Woodland Clinic, A Medical Practice

National Labor Relations Board - Board Decisions

Jul 12, 2000

331 N.L.R.B. 735 (N.L.R.B. 2000)

WOODLAND CLINIC 735
Woodland Clinic, a Medical Practice Foundation and
Engineers and Scientists of California, MEBA,
AFL–CIO. Cases 20–CA–25680–3, 20–CA–26011,
20–CA–26987–1, and 20–CA–26987–2
July 12, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
Upon charges filed1 by Engineers and Scientists of Cali-
fornia, MEBA, AFL–CIO (the Union), the General Coun-
sel of the National Labor Relations Board issued an
amended consolidated complaint (complaint) on March
26, 1997, against Woodland Clinic, a Medical Practice
Foundation (the Respondent) alleging that it had engaged
in certain unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act. Copies of the
charges and complaint were served on the Respondent.
The Respondent filed a timely answer denying the com-
mission of any unfair labor practices.
On July 10, 1997, the Union, the Respondent, and the
General Counsel filed with the Board a Joint Motion to
Transfer Proceedings to the Board and Stipulation of
Facts. They agreed that the stipulation, with attached ex-
hibits, constitutes the entire record in this case, and that no
oral testimony is necessary or desired by any of the par-
ties. The parties waived a hearing, the making of findings
of fact and conclusions of law, and the issuance of a deci-
sion by an administrative law judge. On October 7, 1997,
the Executive Secretary, by direction of the Board, issued
an order approving the stipulation, and transferring the
proceeding to the Board. The Respondent and the General
Counsel thereafter filed briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record in the case, the Board makes the
following findings of fact and conclusions of law and is-
sues the following remedy and Order.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place
of business in Woodland, California is engaged in the op-
eration of a medical clinic providing outpatient medical
care. The Respondent, in the course and conduct of its
business operations during the calendar year 1995, derived
gross revenues in excess of $250,000, and purchased and
received at its Woodland, California facility products,
goods, and materials valued in excess of $5000, which
originated from points located outside the State of Califor-
nia. The parties have stipulated, and we find, that the Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and is a
health care institution within the meaning of Section 2(14)
of the Act. The parties have further stipulated, and we
find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

1 The charge and amended charge in Case 20–CA–25680–3 were
filed, respectively, on October 18, 1993, and January 11, 1994. The
charge and amended charge in Case 20–CA–26011 were filed, respec-
tively, on April 4 and May 27, 1994. The charges in Case 20–CA–
26987–1 and in Case 20–CA–26987–2 were filed on October 25, 1995.
II. ALLEGED UNFAIR LABOR PRACTICES
The issues presented are whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by: (1) failing to
timely comply with the Union’s request for the home tele-
phone numbers of unit employees; (2) failing to bargain
with the Union regarding the effects of the transfer of the
bargaining unit work performed by the materials manage-
ment department to a nonunion facility; (3) insisting to
impasse on a dues-checkoff proposal that allegedly dis-
criminated against bargaining unit members by charging a
4-percent service fee;2 (4) insisting to impasse on a pay-
for-performance wage system that allegedly provided for
direct dealing between the Respondent and unit employ-
ees;3 (5) in the absence of a lawful impasse, implementing
the pay-for-performance wage system and discontinuing
paying employees according to the wage step provisions
of the expired collective-bargaining agreements; and (6) in
the absence of a lawful impasse, discontinuing subsidies
for Jazzercise classes attended by unit employees, discon-
tinuing free coffee service for unit employees, reducing
the cafeteria discount available to unit employees, and
changing its health insurance carrier, thereby causing
changes in the health insurance benefits to unit employees.
For the reasons set forth below, we find that the Respon-
dent violated the Act as alleged in numbers (1) and (2)
listed above. We further find, as set forth below, that the
remaining allegations must be dismissed.
A. Factual Background
Since about 1980, the Union has been recognized by the
Respondent as the exclusive representative of the follow-
ing two appropriate bargaining units of the Respondent’s
employees:

All employees in the Respondent’s Laboratory and X-
Ray Departments in Woodland and Davis, California,
and the Laboratory and X-Ray Departments at Wood-
land Memorial Hospital, which are operated by the
Clinic; excluding Transcribers and the Receptionist in
the X-Ray Department, the Histotechnicians and Cy-
totechnologists in the Laboratory, confidential em-
ployees, guards and supervisors as defined in the Act.
[Unit I.]

2 The complaint alleges that this proposed contract clause is prohib-
ited by Sec. 8(a)(3) and (1) of the Act.
3 The complaint alleges that this is a permissive subject of bargain-
ing.
331 NLRB No. 91
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 736
All registered nurses, medical assistants, receptionists,
licensed vocational nurses, librarians and clerical em-
ployees in the Respondent’s Clinic in Woodland and
Davis, California, excluding X-Ray employees, op-
tometrists, physicians, audiologists, guards and super-
visors as defined in the Act [Unit II.]

This recognition has been embodied in successive col-
lective-bargaining agreements for each unit. The most
recent agreements for each unit were effective from Au-
gust 9, 1991, to August 8, 1993. At all times since at least
1980, the Union, by virtue of Section 9(a) of the Act, has
been the exclusive collective-bargaining representative of
the employees in each unit.
From about June 3 to October 18, 1993,4 the Respon-
dent and the Union engaged in negotiations for collective-
bargaining agreements to succeed the agreements for both
bargaining units set to expire on August 8. Between June
3 and October 18, the parties met and bargained on 14
dates, 9 of which occurred prior to the expiration of the
agreements, and exchanged numerous written proposals.
About October 8, the Respondent presented to the Union
its last, best, and final contract offer (final offer) for units I
and II, which included its proposals discussed, infra, re-
garding dues-checkoff and the pay-for-performance wage
system. At the close of the October 8 bargaining session,
the parties had in fact met and bargained concerning their
contract proposals, had not reached agreement on the
terms of successor collective-bargaining agreements for
units I and II, and had concluded the prospect of reaching
an agreement on that date. The Respondent, adhering to
its final offer for each unit, declared impasse at the close
of the October 8 bargaining session. By letter dated Octo-
ber 18, the Respondent’s counsel notified the Union of its
intent to implement, and in fact implemented, certain pro-
visions of its final offers, as further discussed below. The
General Counsel and the Union contend that the October 8
impasse was not a valid impasse, because it was tainted by
the Respondent’s allegedly unlawful bargaining conduct
concerning its dues-checkoff and pay-for-performance
proposals.
Subsequently, the parties engaged in additional bargain-
ing on the following topics more fully discussed below:
(1) discontinuation of subsidies for Jazzercise classes at-
tended by unit employees; (2) reduction in the cafeteria
discount available to unit employees; (3) discontinuation
of free coffee service for unit employees; and (4) change
of the Respondent’s health insurance carrier and resulting
modification of certain health benefits available to unit
employees. All the complaint allegations arise from the
course of the parties’ negotiations for successor collective-
bargaining agreements for units I and II, and the parties’
subsequent bargaining on the latter four topics. We shall
address each complaint allegation in turn.

4 All dates hereafter are in 1993 unless otherwise noted.
B. Discussion
1. The Union requests information
Approximately midway through the course of the par-
ties’ negotiations, the Union requested by letter dated Au-
gust 16 that the Respondent provide it with the home tele-
phone number of every employee in units I and II. The
Union explained in its letter that it desired this information
in order to “fulfill its obligation to communicate” with unit
employees. The Respondent did not respond to the Un-
ion’s August 16 letter until September 7. By letter of that
date, the Respondent informed the Union that “[w]e are
reviewing your request and will provide you with informa-
tion in the near future.” The Respondent on that same date
distributed a memorandum to all unit employees notifying
them of the Union’s information request, and stating in
part that “the law requires us to comply with the Union’s
request . . . . We will be sending this information to [the
Union] on September 24, 1993.”
The Respondent failed to do so, however. Rather, at the
parties’ bargaining session held on September 30, the par-
ties discussed the Union’s information request, including
the Respondent’s asserted concerns about matters raised
by several employees. The Union inquired as to the nature
of the concerns. The Respondent declined to specify these
concerns. The Respondent instead proposed that it would
distribute the Union’s literature directly to employees.
The Union rejected this proposal. The Respondent then
agreed to provide the Union with the requested informa-
tion. The Respondent did not, however, furnish the re-
quested information to the Union until about October 7.
At the parties’ bargaining session held the very next day,
October 8, the Respondent presented its final contract of-
fers for units I and II, and declared impasse.
The complaint alleges, and we find, that the Respondent
violated Section 8(a)(5) and (1) by failing to timely com-
ply with the Union’s information request. It is axiomatic
that an employer has an obligation to furnish to a union, on
request, information that is relevant and necessary to its
role as the exclusive bargaining representative of unit em-
ployees. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979); and NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967). An employer must respond to the infor-
mation request in a timely manner. Leland Stanford Jun-
ior University, 307 NLRB 75, 80 (1992). An unreason-
able delay in furnishing such information is as much of a
violation of Section 8(a)(5) of the Act as a refusal to fur-
nish the information at all. Valley Inventory Service, 295
NLRB 1163, 1166 (1989).
The parties in this proceeding have stipulated that the
information requested by the Union is necessary for, and
relevant to, the Union’s performance of its duties as the
exclusive collective-bargaining representative of units I
and II. An employer has a duty to timely furnish such
information absent presentation of a valid defense. See,
e.g., Mary Thompson Hospital, 296 NLRB 1245 fn. 1
WOODLAND CLINIC 737
(1989), enfd. 943 F.2d 741 (7th Cir. 1991); and NLRB v.
Illinois-American Water Co., 933 F.2d 1368, 1377–1378
(7th Cir. 1991), enfg. 296 NLRB 715 (1989). The Re-
spondent appears to argue that it delayed in providing the
information to protect the privacy interests of its employ-
ees. The burden is on the employer to demonstrate a “le-
gitimate and substantial” confidentiality interest. Pennsyl-
vania Power Co., 301 NLRB 1104, 1105 (1991). The
Respondent has failed to sustain that burden.
The Respondent declined to specify, when queried by
the Union, the nature of any concerns regarding the re-
quested information. Nor has the Respondent identified in
its brief any evidence in the record that supports its as-
serted claim of confidentiality. A claim of confidentiality
is an insufficient defense to a request for relevant informa-
tion where, as here, there was no evidence presented to
support such a claim. Engineers Local 12, 237 NLRB
1556, 1559 fn. 9 (1978); Illinois-American Water Co., 296
NLRB at 724.
We further find without merit the Respondent’s conten-
tion that its delay of approximately 7 weeks in providing
the requested information was minimal, and is thus insuf-
ficient to support an unfair labor practice finding. Absent
evidence justifying an employer’s delay in furnishing a
union with relevant information, such a delay will consti-
tute a violation of Section 8(a)(5) inasmuch “[a]s the Un-
ion was entitled to the information at the time it made its
initial request, [and] it was Respondent’s duty to furnish it
as promptly as possible.” Pennco, Inc., 212 NLRB 677,
678 (1974). The Respondent has presented no evidence
justifying its delay in furnishing the requested information.
The Respondent indeed acknowledged on September 7
that it was required by law to furnish the information. Yet
it failed to do so until one additional month had elapsed,
only 1 day before the Respondent declared impasse in
bargaining. This sequence of events severely diminished
the usefulness to the Union, at the time it was provided, of
the requested information. The duty to furnish informa-
tion requires a reasonable good-faith effort to respond to
the request as promptly as circumstances allow. Good Life
Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). The
Respondent’s failure to do so is violative of Section
8(a)(5) and (1) of the Act.5
2. The Respondent closes its materi-
als management department
Prior to about November 5, the Respondent maintained
a materials management department, which provided mi-

5 See, e.g., Bundy Corp., 292 NLRB 671 (1989) (2-1/2-month delay
unlawful); Engineers Local 12, supra, 237 NLRB at 1559 (6-week
delay unlawful).
The Respondent has filed a motion to strike portions of the brief by
the General Counsel concerning the purported effect on the parties’
contract negotiations of the Respondent’s failure to timely provide the
requested information. It is unnecessary to pass on the Respondent’s
motion to strike, because the General Counsel’s reply to the motion
withdraws the portions of his brief at issue.
nor maintenance and repairs to the Respondent’s physical
plant. Prior to October 18, two employees were working
in that department, Burnie Row and Clyde Cook. Em-
ployees Row and Cook were covered by the unit II collec-
tive-bargaining agreement. About November 5, the Re-
spondent closed the materials management department,
and transferred the bargaining unit work of that depart-
ment to the maintenance department at the adjacent hospi-
tal, which is a nonunion facility. The Respondent there-
upon laid off and/or terminated employee Row, and laid
off employee Cook. The Respondent caused Cook to be
transferred to the hospital, resulting in the reduction of his
pension benefits.
The complaint alleges that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing to afford the Union an op-
portunity to bargain with respect to the effects of the trans-
fer of unit II work outside the bargaining unit. We find,
for the reasons set forth below, that the Respondent vio-
lated the Act as alleged.6
The Respondent notified the Union by letter dated Oc-
tober 18 that it intended to lay off employees Row and
Cook as of November 5. By letter dated October 21, the
Union asked the Respondent to bargain regarding the im-
pact of the proposed layoffs. The Union further requested
that the Respondent provide it with certain information
concerning the proposed layoffs. The Respondent, by let-
ter dated October 27, provided the Union with the re-
quested information. The Respondent did not, however,
make any response to the Union’s request to bargain re-
garding the impact of the proposed layoffs. The Respon-
dent indeed provided no response to the Union’s request
for effects bargaining, until a letter to the Union dated No-
vember 2, merely 3 days before the Respondent’s stated
November 5 deadline for the layoff of employees Row and
Cook. The Respondent’s November 2 letter inquired of
the Union whether it desired to conduct the effects bar-
gaining separately or as part of the parties’ overall negotia-
tions. The Respondent on November 5 closed the materi-
als management department, laid off employee Cook, and
laid off and/or terminated employee Row.
It is well established that an employer is obligated under
Section 8(a)(5) to bargain in a meaningful manner and at a
meaningful time over the effects on employees of a deci-
sion to close part of its operations. First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 681–682 (1981); and
Metropolitan Teletronics, 279 NLRB 957, 959 (1986),
enfd. mem. 819 F.2d 1130 (2d Cir. 1987). The Respon-
dent’s dilatory response to the Union’s request for effects
bargaining precluded such bargaining from occurring at a
meaningful time: before the closure was implemented.
The Respondent failed to respond to the Union’s October
21 request to bargain until its letter dated November 2,
6 The General Counsel does not contend that the Respondent had an
obligation to bargain about the decision to close the materials manage-
ment department and transfer the unit work of that department to a
nonunion facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 738
even though the Respondent had notified the Union that it
would implement the decision on November 5. The Un-
ion’s right to discuss with the Respondent how the closure
of the department impacts unit employees requires that
bargaining occur sufficiently before actual implementation
so that the Union is not confronted at the bargaining table
with a fait accompli. Willamette Tug & Barge Co., 300
NLRB 282, 283 (1990). The Respondent’s belated No-
vember 2 offer to bargain was no substitute for a timely
response to the Union’s effects bargaining request, which
would have permitted good-faith bargaining to occur be-
fore the actual closure of the department on November 5.
Metropolitan Teletronics, supra, 279 NLRB at 959. The
parties have indeed stipulated that the Respondent trans-
ferred the materials management department unit work
“without affording the Union an opportunity to bargain
with Respondent over such conduct, and/or the effects
thereof, in advance of such actions.” (Emphasis added.)
We accordingly find that the Respondent violated Section
8(a)(5) and (1) by failing to bargain with the Union regard-
ing the effects of the transfer of the bargaining unit work
performed by the materials management department to a
nonunion facility.7
3. The Respondent’s dues-checkoff proposal
The parties’ previous collective-bargaining agreements
for units I and II contained provisions for dues checkoff.
The parties during their negotiations exchanged various
proposals to replace the expired provisions. The Union
proposed, inter alia, maintaining the existing dues-
checkoff system. The Respondent on October 6 proposed
a new dues-checkoff system under which the Respondent

7 We find meritless the Respondent’s assertion that substantial ef-
fects bargaining took place via correspondence between the parties.
Much of that correspondence occurred after the closure of the depart-
ment on November 5, which confirms our finding that the Respondent
unlawfully failed to bargain at a meaningful time. We also reject the
Respondent’s contention that it was permitted to layoff or terminate
Row and Cook by the terms of the management functions clause, and
assignment of work clause, that it implemented on October 18. We
have reviewed the terms of each of the clauses, and neither clause
waives the Union’s right to effects bargaining. Challenge-Cook Bros.,
282 NLRB 21, 27 (1986), enfd. 843 F.2d 230 (6th Cir. 1988); and Borg
Warner Corp., 245 NLRB 513, 518–519 (1979), enfd. 663 F.2d 666
(6th Cir. 1981), cert. denied 457 U.S. 1105 (1982).
Member Hurtgen notes that the contract expired on August 3. Thus,
although he disagrees that a “waiver” analysis is appropriate, he con-
curs in the result.
Member Brame notes that the management-rights and assignment-
of-work clauses on which the Respondent relies were not contained in
the expired agreement but instead were unilaterally implemented by the
Respondent on October 18. The Respondent does not contend that its
failure to engage in effects bargaining was authorized by any provision
of the expired agreement. In these circumstances, Member Brame
agrees with his colleagues that the unilaterally implemented manage-
ment-rights and assignment-of-work clauses do not justify the Respon-
dent’s failure to engage in effects bargaining. He finds it unnecessary
to pass on whether the language in the disputed clauses could, under
other circumstances, be read to “waive” the Union’s right to effects
bargaining, or on whether such clauses, if included in the expired
agreement, could be found to survive that agreement’s expiration.
would check off union dues and remit the dues to the Un-
ion, but would charge the Union a service fee of “8% of
such monies collected in consideration of service ren-
dered.” The Respondent subsequently reduced its pro-
posed service fee to 4 percent.
The parties have stipulated that they discussed their
various proposals on dues checkoff at their bargaining
sessions. No agreement was reached, however, and the 4-
percent service fee proposal was included in the Respon-
dent’s final offers for units I and II, presented at the Octo-
ber 8 bargaining session. The Respondent, adhering to its
final offers, declared impasse at the close of that session.
By letter dated October 18, the Respondent notified the
Union of its intent to implement, and in fact implemented,
certain provisions of its final offer. The service fee pro-
posals were not implemented by the Respondent, however,
because it had ceased checking off union dues on expira-
tion of the prior collective-bargaining agreements. On
January 10, 1994, the service fee proposal for both units
was withdrawn by the Respondent entirely.
The parties have stipulated that the Respondent has not
charged any type of service fee for the payroll deductions
it makes for employee contributions to the United Way
charitable organization, health and pension trust funds,
401(k) plans, credit union, or wage garnishment. The
General Counsel contends that the Respondent has vio-
lated the Act by insisting to impasse on a payroll deduc-
tion proposal that discriminates between union dues de-
ductions and deductions for these other entities, by charg-
ing a service fee for the former but not the latter.
The complaint thus alleges that the Respondent’s dues-
checkoff proposal would have discriminated against unit
employees because they were represented by the Union,
which is prohibited by Section 8(a)(3) and (1) of the Act,
and thus the Respondent violated Section 8(a)(5) and (1)
by bargaining to impasse over the proposal.
We find that the General Counsel has not proven that
Respondent insisted to impasse on a payroll deduction
proposal which discriminated against union dues deduc-
tions. In order to prove discrimination it must be shown
that the Respondent charges a service fee for union dues
checkoff, while allowing payroll deductions without a
service fee for similar, nonemployee entities, other than
the Union. See Lucile Salter Packard Children’s Hospital
v. NLRB, 97 F.3d 583, 587 (D.C. Cir. 1996), enfg. 318
NLRB 433 (1995). In contrast, an employer does not dis-
criminate against union activity by charging a service fee
for union dues checkoff while making without charge pay-
roll deductions that are related to an employer’s fringe
benefits package offered to its employees, such as health
care insurance plans or tax sheltered annuity plans. Pay-
roll deductions for such employee fringe benefits are inte-
grally related to an employer’s necessary business func-
tions and are not deemed evidence of discrimination. See
Lucile Salter Packard Children’s Hospital v. NLRB, supra,
97 F.3d at 588–589; Price Chopper v. NLRB, 163 F.3d
WOODLAND CLINIC 739
1177, 1183 (10th Cir. 1998), enfg. 325 NLRB 186 (1997).
The parties’ stipulation shows that the payroll deductions
for employee health and pension trust funds, and employee
401(k) plans are without dispute intimately related to the
fringe benefits that the Respondent offers its employees,
and thus do not constitute evidence of discrimination.
With respect to the credit union, the Respondent argues
that it is also an employee fringe benefit, not an “outside
business.” The General Counsel, who has the burden of
proving discrimination, has failed to adduce any evidence
to the contrary. Therefore, we find that the payroll deduc-
tions for the credit union similarly do not constitute evi-
dence of discrimination.
The Respondent’s payroll deduction for the United Way
charitable organization also does not establish discrimina-
tion. The Board has long recognized that an employer
does not discriminate against union-related solicitation by
permitting a small number of isolated charitable or “be-
neficent” acts as a narrow exception to an absolute no-
solicitation rule. See, e.g., Hammary Mfg. Corp., 265
NLRB 57 fn. 4 (1982); Emerson Electric Co., 187 NLRB
294 fn. 2 (1970). The Respondent by proposing a dues-
checkoff service fee likewise has not discriminated against
deductions for union dues, merely because it permits one
single instance of charitable payroll deduction without a
service fee. We further observe that the Respondent is
required by law to carry out court-ordered wage garnish-
ment, and the Respondent’s fulfillment of that obligation
does not constitute discrimination. In sum, the General
Counsel has not shown that the Respondent has sought to
charge a service fee for union dues checkoff, while at the
same time permitting deductions without a service fee for
similar entities. We accordingly find without merit the
complaint allegation that the Respondent’s dues-checkoff
proposal is unlawfully discriminatory. The Respondent
was thus privileged to bargain to impasse over its dues-
checkoff proposal, a mandatory subject of bargaining,8 and
we shall dismiss the complaint allegation that it violated
Section 8(a)(5) and (1) by doing so.9
4. The Respondent’s pay-for-performance wage proposal
The complaint further alleges that the Respondent vio-
lated Section 8(a)(5) and (1) by insisting to impasse on a
pay-for-performance wage system which provided for
direct dealing between the Respondent and the unit em-
ployees and, in the absence of a lawful impasse, imple-
menting the pay-for-performance wage system, including

8 See, e.g., CJC Holdings, 320 NLRB 1041, 1046 (1996), affd. mem.
110 F.3d 794 (5th Cir. 1997).
9 The General Counsel additionally argues in his brief that the Re-
spondent’s allegedly discriminatory dues-checkoff proposal is evidence
of bad-faith bargaining. See Alba-Waldensian, Inc., 167 NLRB 695,
716–717 (1967), enfd. 404 F.2d 1370 (4th Cir. 1968); and Atlas Metal
Parts Co., 252 NLRB 205, 220 (1980), enf. denied in pertinent part 660
F.2d 304 (7th Cir. 1981). In light of our finding that the General Coun-
sel has not shown discrimination, however, we find no merit in the
General Counsel’s contention.
the discontinuation of paying employees according to the
wage step increase provisions of the expired collective-
bargaining agreements. For the reasons set forth below,
we shall dismiss these complaint allegations.
The parties’ expired collective-bargaining agreements
for units I and II provided employees, by job classifica-
tion, with annual wage step increases during each of the
first 4 years of their employment. The expired agreements
did not provide for any pay-for-performance or merit pay
increases. During the parties’ negotiations for successor
contracts, the Respondent advanced several different ver-
sions of a pay-for-performance wage proposal.
The Union was adamant in its objection to the Respon-
dent having the freedom to implement any pay-for-
performance wage system that did not provide the Union
an opportunity to engage in collective bargaining concern-
ing the criteria, procedures, timing, and amounts of wage
increases under such system. In response, the Respondent
proposed to set parameters which addressed the Union’s
concerns, and modified its proposal to state that any pay-
for-performance system shall meet certain minimum con-
ditions concerning the appeal and evaluation process.
The Union also complained during negotiations that the
Respondent’s proposed pay-for-performance plan was
“undefined,” because the Respondent did not have a final,
detailed proposal to present. In response, the Respondent
modified its pay-for-performance proposal to require that
the Respondent bargain with the Union prior to implemen-
tation of any pay-for-performance system.
About October 8, the Respondent presented to the Un-
ion its final offer for units I and II, which included the
following pay-for-performance wage proposal:

(A) The wage rates set forth in Appendix A are
minimums. The [Respondent] may pay any amount
in excess of those minimums in its sole discretion.
The [Respondent] shall have the right to develop and
implement a pay-for-performance system of its own
choosing . . . . Prior to implementing such pay-for-
performance system the [Respondent] shall notify the
Union of the proposed system and, upon request, meet
and confer with the Union prior to implementation no
later than three (3) weeks prior to the proposed im-
plementation date.
(B) Any pay-for-performance system implemented
shall meet the following minimum conditions:
. . . .
4. Any employee who disagrees with his perform-
ance evaluation may file an appeal in writing within
10 days of notification of the results of the evaluation.
While the appeal process shall be determined by the
[Respondent], it will provide for the right to be heard
and the employee may be accompanied by an em-
ployee of his/her own choosing. The final decision
regarding the performance review and the pay rate
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740
shall be with the [Respondent], and shall not be sub-
ject to the grievance and arbitration procedures herein.
(C) Scale—see attached minimum scales.
During the term of this Agreement, no employee on
the payroll as of October 8, 1993 shall have his/her
rate of pay reduced below his/her October 8, 1993
level, so long as the employee remains in their [sic]
same classification.

The Respondent insisted as a condition of reaching col-
lective-bargaining agreements for units I and II, that the
Union agree to the Respondent’s final contract offer,
which included the pay-for-performance proposal.
As set forth above, the Respondent declared impasse at
the close of the October 8 bargaining session. The Re-
spondent thereafter implemented those portions of its final
offers for units I and II that do not depend on the existence
of a collective-bargaining agreement to be enforceable,
including the wage provisions set forth in the pay-for-
performance proposal. The Respondent upon implementa-
tion thus abandoned the step increase system of the prior
contracts, resulting in what the parties have termed a wage
freeze. Employees hired after October 18 were compen-
sated under the terms of the Respondent’s proposal ac-
cording to the wage schedule attached to the final offers as
Appendix A. The General Counsel acknowledges that at
no time did the Respondent ever grant merit pay increases
pursuant to its pay-for-performance proposal.
The Board holds that a merit wage increase proposal
that confers on an employer broad discretionary powers is
a mandatory subject of bargaining on which parties may
lawfully bargain to impasse. McClatchy Newspapers, 321
NLRB 1386, 1388 (1996), enfd. 131 F.3d 1026 (D.C. Cir.
1997), cert. denied 524 U.S. 937 (1998).10 The pay-for-
performance proposal here, which reserves substantial
discretionary power to the Respondent, is similar to the
merit pay increase proposal at issue in McClatchy News-
papers.
The General Counsel, however, contends that the Re-
spondent’s pay-for-performance proposal differs from that
at issue in McClatchy, and constitutes a permissive subject
of bargaining which the Respondent could not lawfully
have pressed to impasse, because it permits the Respon-
dent to deal directly with employees to the exclusion of the
Union. The General Counsel argues that under the condi-
tions set forth in the proposal, no role is provided for the
Union with regard to the procedures for determining em-
ployee performance evaluations, or the merit pay consulta-
tion and appeal process. The General Counsel thus asserts
that the Respondent’s decision on merit pay increases
would be based on direct consultation with employees,
rather than with the Union as the employees’ exclusive
collective-bargaining representative.

10 Member Brame finds it unnecessary to pass on whether
McClatchy Newspapers was correctly decided on its facts, as he agrees
that it is distinguishable from the facts presented in this case.
Contrary to the General Counsel’s contention, we find
that the Respondent’s proposal does not mandate direct
dealing. Rather, it mandates that bargaining with the Un-
ion take place prior to implementation of any pay-for-
performance system and prior to any employee being
given a wage increase pursuant to such a plan. The Union
at such negotiations would be free to propose that it be
more directly involved with wage determinations than set
forth in the Respondent’s proposed minimum conditions,
and to bargain for and achieve a more extensive role in
merit pay determinations. The Union may indeed at nego-
tiations veto the proposed minimum conditions, including
the provision that the Respondent meet directly with em-
ployees concerning merit pay determinations. We thus
find meritless the General Counsel’s contention that the
Respondent’s proposal constitutes a permissive subject of
bargaining because it excludes the Union from any role in
the determination of merit wage increases.
Accordingly, for these reasons, we find that the Re-
spondent’s pay-for-performance proposal is a mandatory
subject of bargaining, and we shall dismiss the complaint
allegation that the Respondent unlawfully bargained to
impasse over it.
We shall also dismiss the complaint allegation that the
Respondent unlawfully implemented merit wage increases
under its pay-for-performance system. The well-settled
general rule is that an employer may, on bargaining to a
valid impasse, unilaterally implement changes in manda-
tory subjects that are reasonably comprehended within its
preimpasse proposals.11 There are certain limited excep-
tions to the implementation-after-impasse doctrine, how-
ever, including a merit pay proposal which confers on an
employer broad discretionary powers that necessarily en-
tail recurring unilateral decisions regarding changes in
employees’ rates of pay. The Board has explained that
such unlimited managerial discretion over future pay in-
creases, without explicit standards or criteria, would leave
the union unable to bargain knowledgeably on the deter-
mination of employee wage rates and unable to explain to
unit employees how such rates were formulated. Because
such a circumstance would serve to destroy rather than
further the bargaining process, an employer is obligated,
prior to the actual implementation of such merit wage in-
creases, to negotiate to agreement or to impasse “definable
objective procedures and criteria” governing raises under a
merit pay proposal.12 Here, the General Counsel concedes
that the Respondent never actually implemented or granted
11 See, e.g., Television & Radio Artists v. NLRB, 395 F.2d 622, 624
(D.C. Cir. 1968), affg. Taft Broadcasting Co., 163 NLRB 475, 478
(1967); Atlas Tack Corp., 226 NLRB 222, 227 (1976), enfd. mem. 559
F.2d 1201 (1st Cir. 1977).
12 See McClatchy Newspapers, supra, 321 NLRB 1391 (“[I]t is not
the Respondent’s [merit pay] bargaining proposal that [is] inimical to
the policies of the Act, but its exclusion of the [union] at the point of its
implementation of the merit pay plan from any meaningful bargaining
as to the procedures and criteria governing the merit pay plan[.]”) (Em-
phasis added.)
WOODLAND CLINIC 741
any merit pay increases pursuant to its proposal. Absent
evidence that the Respondent actually granted merit wage
increases to unit employees, there is no basis for finding a
violation of the Act under McClatchy.13
We further find without merit the General Counsel’s
additional contention that the Respondent was not privi-
leged upon impasse to implement the wage freeze pro-
posal because it was “inextricably related” to the pay-for-
performance proposal. We have explained above that an
employer may not, even upon valid impasse, implement a
merit pay proposal without definable objective procedures
and criteria, because to do so would leave the employer
with unlimited managerial discretion in the formulation of
future pay increase about which the union would be unable
to bargain knowledgeably in future negotiations. These
vices are not implicated by the implementation of the
wage freeze provision by the Respondent, however. There
are no discretionary elements to the wage freeze provi-
sions. Rather, the stipulated record shows that the
amounts of the Respondent’s implemented wage schedule
under Appendix A are fixed for each job classification,
and explicitly set forth in the Respondent’s pre-impasse
proposal. We shall accordingly dismiss the complaint
allegation that the Respondent unlawfully implemented its
wage freeze proposal.
5. The bargaining over health insurance benefits,
subsidies for Jazzercize classes, free coffee service,
and cafeteria discount
Subsequent to the parties having reached valid impasse
as to collective-bargaining agreements as a whole for units
I and II on October 18, 1993, the Union and the Respon-
dent engaged in bargaining on certain additional topics.
This bargaining included the following four proposals by
the Respondent to: (1) change its health insurance carrier
thereby causing changes in health insurance benefits for
unit employees;14 (2) discontinue subsidies for Jazzercise
classes attended by unit employees; (3) discontinue free
coffee service for unit employees; and (4) reduce the cafe-
teria discount for unit employees. The parties have stipu-
lated that the Respondent provided the Union with ad-
vance notice of each of these proposals, that they met and
bargained concerning each of the proposed changes as
well as the effects of the changes, and that the parties had
not reached agreement on these topics. The parties have
further stipulated that they had exhausted the prospect of
reaching an agreement concerning each of these subjects,
and the Respondent declared that the parties were at im-
passe. The Respondent thereafter implemented its propos-
als on these four topics.

13 Id.
14 This proposal was prompted by notification from the Respon-
dent’s health insurance carrier of an increase in premium rates, which
the parties have stipulated would have increased costs to both employ-
ees and the Respondent.
The parties have expressly stipulated that “the General
Counsel and the Charging Party contend that the impasse
on the [four topics] was not a valid impasse because it was
tainted by Respondent’s conduct” vis-a-vis dues-checkoff
and pay-for performance. We have found above, however,
that the Respondent’s bargaining conduct with respect to
these two topics was not unlawful. We accordingly must
find that that conduct did not taint the parties’ subsequent
bargaining on the additional four topics. We further find
that the General Counsel, by the plain meaning of the par-
ties’ stipulation, has asserted no other basis for finding the
Respondent’s conduct concerning the four topics to be
unlawful. The Board has long held that a stipulation is
conclusive on the party making it, and prohibits any fur-
ther dispute as to the stipulated matters. See, e.g., Kroger
Co., 211 NLRB 363, 364 (1974). We shall accordingly
dismiss the complaint allegations that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by: (1) changing its
health insurance carrier; (2) discontinuing subsidies for
Jazzercise classes; (3) discontinuing free coffee service;
and (4) reducing the cafeteria discount.
CONCLUSIONS OF LAW
1. The Respondent, Woodland Clinic, a Medical Prac-
tice Foundation, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and a health care institution within the meaning of Section
2(14) of the Act.
2. Engineers and Scientists of California, MEBA,
AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, the Respondent has en-
gaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act: (1) failing to timely comply with the
Union’s request for the home telephone numbers of unit
employees; and (2) failing to bargain with the Union re-
garding the effects of the transfer of the bargaining unit
work performed by the materials management department
to a nonunion facility.
4. The Respondent has not otherwise violated the Act
as alleged in the amended consolidated complaint.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
As a result of the Respondent’s unlawful failure to bar-
gain in good faith with the Union about the effects of its
decision to close its materials management department and
to transfer its work, the affected employees have been de-
nied an opportunity to bargain through their collective-
bargaining representative. Meaningful bargaining cannot
be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, therefore,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742
cannot serve as an adequate remedy for the unfair labor
practice committed.
Accordingly, we deem it necessary, in order to effectu-
ate the purposes of the Act, to require the Respondent to
bargain with the Union concerning the effects on unit em-
ployees of closing the materials management department
and the transferring of its work, and shall accompany our
order with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable man-
ner a situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the Re-
spondent. We shall do so by ordering the Respondent to
pay backpay to the affected employees in a manner similar
to that required in Transmarine Navigation Corp., 170
NLRB 389 (1968).
Thus, the Respondent shall pay its employees employed
in the materials management department at the time of its
closure, backpay at the rate of their normal wages when
last in the Respondent’s employ from 5 days after the date
of this Decision and Order until occurrence of the earliest
of the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects on unit employees of the closing
of its materials management department and the transfer-
ring of its work; (2) a bona fide impasse in bargaining; (3)
the Union’s failure to request bargaining within 5 business
days after receipt of this Decision and Order, or to com-
mence negotiations within 5 business days after receipt of
the Respondent’s notice of its desire to bargain with the
Union;15 (4) the Union’s subsequent failure to bargain in
good faith, but in no event shall the sum paid to these em-
ployees exceed the amount they would have earned as
wages from the date on which the Respondent closed its
materials management department, to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner; provided, however,
that in no event shall this sum be less than the employees
would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.
Backpay shall be based on earnings which the affected
employees would normally have received during the ap-
plicable period, less any net interim earnings, and shall be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
In addition, in view of the fact that the Respondent has
closed its materials management department, we shall
order the Respondent to mail a copy of the attached notice
to the Union and to the last known addresses of its former
employees of the materials management department as of

15 Melody Toyota, 325 NLRB 846 (1998).
November 5, 1993, in order to inform them of the outcome
of this proceeding.16
ORDER
The National Labor Relations Board orders that the Re-
spondent, Woodland Clinic, a Medical Practice Founda-
tion, Woodland, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing to timely furnish the Union information that
is relevant and necessary to its role as the exclusive bar-
gaining representative of unit employees.
(b) Failing to bargain with the Union regarding the ef-
fects of the transfer of the bargaining unit work performed
by the materials management department to a nonunion
facility.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union concerning the
effects on unit employees of its decision to close its mate-
rials management department and, if an understanding is
reached, embody the understanding in a signed agreement.
(b) Pay its former employees employed in the materials
management department at the time of its closure their
normal wages when last in the Respondent’s employ from
5 days after the date of this Decision and Order until oc-
currence of the earliest of the following conditions: (1) the
date the Respondent bargains to agreement with the Union
on those subjects pertaining to the effects on unit employ-
ees of the closing of its materials management department
and the transferring of its work; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union; (4) the Union’s subsequent
failure to bargain in good faith, but in no event shall the
sum paid to these employees exceed the amount they
would have earned as wages from November 5, 1993, the
date on which the Respondent closed its materials man-
agement department, to the time they secured equivalent
employment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, whichever
occurs sooner; provided, however, that in no event shall
this sum be less than the employees would have earned for
a 2-week period at the rate of their normal wages when
last in the Respondent’s employ, with interest, as set forth
in the remedy portion of this decision.
16 No affirmative remedy is necessary for the Respondent’s unlawful
failure to timely provide the Union with the requested information,
because the stipulated record establishes that the Respondent ultimately
supplied the information.
WOODLAND CLINIC 743
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its place of business in Woodland, California, copies of the
attached notice marked “Appendix.”17 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since August 16, 1993.
(e) Within 14 days after service by the Region, duplicate
and mail, at its own expense and after being signed by the
Respondent’s authorized representative, signed and dated
copies of the attached notice marked “Appendix” to the
Union and to all former unit employees of the materials
management department as of November 5, 1993.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-

17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

WE WILL NOT fail to timely furnish the Union infor-
mation that is relevant and necessary to its role as the ex-
clusive bargaining representative of unit employees.
WE WILL NOT fail to bargain with the Union regard-
ing the effects of our transfer of the bargaining unit work
performed by the materials management department to a
nonunion facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL bargain, on request, with the Union concern-
ing the effects on unit employees of our decision to close
our materials management department and to transfer its
work, and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL pay our former employees in the materials
management department who were employed at the time
we closed the department their normal wages for the pe-
riod of time set forth in the decision underlying this notice
to employees, with interest.

WOODLAND CLINIC, A MEDICAL PRACTICE
FOUNDATION