American Red Cross

National Labor Relations Board - Administrative Judge Opinions

Nov 4, 2011

33-CA-015821 (N.L.R.B. Nov. 4, 2011)

JD–67–11
Peoria, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN NATIONAL RED CROSS,
HEART OF AMERICA
BLOOD SERVICES REGION
Case Nos. 33-CA-15821
and 33-CA-15896
33-CA-16144
33-CA-16204
33-CA-16207
33-CA-16229
33-CA-16246
33-CA-16247
33-CA-16248
AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES (AFSCME),
COUNCIL 31, AFL-CIO
Avavaha Pyrtel and Rotimi Solanke, Esqs.
for the General Counsel.
Michael J. Westcott and Leslie A. Sammon, Esqs., (Axley Brynelson, LLP)
Madison, Wisconsin for the Respondent.
Gail E. Mrozowski, Esq. (Cornfield and Feldman), Chicago, Illinois,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Peoria,
Illinois on 7 dates between August 8-16, 2011. AFSCME Council 31, the Charging Party, filed
the initial charge on May 29, 2009 and then filed 8 others. The General Counsel issued a
complaint on January 28, 2011 and amended it twice, the latest version being issued on July 20,
2011.
JD–67–11
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party
Union I make the following
FINDINGS OF FACT5
I. JURISDICTION
Respondent, the American Red Cross, Heart of America Region (HOA), is an
unincorporated operating unit of the American National Red Cross (ANRC). It is one of 36 10
blood services regions of the ANRC. The 650 local chapters of the ANRC, which are social
service organizations, are separate and distinct from the blood services regions.
Respondent is engaged in collecting blood products from donors and distributing blood to
health care institutions. Its headquarters are in Peoria, Illinois. Respondent annually derives 15
gross revenues in excess of $250,000 and sells and ships goods from Peoria valued in excess of
$50,000 to points outside the State of Illinois. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
20
Procedural Background
The Union filed a representation petition on March 21, 2007. After a hearing, the
Regional Director issued a Decision and Direction of Election scheduling a representation
election for June 1, 2007 and finding the following unit appropriate:25
All full-time, part-time, and per diem collections
specialists I, collections specialists II,
collections technicians I, collections technicians
II, mobile unit assistants I, mobile unit30
assistants I/collections specialists I, mobile unit
assistant I/collections technicians I, mobile unit
assistants I/CTI-HH, mobile unit assistants II,
mobile unit assistant II/collections specialists I,
mobile unit assistants II/CTI-HH, mobile unit35
supply clerks, collections assistant, and team
leaders employed by the Employer in its Donor
Services department, EXCLUDING office clerical and
professional employees, guards and supervisors as defined
in the Act, and all other employees.40
Respondent requested review of the Regional Director’s decision that team leaders were
not statutory supervisors. The Board granted this request. However, the Board denied
Respondent’s request that the election be postponed.
45
The representation election was conducted as scheduled on June 1, 2007. All the ballots
were impounded pending resolution of Respondent’s request for review. The Board issued a
JD–67–11
3
decision on September 1, 2010 affirming the decision of the Regional Director. Not until
September 16, 2010 were the ballots tallied. 112 were cast for the Union; 48 were cast against
the Union. Respondent filed objections to the conduct of the election which were overruled by
the Regional Director. On October 7, the Union was certified as the exclusive collective
bargaining representative of Respondent’s employees in the bargaining unit.5
Respondent filed a Request for Review of the Regional Director’s October 7, 2010
Decision. On October 12, the Union requested that Respondent bargain with it; Respondent
refused. The Union filed a charge, 33-CA-16139, on November 12, 2010, alleging that
Respondent’s refusal to bargain with it violated Section 8(a)(5). The Board denied Respondent’s 10
request for review of the Regional Director’s decision on December 15, 2010. On December 28,
the General Counsel issued a complaint in case 33-CA-16139.
On January 7, 2011, Respondent informed the Union that it was recognizing it as the
bargaining agent for the unit. The Union and Respondent settled case 33-CA-16139 on January 15
21, 2011. Under the terms of the agreement, Respondent and the Union agreed that the
certification year would be extended to January 7, 2012 and the first bargaining session would be
held no later than February 28, 2011. The Union then withdrew the charge in that matter.
This case involves a number of unilateral changes in the wages, hours and working 20
conditions of bargaining unit employees which are alleged to have been implemented in
violation of Section 8(a)(5) and (1) of the Act. Some of the alleged changes were implemented
between June 1, 2007 and October 7, 2010 and a few afterwards. This case also involves an
alleged failure by Respondent to timely furnish the Charging Party Union information which it
requested from the Employer. Finally, the General Counsel alleges that Respondent failed and 25
refused to bargain in good faith with the Union between October 7, 2010 and May 9, 2011.
The parties have had bargaining sessions on the following dates in 2011 during the time
period in which the General Counsel alleges an overall failure to bargain in good faith: February
27, March 14, April 10, April 25 and May 9. Since then the parties have also had bargaining 30
sessions on May 23, June 20, June 22, June 30, July 5, July 11 and August 3. At the time the
instant hearing closed on August 16, bargaining sessions were scheduled for August 17 and 24.
Alleged Violative Unilateral Changes
35
Complaint paragraph 6A
On about April 2, 2009, Respondent, pursuant to a national policy emanating from Red
Cross headquarters in Washington, suspended making matching contributions to employees’
401(k) accounts for its fiscal year 2010 (July 1, 2009-June 30, 2010). It also suspended giving 40
merit pay increases to employees, and closed its defined benefit pension plan to new employees.
In October 2010 (Fiscal Year 2011), unit employees received a lump sum payment of 3% of their
base salary in lieu of a merit pay increase. This differed from prior practice in that the lump sum
payment did not increase the base pay of the employees. Pursuant to the merit increases,
employees received an increase in their base pay predicated on their annual performance 45
reviews. For fiscal year 2010, Respondent’s employees received neither a merit increase nor a
lump sum payment.
JD–67–11
4
In August 2011, the American Red Cross reinstituted the matching contribution to the
401(k) plan and merit pay increases. However, with regard to unit members at HOA,
Respondent did not rescind the 2009 change and return to pre-2009 status quo with regard to
merit pay. Instead it offered to bargain with the Union over merit pay as part of reaching
agreement on a collective bargaining agreement, G.C. Exh. - 89.5
Respondent also announced changes to employee health benefits. On May 8, 2009, the
Union made a bargaining demand to Respondent regarding these changes. It received no
response. With regard to all these changes, Respondent did not notify the Union in advance nor
did it offer the Union an opportunity to bargain prior to implementation. 10
Prior to the changes in health insurance, employees could choose from a number of
different health insurance plans during an annual open enrollment period. One of these plans
was associated with the John Deere Company. Beginning in 2010 Employees’ choices were
limited to one of two plans offered by Blue Cross/ Blue Shield. One of these plans was a 15
preferred provider plan (PPO); the other was an Exclusive Provider Plan (EPO). The EPO had
lower premiums but provided for the payment of no benefits to providers which were not part of
the plan’s network.
Additionally, effective January 1, 2010, any employee whose spouse could be covered by 20
another employer’s medical insurance was required to pay an additional $100 per month to retain
coverage of the spouse under Respondent’s health care plan.
I find that Respondent violated Section 8(a)(5) with respect to all of these changes.
Respondent’s defense to most of them is that it was not obligated to bargain with the Union prior 25
to the tally of the ballots and was therefore privileged to make unilateral changes in the terms
and conditions of unit members’ employment. It also argues that many of these changes were
established past practices and thus reflected status quo. Finally, Respondent argues that it did
not have any discretion with regard to the implementation of changes initiated by the ANRC.
30
Employer’s obligations while objections to the conduct of an election or
ballot challenges are pending.
Board law regarding an employer’s unilateral changes during the period in which
objections to the conduct of the election or ballot challenges are pending was summarized as 35
follows in Palm Beach Metro Transportation, LLC, 357 NLRB No. 26 (July 26, 2011):
It is well settled that unilateral decisions made by an employer
during the course of a collective-bargaining relationship
concerning matters that are mandatory subjects of bargaining40
are generally regarded as a refusal to bargain. NLRB v. Katz,
369 U.S. 736 (1962). An employer’s duty to bargain only
arises, however, if the changes are material, substantial, and
significant ones affecting terms and conditions of employment
Millard Processing Services, 310 NLRB 421, 425 (1993). Absent45
“compelling economic considerations”, an employer “acts
at its peril” by unilaterally changing working conditions during
JD–67–11
5
the pendency of election issues and where the final determination
has not yet been made. And where the final determination
on the objections results in the certification of representative
the Board will find the employer to have violated Section
8(a)(5) and (1) of the Act for having made such unilateral5
changes Mike O’Connor Chevrolet, 209 NLRB 701 (1974), enfd.
denied on other grounds, NLRB v. Mike O’Connor, 512 F.2d
684 (8th Cir. 1975). The Board in Mike O’Conner Chevrolet,
supra at 703 explained, “Such changes have the effect of bypassing,
undercutting, and undermining the union’s status as10
the statutory representative of the employees in the event a
certification is issued. To hold otherwise would allow an employer
to box the union in on future bargaining positions by
implementing changes of policy and practice during the period
when objections or determinative challenges to the election are15
pending.”
Accord, Alta Vista Regional Hospital., 357 NLRB No. 56 (August 2, 2011).
Respondent argues that the Mike O’Conner line of cases is based on an assumption that 20
the Employer is aware of the election results or otherwise has evidence that the union has
majority support at the time it acts. This is simply incorrect. The Board has applied the Mike
O’Conner in cases in which an Employer is merely challenging the conduct of the election, e.g.,
Farina Corp., 310 NLRB 318 (1993) and in cases in which the final results of the election are in
doubt due to ballot challenges. The only thing that distinguishes the instant case from similar 25
cases that the Board has decided is the length of time between the election and the certification,
and the fact that no ballots were counted for over three years. However, I conclude that this is
immaterial.
In Mike O’Conner Chevrolet, the election was held on March 27, 1973. 8 votes were cast30
in favor of the Union, 6 against and 3 were challenged. Not until the Board issued its decision
almost a year later on March 14, 1974 was the Union certified. In Overnite Transportation Co.,
335 NLRB 372, 373 (2001), the election was held on September 16, 1996. 219 votes were cast
for the Union; 201 against, with determinative challenged ballots. The Union was not certified
until October 9, 1997, 13 months later. The Board found that a unilateral change in company 35
loading dock policy that occurred in April 1997 violated Section 8(a)(5) and (1).
In Mike O’Conner and Overnite it was possible that after the challenged ballots were
counted, the Union would have lost the election and thus Respondent would not have been
required or allowed to bargain with it. If that were not the case there would have been no need to 40
count the challenged ballots. Nevertheless, as the Board found, these employers ran the risk that
the Union would be ultimately certified when it implemented their unilateral changes. In this
case, the equities for such a result are even clearer since it was Respondent’s unsuccessful
challenge to the ballots of the team leaders that was responsible for the long delay in certification
in a unit in which the employees overwhelming favored union representation.45
JD–67–11
6
Alleged Unilateral Changes before and after the commencement of bargaining;
Respondent’s established past practices and lack of discretion defenses
with regard to these changes
General Principles5
When negotiating a collective bargaining agreement with the authorized representative of
its employees, an employer is obliged pursuant to Section 8(a)(5) of the Act to maintain the
status quo with regard to mandatory subjects of bargaining, NLRB v. Katz, 369 U.S. 736 (1962);
Our Lady of Lourdes Health Center, 306 NLRB 337 (1992). During negotiations, an employer’s 10
obligation to refrain from unilateral changes in the wages, hours and other terms and conditions
of employment of bargaining unit employees extends beyond the duty to provide notice to the
Union and an opportunity to bargain about a subject matter. It encompasses a duty to refrain
from implementing such changes at all, absent overall impasse on bargaining for the agreement
as a whole, Bottom Line Enterprises, 302 NLRB 373 (1991). 15
There are exceptions to this general rule. One is the “long-standing practice exception.”
This exception is based on the recognition that certain unilateral changes do not interfere with
collective bargaining because they represent the status quo, Queen Mary Restaurants Corp. v.
NLRB, 560 F.2d 403, 408 (9th Cir. 1977); The Courier Journal 342 NLRB 1093 (2004) n. 1. 20
Thus, an employer must make changes that constitute past practices which inure to the benefit of
employees, such as granting periodic wage increases, Jensen Enterprises, 339 NLRB 877 (2003).
However, an employer is also privileged to make changes that adversely effect employees, such
as increasing their contributions to their health insurance premiums, at least when such changes
occur a regular intervals and the change is consistent with past increases, Post-Tribune Co., 337 25
NLRB 1279 (2002).
Employers may also implement unilateral changes when a union engages in tactics
designed to delay bargaining. Additionally, when economic exigencies compel prompt action,
an employer may be entitled to implement such unilateral changes. However, even when 30
“economic exigencies compelling prompt action” justify unilateral changes, the employer must
provide the union adequate notice and an opportunity to bargain, RBE Electronics of S.D., 320
NLRB 80, 82 (1995).
Respondent herein argues that it was privileged to suspend the employer match to the 35
401(k) plan, terminate new employee participation in the Red Cross retirement system and make
changes in health insurance benefits because these were changes made by the Red Cross at the
national level. Further Respondent contends that it had an established past practice of instituting
whatever changes were made to these benefits by the national Red Cross. I reject this argument.
40
The American National Red Cross made unilateral changes to these benefits, which it is
privileged to make absent a collective bargaining obligation. However, it is not correct to say
that Respondent is entitled to make a unilateral change in terms and conditions of employment of
its employees simply because ANRC may make such a change with respect to unorganized
employees of other divisions or chapters. 45
JD–67–11
7
The status quo for employees at HOA was that they would receive a matching
contribution to their 401(k), etc. In light of Respondent’s HOA’s bargaining obligation, it was
obligated to bargain with the Union regarding any change to the status quo. The only exception
to such an obligation would be one in which HOA employees had reason to believe that there
would a regularly occurring change to the terms and conditions of their employment 5
implemented pursuant to objective criteria, Goya Foods of Florida, 347 NLRB 1118, 1120
(2006); Eugene Iovine, Inc., 328 NLRB 294 (1999).
Respondent has not established that it was required to implement these benefit changes.
Just as the ANRC job description standardization initiative did not apply to organized regions in 10
the middle of negotiations, Tr. 969, Respondent has not established that the benefits changes
could not have been negotiated.1 Moreover, these benefit changes were precisely the sort of
issues that lend themselves to collective bargaining. The Union could, for example, have traded
retention of the 401(k) match for concessions to Respondent on other issues.
15
Complaint paragraph 6B
Prior to April 2009, there were approximately 30-40 unit employees classified as team
leaders. During blood drives one of these employees monitored 4-5 other unit employees in the
performance of their duties. In April 2009, without prior notice to the Union, about 17 of these 20
employees became team supervisors. This removed them from the bargaining unit. The rest of
the team leaders were deprived of their monitoring function when working on blood drives in
which the goal was to obtain blood from 25 or more donors. The team supervisor position was
new in 2009. Although there were employees prior to that time with the title of team supervisor,
this was not the same position.25
After April 2009 the team leaders no longer filled out reports on the drives to which a
team supervisor was assigned. Prior to the April 2009, they had completed these reports. The
promotion of some team leaders to team supervisor and the change in the duties of the team
leaders was implemented by the American Red Cross throughout the country.30
The Union protested this change alleging that it was motivated by a desire to remove
team leaders from the bargaining unit. It demanded that Respondent cease and desist from
making these changes.
35

1 The instant case is distinguishable from American Red Cross, Blood Services, Connecticut Region,
JD(NY) 28-11 (2011) in that herein there is no contract acknowledging the right of the ANRC to
unilaterally make changes in the 401(K) and Retirement Systems that affects unit employees.
In American National Red Cross, Great Lakes Blood Services Region and Mid-Michigan Chapter, JD
27-11 (2011) Judge Wedekind distinguished various alleged unilateral changes to the employer’s 401(k)
and pension plans in accordance with the language of the parties’ expired contracts. In those situations in
which the language of the expired contract did not mandate adherence to the amended ANRC 401(k) and
retirement plans, Judge Wedekind found the employer to be in violation of Section 8(a)(5) in making
unilateral changes to these plans as they affected unit employees.
JD–67–11
8
Currently, the former team leaders have the title of Collections Specialist II. In
Respondent’s Whole Blood Department, they report to a Collections Team Supervisor. In the
Aspheresis (Platelet) Department they report to a Collections Manager or Operations Supervisor.
It is a violation of Section 8(a)(5) to unilaterally promote an unit employee to a 5
supervisory position if that employee continues to perform unit work. Such a personnel action in
effect changes the status quo by taking unit work away from the bargaining unit, Suzy Curtains,
Inc., 309 NLRB 1287, 1289 (1992). Thus, the issue with regard to this complaint allegation is
not so much whether the remaining team leaders were no longer doing unit work but rather
whether the newly promoted team supervisors were performing unit work. I find that this is so 10
and that Respondent violated the Act by promoting the team leaders to supervisory positions and
having them perform what had heretofore been bargaining unit work.2
Complaint paragraph 6C
15
In September 2010, Respondent unilaterally made changes in the job titles of certain unit
employees. For example, Mobile Unit Supply Clerks became Supply Assistants. There is no
evidence that there was a change in the pay or duties of any of the employees whose titles were
changed. The General Counsel has also failed to demonstrate that this change could have a
material impact on unit employees in the future.20
These changes are part of an ANRC job standardization plan, which was initiated after
the June 1, 2007 representation election in Peoria. At other unionized locations, this plan was
subject to bargaining with the employees’ collective bargaining representatives. It was not
implemented unilaterally as it was by HOA. Nevertheless, I find that it has not been established 25
that these changes were material alterations in the terms and conditions of unit members’
employment and dismiss this complaint allegation.
Complaint paragraphs 6D and E
30
In early February 2011, after recognizing the Union, Respondent unilaterally changed the
responsibilities of unit employees with regard to the loading and unloading of the Employer’s
vehicles. Prior to February 2011, this work was performed by Mobile Unit Assistants;

2 Respondent has not established that it was required to comply with the ANRC policy on assigning
supervisors to blood drives in which 25 or more donors were expected. Anna Shearer testified that all
regions were expected to comply and that they did not have a choice, Tr. 953. However, Respondent’s
Biomedical Services Compliance Plan, Exh. R-148, states at page 9 that, “Local operating procedures
(LOPs) are appropriate only in very limited circumstances, such as when dictated by state law.” This
leaves open the possibility that an LOP regarding the assignment of supervisors may also be appropriate
when dictated by the requirements of the NLRA.
The addendum to the Compliance Plan at page 19 states that “the desired state” is to implement a
standard structure for supervisors with adequate supervisory time to work with their assigned staff. One
of the ways in which this “desired state” is to be achieved is to “gradually increase full time supervision
to blood mobiles over the size of 25.” I conclude that this leaves open the possibility of negotiating with
the Union an alternative to removing employees from the bargaining unit.
JD–67–11
9
afterwards the work was performed by General Services Supply Clerks.3 The Mobile Unit
Assistants are the employees who drive Respondent’s vehicles to the site of blood drives and
then perform other duties at that location. The Supply Clerks’ duties are performed at
Respondent’s Peoria Headquarters.
5
This change required some adjustments in the working hours of unit employees. It was
apparently implemented by the Mid-America Division of the Red Cross’ Blood Services
Operation and not only at HOA.
One Supply Clerk, Jake Irions, has to report to work several hours earlier, sometimes as 10
early as 3 a.m., instead of 6 a.m., as he did prior to the change. He also works every weekend,
which he did not do prior to February 2011. Additionally, the change resulted in a reduction of as
much an hour in the daily working hours of the mobile unit assistants.
When the Union learned of these proposed changes in late January it demanded that 15
Respondent bargain over the proposed changes. Respondent implemented the change in truck
loading duties without bargaining and has refused to rescind the change.
Between approximately March 20 and April 18, 2011, some of this loading/unloading
was also performed by two warehouse employees who are not members of the bargaining unit. 20
These two employees ceased loading/unloading trucks about 10 days after the Union complained
about this practice, G.C. Exh. 28. A week before the hearing in this matter, on August 5, the task
of unloading the trucks was returned to the mobile unit assistants. However, loading of the
trucks at the Peoria headquarters is still the responsibility of the Supply Clerks.
25
Respondent argues that these changes are not material in part because only one employee,
Jake Irions, experienced any significant change in the terms and conditions of his employment.
However, the Board has held that a material unilateral change affecting one employee violates
Section 8(a)(5), Carpenters Local 1031, 321 NLRB 30, 321 (1996). This change affected both
MUAs and supply clerks in a significant way. Requiring Jake Irions to come to work at 0300 30
rather than 0600 and requiring him to work weekends is an obvious material change to the terms
and conditions of his employment. MUAs lost as much an hour of paid work time daily as a
result of the change. Thus, Respondent in making the changes to the hours and duties of the
MUAs and Supply Clerks clearly violated Section 8(a)(5).
35
Contrary to Respondent’s position, it is not sufficient for it to offer to bargain about its
unilateral changes in contract negotiations. An employer is required to rescind such changes and
bargain in good faith regarding a collective bargaining agreement.
Complaint paragraph 6F40
Effective January 1, 2011, the amount of unused hours of personal time off (PTO) which
employees in ARC’s Mid-America Division were allowed to carry over to the following calendar
year was reduced from 160 hours to 120 hours. Respondent’s PTO includes vacation time, sick

3 The official titles of these employees appear to change constantly. For example, the supply clerks
are now apparently called kitting specialists.
JD–67–11
10
leave and any other absence from work for personal reasons. This change was implemented
without prior notice to the Union and without providing the Union an opportunity to bargain.
At HOA some employees were apparently paid for PTO on days that they worked so that
the change has not, at least as of yet, affected them financially. However, 5 HOA employees 5
have been “affected” by the change, which I infer means they lost PTO hours for which they
were not compensated.
Upon learning of this change from unit members, the Union demanded that Respondent
rescind the change and bargain over it. Respondent has not rescinded the change. It argues that 10
the change is not material in part because so far only a few employees forfeited PTO hours.
However, I conclude that the forfeiture of leave hours is clearly material both with regard to the
handful of employees who have already forfeited such hours and with regard to those who may
do so in the future.
15
Respondent also contends that this allegation is time barred under the 6-month limitation
for the filing of charges in Section 10(b) of the Act. The Union filed a charge with regard to the
reduction in PTO carryover on February 25, 2010, less than two months after it was
implemented. Respondent had notified unit employees in September 2009 that the PTO policy
would change in 2010 and briefly mentioned it in an employee meeting in August 2010. 20
However, Respondent did not notify the Union of this change more than six months before the
filing of the charge, Tr. 418. Respondent has not met its burden of showing that the Union had
“clear and unequivocal notice of the violation outside the 10(b) period,” Broadway Volkswagen,
342 NLRB 1244, 1246 (2004). Notice to unit employees did not provide such notice to the
Union. Moreover, the 10(b) period begins to run only when the unfair labor practice occurs, in 25
this case on January 1, 2011, well within six months of the Union’s charge, Leach Corp., 312
NLRB 990 (1993). I find that this change violates Section 8(a)(5).
Complaint paragraph G
30
On several occasions since Respondent recognized the Union, non unit employees have
performed bargaining unit work. On March 11, 2011, Sara Schwarzlose, an instructor/trainer,
obtained double red cells from a donor. On March 16, Linda Walker, also an instructor/trainer,
performed the same task. On April 11, two supervisors, Kahla Crackel and Sophia Frederick
performed unit work during a blood drive. On March 11, and April 23, 2011, Rachel Jaskula, a 35
team supervisor, did the same thing. At an April 25, bargaining session, Respondent promised
that non-unit employees would not perform unit work. However, on June 30, Shelby Jackson, a
non-unit trainer, drew blood from a donor. Team Supervisors on occasion drew blood from
donors prior to March 11.
40
Respondent argues that this complaint allegation should be dismissed for several reasons.
First it argues that there is no evidence that these instances were a departure from past practice.
However, the burden is on Respondent to prove that the work of the supervisors was consistent
with past practice, Eugene Iovine, 328 NLRB 294 n. 2 (1999). It did not do so.
45
Respondent also argues that this allegation should be dismissed because there is no
evidence as to the reason the team supervisors were doing what normally would be considered
JD–67–11
11
unit work. However, the issue here is a subset of the past practice issue. If the team supervisors
were performing unit work for reasons that were consistent with Respondent’s past practice, i.e.,
to maintain clinical competencies, it was Respondent’s burden to establish this fact. It did not;
thus I find that Respondent violated Section 8(a)(5) as alleged.
5
Alleged failure to timely furnish information requested by the Union, Complaint paragraph 7(c)
Information regarding medical insurance benefits
On January 27, 2011, the Union requested that Respondent furnish it with a list of all 10
bargaining unit employees, their address, phone number, job classification or title, rate of pay,
date of last hire, dates of any previous employment with the Red Cross and work schedule. It
also requested a copy of any written policies and procedures as they relate to wages and other
compensation, hours and working conditions, including any personnel handbook or manual and
“any documents the purpose of which is to explain the benefits received by employees,” G.C. 15
Exh. 11. The complaint alleges in paragraph 7(c) that Respondent has failed to furnish the
documents explaining employee benefits in a timely fashion. This allegation is duplicative of
complaint paragraph 8(b)(8). Thus, my disposition of paragraph 7(c) also applies to 8(b)(8).
On February 16, 2011, Respondent provided the Union with a number of documents in 20
response to this request, Exh. R-3. Among those documents was its employee handbook which
very generally describes the benefits it provides. Two months later, the Union complained that
this response was inadequate with regard to health insurance benefits. On April 25, Respondent
provided the Union with a summary of health insurance benefits which set forth the premiums to
be paid, but did not provide documents which set forth the details of what the health insurance 25
plans covered, Exh. R-37. The Union representatives did not look at this document or indicate in
any way to Respondent that it was inadequate, Tr. 288-90, 308-10.
At the July 11, 2011 bargaining session, the Union specifically asked HR Director
Michelle Agnew for health plan summaries, information on deductibles and co-pays. Agnew 30
provided this information that evening, R. Exh. 170. I find that the Union did not inform
Respondent that the April 25 summary was inadequate prior to July 11.
As the General Counsel and Union point out, there are cases in which the Board has
found as little as a 2 ½ month delay in providing information to violate Section 8(a)(5). 35
However, there is no per se rule and I conclude one must examine the overall context of the
requests and the responses. The Union’s requests were broad and, with regard to benefits,
imprecise. However, one could argue that Agnew should have been able to infer that the Union
wanted more information than she provided in February and April.
40
Nevertheless, I find that the delay with regard to health insurance benefits does not rise to
the level of a statutory violation. The Union had ample opportunity to inform the Respondent
that it had not satisfied its request for information before July 11. The record indicates that if it
had told the Respondent that it wanted the health plan documents, they would have been
provided in a timely fashion.45
JD–67–11
12
Also, the parties had not started bargaining over economic issues during the delay and
there is nothing to indicate that the Union was hindered by the delay in preparing its economic
proposals. Therefore, I dismiss the complaint allegation that Respondent violated Act by
delaying its response to the Union’s request for information regarding employee medical
insurance benefits.5
Information requests regarding employee discipline
Additionally, the Union has requested on several occasions, starting with the February 27
bargaining session, that Respondent provide it with copies of any discipline received by unit 10
employees and documents supporting such discipline, since the Union was certified on October
7, 2010. The Union made a written request for this information on April 14. The Union on
several occasions has told Respondent that it would provide Respondent with the names of
employees that the Union knew of who had been discharged. Nevertheless, Respondent has not
provided to the Union any information it has regarding the discharge and discipline of any 15
employees.
With regard to this allegation, I find that Respondent violated the Act. The fact that the
Union indicated that it knew the names of some employees who had been disciplined and or
terminated does not excuse the Respondent’s failure to respond to the request, King Soopers, 20
Inc., 344 NLRB 842, 844 (2005); New York Presbyterian Hospital, 354 NLRB No. 5, slip
opinion at page 8 (2009). “The Board has held that the union may not be subjected to a
burdensome procedure of obtaining desired information where the employer has the information
in a more convenient form,” Chesapeake and Potomac Telephone Company, 259 NLRB 225,
230-32 (1981) enfd. 687 F.2d 633 (1982).25
Although Respondent contends, very generally, that it would have been burdensome for it
to comply with the request, there is no indication that it made any effort to do so. For example,
there is no indication that it checked personnel records or polled its supervisory staff.
Respondent is obligated to make reasonable efforts to comply with the Union’s request and, if 30
there is still a claim of undue burden, attempt to reach some accommodation with the Union so
that the information is supplied, Ibid. I conclude Respondent has violated the Act in failing to
provide the Union with the information it requested about unit employee discipline.
Alleged Violations during bargaining, Complaint paragraphs 8B & 8C35
The allegations contained in Complaint paragraph 8B & 8C emanate from an amendment
to charge 33-CA-16246, which was filed by the Union on May 25, 2011, two days after the
parties’ sixth bargaining session. Many of the specific allegations overlap and others are
duplicative of allegations contained in other paragraphs of the complaint. Those that are 40
duplicative are not discussed below. In paragraph 8C, the General Counsel alleges that by its
overall conduct set forth in paragraph 8B, Respondent has failed and refused to bargain in good
faith with the Union through May 9, 2011.
Thus, the General Counsel contends that when you consider all the specific allegations 45
together, they indicate that Respondent was determined not to reach agreement with the Union
and was engaging in surface bargaining. I conclude that the General Counsel has not established
JD–67–11
13
such an overall intent. Moreover, as discussed below, I dismiss several of the specific
allegations.
Limiting the dates available for bargaining sessions; limiting the frequency of bargaining
sessions; refusing to meet and confer at appropriate times; cancelling agreed upon bargaining 5
dates.
On January 24, 2011, three days after the Union and Respondent settled Case 33-CA-
16139, Attorney Charles Pautsch contacted the Union by telephone and informed the Union’s
Regional Director, Kent Beauchamp, that he would be Respondent’s lead negotiator. They 10
discussed scheduling bargaining sessions on February 23 and 24, 2011. Respondent would not
agree to allow employees to attend bargaining sessions when they were scheduled to work.
On January 30, Pautsch agreed to meet on February 23 at 2:00 p.m. However, on receipt
of a list of the members of the Union’s bargaining committee, Pautsch informed Beauchamp that 15
Respondent could not take that many people off the daytime work schedule. The committee
consisted of 10 employees, 5 of whom were team leaders and 2 who were mobile unit assistants.
Pautsch suggested that the Union either reduce the size of the bargaining committee or rotate its
attendees at the bargaining sessions.
20
Pautsch also suggested an evening bargaining session on February 23, 24 or 25 or
meeting on Saturday, February 26. One of the reasons that the parties did not meet on the
evening of February 23, was that Beauchamp had another collective bargaining commitment.
Pautsch offered to start a session on February 24 at 9:00 p.m.; Beauchamp rejected this.
25
After a further exchange of emails, Pautsch and Beauchamp agreed to meet on February
27, March 4, March 7, and March 14 at 6:00 p.m. Then on February 6 and 9, Pautsch informed
the Union that he had a conflict on March 4 and that his client had a conflict regarding March 7.
The parties agreed then to meet on February 27, March 14, and March 21.
30
The parties met on February 27 and March 14. At the March 14 meeting the parties
agreed to meet on April 10, April 25, May 9 and May 23, (Tr. 141-142). The March 21 date was
intended as a replacement for the March 4 date. Union negotiator Beauchamp cancelled the
March 21 session due to illness.
35
The parties met, as scheduled on April 10, April 25, May 9, and May 23, 2011. At the
end of the April 10 meeting Beauchamp handed Pautsch a letter that he had prepared in advance,
G.C. Exh. 31. It stated that the frequency and duration of bargaining sessions must increase if
the parties were to meet their respective duties to bargain. The Union indicated its availability
on 3 dates in April in addition to those previously scheduled and 12 additional dates in May.40
Beauchamp and Pautsch then traded accusations as to which was responsible for the slow
pace of negotiations. Pautsch offered to continue bargaining on April 10. Beauchamp replied
that the Union could not continue bargaining that night because several committee members had
to report to work early the next morning.45
JD–67–11
14
On April 25, the Union again requested bargaining sessions in May, in addition to those
already scheduled. Respondent said it was not available for additional meetings in May. As
stated before, the Union filed an amended charge two days after the May 23 meeting alleging,
among other things that Respondent had failed to bargain with it in good faith by limiting the
dates available for bargaining, G.C. Exh.-1 (pp).5
Since then the parties have also had bargaining sessions on June 20, June 22, June 30,
July 5, July 11 and August 3, 2011, and had scheduled additional sessions after the close of the
instant hearing on August 16, 2011. The complaint alleges a violation regarding the limiting of
bargaining sessions only through May 9.10
Limiting the length of bargaining sessions
The parties met on February 27, 2011 from about 6:00 p.m. to 8:30 p.m., and adjourned
by mutual agreement. The Union presented a few non-economic contract proposals; Respondent 15
presented none.
The parties met again on March 14, 2011 at which time they agreed to meet on April 10,
April 25, May 9 and May 23. Union negotiator Kent Beauchamp asked if bargaining sessions
could begin at 4:00 p.m. rather than 6:00. He told Respondent that the 6:00 p.m. start limited 20
bargaining because some of his committee members had to start work for Respondent very early
the next morning. Beauchamp suggested that if all the committee members were off work on the
day of the bargaining session, the parties could start earlier and bargain longer. Pautsch replied
that Respondent could not take all the members of the committee off its work schedule. The
March 14 session lasted about 3 hours.25
The parties’ third session occurred on April 10, and ran from 6:00 to 9:00 p.m. At this
session Beauchamp complained to Respondent that both the frequency of bargaining sessions
and their length were inadequate. After arguing about who was at fault, Pautsch offered to
continue the session past 9:00. Beauchamp declined because some of his committee members 30
had to be at work very early the next morning. Beauchamp asked that all committee members
be kept off Respondent’s work schedule for one day so that the parties could bargain longer;
Respondent refused.
The fourth bargaining session took place on April 25. At this session the parties 35
exchanged proposals. The session last 3 hours. During this session, Pautsch suggested a 4:30
p.m. start for sessions scheduled for June; he later suggested a 4:00 start.
The parties started their 5th session at 6:00 on May 9. Respondent submitted additional
proposals, including one which provided that it would discharge an employee only for just cause 40
and providing for a progressive discipline policy—with exceptions. The Union then posed
numerous questions to Respondent about its April 25 proposals. On one point, Pautsch told the
Union it would not provide it information regarding prior discipline, but would provide such
information prospectively. The May 9 session lasted 3 ½ hours.
45
JD–67–11
15
Analysis
One of the principal reasons that the parties met only five times between February 27 and
May 9, and met for only several hours at a time was the size of the employee component of the
Union’s bargaining committee. Respondent stated it could not leave all these employees off its 5
work schedule. The General Counsel and the Union have failed to demonstrate that this position
was unreasonable, see Whitesell Corp., 357 NLRB No. 97 (September 30, 3011) at slip opinion
page 27. Additionally, neither the General Counsel nor the Union has demonstrated why the
presence of 10 members was essential at every meeting. They have also not shown why
bargaining sessions could not have continued after those employees scheduled for work the next 10
day went home. On this basis, I find that Respondent did not violate the Act either in limiting
the number of bargaining sessions, etc., or in limiting the duration of these sessions.
Refusing to bargain over employee discipline
15
This allegation refers in part to requests by the Union to be present at meetings at which
employees Shonda Sledge and Cory Tatroe were terminated by Respondent in December 2010,
and to bargain over their terminations. Respondent refused these employees the right to union
representation on the grounds that the meetings in question were termination meetings, not
investigatory meetings. In addition to its general bargaining demand of October 2010, the Union 20
specifically demanded bargaining over employee discipline on December 16, 2010, Exhs. G.C. 6
& 7. Respondent violated the Act as alleged. I note, however, that neither the General Counsel
nor the Union has requested rescission of any disciplinary measures taken by Respondent.
Making unilateral changes in the terms and conditions of unit employees’ employment25
In addition to the unilateral changes already discussed and analyzed herein, some of the
unilateral changes in this record have been rescinded and are now moot. I do not see the need to
address therefore whether or not they violated the Act.
30
In addition to the changes previously mentioned, the Union demanded that changes in
Respondent’s meal break policies for supply clerks that had been implemented unilaterally be
rescinded and that Respondent bargain over such changes with it. On February 14, 2011,
management had informed the supply clerks that they could not take a meal break if any truck
was waiting to be loaded and threatened disciplinary action for noncompliance, G.C. Exh. 66. 35
Previously, the supply clerks had taken their meal break half way through their shift. The record
indicates that this problem has been resolved.
The Union also alleged that Respondent was not complying with an Illinois State Law
that required a 20 minute meal break for any employee who worked 7.5 hours continuously and 40
demanded compliance with the statute. This issue also appears to be moot.
Respondent’s alleged refusing to explain its bargaining proposals
I find there is no evidence to support this allegation.45
JD–67–11
16
Respondent’s alleged delay in providing the Union with bargaining proposals
On February 27, Respondent did not submit any contract proposals to the Union. The
Union presented a few non-economic proposals to the Respondent. On March 14, HOA
submitted only two counter proposals to those proposed by the Union: one of which shortened 5
the preamble to the collective bargaining agreement and the second defining a grievance as an
alleged violation of the express terms of the agreement. The parties also tentatively agreed on
ground rules proposed by Respondent for the negotiating sessions.
The April 10 session was scheduled for 6:00, but did not start until 6:30 after 10
Respondent’s negotiating team caucused. After another caucus by both parties which ended at
about 8:00 p.m., Respondent made additional contract proposals to the Union. These include a
proposed grievance procedure and savings clause for the contract.
On April 25, Respondent presented a number of proposals to the Union. These included 15
hours of work, management rights, seniority, a “zipper” clause, an “open shop” provision and a
no strike/no lockout article. HOA’s attorney Pautsch “walked through and explained”
Respondent’s proposals on seniority, hours of work and overtime.
Respondent submitted additional proposals at the May 9 bargaining session. These 20
included articles regarding the intent of the agreement, non discrimination, definitions of full
time, part time and temporary employees, job postings, lay-off and recall, discipline and
discharge and the term of the agreement. The Union did not submit any proposals at this session.
I conclude that the record does not establish that Respondent violated the Act as alleged in
paragraph 8(b)(10).25
Summary of Conclusions of Law
Respondent, the American Red Cross, Heart of America Region violated Section 8(a)(5)
and (1) of the Act by:30
(a) Unilaterally changing the terms and conditions of employment of bargaining unit
members by:
(1) Discontinuing its matching contribution to unit employees’ 401(k) plan 35
contributions;
(2) Suspending employees’ merit pay increases;
(3) Closing its defined pension plan to new employees; 40
(4) Announcing and making changes to its health insurance benefits;
(5) Promoting team leaders to team supervisor and having them continue to perform
bargaining unit work; 45
JD–67–11
17
(6) Reassigning truck loading and unloading assignments from the Mobile Unit
Assistants to the General Supply Clerks;
(7) Decreasing the number of personal time off (PTO) hours an employee can carry-over
from year to year from 160 hours to 120 hours;5
(8) Assigning or otherwise authorizing non-unit employees to perform bargaining unit
work, such as drawing blood from donors.
(9) Failing or refusing to bargain with the Union concerning the discipline of unit 10
employees.
(b) Failing to provide the Union with information it requested regarding unit employee
discipline and discharge.
15
Remedy
Having found the Respondent to have engaged in certain unfair labor practices, I shall
order it to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act.20
Specifically, I shall order the Respondent to rescind the unlawful unilateral changes made
to unit employees’ terms and conditions of employment, and to restore the status quo ante that
existed prior to the changes until such time as it bargains with the Union in good faith to a
collective bargaining agreement or bona fide impasse.25
` Respondent shall make whole any unit employees affected by the unilateral unlawful
changes. Such compensation shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed Kentucky River Medical Center, 356 30
NLRB No. 8 (2010). It shall also make any benefit contributions on behalf of eligible unit
employees that have not been made since the date of unlawful changes.
I shall also order Respondent to provide the Union with the information it requested
regarding the discipline and discharge of unit employees, and to post a notice to its employees 35
regarding the violations in accordance with J. Picini Flooring, 356 NLRB No. 9 (2010).
Finally, I recommend that pursuant to the Board’s decision in Mar-Jac Poultry, 136
NLRB 785 (1962) Respondent be required to honor the Union’s certification for a six-month
period commencing from the date upon which it rescinds all of its illegal unilateral changes. 40
These changes have undercut and undermined the Union’s status as the statutory representative
and Respondent should be required to bargain in good faith for a substantial period during which
the damage done to the Union’s status has been negated.
JD–67–11
18
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
5
The Respondent, American Red Cross, Heart of America Region, Peoria, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
10
(a) Unilaterally changing the terms and conditions of employment of bargaining unit
members by:
(1) Discontinuing its matching contribution to unit employees’ 401(k) plan
contributions; 15
(2) Suspending employees’ merit pay increases;
(3) Closing its defined pension plan to new employees;
20
(4) Announcing and making changes to its health insurance benefits;
(5) Promoting team leaders to team supervisor and having them continue to perform
bargaining unit work;
25
(6) Reassigning truck loading and unloading assignments from the Mobile Unit
Assistants to the General Supply Clerks;
(7) Decreasing the number of personal time off (PTO) hours an employee can carry-over
from year to year from 160 hours to 120 hours;30
(8) Assigning or otherwise authorizing non-unit employees to performing bargaining unit
work, such as drawing blood from donors;
(9) Failing and/or refusing to bargain with respect to the discipline of unit employees.35
(b) Failing to provide the Union with information it requested regarding unit employee
discipline and discharge.
2. Take the following affirmative action necessary to effectuate the policies of the Act:40

4 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–67–11
19
(a) On request, rescind the unlawful unilateral changes it made to the terms and
condition of unit employees’ employment and restore the status quo ante that existed prior to the
changes until such time as it has bargained with the Union to an agreement or impasse;
(b) Bargain in good faith with the Union as the certified bargaining representative of unit 5
employees for at least six months after it has rescinded its illegal unilateral changes;
(c) Provide the Union with the information it requested with regard to employee
discipline and discharge;
10
(d) Make whole, with interest unit employees for any loss of earnings and benefits they
may have incurred as a result of its unlawful unilateral changes, in the manner set forth in the
remedy section of this decision.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional 15
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 backpay or other compensation due under
the terms of this Order.20
(f) Within 14 days after service by the Region, post at its Peoria, Illinois facility copies
of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the
Regional Director for Sub Region 33, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in 25
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by 30
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 Respondent at any time since April 2, 2009.
35

5 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 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–67–11
20
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., November 4, 2011.5
____________________
Arthur J. Amchan
Administrative Law Judge10
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 fail to timely provide the Union with information it requested regarding unit
employee discipline and discharge.
WE WILL NOT make the following changes in the terms and conditions of your employment
without providing AFSCME District 31 an opportunity to bargain over the change. During
collective bargaining negotiations WE WILL NOT make such changes prior to negotiating a
collective bargaining agreement or negotiating to a valid impasse.
(1) Discontinuing matching contributions to unit employees’ 401(k) plan contributions;
(2) Suspending employees’ merit pay increases;
(3) Closing our defined pension plan to new employees;
(4) Announcing and making changes to our health insurance benefits;
(5) Promoting team leaders to team supervisor and having them continue to perform
bargaining unit work;
(6) Reassigning truck loading and unloading assignments from the Mobile Unit
Assistants to the General Supply Clerks;
(7) Decreasing the number of personal time off (PTO) hours an employee can carry-over
from year to year from 160 hours to 120 hours;
(8) Assigning or otherwise authorizing non-unit employees to performing bargaining unit
work, such as drawing blood from donors.
(9) Failing and/or refusing to bargain with the Union concerning employee discipline.
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 provide AFSCME Council 31 the information it requested concerning the discipline
and discharge of bargaining unit employees.
WE WILL, on request rescind the unlawful unilateral changes we have made in the terms and
conditions of your employment and will restore the conditions that existed prior to these changes
until such time as we have bargained with AFSCME Council 31 to a contractual agreement or to
a valid bargaining impasse.
WE WILL make unit employees whole for any loss of earnings and other benefits resulting from
our unlawful unilateral changes, less any net interim earnings, plus interest compounded daily.
WE WILL bargain with AFSCME Council 31 as the certified collective bargaining
representative of bargaining unit employees for at least six months after the date upon which we
have rescinded all of our illegal unilateral changes.
AMERICAN NATIONAL RED CROSS,
HEART OF AMERICA
BLOOD SERVICES REGION
(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.
300 Hamilton Boulevard, Suite 200, Peoria, IL 61602-1246
(309) 671-7080, Hours: 8:30 a.m. to 5 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, (309) 671-7085.