violated Section 8(a) (1) & (5) of the Act.

Conclusions of Law

1. By unilaterally reducing the hours of Pamela Patterson without giving notice to or
offering to bargain with Union of Needletrades, Industrial and Textile Workers, (UNITE), AFL-
CIO, CLC, the Respondent has violated Section 8(a) (1) and (5) of the Act.

2. By unilaterally discontinuing the practice of releasing employees early on the Friday
before a holiday occurring on a Monday, the Respondent has violated Section 8(a) (1) and (5) of
the Act.

3. By dealing directly with employees and bypassing their union representative by
holding a vote among them in order to determine their preference regarding a portion of their
holiday schedule, the Respondent has violated Section 8(a) (1) and (5) of the Act.

4. By unilaterally eliminating holiday and bereavement pay to certain regular part-time
bargaining unit employees the Respondent has violated Section 8(a) (1) and (5) of the Act.

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The Remedy

Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Having found that the Respondent has unilaterally reduced the hours of Pamela
Patterson, it is recommended that it be required to make her whole for any loss of earnings that
she suffered as a result of this action, plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).

With respect to holiday and bereavement pay, it is recommended that the Respondent
be required to make the affected employees whole for any loss of earnings that they may have
suffered as a result of this unilateral change, plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).

With respect to the question as to whether back pay would be appropriate for the failure
of the Respondent to give its employees an early release on January 17, 2002, I shall leave for
compliance to determine if these employees would have not have been released early on that
day notwithstanding the unilateral change in the language of the posted calendar.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 2

ORDER

The Respondent, United Cerebral Palsy Association of Westchester, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Making unilateral changes in the wages, terms and conditions of employment of
union represented employees without first giving notice to and offering to bargain with Union of
Needletrades, Industrial and Textile Workers, (UNITE), AFL-CIO, CLC.

(b) Bypassing the Union and dealing directly with employees about any of their terms
and conditions of employment.

(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Upon request of the Union, rescind any of the unilateral changes found to be unlawful
herein.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

JD(NY)–36-03

5

10

15

20

25

30

35

40

45
12

(b) Make employees whole, with interest, to the extent that they suffered a loss by virtue
of the unilateral changes found to be unlawful herein.

(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay due under the terms of this
Order.

(d) Within 14 days after service by the Region, post at its facilities in Westchester, New
York, copies of the attached notice marked “Appendix.” 3 Copies of the notice, on forms
provided by the Regional Director for Region 2, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or
closed a 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 January 1, 2002.

(e) Notify the Regional Director in writing within 20 days from the date of this Order what
steps the Respondent has taken to comply.

Dated, Washington, D.C.

______________________
Raymond P. Green
Administrative Law Judge
3 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(NY)–36-03

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered
us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf.
Act together with other employees for your benefit and protection.
Choose not to engage in any of these protected activities.

WE WILL NOT make unilateral changes in the wages, terms and conditions of employment of union
represented employees without first giving notice to and offering to bargain with Union of Needletrades,
Industrial and Textile Workers, (UNITE), AFL-CIO, CLC.

WE WILL NOT bypass the Union and deal directly with employees about any of their terms and
conditions of employment.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the Act.

WE WILL, upon request of the Union, rescind the unilateral changes found to be unlawful in this case.

WE WILL notify the Union and offer to bargain in good faith with it before making any changes in the
wages and terms and conditions of employment for the employees in the bargaining unit represented by
the Union.

WE WILL make whole any employees for any losses suffered by reason of the unilateral changes as set
forth in the Remedy section of this decision.

Cerebral Palsy of Westchester County Inc.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, NY 10278–0104, Telephone 212–264–0346. Hours: 9 a.m. to 5:30 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, 860-240-3528.