Blue Cross Of Western New York, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1990

298 N.L.R.B. 301 (N.L.R.B. 1990)

BLUE CROSS OF WESTERN NEW YORK 301
Blue Cross of Western New York, Inc. and Office
and Professional Employees International
Union, Local 212 . Case 3-CA-14455
April 27, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 28, 1989, Administrative Law
Judge Robert T. Snyder issued the attached deci-
sion. The Respondent filed exceptions. The Gener-
al Counsel and the Union filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, to modify the remedy,2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Blue Cross
of Western New York, Inc., Buffalo, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
to the Union and without having afforded the Union an
opportunity to negotiate and bargain over its terms as ex-
clusive representative of Respondent's employees in an
appropriate unit. Respondent filed an answer denying the
conclusionary allegations of the complaint. Following
close of hearing, briefs were filed on behalf of the Gen-
eral Counsel, Respondent, and the Charging Party.
On the entire record in this proceeding, including con-
sideration of the briefs filed on behalf of the parties, and
after close observation of the witnesses and their de-
meanor while testifying, I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent is a domestic corporation engaged in the
business of providing insurance for medical claims and
related services with its principal office and place of
business located at 1901 Main Street in the city of Buffa-
lo and State of New York. Annually, in the course and
conduct of its retail business operations, Respondent re-
ceives gross revenues in excess of $50,000 and purchases
and receives goods and supplies valued in excess of
$50,000 directly from points outside the State of New
York. Based on the foregoing, I find, and Respondent
admits, that it is now, and has been at all times material,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The complaint also alleges , the answer admits, and I
find that the Charging Party, Office and Professional
Employees International Union, Local 212 is, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
' We note that in sec. II,B,par . 26 of the judge's decision , the fifth sen-
tence should refer to "employees" not "employers."
We further note that in sec II,B,pars. 36 and 39 of the judge's decision,
the January 2, 1988 date referred to by the judge should be July 2, 1987.
a Backpay will be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950).
Mark G. Pearce, Esq., for the General Counsel.
Charles D. Tuppen Jr., Esq. and Carol D. Collard, Esq.
(Falk & Siemer, Esgs.), of Buffalo, New York, for the
Respondent.
E. Joseph Giroux Jr., Esq., of Buffalo, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER , Administrative Law Judge. This
case ' was heard by me in Buffalo, New York , on Octo-
ber 31 and November 1, 1988. The complaint alleges that
Blue Cross of Western New York, Inc. (Blue Cross, the
Company, or Respondent), violated Section 8(a)(1) and
(5) of the Act by unilaterally establishing and implement-
ing a new attendance control policy without prior notice
' At the opening of the hearing, I granted the General Counsel's
motion to sever Cases 3-CA-14212 and 3-CA-14444 from the consolidat-
ed complaint based upon those matters having been adjusted non-Board
of the Regional Director for Region 3 of the Board having approved
withdrawal of the underlying charges in those cases.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Collective-Bargaining Relationship Between
Respondent and the Union
Since about 1951, and to date, the Union has been the
designated exclusive collective-bargaining representative
of Respondent's employees in the following unit:
All full-time office and clerical employees employed
by the Respondent in the counties of Allegheny,
Cattaraugus, Chautauqua, Erie, Genesee, Niagara,
Orleans and Wyoming in the State of New York;
excluding those in the office of vice president, fi-
nance and accounts payable department, salesmen,
confidential secretaries, secretary to vice president,
marketing, building service employees, pressmen,
executives, statisticians, junior statisticians, methods
analysts, individuals jointly employed by Respond-
ent and its member hospitals of Western New York
Hospital Association, and all professional employ-
ees, guards and supervisors as defined in the Act.
Respondent admits, and I find, this' unit to be a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
Over the years since 1951, the Respondent has recog-
nized the Union as exclusive representative in this unit
and has embodied that recognition in successive collec-
298 NLRB No. 43
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive-bargaining agreements, the most recent of which is
effective by its terms for the period from July 7, 1987,
through April 25, 1990. This last agreement was jointly
negotiated by the Union with a companion employer,
Blue Shield of Western New York, Inc. The Union's
agreement with Blue Shield covering the same period
differs only by covering certain additional classifications
of employees.
The previous agreement between Blue Cross and the
Union expired on or about April 26, 1987. Article XI ab-
sences and leaves contained the following provisions:
11.2.6 . . . . The legitimate use of sick leave as
provided herein shall not result in any disciplinary
action being taken against an employee for such use.
However, if the Corporation can establish that an
employee has been guilty of using sick leave for
purposes other than illness, the Corporation shall
have the right to immediately discharge such em-
ployee.
11.2.6.1 . . . In cases of a Medical Leave for seri-
ous illness as provided in paragraph 11.5.2.1 of Arti-
cle XI or illnesses during which statutory New
York State Disability Benefits or Workmen's Com-
pensation Benefits are being paid to an employee no
disciplinary action will be taken by the Corporation.
Since 1977 or 1978, the Respondent and Union have
also adopted and maintained a separate memorandum of
understanding providing for a jointly administered ab-
sence control program. The most recent such memoran-
dum is dated April 25, 1984, and signed by Gerald
Skrzeczkowski, business representative for the Union,
and Richard M. Reid, vice president of administrative
services for Respondent. It provided for a joint
management/union committee to perform a review of
hourly employee attendance records at 3-month inter-
vals. The program incorporated a system of progress dis-
cipline for employees commencing with counseling and
ending with termination. The program also contained
provision for taking into account extenuating circum-
stances for employees with a continuing medical problem
and a special review where an employee's record indi-
cates such a need. Employees who receive no action
under the program for 1 year shall revert to a clean
record. Although not required by the written terms of
the program, in practice, all decisions made with respect
to employees had been made by unanimous decision of
the joint reviewing committee.
B. The Negotiations for a Successor Collective-
Bargaining Agreement
Negotiations for a successor to the agreement which
expired on April 27, 1987, commenced late in March or
early April 1987. At the first meeting, Respondent pre-
sented a set of contract proposals to the Union which in-
cluded the elimination of article XI, provisions 11.2.6 and
11.2.6.1, previously described, and changing the absence
control program to be more effective in reducing ab-
sence. As related by Skrzeczkowski, the Union's chief
spokesman at all of the sessions, these three proposals
were basically tied together. In seeking elimination of
provisions 11.2.6, and 11.2.6.1 the Respondent represent-
atives referred to certain employees as being abusers [of
sick leave] and in seeking to strengthen the absence con-
trol program, they commented that the review commit-
tee had more authority than they were using and they
should exercise such authority in disciplining employees.
At this time the Union resisted any change in the pro-
gram or elimination of the two provisions.
At a negotiation meeting held on April 25, Reid, on
behalf of Respondent, and Skrzeczkowski, on behalf of
the Union, initialed their agreement to update all memo-
randa of understanding, and crossed out a phrase limiting
the update to those memoranda "contained in the current
agreement." It was Skrzeczkowski's understanding that
this agreement thereby included memoranda separate
from the agreement such as the memorandum relating to
the absence control program. Updating referred to re-
newing without change the parties' agreements for the
term of the successor contract. At this meeting the Re-
spondent also proposed that the union could either agree
to accept the deletion of provisions 11.2.6 and 11.2.6.1 or
the absence control program-they could have one or
the other. The Union responded that it granted those
two provisions to remain intact in the agreement and the
absence control program left as it was. The Company
then proposed the elimination of 11.2.6 and 11.2.6.1, but
without any reference to the absence control program as
part of a total package which the Union presented to the
membership for a vote. The membership rejected the
Company's total offer and the unit employees then went
out on strike from April 26 to July 5, 1987.
During the strike, it was Skrzeczkowski's understand-
ing that all items on which agreement had been reached,
even those included in the package which the union
membership rejected, including the updating of all
memoranda of understanding which he and Reid had ini-
tialed on April 25, continued as agreements, or closed
items. They were never brought up again during contin-
ued bargaining and were to be incorporated in any final
agreement when one was reached. On May 20, 1987, the
Company submitted another offer in writing on the re-
maining open items. This time, inter alia, Respondent
proposed eliminating the first sentence of provision
11.2.6 and the word "However" in the second sentence
as well as all of provision 11.2.6.1.
At a negotiation meeting held on June 11, 1987, the
Union submitted a written counterproposal which includ-
ed an offer to maintain the current language in provi-
sions 11.2.6 and 11.2.6.1 and a revised memorandum of
understanding for the absence control program, modified
to provide for a binding submission to a mutually agreed-
upon third party where the review committee is unable
to agree on the type of action to be taken. According to
Skrzeczkowski, either at this meeting or a subsequent
one held on June 17, discussions between the parties got
rather heated and management representatives at one
point stated that the absence control program was off the
table; it would be eliminated. The Union responded that
such a position was unacceptable.
At the meeting held on June 17, the Union made a
counteroffer to withdraw continuation of the jointly ad-
BLUE CROSS OF WESTERN NEW YORK 303
ministered absence control program, remove it from the
bargaining, if the Company would agree to leave provi-
sions 11.2.6 and 11.2.6.1 in the contract and to expedite
arbitrations on any actions taken by it for tardiness or ab-
sences by employees. Skrzeczkowski did not recall any
company response to this offer.
On June 23, 1987, the first of two off-the-record meet-
ings were held between the parties. Present were Reid
for Blue Cross, Pat Peri for Blue Shield, Joseph Bania
and Kevin Powers, Federal mediators, Mark Reider, di-
rector of organization for the International Union, and
Skrzeczkowski. The parties were probing areas of agree-
ment to end the strike, settle the contract, and get the
employees back to work. The rank-and-file employee
members of the Union's negotiating committee, who had
attended prior negotiating sessions, had not been invited
to attend and were not informed of these two meetings
or their results. In preparation for the session, Skrzecz-
kowski had prepared a revised union offer in handwrit-
ing which, he proceeded to read and show to the Re-
spondent representatives at the June 23 session. Among
other open items, Skrzeczkowski read a proposal relating
to sick leave. He offered to delete provision 11.2.6 from
the contract, retain provision 11.2.6.1 and add a new pro-
vision 11.2.6.2 to read: "Notwithstanding the provisions
above, excessive use of sick leave may subject the em-
ployee to disciplinary action."
At the next off-the-record meeting held on June 30,
1987, among the same participants Skrzecskowski recalls
seeing a company document which included proposed
language for inclusion in a new agreement very much
like the new provision 11.2.6.2 which he had proposed at
the session held the prior week. There was much discus-
sion on this issue but the Union continued to maintain
that the Respondent could not have both changes in lan-
guage governing use of sick leave as proposed as well as
changes in or elimination of the absence control program
covered by the separate memorandum. After a lunch
break, both Reid and Pen agreed that the absence con-
trol program would remain intact as it appeared in the
1984 memorandum.
As no overall agreement had been reached, another
meeting, this time including the employee negotiating
committee, was held on July 2. During a 15-minute face-
to-face session held in the morning, Reid read a typed
package of proposals which he had prepared, stating that
the Company's position was contained in its offer of May
20 except as modified 15 by its present proposal. Among
other items contained in the'present proposal, one related
to sick leave. It included a modification of provision
11.2.6 (by elimination of the first sentence and the word
"However" from the second), retention of present provi-
sion 11.2.6.1, and a new provision 11.2.6.2 identical to
the one previously proposed at the private session on
June 30. The new provision 11.2.6.2 provided that: "Not-
withstanding the provisions of 11.2.6.1 excessive absence
on a continuing basis may result in disqualification from
employment." A significant change was also proposed
with respect to wages. Previously, the parties had been
significantly apart on this issue, with the Company pro-
posing a two-tier wage system with new employees hired
at a rate 20 percent less than the existing rate and with
no provision for eventual parity and the Union by June
23 agreeing to a two-tier system but demanding that
newly hired employees achieve parity with the rates paid
existing employees by the end of 4 years. Respondent
now proposed that new employees would be hired on
the same schedule as existing employees and, further, in
agreement with the Union's position, parity would be
achieved at the end of 4 years.
On strike-related issues, Respondent proposed a lump-
sum payment of 3-1/2 percent of each employee's annual
straight time rate on his return to employment and an-
other 3-1/2 percent on the first and second anniversary
of the new agreement. However, the Company ultimate-
ly refused to pay the premiums of those striking employ-
ees who had opted to continue their medical coverage
during the strike on an individual basis as demanded by
the Union.
The Company's package of proposals had no language
relating to the absence control program.
Following the 15-minute joint session , the parties
broke up into separate caucuses and remained apart
thereafter, with the Federal mediators acting as interme-
diaries between them. While remaining apart, the union
committee requested clarification on several points
through the mediators. Among them were questions con-
cerning the absence control program, the progress on the
salary schedule of part-time employees, payment for the
Fourth of July holiday, payment for medical premiums,
out-of-pocket medical expenses during the strike, and
whether the bonus wage proposal could be changed..
When the employee committee members asked about
continuation of the absence control program, Skrzecz-
kowski was satisfied that the program was going to con-
tinue without change because of the agreement reached
on April 25 to update all memoranda of agreement as
well as the commitments he had received from Reid and
Peri at the, off-the-record discussions on June 30. Since
the employee committee members had not participated in
those discussions, Skrzeczkowski refrained from inform-
ing them of the basis of his understanding that this issue
was no longer a subject of dispute between the parties.
,During the caucuses the parties agreed to increase the
initial lump-sum payment to returning employees from 3-
1/2 to 4 percent and to decrease a lump-sum payment
which the Respondent had offered to new employees
hired during the year following April 25, 1988, from 3-
1/2 to 3 percent. With 'these modest changes the negoti-
ating parties signed off on a successor, agreement, with-
out having met face to face following their earlier 15-
minute joint session, the union membership ratified its
terms on July 5, 1987, terminated their strike, and re-
turned to work on July 6, 1987.
Thereafter, sometime in September or October 1987,
Skrzeczkovski received a copy of the absence control
program memorandum of understandin' for him to sign,
renewing the parties' understanding for the term of the
new agreement . In reviewing it, Skrzeczkowski discov-
ered that Respondent had added a new paragraph read-
ing as follows:
It is understood that in the joint administration of
the Absence Control Program, unanimous agree-
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment to take an action is not required if the parties
cannot agree.
Any unilateral action is subject to the grievance
and arbitration procedure.
Skrzeczkowski crossed out the change, initialed it,
signed at the foot of the memorandum above his typed
name, and called Marilyn Rofe, administrative assistant
to the vice president of administrative services and a
stipulated supervisor under Section 2(11) of the Act. He
asked her why the Company had made the unilateral
change and she said the Union had agreed to it . Skrzecz-
kowski had never seen the language he crossed out at
any time during the course of the negotiations for the
1987 agreement . Neither had that language ever been
discussed with management nor presented to the Union
for its consideration at the last negotiation session of July
2.
By letter dated October 23 , 1987, Paul F . Marohn,
Blue Cross personnel director , informed Skrzeczkowski
that with respect to his objections voiced to certain lan-
guage in the memorandum of understanding regarding
the absence control program , the Federal mediators re-
called its inclusion as part of the Company 's offer to
renew the program . Marohn invited the union committee
to participate in the review of absence records which
would be meeting soon . By letter dated October 28, ad-
dressed to Reid , Skrzeczkowski referred to his enclosure
of an executed copy of the memorandum as his and the
negotiating committee 's notes reflect the agreement and
described the change crossed out as a postnegotiation
unilateral inclusion by the Company never agreed to by
the Union . He noted he was instructing the grievance
committees to continue their joint administration of the
program as they had in the past and asked the Company
to cease these activities that are impeding good
labor/management relations.
Following contact made by Charles Tuppen Jr., Re-
spondent's attorney with E . Joseph Giroux Jr., the
Union's attorney , a meeting was arranged for the latter
part of November 1987 to discuss the parties ' outstanding
differences as to the absence control program. Attending
were Reid, Peri, and Tuppen not the Companies,
Skrzeczkowski and Giroux for the Union, and the two
Federal mediators . The mediators no longer had their
notes of the July 2 bargaining session . A discussion about
the matter ensued but no understanding was reached. At
the conclusion, it was agreed that Giroux and Skrzecz-
kowski would look into possible ways of resolving the
dispute and get back to the Company.
Thereafter, a number of telephone conversations were
held between Tuppen and Giroux, initiated by Tuppen,
but no further meetings were arranged or progress made
on resolving the dispute . According to Skrzeczkowski,
the matter in dispute had been placed on the back
burner.
Then, by letter dated April 12, 1988, Reid informed
Skrzeczkowski that "Due to the Union 's refusal to sign
language setting forth the absence Control Program
agreed to by the parties during the negotiating session
held July 2, 1987, the Corporation 's position is that there
no longer is a joint program in effect, the previous pro-
gram having expired with the previous contract."
This letter was prepared and mailed within a few days
of the issuance to the parties of an award by Arbitrator
Douglas J. Bantle dated April 4, 1988 , and involving the
issue as to whether the Company had violated the collec-
tive-bargaining agreement and 1984 memorandum of
agreement concerning the absence control program
when it discharged the grievant , employee Sandra
Thompson.
The award disclosed that the grievant had been given
a 3-day suspension in December 1986 , following a joint
review under the absence control program for the 3-
month period of July, August, and September 1986
during which she had been absent from work 7 full days
and part of another due to illness . Prior to the suspen-
sion, but not reviewed by the joint committee, was an
absence of 5 consecutive days in October 1986 . Subse-
quently, following a review of the grievant 's record con-
ducted on February 1, 1987 , including the 5 days' ab-
sence in October 1986 , during which the Company's rep-
resentative , Marilyn Rofe, assistant to Reid , rejected a
doctor's note submitted on the grievant 's behalf on her
return to work in October , the committee agreed to rec-
ommend her discharge and she was discharged by the
Company the next day , February 12.
The Arbitrator made a number of rulings which im-
pacted on the absence control program . He rejected a
company contention that the memorandum of agreement
stood alone and was not controlled by the provisions of
the collective-bargaining agreement . The committee was
a reviewing group which recommend to management
whether, and if so, the degree , to which disciplinary
action is to be taken . He concluded that the doctor's
note, contrary to Rofe 's interpretation announced at the
February 11 meeting of the joint committee , fully met
the requirements of provision 11.2.5 .2 of, the contract
that the employee may be required to bring in a `certifi-
cate from the attending physician stating that the em-
ployee is fully recovered and physically able to return to
work. He noted that no proof had been presented that
the grievant was not ill during the October period. Ac-
cordingly, he also concluded that the union representa-
tives ' decision on February 11 to go along with the dis-
charge was flawed and tainted by the' misinformation
provided by Rofe who had asserted that the doctor's
note did not cover the days out sick but was merely a
return-to-work note . Finally , the Arbitrator concluded
that it was improper under the purposes served by the
progressive discipline system incorporated i'n the absence
control program of providing notice of flaws and an op-
portunity to the employee to correct her behavior, to
terminate an employee for conduct which occurred prior
to her receipt of a suspension under the system. In the
case of the grievant, her suspension had resulted in a
drastic improvement in her attendance and it would be
unjust to permit reliance for her discharge on the 5-day
absence not earlier reviewed . Consequently, the Arbitra-
tor sustained the grievance, finding that the Company
had violated the contract and the memorandum of un-
BLUE CROSS OF WESTERN NEW YORK 305
derstanding, and ordered the grievant reinstated with
backpay.
Skrzeczkowsi responded to Reid's April 12, 1988 ter-
mination of the program with a letter dated April 22,
1988, in which he stated that the Union did not concur
with the Company's position, was very desirous of con-
tinuing the program that was signed and returned to
Reid for his signature, and requested a meeting to reach
a mutually acceptable understanding. Reid replied by
letter dated May 18, 1988, in which he recounted the
events of the earlier meeting held in November 1987 (but
without mentioning the date) and noted that although
that meeting ended with an understanding that Giroux
would contact Tuppen to suggest a resolution that had
not been done. Reid went on, "Consequently, I conclud-
ed that you had no further interest in resolving the issue
and notified you in my letter of April 12, 1988 that the
joint program is no longer in effect." Reid concluded
that any future meeting should be with the understanding
of resolving the issue in accordance with the settlement
reached on July 2, 1987.
On June 17, 1988, Skrzeczkowski responded by stating
his belief that further dialogue was necessary and sug-
gesting that Reid contact him when Tuppen is available
so that a meeting of representatives at a mutually agree-
able time and place could be arranged. Respondent did
not reply to this letter and in July 1988 commenced to
operate a unilateral absence control program without
union representation or' participation.
By memorandum dated the same date, June 17, 1988,
from Paul Marohn, personnel director to Valerie Done,
chairperson of the, Blue Cross grievance committee and
bearing as its subject, "change in office rules," Marohn
advised that commencing in July, for the third quarter
absence review period, the Company will make a change
in "administration of the Attendance and punctuality sec-
tion of the Office Rules." Marohn then provided official
notification under section XXI, paragraph 21.4 of the
1987-1989 agreement by citing that provision„ as follows:
"In the event the Corporation wishes to change the
Office Rules, it will notify the Union at least ten (10)
days prior to making such change effective and will dis-
cuss the change with the Union on request ..."2
Marohn also attached a copy of the new program to
be distributed to all employees. The major changes it
made in the existing absence control program were to
make the program solely a management-run program and
to eliminate the counseling step as the first step in the
process of progressive discipline. The reviewing commit-
tee was to be composed of the administrative assistant to
the vice president, administrative services, and the man-
ager, benefits administration whereas, the preexisting
committee also included the chairperson of the grievance
committee and/or a member of that committee or a
union representative designated by the union business
agent. In removing the counseling step, the actions taken
would start with a' verbal warning and move to termina-
tion in ' four steps. The new, unilateral program also
eliminated the provision providing for special consider-
ations for employers whose records indicate a continuing
medical problem, or for an employee whose record indi-
cates a need therefor, or to permit the prior, joint re-
viewing committee to discuss any extenuating circum-
stances with an employer prior to suspension or termina-
tion action taken under the program.
The new program also made provision for the pres-
ence of a union steward during any disciplinary action
and for a meeting with the management committee prior
to suspension or termination of an employee.
In response to Marohn's memorandum, Skrzeczkowski
sent him a letter dated June 21 protesting the Company's
action. Skrzeczkowski noted that the attendance control
program is jointly administered and that Reid had not
acceded to his request for a meeting on the subject, there
being a difference of opinion as to paragraph 73 of the
memorandum of understanding. Skrzeczkowski ended by
stating that the Company did not have the right to uni-
laterally establish an absence control program that is in
conflict with the memorandum of understanding and
strongly urged Marohn to reconsider his position and ad-
dress the difference' within the normal parameters.
Skrzeczowski did not receive any response from the
Company.
During his cross-examination, Skrzeczkowski testified
that at the July 2 meeting, after the union committee had
raised the various questions for submission by the media-
tors to the company representatives gathered at a sepa-
rate caucus, they received back responses to all their in-
quiries, were satisfied with these responses, including
continuation, intact, of the existing absence control pro-
gram, and on this basis submitted the Company's July 2
package of proposals to the Union's membership for its
satisfaction.
Richard Reid was called and examined by the General
Counsel as a witness under Section 611(c) of the Federal
Rules of Evidence. Reid acknowledged that up to the
1987 negotiations, it was the Company's practice not to
implement discipline against employees under the ab-
sence control program without the unanimous decision
of the joint committee, even though unanimity, was not
required by the language of the memorandum. Reid fur-
ther acknowledged that at the November 198'7 meeting
held in an effort to resolve the continuing difference
over the absence control program, 'he could not recall
any statements made' by anyone for the Company that
the joint committee to review absences would be
scrapped. Reid later stated firmly that at this November
meeting, neither he nor anyone else from the Company's
side stated that if the dispute was not resolved by way of
these further discussions it would then abolish the joint
program. Furthermore, Reid testified that as of January
and February 1988, he did not consider the Company
and Union to be at impasse over the absence control
policy issue. At that time, there was an agreement in
effect between the parties to proceed with the joint
review committee on the basis of the old program, sub-
2 Sec 21.4 goes on to provide that "If any change is made and the ' That paragraph of the 1984 memorandum provides that "The parties
union maintains that such change is not reasonable, the Union shall have will meet as necessary to review progress of the program and discuss
the right to submit the question to grievance and arbitration." modifications that may be necessary."
306 DECISIONS OF THE NATIONAL, LABOR RELATIONS BOARD
ject to a resolution of the dispute. And, indeed, in this
period of time the joint review committee was function-
ing in its normal role as the reviewing and disciplinary
body under the preexisting absence control program, By
letter dated January 28, 1988, to an employee, Lori J.
Browne, from the chairperson of the grievance commit-
tee and the company ACP (absence control program)
committee, Browne was informed that the quarterly
review of her records showed she was excessively tardy
during the period of October through December 1987.
Browne was counseled that if the problem continued to
persist, progressive disciplinary action would be taken,
commencing with a verbal warning and after two further
steps, written warning and a suspension, culminating in
termination.
Reid testified that by April, after learning from the
Company Attorney Tuppen that Union Attorney Giroux
had not gotten back to Tuppen after arguing to do so,
he, in conjunction with Tuppen and Personnel Director
Marohn, decided to terminate the joint program because
sufficient time had passed for a resolution of the dispute
or for further discussion of it. Reid admitted that when
he abolished the program, he did not know the Union's
position, only that it objected to the inclusion of the
added language which Skrzeczkowski had crossed out
from the version of the absence control program the
Company had prepared after the union ratification of the
new contract. Reid also acknowledged not having noti-
fied the Union before acting to terminate the program,
the union having failed to provide its current position,
the Company was prepared to act independently.
Reid denied that in his letter of May 18, 1988, to
Skrzeczkowski the Company only intended to meet if
the Union was willing to sign off on the Company's ver-
sion of the memorandum of understanding. And from his
exchange of correspondence with Skrzeczkowski, Reid
agreed that the Union was desirous of meeting to discuss
its unilateral decision to terminate the program. Yet,
Reid never responded to Skrzeczkowski's June 17 letter
to him again requesting further dialogue as to the pro-
gram.
Reid further testified that he learned about the arbitra-
tion award involving Sandra Thompson shortly after
April 4 and before his April 12 letter to the Union abol-
ishing the absence control program, Reid's position was
that the award of reinstatement and a relatively large
amount of backpay based on the Company's breach of
the contract and ACP memorandum of understanding
did not influence the Company's decision but that the
timing of its abolition of the program within a week of
the award was mere coincidence. Yet, Reid, who had
testified at the arbitration hearing, characterized the
award as terrible, and the remedy of reinstatement of the
grievant as unjustified and discussed his feelings with
other company officials. At the time of the issuance of
the award on April 4, Reid had no real problem with the
operation of the program, but only with respect to the
existing dispute about the inclusion of the language
Skrzeczkowski had crossed out, permitting other than
unanimous agreement between the parties in order to
take action under the joint program if the parties could
not agree.
Since July 1988, there have been approximately 80 ac-
tions taken under the Company's newly established ab-
sence control program . These were taken in October
1988, on review of employees for the prior 3-month
period.
Under further cross-examination by Charging Party's
counsel, Reid testified that he was aware there had been
joint committee attendance reviews performed in Janu-
ary 1988 for the prior 3-month period and that he had
learned from questioning Marilyn Rofe, the Company's
representative on the committee, about the matter, that
there had been no cases where the parties had been
unable to reach unanimous agreement about how to
handle an employee whose records had been reviewed,
whether by taking some action or by refraining from
doing so.
On examination by Respondent's counsel, Reid ex-
plained that on January 2, 1988, while in caucus, in re-
sponse to the mediator's question regarding the absence
control program raised by the union committee, Compa-
ny Attorney Tuppen dictated to the mediator the lan-
guage permitting divided decisions or actions taken
under the joint absence control program which was later
incorporated in the memorandum of understanding pre-
pared for the Union's signature after contract ratification.
In intending that this proposal be transmitted by the me-
diators, the Company did not at the same time indicate
that if this modification was not accepted by the Union,
that the program, as it then existed, would, be abolished.
While Reid insisted that until then the Company's posi-
tion had been that the program should be abolished,
there was no writing reflecting that, proposal. It was
Reid's and the Company's understanding that its final po-
sition modifying the existing absence control program as
described was part of its final package presented that
day, January 2, agreed to by the union committee, and
later ratified by the union membership.
Reid could not recall that he had agreed with Skrzecz-
kowski at a prior off-the-record meeting to continue the
program as is. Although he could not recall Skrzecz-
kowski bringing up the program at the June 23 meeting,
Reid did recall telling Skrzeczkowski' in a private con-
versation that he had already reported to the Company's
chief executive that the program'was going to be abol-
ished, and a senior member of the Company's bargaining
committee was in accord with that 'result, but that none-
theless, he, Reid, would see what he could do, and at-
tempt to get come relief for him on the program.
Reid testified that although he told the Union the pro-
gram would be abolished during a heated exchange at
one of the June off-the-record meetings, he never re-
duced this proposal to writing. When asked to give in-
stances of any other changes in position made orally on
open items which were not put in writing, Reid, who
had insisted verbal proposals were, As a common practice
not reduced to writing, could recall none. Furthermore,
Reid also acknowledged that the absence control pro-
gram along with the sick leave language, was one of the
five most important issues of concern to the Union
during the negotiations.
BLUE CROSS OF WESTERN NEW YORK 307
While Reid also maintained that the-parties' practice
was to have agreements reached on open items, written
out and initialed, such as the agreement to update all
memoranda of understanding, he could not adequately
explain his failure to have reduced to writing and ini-
tialed the Company's final proposal modifying the ab-
sence control program made during caucus at the Janu-
ary 2 negotiations. Reid's only explanation was that the
mediator dismissed the parties without a further face-to-
face meeting.
As to this alleged change in position, to continue the
absence control program with modification, Reid ex-
plained that he was able to get authorization to use that
position as a bargaining chip if and when it because nec-
essary, but only so long as the Company could take uni-
lateral' action under the joint program if the committee
could not unanimously agree on action as to a particular
employee.
In spite of the crossing out of language limiting their
agreement to update all memoranda of understanding to
those "contained in the current Agreement," it was
Reid's position that this side agreement reached 11 April
25, 1987, was limited to memoranda contained in the
agreement. Reid offered the explanation that the crossing
out was intended to reflect the fact that one memoran-
dum of understanding in the agreement was changed
during negotiations but in its present form, as it ap-
peared, it was inaccurate. Thus, the crossing out would
mean the parties were not agreeing to that memorandum
in its present wording. I cannot credit this explanation. It
is unreasonable in the extreme to conclude that a negoti-
ator in Reid's position would permit the restrictive lan-
guage to be removed, generally, because of its impact on
one memorandum only, rather than solving the problem
of the one memorandum simply by correcting the lan-
guage as it appeared in the contract. Similarly, Reid's
lack of recall that he agreed to continue the absence con-
trol program at an off-the-record meeting in June rather
than stating an outright denial, appears to me to show
Reid' unwillingness to address what I find was, in ac-
cordance with Skrzeczkowski's testimony, an agreement
reached ,to continue the absence control program intact.
Reid's earlier remarks made during a heated exchange on
June 17, that the absence control program was off the
table and could be eliminated, was apparently not a fully
thought-out position, was never mentioned, and probably
reflected the tensions and anger of the moment.
I am equally unimpressed with Reid's explanation for
the abrupt change in the Company's position immediate-
ly upon receipt of the adverse arbitration award. I find
that Respondent's unilateral termination of the program,
which had continued without incident while the dispute
over the Company's intended removal of the condition
of unanimity in practice in disciplining tardy or absent
employees continued unresolved, was motivated largely
by the award. The award showed that under the pro-
gram as it had existed, not unanimity but union participa-
tion in the review process was an impediment to man-
agement control. So long as the Union participated, the
procedures followed in individual cases would become
public and could be attacked on grievance and arbitra-
tion proceedings, The Company's decisions could be at-
tacked because employee records would be jointly stud-
ied and company representatives would be required to
take and state positions on the joint reviews as Rofe was
obliged to do when she rejected the doctor's note as sat-
isfying the contract requirement for a certificate of an
employee's physical ability to return to work. A manage-
ment committee making unilateral decisions on employee
discipline in private would not provide the affected em-
ployee or the Union with statements or positions which
later could be questioned. Neither would the Company
be obliged to take into account as the preexisting pro-
gram required, and as the arbitrator impliedly recognized
in his discussions of the grievant's improvement in at-
tendance, special considerations or extenuating circum-
stances in weighing actions against employees subject to
the program.
Analysis and Conclusions
The first issue which must be addressed is whether, as
urged by the General Counsel and the Union, the parties
had reached agreement on July 2 that the absence con-
trol program would continue intact under the new col-
lective-bargaining agreement.
The General Counsel, in particular, asserts that the
April 25 agreement to update all memoranda of under-
standing establishes the agreement to continue the ab-
sence control program memorandum. I do not' agree.
Even though that April 25 agreement may have repre-
sented agreement on the ACP memorandum , among the
others, both part of and separate from the collective-bar-
gaining agreement, the subsequent conduct, of both par-
ties shows that each considered the memorandum to be
on the table as an open item in conjunction, with the lan-
guage relating to sick leave. Thus, on June 11, the Union
made a combined proposal to retain provisions 11.2.6 and
11.2.6.1 and to modify the memorandum to provide for
binding arbitration on joint review committee disputes
relating to discipline under, the program. On June 17, the
Union proposed coupling the program's elimination with
retention of 11.2.6 and 11.2.6.1 as well as expedited arbi-
trations of company disciplinary actions. This offer was
probably made in response to the heated exchange in
which the Company proposed eliminating the program
without any compensating language or other changes. At
the second off-the-record meeting , the Union continued
to insist that the Company could not both change the
sick leave language and eliminate the absence control
program.
The Company did agree to continue the' absence con-
trol program without change after the lunch break at the
second off-the-record session , having credited Skrzecz-
kowski's testimony in this regard. This conclusion is also
consistent with Reid's conduct at the July 2 face-to-face
session when he relied on the Company's May 20 written
proposal as modified by its July 2 revisions, which modi-
fied provision 11.2.6, added 11.2.6.2 with language very
similar to that which the Union had proposed at the first
off-the-record session on June 23,' but with neither pro-
posal making any reference to the absence control pro-
gram . If, as Reid testified, a longstanding program which
the Union certainly deemed a significant issue in the con-
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tinuing contract dispute had been eliminated, it is highly
unlikely that the Company would have ignored that
result in its July presentation.
Finally, however, I also find that during the separate
caucuses held on July 2, the Company took the opportu-
nity presented by the union committee's inquiry made
via the mediators to propose for the first time to modify
the program as it was administered in practice to make
clear that unanimity was not required in order for Re-
spondent to impose discipline under the program. As
Valerie Dove, the Union's grievance chairperson and ne-
gotiating committee member explained , in raising the
question as to whether the program was still in place,
she was aware that the program was an area on which
there had been heated arguments through the entire ne-
gotiations but which was still unresolved (Tr. 248). She
had not been privy to the private understanding reached
between the principal negotiators at the second off-the-
record session.
The evidence shows that through an apparent lack of
communication the Company's intention to convey this
last proposal was not realized, and the parties labored
under a mutual misunderstanding affecting a major side
agreement which prevented their arriving at a "meeting
of the minds" on this issue . See Pittsburgh-Des Moines
Steel Co., 202 NLRB 880, 888 (1973). In reaching this
conclusion, I have credited both union witnesses who
understood that the absence control program as em-
bodied in the 1984 memorandum was still in place and
the company representative who understood that the
union had agreed to the change proposed via the media-
tors. Each side appeared to arrive at its respective posi-
tion in good faith. Thus, Skrzeczkowski exhibited genu-
ine dissatisfaction with what he deemed to be a unilateral
change in the parties' agreement on the program in his
letters to the Company, and it is unlikely that the Com-
pany would have incorporated the objectionable lan-
guage in its postratification submission of the memoran-
dum of understanding had it not genuinely believed that
its offer submitted via the mediators had been accepted.
Agreement not having been reached on a new pro-
gram , the old one, relating directly to such conditions of
employment and mandatory subjects of bargaining as at-
tendance, tardiness, and work rules, could not be unilat-
erally changed pending continued negotiations to im-
passe as to the subject matter. Ciba-Geigy Pharmaceuti-
cals Division, 264 NLRB 1013 (1982), enfd. 722 F.2d
1120, 1 126 (3d Cir. 1983); Zero Corp., 262 NLRB 495,
501 (1982); Winn-Dixie Stores, 243 NLRB 972 (1979);
NLRB v. Katz, 369 U.S. 736 (1962).
Here , at a meeting between the parties held in Novem-
ber 1987, reaffirming its position expressed in the modi-
fied memorandum of agreement previously submitted for
the Union's signature, Respondent continued to insist
that the Union agree to the language eliminating the
need for unanimous agreement for company action under
the attendance control program. At no time, until its
letter of April 12, 1988, did the Company propose or de-
termine to eliminate the joint program. It continued in
place with periodic joint reviews of employee absences
and itenesses and without any conflicts between the
parties over actions to be taken. Furthermore, Reid did
not consider that an impasse had been reached between
the parties on this issue even 3 months after their No-
vember 1987 meeting . It was not until shortly after its re-
ceipt of the arbitration award holding that the Company
had violated basic aspects of the joint review and pro-
gressive discipline format of the existing program that,
for the first time, Respondent made and then implement-
ed its decision, without union notice or consultation, to
eliminate the joint program . The changes it announced
and then instituted as its own effective in July 1988 were
profound . No longer did the Union have joint responsi-
bility, much less any input , in deciding action against em-
ployees for absences and tardiness . Discipline was accel-
erated by the removal of the counseling step , and flexi-
bility where appropriate and consideration of extenuating
circumstances was eliminated.
It is evident that no impasse was reached on negotia-
tions as to this issue . At the time Reid, with others, made
the decision to eliminate the joint program he admitted
he was unaware of the Union's position, other than its
opposition to his own proposed modification. While
some months had elapsed since the November meeting,
the Company had imposed no time limits on meeting
again, Reid himself had made no attempt to reach his
union counterpart, Skrzeczkowski , the principals had not
met to consider their final positions , Reid had, at most,
made two inquiries of the company counsel as to his
contact with union counsel and the evidence is lacking
that opportunities for agreement arising from further bar-
gaining had been exhausted . See Towne Plaza Hotel, 258
NLRB 69, 78 (1981 ); Inta-Roto Inc., 258 NLRB , 769, 768
(1980). From the point at which Respondent unilaterally
announced its elimination of the program, the Union
continued to seek a meeting to resolve the differences.
Admittedly, bargaining might very well cause the Union
to reexamine its prior agreement to modify the language
regarding sick leave and discipline for its use now con-
tained in provisions 11.2.6, 11.2.6.1, and 11.2.6.2 which
the Union probably made as the price it was willing to
pay for continuing intact the joint program.
Although no problems had arisen in the continued
joint administration of the program, with all decision
having been made unanimously and without incident,
Reid nonetheless chose a time immediately following the
adverse arbitration award to drop the joint program. As
I have previously found, Respondent was motivated by
the impact of the award on its obligations to comply
with the joint program rather than by any sense that the
prospect of further headway in resolving their differ-
ences was unlikely . Indeed, in informing the Union of its
unilateral decision, Reid relied on the Union 's refusal to
agree to its intended proposal of July 2 rather the ex-
haustion of any possibility of resolving the dispute.
Even assuming that impasse had been reached on the
issue, by virtue, e.g., of the elapse of 5 months without a
further meeting having been held or scheduled, but see
Inta-Roto Inc., supra at 768 , it is clear that the Compa-
ny's unilateral change was not made in conformity with
its rejected final offer , the only change permitted it
under these circumstances. Western Newspaper Publishing
Co., 269 NLRB 355 (19$4); Allen W , 'Bird II; 227 NLRB
BLUE CROSS OF WESTERN NEW YORK 309
1355 ( 1977); Royal Himmel Distilling Co., 203 NLRB 370
fn. 3 (1973); NLRB v. Katz, supra.
Rather than implementing the modified joint program
embodied in its July 2 offer, later written submission and
November 1987 proposal , Respondent chose to abolish
the joint program outright without ever having previous-
ly proposed or discussed such a drastic change in the
way it intended to deal with absent or tardy employees.
Based on all of the foregoing , I conclude that Re-
spondent made an unlawful change in terms and condi-
tions of employment in violation of Section 8(a)(1) and
(5) of the Act.
Respondent nonetheless maintains that having couched
the change in terms of a change in office rules which it
is permitted to make under the existing agreement on 10
days ' notice to the Union with opportunity to discuss the
change , it has met its obligations under the Act. There is
no warrant for concluding that the Union has ever
agreed that the absence control program is encompassed
by the office rules provision of the agreement set forth in
its miscellaneous article . Since at least 1984, the parties
have treated the subject matter of attendance , absence,
and tardiness and discipline related thereto as covered by
a separate memorandum of understanding which accom-
panied their successive collective -bargaining agreements.
To argue that the Union waived its right to negotiate an
attendance control program because it agreed that office
rules may be established and modified by the Company
and even that discipline for their violation may be car-
ried out by the Company is not justified by the facts and
bargaining history. the conclusion is inevitable that nei-
ther party intended that the subject matter of its memo-
randum of understanding was coveted by the office rule
provision 'and Respondent is unconvincing in its Conten-
tion that the Union has clearly and unmistakedly waived
its interest in negotiations over the subject matter in dis-
pute. Rockwell International Corp., 260 NLRB 1346, 1347
(1982).
CONCLUSIONS OF LAW
1. Respondent Blue Cross of Western New York, Inc.,
is an employer engaged in commerce within the meaning
of Section 2(2) and (6) of the Act.
2. Office and Professional Employees International
Union, Local 212, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time office and clerical employees employed
by the Respondent in the counties of Allegheny,
Cattaraugus, Chautauqua, Erie, Genesee, Niagara,
Orleans and Wyoming' in the State of New York;
excluding those in the office of vice president, fi-
nance and accounts payable department, salesmen,
confidential secretaries, secretary to vice president,
marketing building service. employees, pressmen, ex-
ecutives, statisticians, junior statisticians, methods
analysts, individuals jointly employed by Respond-
ent and its member hospitals of Western New York
Hospital Association, and all professional employ-
ees, guards and supervisors as defined in the Act.
4. At all times material, the Union has been the exclu-
sive bargaining representative of the employees in the
appropriate unit within the meaning of Section 9(a) of
the Act.
5. By unilaterally establishing and implementing a new
absence control program, effective July 1, 1988, relating
to employees in the unit, without first bargaining with
Office and Professional Employees Union, Local 212,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. The unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the
Act, I shall recommend that it be ordered to ceased and
desist therefrom, and that it take certain affirmative
action to effectuate the policies of the Act. Respondent
has unlawfully and unilaterally instituted an absence con-
trol program effective on July 1, 1988. As a result of the
unlawful conduct, various employees have been unlaw-
fully disciplined, suspended, or discharged. In these: cir-
cumstances, I shall recommend that Respondent be or-
dered to cease and desist from unilaterally instituting any
absence control program and to cease conducting inter-
views and disciplining employees pursuant to such pro-
gram . Affirmatively, I shall recommend that Respondent
rescind the July 1, 1988 absence control program and, on
request, bargain with the Union about the implementa-
tion of any absence control program governing employ-
ees represented by the Union.
I shall also recommend that Respondent fully restore
the status quo ante which existed at the time of its un-
lawful actions by (1) restoring the absence control pro-
grani in effect during the term of the 1984-1987 collec-
tive-bargaining agreement between the parties, (2) re-
scinding all disciplinary actions resulting from the failure
of employees to abide by the unlawfully instituted ab-
sence control program, (3) offering all employees dis-
charged or suspended, or otherwise denied work oppor-
tunities as a result of the absence control program, imme-
diate and full reinstatement to their former positions or,
if they no longer exist, to substantially equivalent ones,
without prejudice to their seniority or other tights and
privileges, and (4) making whole those employees who
were either discharged, suspended, or otherwise denied
work opportunities solely as a result of the absence con-
trol program for any loss of earnings or other monetary
losses, less interim earnings, if any, with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).4
4 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977),
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On, these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Blue Cross of Western New York,
Inc., Buffalo, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Instituting unilaterally and thereafter enforcing an
absence control program involving employees represent-
ed by Office and Professional Employees International
Union, Local 212, without first bargaining with the
Union.
(b) Disciplining employees, including suspension and
discharge, because of their alleged failure to comply with
the absence control program.
(c) In any like or related matter interfering with, re-
straining, or coercing any employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Bargain collectively, on request, with the Union
with respect to the absence control program or any reg-
ulation relating to absences or tardiness of employees, as
the exclusive representative of the employees in the ap-
propriate unit described below, and embody any under-
standing reached in a signed agreement:
All full-time office and clerical employees employed
by the Respondent in the counties of Allegheny,
Cattaraugus, Chautauqua, Erie, Genesee, Niagara,
Orleans and Wyoming in the State of New York;
excluding those in the office of vice president, fi-
nance and accounts payable department, salesmen,
confidential secretaries, secretary to vice president,
marketing, building service employees, pressmen,
executives, statisticians, junior statisticians, methods
analysts, individuals jointly employed by Respond-
ent and its member hospitals of Western New York
Hospital Association, and all professional employ-
ees, guards and supervisors as defined in the Act.
(b) Cancel, withdraw, and rescind the July 1, 1988 Ab-
sence Control Program, in effect as to employees repre-
sented by the Union and restore the Absence Control
Program in effect during the term of the 1984 to 1987
collective- bargaining agreement between Respondent
and the Union.
(c) Remove from the files of employees who are repre-
sented by the said Union, all disciplinary warnings, no-
tices, or memorandums issued since July 1, 1988, result-
ing from the application of the Absence Control Pro-
gram.
(d) Offer all employees discharged, suspended, or oth-
erwise disciplined or denied work opportunities as a
result of the institution of the Absence Control Program
5 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 pur-
poses
on July 1, 1988, immediate and full reinstatement to their
former positions or, if they, no longer exist, to substantial-
ly equivalent ones, without prejudice to their seniority or
other rights and privileges.
(e) Make whole all employees who were discharged,
suspended, or otherwise denied work opportunities as the
result of institution of the Absence Control Program in
the manner set forth in the remedy section of this deci-
sion.
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the 5 terms of this Order respecting rescission of
all disciplinary actions.
(g) Post at its principal office and place of business at'
1901 Main Street, Buffalo, New York, copies of the at-
tached notice marked "Appendix."6 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent's authorized rep-
resentative, shall be posted by it immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places in both plants, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by an other
material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
6 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally and without consultation
with Office and Professional Employees Union, Local
212, institute or implement any changes with respect to
the Absence Control Program and absentee regulations.
WE WILL NOT discipline, including discharge or sus-
pension or warning, our employees as a result of their al-
leged violation of the absence control program imple-
mented on July 1, 1988.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
WE WILL bargain collectively on request with Office
and Professional Employees Union, Local 212, with re-
BLUE' CROSS OF WESTERN NEW YORK 311
spect to the absence control program or any regulation
relating to absences or tardiness of employees, as the ex-
clusive representative of the employees in the appropri-
ate unit:
All full-time office and clerical employees employed
by the Respondent in the counties of Allegheny,
Cattaraugus , Chautauqua, Erie, -Genesee , Niagara,
Orleans and Wyoming in the State of New York;
excluding those in the office of vice president, fi-
nance and accounts payable department , salesmen,
confidential secretaries, secretary to vice president,
marketing , building service employees , pressmen,
executives, statisticians , junior statisticians , methods
analysts, individuals jointly employed by Respond-
ent and its member hospitals of Western New York
Hospital Association, and all professional employ-
ees, guards and supervisors as defined in the Act.
represented by the Union and WE WILL restore the Ab-
sence Control Program in effect during the term of the
1984-1987 collective-bargaining agreement between us
and the Union.
WE WILL remove from the files of employees who are
represented by the Union all disciplinary warnings, no-
tices, or memorandums issued since July 1, 1988 , result-
ing from the application of the absence control program.
WE WILL offer all employees discharged , suspended,
or otherwise disciplined or denied work opportunities as
a result of the unilateral implementation of the absence
control program immediate and full reinstatement to
their former positions or, if they no longer exist , to sub-
stantially equivalent ones without prejudice to their se-
niority or other rights and privileges.
WE WILL make whole all employees who were dis-
charged, suspended, or otherwise denied work opportu-
nities as a result of the absence control with backpay and
interest.
WE WILL cancel, withdraw, and rescind the July 1,
1988 absence control program in effect as to employees BLUE CROSS OF WESTERN NEW YORK, INC.