Bryant & Stratton Business Institute

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1135 (N.L.R.B. 1999)

BRYANT & STRATTON BUSINESS INSTITUTE 1135
Bryant & Stratton Business Institute and Local 2294,
United Automobile Aerospace and Agricultural
Implement Workers of America. Cases 3–CA–
19749, 3–CA–19767, 3–CA–20132, and 3–CA–
20132–2
March 31, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On February 13, 1998, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel filed cross-exceptions and a supporting
brief, and the Acting General Counsel, the Respondent,
and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated 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,1 and conclusions2
and to adopt the recommended Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In concluding that the Respondent violated Sec. 8(a)(5) and (1) by
discontinuing the termination/retirement bonus, the judge found, inter
alia, that even if the parties had reached impasse over the elimination of
the bonus in 1992, the Respondent’s many serious and unremedied
unfair labor practices precluded a valid impasse at that time. In adopt-
ing this finding, we note that the Second Circuit similarly held, in ex-
tending the Union’s certification year, that “any bargaining in the pe-
riod immediately following Bryant’s [1989–1991] unfair labor prac-
tices did not occur in a context free from the influences of its unreme-
died unfair labor practices.” Bryant & Stratton Business Institute v.
NLRB, 140 F.3d 169, 186–187 (2d Cir. 1998), enfg. 321 NLRB 1007
(1996) (Bryant & Stratton I), and 323 NLRB 410 (1997) (Bryant &
Stratton II). We find it unnecessary to pass on the judge’s alternative
findings that the declaration of impasse in 1992 was premature in any
event and that, even if a valid impasse had been reached in 1992, the
Union’s June 11, 1992 proposals were sufficient to break the impasse.
3 The General Counsel has excepted to the judge’s failure to order
the Respondent to send to the Board’s Regional Office a copy of the
records necessary to determine the backpay owed (the “backpay re-
cords”), and to include electronic copies of the backpay records, where
the records are already maintained in such form, within the scope of the
records preservation and production order. We find that electronic
copies of the relevant records, where such already exist, are encom-
passed within the Board’s traditional remedial language. See generally
Fed. Rule Civ. Proc. 34 (definition of “document” includes data compi-
lations). See also Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah
1985) (requesting party need not accept only data that exists in tradi-
tional forms, but may discover the same information when stored in
electronic form in a computer); National Union Electric Corp. v. Mat-
sushita Electric Industrial Co., 494 F.Supp. 1257 (E.D. Pa. 1980)
(same). Moreover, the Respondent has not established that it would be
prejudiced in any way by a requirement that it produce electronic cop-
ies of these documents. Accordingly, and to clarify any ambiguity with
respect to this matter, we have modified the recommended Order to
provide for the production of electronic copies of the specified backpay
records if they are stored in electronic form.
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by conditioning a
1995 merit wage increase on the Union’s waiving its
right to file unfair labor practice charges with respect to
the amount of individual increases.4 We affirm that find-
ing for the reasons that follow.
Prior to the Union’s selection as bargaining representa-
tive in 1989, the Respondent granted merit increases to
unit employees annually unless economic conditions
were adverse. The Respondent unlawfully discontinued
these increases in 1989 after the employees chose to be
represented by the Union.5 As a result of the Respon-
dent’s unlawful actions, employees received no merit
increases from 1989 until after the Respondent’s unlaw-
ful withdrawal of recognition in 1996. In 1992, the Re-
spondent granted employees a 3-percent across-the-board
wage increase. In 1994, the Respondent distributed a
$50,000 bonus pool among the unit employees, with the
amount given to individual employees set by the Re-
spondent at its discretion. Although aware of the 1992
and 1994 increases, the Union did not object to them or
file unfair labor practice charges concerning the Respon-
dent’s unilateral actions.
In October 1994, at about the same time as the bonus
distribution, the Union wrote to the Respondent and re-
quested that it provide all unit employees a wage in-
crease, since they had received only one increase in base
wages since 1989 (the 1992 across-the-board increase).
The Union’s letter further stated, “Should you agree with
this request, the UAW will not file an unfair labor prac-
tice charge claiming that the wage increase amounts to a
unilateral change. However, we will retain our right to
negotiate fair and equitable wages in our ongoing collec-
tive bargaining efforts.”

With respect to the General Counsel’s proposed requirement that the
Respondent submit copies of the necessary backpay records at the
Board’s Regional Office, however, we find that this litigation does not
satisfactorily present the question of whether a respondent should be
ordered to provide copies of its records in this manner. We accordingly
decline to order the Respondent to do so in connection with this case.
4 We agree with the judge that, in light of the Respondent’s serious
unremedied unfair labor practices at the time, there is no merit to the
Respondent’s contention that it lawfully withheld the 1995 merit wage
increase because the parties had reached impasse over the issue in
1992. As noted above, our finding in this regard is consistent with the
Second Circuit’s decision in Bryant & Stratton, supra, 140 F.3d at 186–
187. In such circumstances, we do not pass on the judge’s alternative
findings, regarding this violation, that the declaration of impasse in
1992 was premature in any event and that, even if a valid impasse had
been reached in 1992, the Union’s June 11, 1992 proposals were suffi-
cient to break the impasse.
In adopting the judge’s finding that the Respondent’s November 1,
1995 memorandum to employees concerning the 1995 denial of a merit
wage increase violated Sec. 8(a)(1), we do not rely on the judge’s
analysis at Sec. VI,B, par. 16.
5 Bryant & Stratton Business Institute v. NLRB, supra, 140 F.3d at
181–182.
327 NLRB No. 174
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136
The Respondent did not reply to the Union’s letter for
11 months. In September 1995,6 the Respondent advised
the Union that it was “considering” providing unit em-
ployees with a merit increase that would average 3.25-
percent effective in the October quarter, an amount “con-
sistent with the increases awarded to other [unrepre-
sented] Bryant & Stratton employees in 1995.” The Re-
spondent also stated that it assumed “that your letter
means that the UAW has no objections to the merit in-
creases that would be awarded in the October [1995]
quarter.” On September 29, the Union replied that, while
it would not file charges over the implementation of a
wage increase program, “we are not waiving our right to
bargain over any individual increases (including the
amounts) you may grant or not grant to any particular
faculty member.”
Also on September 29, the Respondent stated that it
was not willing to grant the wage increase unless the
Union also waived its right “to negotiate changes in the
individual allocations of the merit increases.” On Octo-
ber 4, the Respondent demanded that the Union agree to
its terms or else “Bryant & Stratton will not implement
the proposed increase and faculty salaries will continue
at the current level for the foreseeable future. With your
unambiguous statement of no objection, we are prepared
to proceed with immediate implementation.” (Emphasis
in original.)
The Union replied on October 6 that it wished to re-
serve the right to protest in the event that an employee’s
increase was “arbitrary and discriminatory” but that it
would not protest the granting of a wage increase despite
the fact that the parties were not at impasse and negotia-
tions had not concluded. Accordingly, the Union re-
quested that the Respondent specify the amount of the
proposed merit increase for each unit employee.
On October 18, the Respondent stated that it would not
give employees the increase unless the Union “clearly and
unambiguously indicates that litigation will not result.”
(Emphasis in original.) The Respondent provided infor-
mation on the method it proposed to use to determine
merit increase amounts but declined to specify the
amounts it planned to give employees on the grounds that
“[n]o individual decisions have yet been made.” The Un-
ion responded on October 25 that it was “prepared to
waive its right to file unfair labor practice charges involv-
ing any aspect of the school’s plan for the implementation
of a merit increase program, as long as the employer is
willing to provide some mechanism for assuring that the
merit increases are not arbitrary.” In this regard, the Un-
ion proposed that any disputes be subject to review
through a grievance-arbitration procedure.
The Respondent never replied to the Union’s offer of a
grievance-arbitration procedure, but instead issued a
memorandum, dated November 1, to its employees ad-

6 All dates hereafter are in 1995.
vising them that it had sought approval from the Union to
give employees a wage increase, but the Union had re-
fused to do so and that it therefore would not give em-
ployees the wage increase. The memorandum stated that
the Union sought to retain the right-to-pass judgment on
the amount of each employee’s increase and had pro-
posed that increases be subject to review through a
grievance-arbitration process. The Respondent’s memo-
randum stated that it had “no interest in permitting the
determination of your increase to be controlled by an
outsider, be it the UAW or an arbitrator . . . . We will not
be providing the merit increase because of the condition
your collective bargaining representative has imposed on
us.”
The Respondent notes that unions may waive their
statutory right to bargain over wages, and asserts that it
was therefore entitled to withhold the wage increase
unless the Union did so in this case. We reject this con-
tention.7
The correspondence between the parties set forth
above demonstrates the Respondent’s willingness to
grant a merit increase only if the Union agreed not to file
unfair labor practice charges concerning any aspect of
the increase. The Respondent’s demand that the Union
waive its right to file unfair labor practice charges con-
cerning the subject matter of the wage increase was a
nonmandatory subject of bargaining. Laredo Packing
Co., 254 NLRB 1, 18–19 (1981); accord: Reichhold
Chemicals, 288 NLRB 69, 71–72 (1988), enfd. in perti-
nent part 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498
U.S. 1053 (1991). Thus, while the Respondent was enti-
tled to seek such a waiver in good-faith negotiations, it
could not lawfully condition agreement on a wage in-
crease on the Union’s consent to such a waiver. Laredo
Packing at 19; see also Ellicott Development Square, 320
7 The Respondent also asserts that its conduct with respect to the
1995 merit increase merely represented a lawful attempt to “reach a
settlement” so the faculty could receive an increase in wages. We reject
the Respondent’s characterization of its conduct in this respect as a
good-faith effort to reach a “settlement.” In making this argument, the
Respondent ignores the fact that, as noted above, it was obligated to
provide a merit increase to employees in 1995, because annual merit
increases were an established term and condition of employment at the
time of the Union’s selection as bargaining representative in 1989.
Bryant & Stratton Business Institute v. NLRB, supra, 140 F.3d at 181–
182. Thus, the Respondent, in effect, withheld an established term and
condition of employment, which it was legally obligated to provide
regardless of the Union’s actions, because the Union would not waive
its right to file unfair labor practice charges.
Even apart from the Respondent’s prior unfair labor practices, the
Respondent did not engage in good-faith bargaining before refusing to
proceed with the merit increase. To the contrary, it is undisputed that
the Respondent never replied to the Union concerning its October 25
proposal that disputes be resolved through a grievance-arbitration pro-
cedure before telling employees that it had rejected the proposal. As the
judge found, the Respondent’s failure to communicate its position to
the Union first constituted unlawful direct dealing. See Ad Art, Inc.,
290 NLRB 590, 605–606 (1988). We find that its unlawful actions in
this regard belie its claim to have sought in good faith to achieve a
“settlement.”
BRYANT & STRATTON BUSINESS INSTITUTE 1137
NLRB 762, 772 (1996), enfd. 104 F.3d 354 (2d Cir.
1996) (table).
In addition, the Respondent refused, without explana-
tion, the Union’s request that the Respondent provide it
with the specific amounts of each employee’s proposed
increase before proceeding; instead, the Respondent de-
clared it would grant the increase only if the Union
agreed not to file charges over the treatment of individual
employees before the amounts were determined.8 Fi-
nally, the Respondent’s bad faith is further demonstrated
by its subsequent actions in unlawfully blaming the Un-
ion for its own decision not to give employees a merit
increase. Alachua Nursing Center, 318 NLRB 1020,
1031 (1995).
Under all of the foregoing circumstances, we find that
the Respondent, by conditioning the 1995 merit wage
increase on the Union’s waiver of the right to file unfair
labor practice charges over discrimination in the amount
of an employee’s increase, violated Section 8(a)(5) and
(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bryant & Stratton Business
Institute, Buffalo, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
Insert the following as paragraph 2(h) and reletter the
subsequent paragraph.

“(h) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Or-
der.”

Michael Israel, Esq., for the General Counsel.
Robert S. Gilmore and James Rydzel, Esqs. (Jones, Day, Reavis
& Pogue), of Cleveland, Ohio, for the Respondent.
Jennifer R. Swig, Esq. (Lipsitz, Green, Fahringer, Roll, Salis-
bury & Cambria, LLP), of Buffalo, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to
charges and amended charges filed by Local 2294, United
Automobile, Aerospace and Agricultural Implement Workers
of America (the Union or the Charging Party), the Regional

8 We agree with the judge that the Union’s concern that increases
would be awarded in a discriminatory fashion was well founded in light
of the Respondent’s prior unfair labor practices, including unlawfully
giving poor evaluations to union supporters. See Bryant & Stratton I,
supra, 321 NLRB at 1032–1034.
Director for Region 3 issued an order consolidating cases, con-
solidated complaint, and notice of hearing on October 23, 1996,
alleging that Bryant & Stratton Business Institute (Respondent)
violated Section 8(a)(1), (3), and (5) of the Act.
On December 4, 1996, the General Counsel filed a Motion
for Partial Summary Judgment with the Board. On April 8,
1997, the Board granted the General Counsel’s motion and
remanded the remaining allegations in the complaint for hear-
ing.
The hearing was conducted before me on September 24 and
25, 1997, in Buffalo, New York. Briefs have been filed by all
parties and have been carefully considered. Based on the entire
record,1 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, a corporation with offices and places of busi-
ness in Buffalo, New York, as well as other locations within
New York State, is engaged in the business of providing educa-
tion in business and technical subjects. During the 12-month
period preceding the issuance of the complaint, Respondent
derived gross revenues in excess of $1 million and purchased
and received at its various New York State facilities products,
goods, and materials valued in excess of $50,000 directly from
points outside the State of New York.
Respondent admits, and I so find, that it is an employer
within the meaning of Section 2(2), (6), and (7) of the Act. It is
also admitted and I so find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. PRIOR RELATED CASE BRYANT & STRATTON
INSTITUTE, 321 NLRB 1007
On August 26, 1996, the Board issued a Decision and Order
in the above-entitled case affirming with a few minor modifica-
tions, the decision of Administrative Law Judge Kleiman, that
Respondent committed numerous violations of Section 8(a)(1),
(3), (4), and (5) of the Act.
More specifically, it was found that Respondent violated
Section 8(a)(1) of the Act by threatening employees with disci-
pline if they engaged in protected activities, and Section 8(a)(1)
and (3) of the Act by unlawfully issuing warning notices to
eight employees, substandard evaluations to three employees,
and by reducing an employee from full-time to a part-time in-
structor, because of the employees’ union activities.
It was found by the Board that Respondent committed a
number of violations of Section 8(a)(1) and (5) of the Act, in-
cluding, inter alia, the failure to provide the Union with re-
quested information concerning salaries, wage increases, job
evaluation plans, part-time faculty and a facility evaluation
plan; making unilateral changes absent a valid impasse, by
discontinuing its policy of annual wage increases and reviews
as of November 1989,2 changing from a 4 to a 5-day teaching
1 While every apparent or nonapparent conflict in the evidence my
not have been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of their
testimony. Therefore, any testimony in the record which is inconsistent
with my findings, I hereby discredit.
2 With respect to this allegation, the administrative law judge had
found that Respondent’s conduct was also violative of Sec. 8(a)(1) and
(3) of the Act. The Board found it unnecessary to pass on that finding
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138
schedule at its downtown Buffalo facility, changing its instruc-
tor. Compensation plan to eliminate extra compensation for
extra class sections and class preparations, changing its aca-
demic calendar, increasing the 1992 summer quarter and requir-
ing instructors to teach classes the first 2 days of examination
week, changing its policy regarding the ending of classes, and
changing its policy regarding facility attending skills improve-
ment classes. The Board also found that Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to meet at rea-
sonable times for contract negotiations, and by refusing to bar-
gain collectively in good faith with the Union between the pe-
riod of January 1990 and March 13, 1991.3
The Board ordered Respondent to cease and desist from en-
gaging in the unlawful conduct found, and affirmatively to
furnish the information requested by the Union; rescind the
warning notices and unlawful evaluations issued to the employ-
ees discriminated against by Respondent, rescind the unilateral
changes that it made, including the discontinuance of its annual
wage reviews; make whole the employees that Respondent
discriminated against, as well as the employees who suffered
losses as a result of Respondent’s discontinuance of its annual
wage reviews and increases and other unlawful unilateral
changes that it made; and to bargain collectively in good faith
with the Union.
In connection with the latter requirement, the Board specifi-
cally discussed and affirmed the administrative law judge’s
extension of the certification year “to allow the Union a reason-
able time for good-faith bargaining free from the influences of
the unfair labor practices previously committed by Respon-
dent.” Id. at 1007 fn. 5.
The Board considered and rejected Respondent’s assertion
that the Regional Director’s dismissal of a charge in Case 3–
CA–17199 established that an extension of the certification
year was not an appropriate remedy, since the Regional Direc-
tor’s dismissal of letter concluded that a valid impasse had been
reached on or about June 12, 1992. The Board found no merit
to Respondent’s assertion that the Regional Director’s implicit
finding that the parties engaged in good-faith bargaining as of
June 12, 1992, obviated the need for an extension of the certifi-
cation year, since it is well established that the General Coun-
sel’s exercise of his prosecutoral discretion not to issue a com-
plaint is not binding on the Board in its disposition of a separate
related case. R.E. Dietz Co., 311 NLRB 1259, 1265 (1993).

The administrative law judge made a number of factual find-
ings and conclusions that the Board did not modify, which are
pertinent to an analysis of the instant matter. Thus he credited
and relied on the testimony of Kevin Crosby and John Burke
two former employees of Respondent, who held apparent
managerial positions at the time of their employment, concern-
ing their conversations with James Pautler, Respondent’s insti-
tute director. Thus, Pautler informed both of them that the pri-
mary reason that Respondent suspended the salary review proc-
ess and froze wages were to use the issue of wage increases as
leverage in negotiations with the Union, to contribute to faculty
dissatisfaction with the Union and frustration with the collec-
tive-bargaining process, particularly among newer faculty with
the hope and expectation that such faculty dissatisfaction and

of the administrative law judge because it would not materially affect
the remedy.
3 The unit involved includes full-time faculty employed at two loca-
tions in Buffalo, one in Lackawanna, and one in Clarence, New York.
frustration would lead to a recertification petition against the
Union.
Pautler also told Burke that Respondent was in no hurry to
move negotiations along or reach agreement, since time was on
its side, because the longer it took, “the more likely the people
be to throw out the Union.” Pautler added that these views were
held by Respondent’s owner Bryant Prentice Ill, as well as
other of its high officials.
In crediting the testimony of Crosby and Burke as related
above, the administrative law judge relied in part on an adverse
inference drawn against Respondent based on its failure to call
Prentice as a witness concerning his antiunion animus.
The judge also concluded that Respondent’s established
practice was to conduct faculty reviews and grant increases in
July of each year if its downtown Buffalo campus, and at its
other campuses on an individual faculty member’s anniversary
dates. Further he found that the Union had during negotiations,
urged Respondent to continue its customary practice of con-
ducting these reviews and granting such increases even though
bargaining was still in process. However, Respondent did not
do so, and notified its employees by memo of January 25, 1990,
that it was putting monetary reviews on hold “pending the out-
come of negotiations.” Thus, for the years 1990 and 1991 and
in 1992 up to the prior hearing, Respondent did not conduct it
normal practice of conducting reviews and granting increases,
which as noted the Board concluded was violative of Section
8(a)(1) and (5) of the Act.
The judge also made findings concerning the various bar-
gaining sessions conducted by the parties in assessing the alle-
gation of surface bargaining. In that connection he noted that
the issue of a union-security clause came up frequently during
negotiations, and that Respondent consistently rejected the
Union’s demand for a union-security clause. Respondent as-
serted that it wanted union membership to be voluntary, felt
that such a clause would inhibit Respondent from obtaining the
best qualified teachers. It also added as an additional reason for
rejecting this demand, that the Union won the election by such
a small margin, and Respondent felt that the Union lacked sub-
stantial support faculty members.
However, Respondent’s chief negotiator, James Rydzel testi-
fied at that hearing that Respondent had not ruled out the possi-
bility of agreeing to some type of union-security clause. This
position was also reiterated in Respondent’s brief to the admin-
istrative law judge.
The judge, however, apparently rejected Rydzel’s testimony
in this regard, and relying on the testimony of Respondent’s
official Ley that no alternatives to Union’s security proposal
was discussed among Respondent’s bargaining committee prior
March 12, 1991,4 relied in part on Respondent’s bargaining
over the union-security clause to find bad-faith bargaining.5
4 The administrative law judge made some reference to counter-
proposal made by Respondent with respect to union security subse-
quent to March 12, 1991, but the decision does not detail the specifics
or the date of this counterproposal. I suspect that the administrative law
judge may have been referring to the conversations between Rydzel and
Union Official Thomas O’Donnell on this subject described more fully
below.
5 While the Board found it unnecessary to rely on the evidence of
Respondent’s bargaining regarding a union-security clause in uphold-
ing the administrative law judges’ surface bargaining conclusion, it did
not modify or disavow any of the administrative law judge’s factual
findings with respect to that issue.
BRYANT & STRATTON BUSINESS INSTITUTE 1139
The issue of seniority also received some attention from the
administrative law judge. Essentially Respondent’s position
throughout the negotiations was to totally reject the use of sen-
iority in any respect. In fact it made a specific proposal at one
session that read, “Seniority shall not be a factor in making
class assignments or for any other purpose.”
While Rydzel testified that Respondent had not ruled out the
possibility of accepting some type of seniority principles, the
administrative law judge again relied on Ley’s testimony that
Respondent was unable to come up with a proposal that would
be compatible with Respondent’s workplace, and concluded
that its proposal on seniority was “disingenuous” and an indi-
cum of bad faith.6
Additionally, the judge found that during the bargaining ses-
sions through March 12, 1991, the parties bargained only on
noneconomic issues, and the parties had agreed to tackle none-
conomic issues first. However, on the 10th bargaining session
on October 4, 1990, Rydzel asked when the Union would be
presenting its economic proposals. O’Donnell replied that the
parties had agreed to settle the noneconomic issues first and
that some of these still remained unresolved. Rydzel replied
that Respondent had very little movement left on noneconomic
issues and that the parties were close to an impasse on negotia-
tions. O’Donnell disagreed and stated that a number of issues
were not fully discussed, the parties were far from reaching
impasse, and that the Union had given new proposals to Re-
spondent at that very meeting. O’Donnell added that if Respon-
dent had an economic proposal to make, the Union would re-
view and discuss it. Rydzel replied that Respondent would
submit such a proposal.
However, Respondent did not submit such an economic pro-
posal at any of the next several sessions. At the meeting of
February 12, 1991, Rydzel asserted that the parties had gone for
enough on noneconomic issues and requested the Union’s eco-
nomic proposals. The Union responded that noneconomic is-
sues still remain unresolved.
At the meeting of March 12, 1991, after additional bargain-
ing on noneconomic issues, Respondent refused to agree to
further bargaining meetings unless the Union presented it with
the Union’s economic proposals. The complaint alleged surface
bargaining by Respondent through the meeting of March 12,
1991. The administrative law judge permitted testimony con-
cerning subsequent meetings, which included six sessions and
two private meetings between Rydzel and O’Donnell. How-
ever, in making his decision, the judge concluded that the meet-
ings subsequent to March 12, 1991, were irrelevant to a deter-
mination of the surface bargaining allegation and did not con-
sider such evidence. He relied on several factors in finding such
a violation, including the aforementioned testimony of Crosby
and Burke concerning Respondent’s bargaining strategy to
undermine the Union and lead to a recertification, highlighting
Respondent’s unilateral suspension of faculty review wage
increases, which he found to be intended to achieve these goals.
The judge also relied on Respondent’s failure to meet at rea-
sonable times, its failure to provide relevant information to the
Union, and the other unilateral charges that Respondent made
without consulting the Union.
Accordingly, based on the above reasons, the administrative
law judge concluded and the Board agreed that Respondent

6 The Board made reference to this finding in its decision, thereby
affirming this conclusion.
bargained in bad faith with the Union between January 1990
and March 12, 1991.
III. BRYANT & STRATTON II, 323 NLRB 410
As noted above, the Board on April 8,1997, issued a decision
in 323 NLRB 410 (Bryant & Stratton II), wherein it granted
General Counsel’s Motion for Partial Summary Judgment. It
found that Respondent had unlawfully withdrawn recognition
from the Union on April 19, 1996, and since May 31, 1996
unlawfully refused to supply information to the Union, in viola-
tion of Section 8(a)(1) and (5) of the Act.
The Board noted therein that in the previous case discussed
above (Bryant & Stratton), it found that Respondent had
“committed numerous serious unfair labor practices, including
failing to bargain in good-faith from January 22, 1990, through
March 12, 1991.” The decision also provided for a 1-year ex-
tension of the Union’s certification year to allow for a reason-
able time for bargaining free from the influences of the unfair
labor practices committed by Respondent.
Further the Board concluded that since Respondent had not
complied with the Board’s Order, its withdrawal of recognition,
as well as the refusal to supply information was unlawful. The
Board in its remedy section ordered Respondent to bargain on
request with the Union, and that it shall construe the initial
period of the certification as beginning on the date that Re-
spondent complies with this Order. The Board added a footnote
to that remedy, (id. At 411 fn. 4.) as follows:

4 Alternatively, we reaffirm our prior Decision and Or-
der and find that a 1-year extension of the Union’s certifi-
cation year from the date the Respondent begins compli-
ance with this Order is necessary for the reasons stated
therein. Bryant & Stratton Business Institute, 321 NLRB
1007 fn. 5 (1996). In this regard, the Respondent withdrew
recognition without complying with the Board’s prior Or-
der and engaging in good faith bargaining.

Bryant & Stratton I and Bryant & Stratton II were consolidated
for enforcement, and oral argument was held before the Second
Circuit Court of Appeals. To date no decision has been issued
by the court.
IV. THE SERVICE OF THE CHARGES
A. Facts
Respondent has denied that the charges filed by the Union in
Cases 3–CA–19749 and 3–CA–19767 were served on it on
November 22 and December 1, 1995, as alleged in the com-
plaint.
The charge in Case 3–CA–19749 was filed on November 22,
1995, and alleges that Respondent violated Section 8(a)(1), (3),
and (5) of the Act by withholding a wage increase from its
employees and placing the onus on the Union for its failure to
grant such an increase. The record with regard to such charge
includes the charge which was addressed to Respondent at its
address at 633 Delaware Avenue, in Buffalo, as well as the
standard form letter which accompanies the charge, dated No-
vember 22, 1995, and addressed to Respondent, Attorney Bry-
ant H. Prentice, CEO. On the second page of this letter an affi-
davit of service signed by an agent of the Region certified that
the charge was mailed by certified mail to Respondent on No-
vember 22, 1995. The record does not include the green return
receipt card for this charge. Respondent offered no testimony
from any witness or any other evidence as to when it received
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140
this charge or when it received notice of the charge. Prentice
was not called as a witness, and while Rydzel testified concern-
ing his first knowledge of the charge in Case 3–CA–19767, he
offered no testimony concerning the receipt of the charge in
Case 3–CA–19749.
The charge in Case 3–CA–19767 was filed on November 30,
1995, and alleges that Respondent violated Section 8(a)(1) and
(5) of the Act by unilaterally changing its policy regarding
termination retirement bonus without negotiating with the Un-
ion. This charge was also addressed to Respondent at its Dela-
ware Avenue location, and was also mailed by certified mail to
Respondent along with an accompanying charge letter on De-
cember 1, 1995, also to the attention of Bryant Prentice. The
record also contains an affidavit of service that the charge was
mailed on December 1, as well as a green card from the Post
Office, dated December 5, 1995, which contains a signature of
the addressee.
As noted Prentice did not testify and no other official or em-
ployee of Respondent testified concerning the receipt or nonre-
ceipt of this charge. However, Rydzel testified that his first
notification of the charge was sometime in the spring of 1996
when his associate Gilmore received a call from the Region
asking for Respondent’s position statement on the charge,
which was then 4 or 5 months old. At that time according to
Rydzel, the Region sent him a copy of the charge which was
the first time that he saw a copy of this charge. He further testi-
fied that at that time he had discussions with Respondent’s
officials concerning the issue of the retirement bonus in con-
nection with the Board’s investigation and the preparation of a
position statement.
The charge in Case 3–CA–20132 was filed on June 24, 1996,
and served by regular mail on Respondent at the same Dela-
ware Avenue address to the attention of Prentice. Similarly the
charge in Case 3–CA–10132–2 was filed on July 29, 1996, and
served in the same fashion to the same address.
Respondent admits that it received the charges in Cases 3–
CA–20132 and 3–CA–20132–2. Finally, the amended charge in
Case 3–CA–10232–2 was filed on October 3, 1995, and mailed
to Respondent on October 7, 1995, at an address at 40 North
Street, Buffalo, New York. Respondent also admits that it re-
ceived this amended charge.
B. Analysis
Turning first to the charge in Case 3–CA–19767, since Gen-
eral Counsel has produced the signed return Post Office receipt,
as well as an affidavit of service, this evidence is sufficient to
constitute proof of service. Section 102.111 of the Board’s
Rules and Regulations.
Moreover, although Respondent’s attorney testified that he
(emphasis added) did not receive notice of this charge until the
spring of 1996, no officer, official, representative, or other
agent of Respondent was called as a witness to testify under
oath that Respondent failed to receive this charge on or about
December 1, 1995, as alleged in the complaint. Electrical
Workers IBEW Local 11 (Anco Electrical Contractors), 273
NLRB 183, 191 (1984). Similarly, no witness was called by
Respondent to testify as to Respondent’s procedure with re-
spect to receipt of registered mail. General Marine Transport
Co., 238 NLRB 1372, 1376 fn. 11 (1978), enf. denied on other
grounds, but affirmed in pertinent part 619 F.2d 180, 186 fn. 7
(2d Cir. 1980). In that connection, I note that Prentice, Respon-
dent’s official to whose attention the charge letter was ad-
dressed failed to testify. I deem it appropriate to draw an ad-
verse inference from Respondent’s failure to call him to testify
on this subject, and conclude that his testimony would have
been unfavorable to Respondent in this area. Bryant & Stratton
I, supra at 1020; International Automated Machines, Inc., 285
NLRB 1122, 1123 (1987).
Finally, I note that Respondent admitted that it received
other documents such as the charges in Cases 3–CA–10132 and
3–CA–20132–2, which were mailed to the same address (633
Delaware Avenue) and directed to the attention of Prentice. Dix
Construction, Inc., 304 NLRB 1133 fn. 1 (1991).
Accordingly, based on the above analysis and authorities, I
conclude that service of the charge in Case 3–CA–19767 has
been established and that Respondent received the charge on/or
about December 5, 1995.
With respect to the charge in Case 3–CA–19749, I find for
essentially the same reasons that service has been established.
While the General Counsel has not been able to produce the
signed Post Office receipt as he did with respect to the charge
in Case 3–CA–19767, this defect is not fatal in view of the
other factors discussed above. Dix, supra; Anco, supra; General
Marine, supra.
Thus with respect to this charge, once again Respondent
produced no witness to testify as to whether it received this
charge, nor to its procedures for receipt of certified mail. It is
once again appropriate to draw on adverse inference against
Respondent for its failure to call Prentice as a witness on the
issue, and I conclude that his testimony would be unfavorable
to Respondent concerning receipt of this charge. Finally, Re-
spondent admitted that it received subsequent charges mailed to
the same address, and a signed return receipt from the Post
Office with respect to the charge filed in Case 3–CA–19767
establishes that such a charge was received a mere 1 week later
at the same address.
Therefore, I also conclude based on the foregoing, that ser-
vice of the charge in Case 3–CA–19749 has been established as
well, and that Respondent received the charge shortly after
November 22, 1995.
V. THE TERMINATION OR RETIREMENT BONUS
A. Facts
Prior to the Union’s certification Respondent provided its
employees several benefits, including a defined pension plan
and a 401(k) plan. The pension plan had been frozen by Re-
spondent sometime in 1989, which meant that no further con-
tributions were being made on behalf of employees. The 401(k)
plan was an account set up by Respondent into which employ-
ees could make deferred salary contributions, but which did not
include a matching contribution by Respondent.
These benefits are set forth in Respondent’s employee man-
ual entitled “Working with Bryant & Stratton,” along with an-
other benefit which is described as follows:

In addition to the benefits provided under the Retirement
Plan, employees terminating their service after twenty (20)
years or longer will receive a termination bonus from Bryant
& Stratton equal to sixty (60) working days salary at their cur-
rent rate of pay.

This bonus was referred to during the negotiations, and at the
trial by various witnesses as a “termination bonus,” “retirement
bonus,” or “pension bonus.” It is undisputed that the parties
were talking about the same bonus, although they would use
BRYANT & STRATTON BUSINESS INSTITUTE 1141
different terminologies. I shall for the most part use the phrase
“termination bonus,” since this is the term used by Respondent
in its own manual, and because this description more accurately
describes the benefit, which is admittedly payable to any em-
ployee who leaves Respondent’s employ (after 20 years of
service) whether or not they retire.
Jean Whitney was employed by Respondent as an instructor
at its Buffalo campus from July 1, 1974, until April 1, 1995,
when she retired. On or about March 22, 1995, Whitney spoke
to William Schatt, director of the Buffalo campus, and asked
about her termination bonus. Schatt informed her that she was
not eligible for the bonus, and that only two faculty members,
Carolyn Merlino and Sharon Murphy, were eligible for the
bonus, because they had been “grandfathered.”
Whitney then contacted her academic dean, Boxbeck, about
the matter, and she referred her to John Mitchell, Respondent’s
director of human resources. She asked him about her eligibil-
ity for the termination bonus, as well about the status of her
medical insurance and accrued pension. Mitchell replied that he
did not know anything about the termination bonus, and that he
would get back to her with an answer to all her questions, in-
cluding her inquiry concerning the termination bonus.
Since Whitney had received no response from Mitchell as of
April 26, 1995, she wrote a letter on that day to O’Donnell
inquiring whether she was entitled to the termination bonus.
The letter adds, “I have looked through various communica-
tions from the UAW and Bryant and Stratton. I have not found
anything to indicate that this bonus was revoked.” Shortly
thereafter, O’Donnell and Whitney spoke on the phone, and she
told him that she had asked Mitchell about her entitlement to
the termination bonus and had still not received an answer to
her inquiry. O’Donnell advised Whitney that he felt that she
was entitled to the termination bonus because she had been
employed by Respondent for 21 years, and suggested that she
send Mitchell a letter requesting an answer concerning this
bonus.7 A few days later, Whitney received a letter from
Mitchell dated May 1, 1995, responding to her earlier inquiry
about her pension and medical benefits, but making no mention
of the bonus issue.
Thus on May 10, 1995, Whitney wrote a letter to Mitchell
asking about information concerning her entitlement to the
termination bonus.
By letter dated July 12, 1995, Mitchell informed Whitney
that she was not eligible to receive the bonus because the “Re-
tirement Bonus Plan was changed in November 1991. Any
employee who reached their 20-year anniversary after that date
was no longer eligible to receive the Retirement Bonus.”
Whitney forwarded a copy of Mitchell’s letter to O’Donnell
on October 3, 1995, along with a letter of her own. O’Donnell
phoned Whitney on receipt of these documents and advised her
that he disagreed with Respondent’s position and intended to
file unfair labor practice charges. O’Donnell testified that his
receipt of the July 12, 1995 letter in October 1995 was his first
notification that Respondent had eliminated the termination
bonus.

7 During this conversation, Whitney testified that she “believed” that
she told O’Donnell that she had previously been informed by Schatt
that she was not eligible for the bonus. O’Donnell testified that Whit-
ney told her only about a conversation with Mitchell, and did not tell
him that she had been advised by any official of Respondent that she
was not eligible for the bonus.
Respondent makes several contentions with respect to this
allegation, including the contention that Section 10(b) of the
Act bars consideration of this issue. Its principal argument is
that the Union was put on notice during the negotiations that it
intended to eliminate the termination bonus as part of its pro-
posal to implement its revised 401(k) plan. Therefore, Respon-
dent asserts that when it implemented the 401(k) plan after it
declared impasse in June 20, 1992, the Union knew or should
have known that the termination bonus had been eliminated at
that time. Accordingly, it asserts that the 10(b) period began to
run in June 1992, and that the charge was therefore untimely
filed.
Alternatively, Respondent contends that even apart from the
10(b) issue, that its implementation of the decision to eliminate
the termination bonus was effectuated in June 1992 pursuant to
a good-faith impasse, and therefore was not violative of the
Act.
Respondent presented several witnesses, plus a number of
items of documentary evidence in support of its contentions in
this regard. Mitchell testified that after Whitney made her in-
quiry of him concerning her entitlement to the bonus he inves-
tigated the claim by looking over past records and discussing
the matter with Schatt and John Staschak, Respondent’s vice
president and regional manager. According to Mitchell, as a
result of his investigation, “it came to my attention that the
retirement bonus had a limited time frame and at the time in
question when Jean Whitney contacted me it was (no) longer
part of the retirement package or the termination package.”
According to Mitchell, he also discussed the issue with Re-
spondent’s attorney, Rydzel and James Ley, another official of
Respondent, and was informed by these individuals that the
bonus had been eliminated on/or about June 1992 when Re-
spondent declared an impasse in bargaining. Mitchell also as-
serts that some of the people with whom he consulted also told
him that Respondent’s position was that those employees who
had 20 years of service as of June 1992 would be eligible for
the bonus, regardless of when they left Respondent’s employ.
He could not recall specifically who informed him of this
“grandfathering” decision.
Mitchell further explained that the decision to insert Novem-
ber 1991 in his letter to Whitney, as the eligibility date for re-
ceipt of the bonus was solely his, and was based on his misper-
ception that Respondent’s manual which was revised and is-
sued to employees in November 1991 and which did not con-
tain this bonus, applied to bargaining unit employees. However,
Mitchell conceded that he sent this letter to Whitney after hav-
ing spoken to all of his colleagues and Rydzel, and that he
made no effort to correct the letter even after being informed
that he was mistaken in selecting November 1991 as the eligi-
bility date.
John Staschak testified that he presented Respondent’s pro-
posal for an enhanced 401(k) plan at a bargaining session on
July 26, 1991, and that Respondent’s position is that the retire-
ment bonus was eliminated, because the enhanced 401(k) plan,
which was implemented in June 1992, was the sole retirement
benefit program for Respondent’s employees. In that regard,
the document submitted to the Union at the session entitled
“Bryant & Stratton Business Institute, Inc. Retirement/401(k)
Plans. The document reflects that Respondent “maintains a
defined benefit plan (pension plan) which is currently frozen
relative to new participants and additional benefit accruals.” It
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
adds that the pension plan was frozen due to new tax laws that
were enacted.
After further reflecting that Respondent maintains a basic
401(k) plan which allows employees to defer pretax earnings,
the document states as follows:

In order to best serve the retirement needs of our employees
and reduce skyrocketing compliance costs of multiple retire-
ment/savings plans, the Bryant & Stratton 401(k) Plan will be
enhanced and become the sole retirement program for all em-
ployees of Bryant & Stratton Business Institute, Inc. and its
subsidiaries. The defined benefit pension plan will be termi-
nated. The A.P.A. 401(k) Plan will be merged into the en-
hanced Bryant & Stratton Plan.

The document then goes on to describe the specifics of the
new 401(k) plan, such as eligibility, contributions, employer
match, profit sharing, vesting, withdrawal, and loans. The
document makes no reference to the retirement bonus or to the
termination bonus. Staschak conceded that although the docu-
ment specifically states that the defined pension plan would be
terminated as a result of the new enhanced 401(k) plan, there is
no reference to the elimination of the bonus. He had no expla-
nation for this omission. Staschak also admitted that there was
no discussion or mention of the bonus during this bargaining
session when he presented Respondent’s proposal. Although he
recalled that there were questions about and a general discus-
sion of the proposal, he did not recall the Union making any
response at that session to his presentation.
Staschak also testified that Respondent in June 1992 imple-
mented the enhanced 401(k) plan as part of its flex plan, and his
view that this included the elimination of the retirement bonus.
However, he could not recall when and how the decision was
made to “grandfather” employees who had worked for Respon-
dent for 20 years of service as of June 1992, although he did
confirm that such a decision was made for nonunit employees
with November of 1991 as the eligibility date. Moreover, al-
though Staschak stated that for the unit employees, the decision
to “grandfather” employees was made through the bargaining
process, he was not present at any bargaining session when this
subject was discussed.
Additionally, Staschak did not supply any testimony in cor-
roboration of Mitchell’s testimony, that in 1995, Staschak in-
formed Mitchell that the retirement bonus had been eliminated
as of June 1992 due to the impasse, and that employees with 20
years of service of that date would be “grandfathered” and enti-
tled to the bonus.
Rydzel was Respondent’s final witness and provided testi-
mony concerning the bonus issue as well as the issue of im-
passe. As noted above, Administrative Law Judge Kleiman
made findings concerning the bargaining between the parties
through March 12, 1991, and concluded that Respondent had
engaged in surface bargaining during that period of time. While
he permitted testimony concerning seven bargaining sessions
between July 26, 1991, and January 8, 1992, as well as two
private meetings between Rydzel and O’Donnell, he made no
findings with respect to these events and concluded that they
were not relevant to his determination that bad-faith bargaining
by Respondent had been established through March 12, 1991.
Rydzel, in the instant matter, provided testimony concerning
some of these meetings, as well as concerning events subse-
quent to the close of the prior hearing which was March 30,
1992. Rydzel testified that at the July 26, 1991 meeting, after
Staschak made his presentation concerning Respondent’s pro-
posal for an enhanced 401(k) plan, Staschak left the session.
The Union subsequently asked Respondent for a calculation as
to how it calculated the retirement bonus.
At the bargaining session of August 12, 1991, Respondent
presented the Union with such a calculation as requested. At
that time Rydzel informed the Union, however, that Respon-
dent proposed to delete this benefit from any future contract, a
position that Respondent maintained throughout negotiations.
O’Donnell, on behalf of the Union, proposed that the benefit be
maintained.
Rydzel testified further that when he informed O'Donnell
that Respondent proposed to delete this bonus, he also specifi-
cally told O’Donnell that the “401(k) takes its place.”
O’Donnell emphatically denied that Rydzel ever informed him
that Respondent’s 401(k) plan would take the place of or result
in the elimination of the termination or retirement bonus.
Towards the end of that meeting the discussion turned to
wage increases. Respondent’s position had been previously and
continued to be that it wanted the sole authority to grant discre-
tionary merit increases to employees. The Union had always
rejected that approach and requested a step system of wage
increases based on seniority and length of service and across-
the-board increases. At this meeting, O’Donnell informed Ry-
dzel that the Union would be willing to agree to Respondent’s
idea of merit pay or discretionary bonuses, which Respondent
need not justify to anyone, but only if Respondent also agreed
to the Union’s across-the-board wage proposals based on sen-
iority and credentials. Rydzel rejected O’Donnell’s proposal in
this regard.
Additionally during an off the record meeting between Ry-
dzel and O’Donnell on October 11, 1991, Rydzel informed
O’Donnell that the “pension bonus would no longer exist. Not
many ready to retire anyway.” The record does not reflect the
context of Rydzel’s statement to O’Donnell, nor what discus-
sion preceded or followed these remarks.
Rydzel also testified that at a meeting on December 9, 1991,
Respondent furnished the Union written wage and benefit pro-
posals.8 The wage proposal consisted of four parts. They were
a 3-percent across-the-board increase, a 3-percent one-time
bonus to provide for retroactivity, another 3-percent increase
because of the additional time required by faculty to be spent
on campus, and a discretionary bonus pool which will be solely
up to Respondent’s discretion as to amount and timing.
Respondent’s benefit proposal consisted of 11 benefits in-
cluding a 401(k) plan which stated, “Company plan as pro-
posed on July 26.” No reference was made to the retirement or
termination bonus in this document.
In December 1991, Respondent announced to the Union that
due to changes in curriculum as well as declining enrollment it
was going to be necessary to lay off a number of faculty em-
ployees. The parties bargained about this subject from Decem-
ber through March. In fact, according to Rydzel, the parties
spent a “good amount of time” during their negotiation sessions
during these months discussing the layoff issue and possible
severance for employees. The meetings of March 10 and 13
were spent almost entirely on the severance and layoff issues,
and the parties reached agreement on these issues on March 13.

8 According to Rydzel the wage proposal was similar to a proposal
that it presented to the Union at an earlier meeting with only a slight
modification with respect to the amount of money in the bonus pool.
BRYANT & STRATTON BUSINESS INSTITUTE 1143
During these meetings, the Union’s position was that Re-
spondent should pay severance to the employees who were to
be laid off, and also the termination bonus to those employees
who were eligible.9 Respondent continually insisted that the
severance package was separate from any retirement or termi-
nation bonus, and that employees could receive one or the other
but not both. Since the severance package was higher than the
termination bonus, the Union agreed to the severance proposal
without the termination bonus for any employees. A total of 17
employees were laid off and received severance pay as a result
of the negotiations.
At the March 10, 1992 meeting, the Union submitted a pro-
posal to Respondent which was not discussed until the parties
met in April, since as noted the March meetings were devoted
almost entirely to the layoff and severance issues. The proposal
consisted of three pages. The first benefit is entitled Pension
401(k). Under that section the first sentence reads, “reinstate the
frozen Pension and Supplement with Company’s modified
401(k) proposal, retroactive to 11/21/89.”
After skipping a line, another sentence reads, “Continue Cur-
rent Retirement Bonus.”
The document then goes on to list and describe the Union’s
proposals on a number of subjects, including medical insur-
ance, vacations, holidays, jury duty, sick leave as well as other
benefits, and concludes with a benefit entitled EMPLOYEE
TERMINATION and reads as follows: “Employees terminating
their services after 20 years or longer will receive a termination
bonus equal to 60 working days’ salary of their current rate of
pay.”
O’Donnell admitted that his proposals to continue the current
retirement bonus and the “employee termination” benefit that
he proposed were one and the same, and that he was not asking
for two separate benefits. When asked why he put the same
benefit in two different places, he replied, “I guess to empha-
size it. I really don’t know.”
The next meeting between the parties was April 13, 1992. At
this session the Union’s proposal of March 3, 1992, was dis-
cussed and Respondent gave its position on each of these items.
Respondent continued to reject the Union’s proposal to con-
tinue the retirement or termination bonus and to reinstate the
frozen pension plan.
Rydzel testified that when he, on behalf of Respondent,
again rejected the Union’s proposal to continue the bonus, he
also repeated that the 401(k) plan was to replace everything as
far as retirement and future planning are concerned. Addition-
ally Rydzel asserts that he mentioned that just as it did with
nonunion people, Respondent would provide this benefit for
employees with 20 years on the date of the agreement.
O’Donnell emphatically denied that Rydzel, at this or any other
meeting, told him that Respondent was willing to provide the
bonus to employees who had already reached 20 years of ser-
vice or any words to that effect.
In this connection, Rydzel testified that sometime prior to the
April 12 meeting Respondent had decided to continue the bo-
nus for those who already had 20 years as it had done with its
salaried employees.10

9 At the time there were three faculty members who had been em-
ployed for 20 years and would have been eligible for such a bonus.
10 At the time there were three faculty members who had been em-
ployed for 20 years and would have been eligible for such a bonus.
Rydzel adds that there was no discussion that he was in-
volved with concerning a specific date for eligibility for the
bonus until after he became aware of Whitney’s charge in the
spring of 1996. Rydzel also denies that he spoke to Mitchell
about Whitney’s entitlement to the bonus prior to Respondent’s
initial decision to deny it to her in 1995.
The parties also discussed extensively Respondent’s pro-
posal for a flex plan at this meeting. This proposal, which had
been introduced and discussed previously by Respondent, was
slightly modified on April 13. This plan was essentially a cafe-
teria plan wherein Respondent would allocate a certain amount
of money to each employee and the employee would decide on
what benefits he wished to spend it on, such as medical cover-
age. If the employees do not use any of these dollars, they can
either keep the amount left over or invest in Respondent’s
401(k) plan. At the end of this meeting, Rydzel told O’Donnell
there wasn’t really a lot of movement left on Respondent’s part
and that it needed something from the Union to move the bar-
gaining along, or “we were going to have a problem.”
The parties next met on May 18, 1992. Rydzel repeated what
he had said at the last session that there wasn’t a lot of move-
ment left on its part and it needed something from the Union to
move bargaining along. The parties talked at length about the
faculty guide, but the Union had no further response on the
issues of the 401(k), flex plan, economics, seniority, or Union
shop. Rydzel informed the Union that Respondent wanted to
implement the faculty guide and flex plan effective for the July
quarter and needed time to do so, so the Union had better show
some movement. O’Donnell replied that he had some move-
ment to make, but requested a recess from 6:30 p.m. for 90
minutes so he could put together a proposal. Rydzel responded
that the Union had Respondent’s proposal for weeks, and Re-
spondent was not going to sit around while the Union was do-
ing something it should have done prior to the meeting. Rydzel
added that in Respondent’s view, the parties were at impasse,
and if O’Donnell wanted to break it, let him know, but he better
do it quickly, because Respondent needed lead time to make
changes for the July quarter.
Rydzel subsequent sent a letter dated May 20, 1992, to the
Union summarizing the meeting11 and repeating that he de-
clared impasse at that time, that the Union had disputed his
declaration, but made no new proposals as requested by Re-
spondent.
The letter concludes by stating that Respondent is consider-
ing implementing portions of its proposal for the July quarter,
and if the Union intends to break the impasse it should do so
promptly.
O’Donnell wrote back by letter of May 28, 1992, wherein he
stated that the Union considered Respondent’s assertion of
impasse to be premature and requested another meeting in order
to present a complete proposal. O’Donnell noted that Rydzel
had refused to set up another meeting date on May 18, 1992,
when it also refused to give the Union time that evening to
present a proposal. The letter also asked for some information
on costs that it had orally requested on May 18, 1992, to which
Rydzel responded that all information requests must be in writ-
ing.
11 Rydzel noted specifically that the Union had made a representa-
tion as early as December 1991, that it had “some flexibility” on union
shop, and that 6 months later, the Union had shown no flexibility and
has not changed its position on that issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
Respondent did not reply to the Union’s letter until a letter
from Rydzel dated June 12, 1992. After furnishing the Union
the information that it had requested, Rydzel asserted that the
parties were still at impasse, and the Union had still not shown
any movement. Thus Respondent intends to proceed with im-
plementation of the faculty guide and the related 3-percent
wage increase effective with the July quarter, and the flex plan
shortly after that.
Further, Rydzel stated that the Union should move promptly
to make whatever movement it intends to make, so Respondent
can determine whether a bargaining session would be produc-
tive.
Meanwhile, on June 11, 1992, Ley issued a memo to faculty
and staff entitled update union/company negotiations. The
memo reflects that since the Union had not made substantial
movement in several key areas for a long period of time, Re-
spondent declared an impasse on May 18, 1992.12 The memo
also asserts that since that time the Union has made no propos-
als. Thus no further bargaining sessions will be scheduled until
a “material modified proposal” is received from the Union.
Further, the memo states that Respondent will begin prepara-
tions to implement some of its proposals, and mentions the
faculty guide which is scheduled for implementation for the
July quarter. Attached to the memo was a one-page document
entitled, “Summary of Principal Bargaining Issues.” It states as
follows:
Summary of Principal Bargaining Issues
COMPANY POSITION UNION POSITION

1. No union shop—no
union membership re-
quired to keep faculty
position.

1. Union shop—all must
join union (and pay dues)
or be fired.

2. Seniority is not a factor
in making employment
decisions.

2. Seniority shall deter-
mine class assignments
and layoffs.

3. Across the board wage
increases totaling as
much as 9 percent plus
merit increases of at least
$100,000.

3. Percentage wage in-
creases plus a stop sys-
tem based on seniority
and degrees.

4. Bryant Flex Plan and
the 401(k) with Company
matching contributions.

4. Old pension plan plus
the new 401(k) with
Company matching, old
Blue Shield plan, cur-
rently at full company
payment.

5. On the Faculty Guide, the Union rejects many ma-
jor principles, including faculty administrative time.

On June 11, 1992, O’Donnell sent a letter to Rydzel, which
apparently was received by Rydzel, after he sent his letter dated
June 12. O’Donnell asserted that Rydzel had not responded to
his May 28 letter, which O’Donnell found puzzling since Re-

12 In that connection, the memo stated that although “O’Donnell had
indicated on several ossasions that they would consider movement on
seniority and Union shop, the Union had not changed its initial position
originally taken some 27 months ago.”
spondent was refusing to meet. Nonetheless, O’Donnell en-
closed what he characterized as “counter proposals on major
issues,” and asked for dates to meet for a bargaining session to
discuss the proposals. The correspondence consisted of a de-
tailed “Union proposal” for the faculty guide, plus new propos-
als in several areas.
The first new proposal by the Union was a change in contract
duration from a 3-year contract to a 1-year contract. While
Respondent’s position prior thereto had also been for a 3-year
contract, Rydzel had suggested in August 1991 to O’Donnell
that a 1-year agreement might be agreeable to Respondent, and
O’Donnell rejected that possibility at that time.
Second, the Union made a new proposal on wage increases.
This proposal consisted of withdrawing its proposal on wages
based on credentials and length of service. Indeed, Rydzel had
testified that one of the principal factors that led him to declare
an impasse was the Union’s continued insistence on wages
based on a civil service step system with increases based on
length of service and credentials, which was inconsistent with
Respondent’s desire to grant wage increases based on merit
with such a determination made by Respondent only.
Additionally, the Union proposed a 6-percent increase in sal-
ary, which was consistent with Respondent’s previous proposal
of a 3-percent wage increase, plus an additional 3 percent with
implementation of the faculty guide. It also asked for a $2750
retroactive increase to all employees except for recent hires.13
Finally, on wages the Union proposed a bonus pool of $50,000
“based on evaluation to be determined by a Union Management
Committee.” This proposal also represented movement towards
Respondent’s previous offer of a discretionary bonus pool of
$50,000 initially and an additional $50,000 to be paid within 1
year, albeit it still provided for some union involvement in such
a bonus, which was inconsistent with Respondent’s position.
With respect to pension/401(k), the Union withdrew its pro-
posal to reinstate the frozen pension plan and accepted the
401(k) plan proposed by Respondent with several modifica-
tions, including requirements that Respondent contributes re-
gardless of member contributions, union representation on a
board of administration and immediate participation.
In that connection, O’Donnell testified that this represented a
significant concession by the Union, since it prior thereto
strongly insisted on continuation of the pension plan that Re-
spondent had previously frozen, and that this issue “was near
and dear to all of the faculty.”14
The Union also proposed to continue the “current Retire-
ment/Termination bonus,” which was not a change from its
prior position.
The Union also withdrew its previous proposal for a union
shop and substituted an agency-shop clause with accompanying
language. Previously the Union had insisted on a union-shop
clause with Respondent adamantly rejecting same and stating
that it would not force their faculty to become a member with
the alternative of discharge if they did not.
O’Donnell also testified that in an off record discussion
sometime in December 1991 that Rydzel suggested to him the
possibility of an agency shop instead of a union shop. Accord-
13 In that connection, Respondent’s last proposal called for an in-
crease to provide for retroactivity of an additional 3 percent.
14 Indeed when Rydzel testified as to his reasons for declaring im-
passe on May 18,1992, he referred to the fact that the Union’s position
prior to that date had been that they wanted the pension plan to be
continued along with the 401(k) plan.
BRYANT & STRATTON BUSINESS INSTITUTE 1145
ing to O’Donnell, Rydzel told him at that time that “I think that
the Company could accept it.” Rydzel recalls the conversation,
but his recollection is somewhat different. Rydzel admits that
he floated the idea to O’Donnell of an agency shop, but claims
that he coupled the suggestion with a maintenance of member-
ship requirement as well. Additionally, Rydzel denies telling
O’Donnell that Respondent would accept an agency shop, and
to the contrary asserts that he told O’Donnell that he had no
authority to agree to it, but that we were merely “brainstorm-
ing.” In any event, both parties agree that O’Donnell rejected
Rydzel’s suggestion at that time.
The Union also, as noted, presented a detailed proposed new
“Faculty Guide.” According to O’Donnell this proposal repre-
sented further concessions by the Union, and some agreements
to prior portions of Respondent’s proposed faculty guide. How-
ever, the Union’s proposal did not address in any way Respon-
dent’s concern over administrative time. In that connection,
Rydzel testified that one of the purposes of the new faculty
guide was to increase the time that faculty spends on campus
and its consequent interplay with students. The Union had,
according to Rydzel, resisted this concept and took the position
that the faculty’s responsibility ended after they finished teach-
ing their class. Indeed, as noted, part of the reason for an addi-
tional 3-percent wage increase proposal by Respondent was to
compensate for additional time that the faculty guide required
faculty to be on campus.
As to medical coverage, the Union agreed to the Blue Cross
Plan that Respondent had proposed in its flex-plan, but contin-
ued to maintain its prior position that Respondent continue to
pay premiums and maintain current dental, group insurance,
and disability insurance coverage.15
Finally, the union seniority proposal demanded that seniority
shall accumulate from to date of hire and that faculty will main-
tain full-time status based on qualifications, credentials, and
seniority. While this proposal did not represent a change from
the Union’s prior proposal with respect to seniority, in
O’Donnell’s view, his previous concession to allow wage in-
creases without consideration of seniority to be a significant
change in its prior position that seniority was a significant fac-
tor in determining wage increases.
Rydzel sent a letter to O’Donnell dated June 22, in response.
The letter states that although the Union’s proposals do reflect
some movement, as position in many other key areas has not
appreciably changed. Thus Rydzel asserts that Respondent sees
no reason to delay implementation of the Hems discussed in a
previous letter, “particularly since the implementation of the
faculty guide was substantially completed before receipt of
your letter.” However, Rydzel indicated that Respondent was
willing to meet to discuss the Union’s proposals and advised
that he would get back to the Union with regard to dates.
The letter also made comments on the Union’s proposals, es-
sentially asserting that on union shop, seniority, faculty guide,
and medical coverage, these proposals constitute little or no
movement. The letter added that while it was willing to meet in
an attempt to reach a resolution, its position remains that the
Union’s proposals did not break the existing impasse.

15 Respondent’s flex-plan proposal also required it to contribute to
the flex-plan, and it did not require employees to contribute to the plan.
However, according to O’Donnell the amount that Respondent pro-
posed to contribute into the plan would not be sufficient to permit em-
ployees to obtain adequate medical coverage.
Rydzel also testified why he did not believe that the Union
had made significant movement so that the impasse was bro-
ken. He asserted initially that by the time Respondent received
the Union’s proposals, Respondent had already proceeded to
implement the faculty guide and the flex-plan. Thus the Un-
ion’s proposals were “too late in the game.”
Rydzel, while indicating some specific areas where the Un-
ion had made no significant movement, such as administrative
time, the concept of a flex-plan and seniority, admitted that the
Union’s prior demand that wage increases based in part on
seniority, which it did withdraw in its June proposals, had been
“a significant stumbling block” during negotiations.
O’Donnell responded by letter of June 25, 1992, wherein he
asked for various items of information, including “proposals
etc., that you claim we are at impasse and that you are unilater-
ally implementing.” Rydzel replied by letter of July 29, 1992,
which provided the information requested. According to the
letter, the Respondent implemented the flex-plan which “is the
plan described in documents which we gave to you in April. It
included the 401(k) plan.” Additionally the letter mentions that
the faculty guide has been implemented, which includes a 3-
percent across-the-board salary increase as a result of adminis-
trative time. The letter does not provide an effective date for
any of these changes.16 Finally the letter confirms that a bar-
gaining session has been scheduled for August 3, 1992.
The parties met as scheduled on August 3, 1992. No new
proposals were submitted by either side. The meeting lasted
about 45 minutes. The parties did discuss the Union’s propos-
als, but Rydzel continued to take the position that he did not
believe that impasse had been broken. O’Donnell disagreed,
and insisted that the Union had made significant and substantial
moves. Rydzel ended the meeting by informing O’Donnell that
if he had some more movement to show, to break the problem,
he would let the Respondent know. There were no further bar-
gaining sessions or any additional contacts between the parties
concerning negotiations.
According to Rydzel, Respondent implemented the faculty
guide along with an accompanying 3-percent across-the-board
increase, plus the flex-plan and 401(k) plan, effective July 1,
1992.17
Carolyn Merlino was an instructor employed by Respondent
at the Buffalo campus from October 1971 until she resigned on
June 29, 1997. She did not retire at the time of her resignation,
and did not begin collecting retirement benefits from Respon-
dent.
Merlino received a termination bonus from Respondent fol-
lowing her resignation.
B. Analysis
The 10(b) period commences only when a party has clear
and unequivocal notice that the Act has been violated, Carrier
Corp., 319 NLRB 184, 190 (1995); Leach Corp., 312 NLRB
990, 991 (1993); or where a party in the exercise of reasonable
diligence should have been aware that there has been a viola-
tion of the Act (i.e., constructive notice); Carrier, supra; Mine
16 However, the letter attached a memo to employees dated July 28,
1992, which states that the faculty guide was implemented at the start
of the July quarter, but that several changes which had been agreed to at
the bargaining table due to an oversight had been omitted from the final
text. The changes were set forth in the memo.
17 Staschak testified that Respondent implemented the flex-plan and
the enhanced 401(k) plan in the summer of 1992.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
Workers District 12, 315 NLRB 1052 (1994); Moeller Bros.
Body Shop, 306 NLRB 191, 192–193 (1992). The burden of
showing such clear and unequivocal notice or lack of diligence
is on the party raising the affirmative defense of Section 10(b);
Carrier, supra; Leach, supra.
Respondent makes two alternative contentions in an attempt
to meet its burden of proof in this regard. First, it contends that
the Union knew or should have known from the bargaining
sessions, that Respondent’s 401(k)/flex-plan implemented in
June 1992, included the elimination of the retirement or termi-
nation bonus. Alternatively, it asserts that since Whitney was
informed by Respondent in March 1995 that she was not enti-
tled to the bonus, and that she thereafter informed O’Donnell of
this fact prior to May 10, 1995, that these operative dates for
notice to the Union, establish that the charge which was not
served until December 1, 1995, was untimely.
I shall deal with these contentions in order. I do not believe
that Respondent has adduced sufficiently credible or probative
evidence that the Union had either actual or constructive notice
that Respondent implemented the elimination of the bonus in
the summer of 1992. Indeed, in my judgment, Respondent has
not even established that in fact, it had made a decision at that
time to eliminate the bonus.
In that connection, I do not credit the contrived and uncon-
vincing testimony of Rydzel, that he specifically informed
O’Donnell at one or more meetings,18 that the 401(k) plan that
Respondent was proposing would replace the retirement bonus
or that Respondent would “grandfather” those employees with
20 years of experience.
In addition to comparative demeanor considerations vis a vis
O’Donnell, I also rely on a number of other factors in making
my credibility resolution, particularly the lack of any documen-
tary support19 for Rydzel’s testimony, as well as the lack of any
corroboration by any other witness.
Respondent relies primarily on the fact that Respondent con-
sistently proposed during bargaining and the Union consistently
opposed that the retirement bonus be eliminated as well as the
fact that the document presented by Respondent to the Union
specifically stated that the 401(k) plan would be the “sole re-
tirement program” for all its employees.
However, although Respondent is correct that it had consis-
tently proposed during bargaining, elimination of this bonus, I
do not believe that the evidence supports Respondent’s further
contention that this position either directly or indirectly indi-
cated to the Union that when it implemented the 401(k) plan in
1992, it also implemented the elimination of the bonus.
I note initially in this regard that Respondent’s own hand-
book, describes the bonus as “in addition to the benefits pro-
vided under the Retirement Plan.” The testimony of Mitchell,
Respondent’s human resources director, further reinforces the
conclusion that I believe the record amply supports. Both the

18 In this regard while on direct testimony Rydzel asserted that he
told this to O’Donnell at the August 12, 1991 session, Rydzel signifi-
cantly expanded that testimony later on in his testimony by claiming
that he so informed O’Donnell at least three quarters of the time that
the subject of the bonus was mentioned. I view Rydzel’s brazen attempt
to embellish his prior limited testimony as a poor reflection on his
credibility.
19 As will be discussed more fully below, several documents from
Respondent’s officials do not support Rydzel’s testimony and more
significantly, establish that Respondent had not decided to implement
the elimination of the bonus in 1992.
Union and Respondent considered the termination bonus to be a
separate issue from the 401(k) plan that Respondent was pro-
posing. Thus, Mitchell testified that at after receiving Whit-
ney’s inquiry about the bonus, and discussing the matter with
his colleagues and his attorney he realized that the bonus was
no “longer part of the retirement package or [emphasis added]
termination package.
I find it quite significant that Mitchell’s testimony that he
was informed in the spring of 1995 by his colleagues and his
attorney that Respondent had implemented the elimination of
the bonus when it declared impasse and implemented the
401(k) plan in the summer of 1992 was not corroborated by any
witness. Thu,s Schatt and Ley, both of whom Mitchell asserted
that he talked to about the issue, did not testify. Staschak, who
also was allegedly spoken to by Mitchell, did testify, but did
not corroborate Mitchell concerning their alleged conversations
in 1995. I find it appropriate to draw an adverse inference from
such failures of corroboration, and find that their testimony
would be adverse to Respondent on these issues. United Parcel
Service Corp., 321 NLRB 300 fn. 1, 308, 309 fn. 21 (1996);
Kut Rate Kid & Shop Kwik, 246 NLRB 107, 121 (1979) (ad-
verse inference proper where witness testifies, but not as to
precise issue in question). Moreover, Rydzel specifically con-
tradicted Mitchell’s testimony, and denied that he spoke to
Mitchell about Whitney’s situation in 1995, and asserts that he
became involved only after he was notified of the charge in
1996.
This evidence alone would tend to show that Respondent had
not as it contends, implemented the elimination of the bonus,
but an examination of several documents from Respondent
reinforces such a conclusion. Thus, the very document that
Respondent relies on which does state that the 401(k) plan will
be the “sole retirement” program for its employees, substan-
tially undermines its position. The document in question, the
401(k) highlights, which was presented to the Union by Stas-
chak at the July 26, 1991 meeting, reflects that Respondent
“maintains a defined benefit pension plan which is currently
frozen,” as well as a basic 401(k) plan. It then makes the state-
ment referred to by Respondent. Nowhere in this document is
there any mention of the bonus, either as constituting part of
Respondent’s retirement program, or as being eliminated by the
enhanced 401(k) plan. More importantly, the document specifi-
cally states that the “defined benefit pension plan will be termi-
nated” when the new 401(k) plan is implemented, and makes
no reference to a similar result with respect to the bonus. Stas-
chak had no explanation for this omission when he was asked.
Additionally, I rely on Ley’s June 11, 1992 memo to the fac-
ulty which reports on the negotiations and Respondent’s plan to
implement “some of its proposals.” The memo refers only to
Respondent’s intent to implement the faculty guide, and then
goes on summarize the principal bargaining issues and the re-
spective positions of the parties on these issues. In that regard,
the memo refers to Respondent’s position on the issue of flex-
plan/401(k) as “Bryant flex-plan and the 401(k) with Company
matching contributions.” As the Union’s position on this sub-
ject, Ley mentions the “old pension plan plus new 401(k) with
Company matching,” and the Union’s position on medical cov-
erage. No reference or mention of the bonus was made by Ley
in this section of the memo, or anywhere else in the memo.
BRYANT & STRATTON BUSINESS INSTITUTE 1147
This clearly demonstrates that Respondent did not consider the
bonus to be part of its 401(k) plan or its retirement package.20
Finally, I also note Rydzel’s letter to O’Donnell dated July
24, 1992, wherein he responds to O’Donnell’s request for in-
formation as to what proposals Respondent is “unilaterally
implementing.” Rydzel makes no reference in his response to
the bonus, and states that Respondent was implementing the
flex-plan which includes the 401(k) plan as described in docu-
ments given to the Union previously. As noted above, the
documents involved which described the enhanced 401(k) plan
not only made no reference to the bonus, but specifically stated
the pension would be eliminated by the enhanced 401(k) plan.
Lastly, I note Mitchell’s contrived and implausible testimony
that the decision to make reference to November 1991 as the
eligibility date for the bonus in Respondent’s July 1995 letter to
Whitney was solely made by him and was his error. Since
Mitchell claimed that he had spoken to a number of Respon-
dent’s officials prior thereto (including its attorney), I find it
highly unlikely that he would write such a letter without the
approval of other of Respondent’s representatives.
Accordingly, based on the foregoing evidence, I am not con-
vinced that Respondent intended to implement the elimination
of the bonus in 1992, and conclude that it considered the bonus
as a separate issue from the 401(k) plan, or at best had simply
not thought about the bonus when it implemented the 401(k)
plan.
Thus when Whitney inquired about the bonus in March
1995, it had to scramble around to find the appropriate position
to take. While Schatt did inform Whitney that he did not be-
lieve that Whitney was entitled to the bonus, he did not testify,
so Respondent has not established his basis for that conclusion.
Once more on adverse inference is appropriate for Respon-
dent’s failure to call Schatt, which leads to the conclusion
which I draw, that Schatt’s position was based on the same
admittedly erroneous statement in Mitchell’s letter to Whitney,
that she was not entitled to the bonus because the benefit was
eliminated for all employees in November 1991, except for
those employees with 20 years of service at that time.
Therefore, since Respondent has not established that it knew
in 1992 that the bonus had been eliminated, it certainly has not
established that the Union knew or should have known that the
implementation of the 401(k) plan also meant elimination of the
bonus, or that Respondent had violated the Act by unilaterally
eliminating such a bonus at that time.
With respect to Respondent’s alternative contention, that the
Union knew or should have known of Respondent’s unilateral
action in March or May 1995, it is once again necessary to
resolve an issue of credibility. Thus I do not credit Whitney’s
equivocal testimony that she “believed” that she informed
O’Donnell about her conversation with Schatt, and credit
O’Donnell’s denial that she never so informed him. In that
regard I note that in Whitney’s letters to O’Donnell she made
no reference to her conversation with Schatt, and stressed her
discussions with Mitchell and the fact that she had not received
an answer from Mitchell concerning her request. I find it un-
likely that Whitney would have informed O’Donnell about her
discussion with Schatt, since she apparently disregarded
Schatt’s assertion to her, and at her Dean’s suggestion went to

20 I once again note the failure of Respondent to call Ley as a witness
to explain this memo, which warrants an adverse inference that his
testimony on this issue would be adverse to Respondent.
Mitchell, Respondent’s official more likely to have a definitive
answer to her inquiry.21
As for the admitted notification of Whitney by Schatt, the
Union is not automatically chargeable with the knowledge of an
employee that her bonus had been eliminated. Nursing Center
at Vineland, 318 NLRB 337, 338–339 (1995). Moreover, even
if the Union knew about Schatt’s statement to Whitney in
March or May 1995, notice of an intent to commit an unlawful
unilateral implementation does not trigger the 10(b) period with
respect to the unlawful act itself. Carrier, supra at 191; Howard
Electrical Mechanical, Inc., 293 NLRB 472, 475 (1989). See
also Randolph Children’s Home, 309 NLRB 341, 344 (1992)
(notice of unilateral change of work rule not transmitted to the
Union in clear and unambiguous terms).
Here, Respondent had clearly not made a decision as to
Whitney’s inquiry until Mitchell’s letter to her in July 1995.
While Schatt may have informed Whitney in March that he did
not believe that she was eligible to receive the bonus, this can
reasonably be construed as a mere intent to commit an unfair
labor practice, since no final decision had been made. I again
emphasize that Mitchell as the human resources director was
Respondent’s official most closely involved with benefit eligi-
bility, and since it took him several months to respond to Whit-
ney’s inquiry, it is apparent that Respondent made no final
decision to deny her the bonus until July 1995.
I therefore find that Respondent has not met its burden of es-
tablishing that the Union received either actual or constructive
notice of Respondent’s unilateral elimination of the termination
of the bonus prior to October 1995, when O’Donnell received
notice of Respondent’s July 1995 letter. Accordingly, its 10(b)
defense is rejected.22
Apart from the 10(b) issue, Respondent alternatively argues
that it did not violate the Act when it eliminated the bonus,
because it reached a valid impasse in bargaining with the Union
in the summer of 1992, and that its elimination of the bonus
was part of its implementation of the enhanced 401(k) plan at
that time.
However this defense suffers from several significant de-
fects, and must be rejected. Initially, as I have concluded above,
Respondent has failed to establish that its decision to imple-
ment the elimination of the termination was based on its deci-
sion to declare impasse in 1992 and to implement its 401(k)
plan. Rather, as I have concluded above, Respondent did not
eliminate the bonus until 1995 when it denied Whitney’s re-
quest under the erroneous assumption that its 1991 elimination
of the bonus for nonunit employees applied to bargaining unit
employees as well. Thus, Respondent’s defense fails for this
reason alone.
However, even were I to find that Respondent had estab-
lished that its implementation of the elimination of the bonus
was part of its 401(k) plan and was effectuated in the summer
of 1992 when it declared impasse, Respondent’s defense would
still not be valid.
While I agree with Respondent’s position that the fact that
there were unremedied unfair labor practices at the time of the
impasse, does not automatically preclude it from bargaining to
a good-faith impasse, Litton Systems, Inc., 300 NLRB 324, 333
21 I note that Mitchell was Respondent’s human resources director,
who is presumably most familiar with its benefits policies.
22 Even if July 1995, when Whitney received Mitchell’s letter is con-
sidered notification to the Union, the charge which was served on De-
cember 1, 1995, would still be timely.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
(1990); see also the judges’s decision in Lunsford Plumbing,
Inc., 254 NLRB 1360, 1366 (1981), enfd. 684 F.2d 1033 (D.C.
Cir. 1982), I also agree with the General Counsel and the
Charging Party that here the serious unremedied unfair labor
practices committed by Respondent precluded the possibility of
a valid impasse as of the summer of 1992. Frontier Hotel &
Casino, 323 NLRB 815, 817–818 (1997); CJC Holdings, Inc.,
320 NLRB 1041, 1045 (1996); see also La Porte Transit Co.,
286 NLRB 132, 133 (1987), enfd. 888 F.2d 1182, 1186–1187
(7th Cir. 1989).
In my view the Board has in effect made such a determina-
tion in Bryant & Stratton II wherein it noted that Respondent
had in Bryant & Stratton I “committed numerous serious unfair
labor practices,” sufficient to preclude Respondent from with-
drawing recognition from the Union on April 19, 1996. The
Board specifically stated therein that Respondent had with-
drawn recognition “without complying with the Board’s prior
Order and engaging in good-faith bargaining, as well as con-
cluding that the Union was entitled to a reasonable period of
time for good-faith bargaining” free from the influences of
unfair labor practices previously committed by the Respondent.
In my view, implicit is the Board’s findings set forth above is
the conclusion that the “serious and numerous” unremedied
unfair labor practices committed by Respondent preclude the
possibility of a valid good-faith impasse.
In that regard, Respondent argues correctly that there has
been no findings and the complaint here does not allege “Sur-
face” bad-faith bargaining between March 1991 and June 1992.
However, there was a prior finding of bad-faith bargaining
through March 1991, and many of the positions taken by Re-
spondent both before and after that date did not substantially
change. In that regard I note that one of the factors relied upon
by the administrative law judge and not disturbed by the Board
in finding bad-faith bargaining was Respondent’s submission of
“disingenuous” proposals with respect to seniority. Rydzel
testified that one of the key issues separating the parties which
allegedly led to the impasse was the issue of seniority. More-
over it appears that Respondent’s position with regard to
seniority, which the administrative law judge relied upon in
part to establish bad faith, did not change during the subsequent
bargaining. Thus it is clear that the prior bad-faith bargaining of
Respondent was likely to have contributed to the alleged dead-
lock in negotiations. Cf. Litton, supra.
Additionally, I note that the administrative law judge placed
substantial reliance on Respondent’s unlawful unilateral sus-
pension of faculty review wage increases, which he found to
have been attributed to the Union’s certification by Respondent,
and indicative of bad-faith bargaining. This unlawful withhold-
ing of wage increases had not been remedied by the summer of
1992, over 2-1/2 years had elapsed since the last such increase
had been granted, which included at least two such yearly in-
creases that employees had not received due to Respondent’s
unlawful action. I conclude that the failure of employees to
receive such increases had to have undermined the Union’s
bargaining position and was a significant stumbling block that
that prevented the parties from reaching agreement. Indeed
according to Rydzel, the issue of wages was one of the princi-
pal issues which caused the alleged impasse, and it is likely that
had the employees received these increases as they should
have, the gap between the parties may have narrowed. Indeed
one of Respondent’s own proposals called for a retroactive
increase, presumably to make up for the prior unlawfully with-
held increases, which would not have been necessary had Re-
spondent complied with the law and granted the increases as it
had in the past.
Accordingly, I conclude, based on the above analysis, that se-
rious unremedied unfair labor practices of Respondent contrib-
uted to the alleged deadlock in negotiations, and precluded the
possibility of a valid impasse in the summer of 1992.
Moreover, I also conclude in agreement with the position of
the General Counsel and the Charging Party that even apart
from the unfair labor practices, Respondent’s declaration of
impasse was premature, and that alternatively if it existed it was
broken by the Union’s proposals submitted on June 11.
A genuine impasse in negotiations exists when the parties are
warranted in assuming that further bargaining would be futile,
Larsdale, Inc., 310 NLRB 1317, 1318 (1993), or when there is
“no realistic possibility that continuation of discussion at that
time would have been fruitful.” Wycoff Steel, Inc., 303 NLRB
517, 523 (1991); NLRB v. WPIX Inc., 906 F.2d 898, 901 (2d
Cir. 1990). “Both parties must believe that they are at the end
of their rope.” Larsdale, supra, citing PRO Recording Co., 280
NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987);
Huck Mfg. Co. v. NLRB, 693 F.2d 1176,1186 (5th Cir. 1982).
In applying these principles to the facts at hand, Respondent
argues that by May 1992, the parties had exhausted their efforts
to reach agreement on major issues separating them over a 2-
1/2 year period. However, Respondent conveniently ignores the
fact that it has been found to have bargained in bad-faith
through March 1991. Thus for purposes of assessing impasse
one must consider that “bargaining began anew” at bargaining
sessions subsequent to that time. WPIX, supra at 901.
Subsequent to March 1991 there were several bargaining
sessions, but a number of them did not deal with bargaining
issues for a new contract, but were primarily concerned with
negotiating severance and layoff issues. Moreover, the Union
submitted a comprehensive written proposal at the March 10
meeting, which was not discussed until the next meeting on
April 13, this resulted in a discussion of this proposal for the
first time, as well as a modified version of Respondent’s flex-
plan which was presented at that meeting.
It was at the very next meeting May 18, 1992, when Respon-
dent by Rydzel declared impasse. In my view, Respondent has
not established that at that time further bargaining would have
been futile. Larsdale, supra; PRO Recording, supra. Most im-
portantly, the Union when presented with Respondent’s decla-
ration of impasse, vigorously protested, claimed that it had
movement to make, and requested some time to prepare and
submit new proposals. Respondent however declined the Un-
ion’s offer, and refused to wait an hour and a half for the Union
to present its proposal.23 Thus, it is absolutely clear that the
Union did not believe on May 18, 1992, that bargaining pros-
pects could no longer be fruitful. Huck Mfg. Co., supra at 1186;
PRO Recording, supra at 640; Larsdale, supra, and that there-
fore there was no contemporaneous understanding by both
parties that they had reached impasse. Wycoff, supra at 523.
Accordingly, I conclude that Respondent’s declaration of
impasse on May 18, 1992, was premature.

23 I note in this regard that this is the same Respondent who has been
found by the Board to have violated its duty to meet with the Union at
reasonable times. Moreover, not only did Respondent refuse to wait for
the Union to prepare new proposals, it also refused to set up a new
meeting at that time.
BRYANT & STRATTON BUSINESS INSTITUTE 1149
Moreover, even if it was appropriate to find that a valid im-
passe had been established as of May 18, 1992, I agree with the
General Counsel and the Charging Party that such an impasse
would have broken by the submission of the Union’s new pro-
posals in June 1992.
Respondent makes two arguments concerning the Union’s
June proposals, neither of which has any merit. First it contends
that they were “too late,” since by the time Respondent re-
ceived them on June 16, 1992, it had advised the faculty of its
intent to implement the faculty guide by the July quarter, and
had “substantially completed the implementation process.”
However, the evidence does not support Respondent’s asser-
tions. Indeed, while the memo to employees does state that it
“intends” to implement the faculty guide by the July quarter, it
did not say that the guide was implemented immediately.
Moreover, the memo did not indicate that it was implementing
the 401(k) or the flex-plan, which allegedly encompassed the
elimination of the bonus. Respondent’s statement in its brief
that it had “substantially complicated the implementation proc-
ess” by June 11 or 16 is not supported by any record evidence.
While Respondent’s officials did inform the Union that it
needed “time” before July 1, 1992, to implement the programs,
no evidence was presented by Respondent as to what steps it
took prior to July 1 to implement anything. Since admittedly,
the 401(k) did not become effective until July 1, 1992, the Un-
ion’s proposals were not too late to break the impasse.
Respondent also argues that these proposals of the Union
were merely “window dressing,” and made no significant
movement on the key issues separating the parties. I disagree.
While Respondent does point to several areas of disagreement
between the parties even after the new proposals, that is not
determinative. “Anything that creates a new possibility of fruit-
ful discussion (even if it does not create likelihood of agree-
ment) breaks an impasse.” Gulf States Mfg. Co. v. NLRB, 704
F.2d 1390, 1399 (5th Cir. 1983); PRO Recording, supra at 636
and 640.
Here the Union made a substantial effort to bridge the gap in
the parties’ bargaining positions, which demanded testing by
further bargaining before Respondent made any unilateral
changes. Serramonte Oldsmobile, Inc., 318 NLRB 80, 98
(1995). Thus the Union’s new proposal made significant
movement24 in several areas that Rydzel had asserted had
caused the alleged impasse. These changes included a new
proposal on wage increases which included withdrawing the
Union’s prior insistence on wages being determined by creden-
tials and length of service, which Rydzel conceded was one of
the principal factors that led him to declare impasse, since such
proposals were inconsistent with Respondent’s desire to grant
wage increases based solely on its determination of merit.
Moreover, the Union’s new wage proposal made movement
towards Respondent’s prior positions on the amount of in-
creases and on the creation of a bonus pool.
Also significant was the Union’s withdrawal of its previous
demand that Respondent reinstate its previously frozen pension

24 I also note that in Ley’s memo to the faculty dated June 11,1992,
Respondent announced that since impasse had been declared on May
18, 1992, no further bargaining sessions will be scheduled until a “ma-
terial modified proposal” is received from the Union. Since Respondent
did agree to meet with the Union after receiving the June proposals, it is
clear that Respondent considered the proposals to be “material modi-
fied proposals” from the Union.
plan,25 as well as its proposal to accept the 401(k) plan pro-
posed by Respondent, albeit with several modifications.
Finally, the Union substituted an agency shop proposal for
its previous demand for a union-shop clause. In that regard, I
note that Rydzel had at a previous off-the-record meeting sug-
gested the possibility of an agency shop clause, but O’Donnell
rejected the idea at that time. Further, in Ley’s memo to the
faculty on June 11, 1992, he made the point in supporting Re-
spondent’s decision to declare impasse, that the Union had
indicated on several occasions that it would consider movement
on seniority and union shop, but had not changed its position
since bargaining again. Therefore the Union’s demonstrating
movement on union shop as well as seniority in its June pro-
posals, was responsive to areas of obvious concern to Respon-
dent.
Accordingly, based on the foregoing analysis and authorities,
I conclude that Respondent has not established the existence of
a good-faith impasse on May 18, 1992, and that any possible
impasse was clearly broken by the Union’s proposals of June
11, 1992. Therefore, I find that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally eliminating the
termination bonus for its bargaining unit employees.
VI. THE WITHHOLDING OF A MERIT WAGE INCREASE
AND ALLEGED DIRECT DEALING
A. FACTS
As noted above, the Board found in Bryant & Stratton I that
Respondent had unilaterally withheld granting merit increases
in violation of Section 8(a)(1) and (5) of the Act. The adminis-
trative law judge’s decision, which the Board upheld, dealt with
the years 1990, 1991, and part of 1992.
The record also reveals that Respondent did not grant a merit
wage increase in 1992, but it did give an across-the-board in-
crease of 3 percent to all employees on/or about July 1, 1992,
as part of its implementation of the faculty guide.
No mere raise was granted in 1993. However, for the fall
term of 1994, Respondent implemented the discretionary bonus
portion of its December 9, 1991 proposal. This consisted of a
bonus pool of $50,000 to be distributed to employees solely at
Respondent’s discretion as to amounts to any specific em-
ployee. While Respondent did not notify the Union of this ac-
tion, it did notify the faculty, who in turn notified the Union.
The Union made no objection to these increases, nor did it file
any unfair labor practice charges about it. Significantly, the
Union was not asked by Respondent to waive its rights to file
unfair labor practice charges about this increase, or about how
the increases were distributed. Finally, the record contains no
evidence that the Union protested any specific amount given or
not given to any employee, or that any employee was treated
unfairly in the decision as to amounts.
O’Donnell wrote a letter to Rydzel dated October 6, 1994.
The letter indicates that Respondent’s appeal of Judge Klei-
man’s decision will obviously delay the implementation of the
judge’s Order.26 He continues that since the Respondent has
only granted one across-the-board increase since 1994, there is
unrest among the faculty. Further, he asserts that Respondent’s
25 I note that Rydzel had made specific reference to the Union’s in-
sistence on continuation of the pension plan as one of the factors that
led him to declare impasse.
26 The judge’s decision was issued in June 1994.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
promise of a discretionary bonus has yet to become a reality,27
and will not be an increase in base wages.
Therefore, O’Donnell requests that Respondent grant a “sub-
stantial” and “equitable” wage increase to all full-time faculty,
and promises not to file an unfair labor practice charge claim-
ing that the increase amounts to a unilateral change. However,
the letter further states that “we will retain our rights to negoti-
ate fair and equitable wages in our ongoing collective-
bargaining efforts.”
O’Donnell received no response to his letter until September
18, 1995, when Rydzel sent him a letter. This letter advised that
Respondent was considering providing a merit salary increase
effective the start of the October 1995 quarter. He explained
that the increases would be discretionary, based on perform-
ance, and would vary from individual to individual. The aver-
age increase would be 3.25 percent which was consistent with
increases given to other of Respondent’s employees in 1995.
The letter notes further that the increase “is consistent with
your request in your letters to me of October 6, 1994 . . . . In
that letter you stated that if Bryant & Stratton granted a wage
increase, the UAW would not file an unfair labor practice
charge over such action. We assume that your letter means that
the UAW has no objections to the merit increases that would be
awarded in the October quarter.”
O’Donnell responded by fax and letter of September 29,
1995, wherein he clarified his prior letter by stating that since
the Union did not want salary increases to be delayed pending
bargaining, it offered not to file unfair labor practice charges
against Respondent for implementing a wage increase despite
the fact that negotiations were ongoing. However, O’Donnell
added that “we are not waiving our right to bargain over any
individual increases (including the amounts) you may grant to
any particular faculty member.”
Rydzel responded by fax the same day. He asserts that
O’Donnell’s position was ambiguous, since it appears to urge
Respondent to proceed and then reserved the right to complain
about it. Rydzel then repeated that Respondent was prepared to
give a merit increase averaging 3.25 percent as described in his
prior letter, but it was not prepared to allow the Union to “nego-
tiate changes in the individual allocations of the merit in-
creases. If you are not prepared to agree to this concept, then
we are not prepared to go forward with the increase.”
O’Donnell replied by letter of October 6, 1995. It states that
the Union has consistently suggested that Respondent not delay
wage increases and was prepared to waive any protest over
timing even though there was no impasse. However, O’Donnell
added that it was not willing to give Respondent “carte blanche
to ignore its obligations under the National Labor Relations Act
and engage in arbitrary and discriminatory conduct, vis a vis,
individual numbers.” The letter also asked for details of the
planned increase, including the amounts planned for each indi-
vidual.
Rydzel responded by letter of October 18, 1995. It asserts
that the UAW can permit the wage increase to go into effect or
it can block it. It adds that Respondent has no interest in litigat-
ing the question, and if the Union wishes to object to a merit
increase it can do so, and if so, there will be no merit increase.

27 This statement suggests that the bonus increase discussed above
had not been implemented as of October 4, 1994. Although the record
indicates that it was implemented in the fall of 1994, the precise date of
implementation has not been established.
Rydzel also attached a summary of the criteria that Respon-
dent will use to determine individual performance and states
that the range of increases will probably be from 2 to 6 percent
with the average of 3.25 percent. The letter repeats that Re-
spondent will not grant the increases if litigation is the out-
come, and that the Union should “tell us clearly and unambigu-
ously by October 25 whether or not you are blocking the in-
crease.”
By letter of October 25, 1995, O’Donnell responded. He
again requested that Respondent proceed with the wage in-
crease, which he characterized as long overdue. O’Donnell
added that the Union is prepared to waive as right to file unfair
labor practice charges involving any aspect of Respondent’s
plan, as long as Respondent provides some mechanism for
assuring that merit increases are not arbitrary. In that regard,
the Union proposed that the merit increase program be subject
to review through a grievance-arbitration procedure.
Respondent did not reply to this letter of O’Donnell, and in-
stead issued a memo to employees, announcing that it would
not be providing the merit increase and giving its reasons for
doing so. The memo reads as follows:

Over the last six weeks, Bryant & Stratton has unsuc-
cessfully sought approval from your collective bargaining
representative (UAW) to implement a merit salary in-
crease. We asked the UAW to simply and unambiguously
tell us they had no objection to the wage increase. The
UAW has repeatedly refused to tell us that and so we can-
not go forward. We know that the UAW has misrepre-
sented this situation to you and we wanted you to know all
the facts.
The merit salary increase would have been a follow up
to the 1992 faculty wage increase and the 1994 faculty
performance bonus payment acknowledging the faculty’s
role in the success of the college.
The merit increases, which would have totaled 3.25
percent of the existing full-time faculty payroll, would
have ranged from 2 percent to 6 percent individually. The
actual percentage would have been based on an individual
assessment by local campus administration based upon
student course evaluations, classroom observations and
faculty responsibilities under the faculty guide. An analo-
gous assessment process was utilized a year ago in deter-
mining your individual share of the $50,000 faculty bonus
pool. The above method of administering the merit in-
crease has been provided to the UAW.
During the course of bargaining to impasse, more than
three years ago, the UAW agreed to the concept of a merit
increase related to performance determined by manage-
ment. Now, your collective bargaining representative
wishes to retain the right to pass judgment on the amount
of your individual increase. The last correspondence, from
the UAW, proposed that each merit increase be subject to
review through a grievance arbitration procedure.
Bryant & Stratton, as with all its associates, is prepared
to have you individually discuss with your dean your per-
formance review and how your increase was determined.
We have no interest in permitting the determination of
your increase to be controlled by an outsider, be it the
UAW or an arbitrator, neither of whom are familiar with
our faculty, our students, or our operations. This would in-
validate the concept of merit. Our administration of last
year’s performance bonus award had no such condition
BRYANT & STRATTON BUSINESS INSTITUTE 1151
and to our knowledge there was a consensus that it was
fair and equitable. We will not be providing the merit in-
crease because of the condition your collective bargaining
representative has imposed upon us. This did not have to
be the outcome.

On the copy of the memo which was given to employee
Richard W. Takowski, a handwritten sentence was written and
signed by Lam Morton the institute director. The words were,
“Dick, we will set aside some time later this week to answer
questions and further discuss—Lam.”
Notwithstanding this “invitation” by Morton to Witakowski,
no such discussion or meeting ever took place.
Upon finding out about this memo to the faculty, O’Donnell
prepared and distributed his own letter to the employees dated
November 15, 1995. The letter essentially sets forth the Un-
ion’s position on the increases, and is forth below:

For over a year, the UAW has been on record telling
Bryant & Stratton not to delay well-deserved salary in-
creases for faculty. Recently, Bryant & Stratton began a
letter writing game asking the UAW to waive its right to
file any unfair labor practices over its undisclosed merit
increase plan. Copies of our additional responses are at-
tached. The UAW has absolutely no objections to salary
increases for faculty. Apparently, what Bryant & Stratton
really wants is the UAW to waive its right and obligation
to represent any faculty member who believes that a merit
increase was improper or inadequate. The UAW cannot
and will not waive its legal obligation to act as the bar-
gaining representative for the faculty. Apparently Bryant
& Stratton must have been planning some rather arbitrary
or discriminatory increases, since they are not confident
that a neutral arbitrator would have approved individual
amounts. For that matter, despite over 6 weeks of letter
writing, Bryant & Stratton refused to disclose or try to jus-
tify the individual increases they were planning to make.
Fortunately, Bryant & Stratton was dumb enough to
admit in writing that the only reason it is not implementing
the merit increase program is because the UAW refused to
waive its representation rights. This is a clear unfair labor
practice under the National Labor Relations Act. We are
filing a charge with the NLRB charging Bryant & Stratton
with bad faith bargaining. As a result of our charge, we an-
ticipate that an NLRB complaint should be issued against
Bryant & Stratton in the near future ordering Bryant &
Stratton to make all affected faculty whole for any lost
moneys and to start to bargain in good faith on this issue
with the UAW.
We will be scheduling a meeting in the very near fu-
ture to discuss this and other issues. UAW Regional Direc-
tor Tom Fricano will be present to answer questions and to
hear your comments. As soon as we have a firm date, you
will be contacted.

The meeting set forth at the end of this letter was held on
December 11, 1995. At that time O’Donnell explained to the
employees the Union’s position that it could not waive its rights
to protect employees from arbitrary treatment, and if it did it
could subject them to a charge that it breached the Union’s duty
of fair representation. According to O’Donnell, notwithstanding
the Union’s explanations in writing and at the meeting, a num-
ber of employees expressed to him that they were upset about
not getting their raise and that they blamed the Union for that
result.
Staschak furnished testimony as to why Respondent decided
to issue its November 1, 1995 memo to employees. He asserts
that he had been informed that the Union had been telling em-
ployees that Respondent was holding up the wage increase for
employees, and he felt it was important to provide Respon-
dent’s position as to why it was not going forward with the
increases.
Staschak also explained his reference in the memo to dis-
cussing with the Dean employees performance review and how
increases were determined. According to Staschak, it is normal
practice for employees to meet with their immediate supervi-
sors to discuss performance issues as well as why they were
given particular increases.
Respondent did not implement the proposed wage increase
program in 1995, but after it withdrew recognition form the
Union in April 1996, Respondent implemented the program
that it had proposed in 1995.
B. Analysis
As noted above, the Board in Bryant & Stratton, I concluded
that Respondent had violated Section 8(a)(1) and (5) of the Act
by unilaterally freezing its policy of an annual merit wage re-
view. Daily News of Los Angeles, 315 NLRB 1236 (1994),
enfd. 73 F.3d 406 (D.C. Cir. 1996).
Since that decision was based on a finding that Respondent
had previously established a practice of granting annual merit
increases to its employees, its failure to do so in 1995 is simi-
larly violative of the Act. Respondent argues in this regard that
1995 is no different from 1994 or 1996 or any other year since
1990, and that therefore the General Counsel’s argument is
better served for the remedy phase of Bryant & Stratton I.
However, I would note that here Respondent was prepared to
grant a particular merit increase program, and failed to do so
because the Union failed to waive its right to file unfair labor
practice charges. Thus as will be discussed below, the appropri-
ate remedy for the violation is impacted, I deem it essential to
decide the matter in this proceeding.
Respondent also contends, as it did in connection with the
termination bonus, that the failure to grant the 1995 increases is
not unlawful, because of the impasse that it reached in 1992.
Thus according to Respondent, once it reached impasse in
1992, and granted a 3-percent increase in 1992 as a result of
such impasse (as well as its 1994 merit increase). The prior
established pattern of wage increases as found in the prior case
no longer existed.
However, this contention of Respondent must be rejected for
the reasons discussed above with respect to the termination
bonus (i.e., the outstanding serious unfair labor practices pre-
cluded a valid impasse, Respondent’s declaration of impasse
was premature, and in any event was broken by the Union’s
June 11 proposals). Accordingly this defense must fail.
Respondent’s conduct here is violative of Section 8(a)(1) and
(5) of the Act for the additional reason that it conditioned grant-
ing the wage increase to employees upon the Union waiving its
statutory rights to file unfair labor practice charges over the
individual decisions made by Respondent to grant increases to
employees. Such a condition by Respondent is violative of
Section 8(a)(1) and (5) of the Act. Ellicott Square Court Corp.,
320 NLRB 762, 772 (1996); Caribe Staple Co., 313 NLRB
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
877, 890 (1994); and Athey Products Corp., 303 NLRB 92, 95–
97 (1991).
Accordingly, I conclude that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by failing to grant a merit in-
crease to its employees on/or about November 1, 1995.
The General Counsel also alleges that Respondent’s decision
to withhold this increase in 1995 was violative of Section
8(a)(1) and (3) of the Act. I note that the administrative law
judge had found such a violation in Bryant & Stratton I, but the
Board concluded that it was unnecessary to pass upon that find-
ing since that finding would not materially affect the remedy.
I see no reason not to follow the Board’s action in this re-
gard, since in my view the remedy would not be materially
affected by a finding that the failure to implement the increase
was also violative of Section 8(a)(3) of the Act. I therefore shall
make no finding or reach any conclusion concerning this alle-
gation of the complaint.
However, the complaint does contain two other allegations
related to the wage increase, which do require analysis. First, it
is alleged that Respondent by its November 1, 1995 memo to
employees undermined and blamed the Union for the failure of
unit employees to receive a merit pay increase in violation of
the Act.
Respondent argues on the other hand that the communication
was a factual, noncoercive statement of its position in bargain-
ing with the Union, and therefore not violative of the Act. Praff
& Whitney, 789 F.2d 121, 134 (2d Cir.1986); Huck Mfg. v.
NLRB, 693 F.2d 1176, 1182 (5th Cir.1982).
I am in agreement with the General Counsel and the Charg-
ing Party that this communication is violative of Section 8(a)(1)
of the Act. In my view Respondent’s communication was
nether factual nor noncoercive.
Since I have concluded that Respondent’s decision not to
grant the increase was violative of Section 8(a)(1) and (5) of the
Act, Respondent’s placing the blame on the Union for its own
unlawful failure to follow its prior practices is coercive and
violative of Section 8(a)(1) of the Act. Lamont’s Apparel, Inc.,
317 NLRB 286, 288 (1995); Harrison Ready Mix Concrete
Co., 316 NLRB 242 (1995); LAM Packaging, 308 NLRB 829,
833 (1992); see also Alachua Nursing Center, 318 NLRB 1020,
1031 (1995).
Moreover, I note that the memo conveniently and signifi-
cantly ignores the reason that the Union would not “unambigu-
ously” consent to the increase, Respondent’s demand which I
have found to be unlawful, that the Union waive its rights to
file future unfair labor practices concerning the issue. I note in
this connection that Respondent referred to the Union’s last
proposal (which was merely a counteroffer to Respondent’s
demand for a waiver of the filing of unfair labor practices), that
each increase be subject to review through a grievance-
arbitration procedure. It further asserted that its administration
of “last year’s performance bonus award had no such condition
and to our knowledge there was a consensus that it was fair and
equitable.”
I find these comments disingenuous and misleading. Thus
the only reason that the Union proposed the grievance-
arbitration review was in response to Respondent’s own unlaw-
ful demand that the Union forgo future unfair labor practices.
Thus it was not the “Union’s condition” that prevented the
granting of the increase, but Respondent’s unlawful condition,
which it totally failed to mention in the memo.
Moreover, the comment that its administration of last year’s
bonus was fair and equitable, and its argument that the Union
did not protest these increases, only serves to reinforce the bad
faith of Respondent’s insistence on a waiver of future charges
concerning the increases. Thus since the Union did not file any
charges concerning the 1994 administration of the bonus,28
which presumably were distributed fairly, why would Respon-
dent believe that the Union would be likely to file such charges
in 1995, unless such charges were warranted. Therefore, as
long as Respondent intended to administer the bonus fairly, as
it did in 1994, I conclude that it had no reasonable basis to fear
that the Union would file charges concerning that matter.
Rather, it appears to me that Respondent knew that the Union
would not and could not agree to such an unlawful condition,
and it imposed that condition in order to blame the Union for
the failure of the employees to receive the increase and to cause
the employees to disaffect from the Union.
Respondent’s position in this regard is even more egregious
in view of the fact that in Bryant & Stratton I, the Board con-
cluded that Respondent had violated Section 8(a)(1) and (3) of
the Act by discriminatorily issuing substandard evaluations to
three employees because of their union activities, as well as
several other 8(a)(3) violations. This demonstrates that Re-
spondent has discriminated against employees because of their
union activities, and I note that evaluations by supervisors of
employees has a direct relation to the awarding of merit in-
creases. Therefore it was certainly reasonable for the Union to
be wary of waiving their rights to file future unfair labor prac-
tice charges concerning Respondent’s administration of the
bonus program, and unreasonable for Respondent to insist that
the Union waive such rights, before it grants a wage increase
that it was lawfully required to give in the first place.
Accordingly, I conclude that by its November 1, 1995 letter,
Respondent has unlawfully blamed the Union for its own
unlawful failure to grant an increase, and undermined the Un-
ion’s status among its employees.
The complaint also alleges and the General Counsel and the
Charging Party argue, that this same memo also constitutes
unlawful direct dealing in violation of Section 8(a)(1) of the
Act. I agree.
I note particularly that when Respondent distributed its No-
vember 1, 1995 memo to employees, it had not responded to
the Union’s counteroffer of a grievance procedure to substitute
for waiving the Union’s rights to file future unfair labor prac-
tice charges. In fact Respondent never responded to that offer,
and never even informed the Union that it had made a final
decision not to grant the increase. Instead, Respondent chose to
communicate this decision directly to its employees, which
included arguments never presented to the Union, such as that
arbitrator would not be sufficiently familiar with Respondent’s
operations to properly evaluate mere increases. This conduct
demonstrates that Respondent was ignoring its obligation to
deal with Union on matters encompassing the bargaining
relationship, and undercuts the ability of the Union to function
as a representative. Master Plastering Co., 314 NLRB 349, 351
(1994). Moreover, Respondent’s characterization of the Union
as an “outsider” and unable to properly evaluate the propriety
of individual increases (clearly a bargainable subject), while at

28 It is also significant that the Respondent never demanded that the
Union agree not to file unfair labor practice charges in 1994. In fact it
never even notified or discussed with the Union that increase.
BRYANT & STRATTON BUSINESS INSTITUTE 1153
the same time improperly blaming the Union for the failure of
employees to receive the increase, was likely to erode the Un-
ion’s position and undermine its status as the exclusive bargain-
ing representative of its employees. Alachua, supra at 1031;
Fairhaven Properties, 314 NLRB 763, 767 (1994); Modern
Merchandising, Inc., 284 NLRB 1377, 1379 (1987).
I also rely on the specific invitation in the memo to “indi-
vidually discuss with your dean your performance review and
how your increase was determined,” as well as Morton’s writ-
ten request to Witakowski to meet and “answer questions and
further discuss.” While Respondent argues and the record dis-
closes that Respondent ordinarily discusses performance review
issues with employees, I do not consider that determinative.
Here Respondent had in the same memo announced that it will
not be providing the merit increase. Thus there is nothing to
discuss with individual employees, except for matters that
should be discussed with the Union, such as whether and why
the increase was or was not granted, why the Union’s proposal
for an arbitrator to review merit increases was not acceptable,
or other areas concerning the implementation of the merit in-
crease program.
Accordingly, based on the foregoing, I conclude that Re-
spondent has violated Section 8(a)(1) of the Act by dealing
directly with employees and bypassing the Union.
VIII. THE 1996 UNILATERAL CHANGES
Following Respondent’s withdrawal of recognition on April
19, 1996, Respondent instituted a number of changes in terms
and conditions of employment of as unit employees. These
changes included the granting of mere pay increases effective
April 1, 1996, a change in its faculty performance review and
evaluation system, a change in Respondent’s sick pay plan
which resulted in a reduction in the number of sick days for
employees, the implementation of partipative career manage-
ment system, and a profit-sharing plan.
Respondent concedes that these changes in terms and condi-
tions of employment of its employees were effectuated without
notification to/or bargaining with the Union. Respondent ad-
mits that its sole defense to these allegations is that its with-
drawal of recognition from the Union on April 19, 1996, was
lawful, and was based on a petition signed by a majority of unit
employees.
However, since the Board has already rejected that defense
in Bryant & Stratton II, in view of the unremedied unfair labor
practices of Respondent, I conclude that Respondent has further
violated Section 8(a)(1) and (5) of the Act by these unilateral
changes.
CONCLUSIONS OF LAW
1. The Respondent, Bryant & Stratton Business Institute, is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time faculty, including faculty who are subject
area coordinators, employed by the Respondent at 40 North
Street and 1028 Main Street in Buffalo, New York, Abbott
Road in Lackawanna and 200 Bryant & Stratton Way in Cla-
rence, New York; excluding all part-time faculty, librarians,
and all other employees, guards and supervisors as defined in
the Act constitute a unit for purposes of collective-bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material, the Union has been, and is now, the
exclusive bargaining representative of all employees in the
appropriate unit for purposes of collective bargaining within the
meaning of the Act.
5. By unilaterally withholding annual merit wage increases
from its employees, eliminating its payment to employees of a
termination bonus, granting a mere pay increase effective April
1, 1996, changing its performance assessment and salary re-
view system for its employees, changing its sick pay plan, im-
plementing a participative career management system, and
implementing a profit-sharing plan, Respondent has violated
Section 8(a)(1) and (5) of the Act.
6. By informing its employees that the Union was responsi-
ble for the unlawful failure of Respondent to grant a merit wage
increase to the employees, by undermining the Union’s status
as collective-bargaining representative of its employees, and by
dealing directly with its employees and bypassing the Union
concerning their terms and conditions of employment, Respon-
dent has violated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in various unfair la-
bor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate
the policies of the Act.
Since Respondent has already been ordered in Bryant &
Stratton I to reinstate and implement its monetary review sys-
tem, it is unnecessary to require Respondent to do so again
herein. However, in my view the make-whole remedy with
respect to the instant case must be coordinated with the compli-
ance proceedings in Bryant & Stratton I. Thus, I shall recom-
mend the standard remedy to make whole the employees for
losses by reason of Respondent’s unilateral withholding of its
annual merit increases, with interest computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173 (1987).
The coordination with the compliance stage of Bryant &
Stratton I is required in my view, since the amounts due em-
ployees might differ. As noted above, the prior case concluded
that Respondent’s established review system consisted of re-
views at different times depending on which location the em-
ployee worked. On the other hand, the wage increase system
that I have found Respondent had unlawfully failed to imple-
ment in November 1995 consisted of an identical review pro-
gram for all employees regardless of their location. Therefore,
the computation of backpay for employees would not necessar-
ily be the same, and it would be inappropriate and punitive to
require Respondent to grant two increases for the year 1995.29
Therefore, I shall recommend that the employees receive the
greater of the amount that they would have received under Re-
spondent’s prior system or under the proposed program that
Respondent failed to implement in 1995.
I shall also recommend that Respondent restore its prior
practice of paying a termination bonus to employees, as well as
making whole Whitney and any other employee who failed to
receive such a bonus and would have been eligible, by payment
of the bonus plus interest, also computed in accord with New
Horizons, supra.

29 Indeed, the General Counsel concedes that Respondent should be
compelled to grant only one increase for the year 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154
With respect to the various unilateral changes instituted by
Respondent subsequent to its unlawful withdrawal of recogni-
tion, the record is not clear as to whether these changes were
beneficial or detrimental to the employees. In such mixed situa-
tions the Board’s policy is to “order a return to the status quo
with regard to the unfavorable changes, but not to penalize
employees by ordering revocation of the favorable changes.”
NLRB v. Keystone Steel & Wire, 653 F.2d 304, 308 (7th Cir.
1981). The decision as to which changes are favorable to the
employees shall be made by the employees as expressed
through their bargaining representative. Children’s Hospital of
San Francisco, 312 NLRB 920, 931 (1993), affd. 87 F.3d 304,
311 (9th Cir. 1996).
Additionally, I find it appropriate to again extend the certifi-
cation year of the Union, as the Board has done in both Bryant
& Stratton I and II, since Respondent has still not complied
with the orders in either of those cases.
Finally, the General Counsel requests an amendment to the
standard backpay order requiring Respondent to “provide” to
the Board the necessary records, “including an electronic copy
of such records it stored in electronic form.”
According to the General Counsel, such an order would save
the Board considerable time and expense, as well as alleviate
efforts of some of Respondent’s to frustrate the Board’s calcu-
lation of appropriate backpay.
In the absence of any record evidence supporting the General
Counsel’s assertions set forth above, or any notice to the other
parties that it would be seeking such a remedy, I find it inap-
propriate to recommend such an amendment. Moreover, in my
view such a departure from standard Board language should
come from the Board itself.
Based on these findings of fact and conclusions of law and
on the entire record, I issue the following recommended30
ORDER
The Respondent, Bryant & Stratton Business Institute, Buf-
falo, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Undermining the status of Local 2294, United Automo-
bile Aerospace & Agricultural Implement Workers of America
as the collective-bargaining representative of its employees,
and informing its employees that the Union was responsible for
its unlawful failure to grant a merit wage increase to the em-
ployees.
(b) Bypassing the Union or bargaining directly with its em-
ployees in the bargaining unit, with respect to wages, hours,
and other terms and conditions of employment.
(c) Unilaterally, without notifying or affording the Union an
opportunity to bargain, withholding annual merit increases, or
eliminating the payment of a termination bonus to its employ-
ees.
(d) Unilaterally, without notifying or affording the Union an
opportunity to bargain, instituting, and granting a merit pay
increase program, changing its performance assessment and
salary review system, changing its sick pay plan, implementing

30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
a participative career management system, and implementing a
profit-sharing plan.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of employees in the following appropriate unit con-
cerning terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement:

All full-time faculty, including faculty who are subject area
coordinators, employed by us at 40 North Street and 1028
Main Street, Buffalo, New York, 1214 Abbott Road, in
Lackawanna, New York, and 200 Bryant & Stratton Way,
Clarence, New York; excluding all part-time faculty, librari-
ans and all other employees, guards and supervisors as de-
fined in the Act.

(b) Treat the initial year of certification as beginning on the
date the Respondent complies with this Order.
(c) Restore its prior practice of paying a termination bonus to
its employees.
(d) Make its employees whole, with interest, for all losses
suffered by its employees as a result of its unilateral discon-
tinuance of its annual wage reviews and increases, as well as a
result of its unilateral elimination of its termination bonus, in
the manner set forth in the remedy section of this decision.
(e) If the Union so desires, revoke and cease giving effect to
the changes in the aforementioned employees’ terms and condi-
tions of employment which were implemented on or after May
3, 1996; and in the event of such revocation, make employees
whole, with interest, for any losses they may have suffered as a
result of such changes.
(f) Within 14 days after service by the Region, post at its
Downtown Buffalo, Eastern Hills, and Southtowns facilities
copies of the attached notice marked “Appendix.”31 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 3, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed
any of the facilities involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since July 12, 1995.
(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.

31 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BRYANT & STRATTON BUSINESS INSTITUTE 1155
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT undermine the status of Local 2294, United
Automobile Aerospace & Agricultural Implement Workers of
America as the collective-bargaining representative of our em-
ployees, or inform our employees that the Union was responsi-
ble for our unlawful failure to grant a merit wage increase to
said employees.
WE WILL NOT bypass the Union, or bargain directly with
our employees in the bargaining unit, with respect to wages,
hours, and other terms and conditions of employment.
WE WILL NOT unilaterally, without notifying or affording
the Union an opportunity to bargain, withhold annual merit
increases or eliminate the payment of a termination bonus to
our employees.
WE WILL NOT unilaterally, without notifying or affording
the Union an opportunity to bargain, institute and grant a merit
pay increase program, change our performance assessment and
salary review system, change our sick pay plan, implement a
participative career management system, or implement a profit-
sharing plan.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclu-
sive representative of employees in the following appropriate
unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement:

All full-time faculty, including faculty who are subject area
coordinators, employed by us at 40 North Street and 1028
Main Street, Buffalo, New York, 1214Abbott Road, in
Lackawanna, New York, and 200 Bryant & Stratton Way,
Clarence, New York; excluding all part-time faculty, librari-
ans and all other employees, guards and supervisors as de-
fined in the Act.

WE WILL treat the initial year of union certification as be-
ginning on the date we comply with the Board’s Order.
WE WILL restore our prior practice of paying a termination
bonus to our employees.
WE WILL make our employees whole, with interest, for all
losses suffered by them as a result of our unilateral discontinu-
ance of our annual wage reviews and increases, as well as a
result of our unilateral elimination of our termination bonus.
WE WILL, if the Union so desires, revoke and cease giving
effect to the changes in the aforementioned employees’ terms
and conditions of employment which we implemented on/or
after May 3, 1996; and in the event of such revocation, make
our employees whole, nwith interest, for any losses they may
have suffered as a result of such changes.

BRYANT & STRATTON BUSINESS INSTITUTE