Duane Reade, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 2004

342 N.L.R.B. 1016 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 104
1016
Duane Reade, Inc. and Allied Trades Council. Case
2–CA–34228, 2–CA–34229, 2–CA–34241, 2–CA–
34235, and 2–CA–35145
September 15, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On February 18, 2004, Administrative Law Judge El-
eanor McDonald issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an
answering brief, and the Respondent filed a reply brief.
The General Counsel also filed cross-exceptions and a
supporting brief, the Respondent filed an answering
brief, and the General Counsel filed a reply brief.
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 conclusions, as modi-
fied, and to adopt the recommended Order as modified.2

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.
In describing the Respondent’s December 6, 2001 wage offer, the
judge inadvertently misstated the amounts by which the Respondent
offered to increase the wages of pharmacists and of other employees;
the correct figures are, for pharmacists, $1-per-hour increase in each
year of a 3-year contract, and, for other employees, 40, 30, and 30 cents
per hour increases in successive years of a 3-year contract. The judge
also inadvertently misstated the date on which the Respondent imple-
mented the terms of its final offer; it did so on December 9, 2001.
These inadvertent errors do not affect our decision.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by, in the absence of a valid impasse on August 31,
2001, unilaterally ceasing contributions to the Vacation and Fringe
Benefit Fund, the Allied Welfare Fund, and the Union Mutual Fund, we
additionally rely on the following: (1) the Respondent ceased contribu-
tions to the Vacation and Fringe Benefit Fund on July 1, 2001; and (2)
the Respondent’s negotiator, at the close of the August 31, 2001 bar-
gaining session, requested that the Union continue to negotiate because
the contract expired at midnight. Also, we disavow any implication in
the judge’s decision that the Union did not have a statutory duty to
explore alternative means of providing the fund information requested
by the Respondent. A union is “obliged to investigate alternative
sources of the requested information, or to explain its unavailability.”
Hospital Workers (Johns Hopkins), 273 NLRB 319, 320 (1984). Any
failure by the Union to satisfy its obligations in this respect, however,
does not legitimize the Respondent’s unilateral cessation of fund con-
tributions.
Member Schaumber agrees with his colleagues that the Respondent
violated Sec. 8(a)(5) and (1) when it failed to pay its employees for
accrued sick leave on or about August 31, 2002; however, he would
find that the Respondent’s duty to do so survived the August 31, 2001
We agree with the judge that the parties were not at a
valid impasse when the Respondent declared impasse and
implemented its final offer. In reaching this conclusion,
we rely primarily on the parties’ course of dealing at the
final bargaining session, held on December 6, 2001.3
The Respondent began the December 6 session by
making a comprehensive proposal that included the Re-
spondent’s withdrawal from the Union’s Vacation and
Fringe Benefit Fund, and the substitution of a 401(k)
plan for the Union Mutual Fund and a new health insur-
ance plan for the Allied Welfare Fund. The proposal
also included a significant increase in the Respondent’s
wage offer then on the table—the proposed increase in
the hourly wage for pharmacists doubled from 30 to 60
cents in each year of the proposed 3-year agreement, and
the proposed increase in the hourly wage for all other
unit employees doubled from 20, 15, and 10 cents for
each year respectively to 40, 30, and 20 cents. After
making this proposal, the Respondent stated that all of its
prior nonwage proposals were still on the table as well.
The Union’s negotiator responded by explaining to the
Respondent that the funds were less costly to the Re-
spondent than the company’s benefit plans were. The
Union’s negotiator then rejected the proposal, stating that
the Union would not accept a reduction in benefits,
which it considered the Respondent’s health and 401(k)
plans to be. He said that the Union would not move from
its position that there would never be an agreement
unless the Respondent agreed to stay in all three union
funds; he did state, however, that the Union would seek
to reduce the cost of the funds. He also made a counter-
proposal on wages.
At that point, the Respondent’s negotiator withdrew to
confer with his principals. When he returned, the Re-
spondent’s negotiator circulated the “Last, Best and Final
Settlement Offer of Duane Reade,” which took the form
of a series of amendments to the expired collective-
bargaining agreement. The final offer contained the
same funds proposals described above, and included an
additional wage increase beyond that offered at the be-
ginning of the December 6 session: for pharmacists, a $1
per-hour increase for each year of the contract; for other
employees, 40, 30, and 30 cents per hour increases in

expiration of the parties’ collective-bargaining agreement as part of the
Respondent’s status quo obligations.
2 In her recommended Order, the judge inadvertently omitted the re-
quirement that the Respondent make whole the employees for losses
suffered as a result of the Respondent’s unilateral change in the terms
and conditions which applied to unused sick leave. We modify the
recommended Order to provide this requirement.
3 Unless indicated otherwise, all dates referred to are for the year
2001.
DUANE READE, INC. 1017
successive years of the contract. The final offer also
contained the following term:
IT IS EXPRESSLY UNDERSTOOD BY THE
PARTIES THAT THERE ARE NO
CONTRIBUTIONS DUE FROM THE EMPLOYER
TO ANY OF THE PREVIOUSLY EXISTING
UNION FUNDS FOR THE PERIOD
COMMENCING SEPTEMBER 1, 2001 THROUGH
THE DATE OF THIS AGREEMENT (IN THE CASE
OF THE VACATION FUND FROM JULY 1
THROUGH THE DATE OF THIS AGREEMENT).

The dates stated in this proposed term correspond to those
on which the Respondent had previously unilaterally ceased
contributions to those employee benefit funds.
The Union did not reject the final offer; rather, it re-
quested additional time to review and consider the new
offer. The Respondent’s negotiator emphasized that this
was the Respondent’s last, best, and final offer, and that
the Respondent would implement its provisions on De-
cember 9. Nevertheless, and somewhat inconsistently,
the Respondent acquiesced to the Union’s request for an
additional bargaining session, to be held on December
12, stating that, although its proposal was final and
would not change, it would consider “repackaging” the
terms of the offer.
The Respondent implemented the terms of its final of-
fer on December 9. The December 12 meeting was can-
celled by the Union. The record is silent as to when the
cancellation took place.
Considering the parties’ course of dealing at the De-
cember 6 bargaining session, including the significant
movement embodied in the Respondent’s wage proposal
and the inclusion in its final offer of a new proposal that
the Respondent’s delinquent contributions to the funds
be retroactively excused,4 the further movement shown
by the Union’s counter-proposal, the Union’s request for
additional time to consider the final offer, and the Re-
spondent’s acquiescence to that request coupled with a
statement that it would consider repackaging the pro-
posal, we agree with the judge that the parties had not yet
exhausted the prospects for concluding an agreement.
Taft Broadcasting Co., 163 NLRB 475 (1967). There-
fore, we find that the parties had not reached a valid im-

4 The General Counsel cross-excepted to the judge’s dismissal of the
allegation that the Respondent, by including this term in its final offer,
illegally insisted to impasse on a permissive subject of bargaining. We
agree with the General Counsel that, as a general proposition, a party
may not insist to the point of impasse on a permissive subject of bar-
gaining. See generally NLRB v. Borg-Warner Corp., 356 U.S. 342
(1958). In light of our disposition of this case, however, we need not
pass on the General Counsel’s cross-exception.
passe when the Respondent declared impasse and im-
plemented its final offer.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Duane
Reade, Inc., New York, New York, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Upon request of the Union, rescind implementa-
tion of the final offer dated December 6, 2001, and re-
store the terms and conditions of employment existing
prior to the unlawful changes, with interest where appro-
priate.”
2. Insert the following as paragraph 2(c) and re-letter
the subsequent paragraphs.
“(c) Make employees whole for any loss of earnings
and other benefits suffered as a result of Respondent’s
unilateral changes in the terms and conditions which ap-
plied to unused sick leave prior to the unlawful change in
September 2002, in the manner set forth in the remedy
section of the judge’s decision.”
3. Substitute the attached Notice for that of the admin-
istrative law judge.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to provide necessary wage infor-
mation requested by the Allied Trades Council.
WE WILL NOT fail to pay employees for accrued un-
used sick leave.
WE WILL NOT deduct union dues from your paychecks
and fail to remit the sums to the Union.
WE WILL NOT fail to make contributions to the Vaca-
tion and Fringe Benefit Fund, the Allied Welfare Fund,
and the Union Mutual Fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1018
WE WILL NOT declare an impasse in bargaining with
the Allied Trades Council and unilaterally impose our
final offer before an impasse has actually been reached.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL provide the Allied Trades Council all the
wage information it requested on August 13, 2001, and
January 6, 2002.
WE WILL rescind implementation of our final offer
dated December 6, 2001, and restore, upon request of the
Union, the terms and conditions of employment existing
prior to the unlawful changes, with interest where appro-
priate.
WE WILL make you whole for any loss of earnings and
other benefits suffered as a result of our unilateral
changes in the terms and conditions that applied to un-
used sick leave prior to the unlawful change in Septem-
ber 2002.
WE WILL make required contributions to the Vacation
and Fringe Benefit Fund, the Allied Welfare Fund and
the Union Mutual Fund and WE WILL reimburse you for
any expenses resulting from our failure to make contribu-
tions to these funds with interest where appropriate.
DUANE READE, INC.

Susannah Z. Ringel, Esq., and Micah Berul, Esq., for the Gen-
eral Counsel.
Daniel F. Murphy Jr., Esq., and Sean H. Close, Esq., (Putney,
Twombly, Hall & Hirson LLP), of New York, New York,
for the Respondent
William K. Wolf, Esq., (Friedman & Wolf), of New York, New
York, for the Charging Party
Henry I. Hamburger, Esq., of Leonia, New Jersey, for the
Charging Party
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge: This case
was tried in New York, New York, on March 24, 25 and 26,
2003. The complaint alleges that Respondent, in violation of
Section 8 (a) (1) and (5) of the Act made unilateral changes,
failed to provide information to the Union, insisted to impasse
on a non-mandatory subject of bargaining, prematurely de-
clared impasse during negotiations and implemented its final
offer.1 The Respondent denies that it has engaged in any viola-
tions of the Act. On the entire record, including my observation
of the demeanor of the witnesses, and after considering the

1 The General Counsel has not offered any argument in support of
the allegation that Respondent insisted to impasse on a non-mandatory
subject of bargaining. Consequently, I shall not find any violation of
the Act based on this allegation
briefs filed by the General Counsel, the Charging Party and the
Respondent, I make the following.2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a domestic corporation with an office and place
of business in New York, New York, operates retail drug stores
throughout New York City. The Respondent annually derives
gross revenues in excess of $500,000 and purchases and re-
ceives goods and supplies valued in excess of $5,000 directly
from suppliers located outside the State of New York. The par-
ties agree, and I find, that Respondent is an employer engaged
in commerce within the meaning of Section 2 (2), (6) and (7) of
the Act and that Allied Trades Council is a labor organization
within the meaning of Section 2 (5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
For about 40 years the Allied Trades Council has represented
employees of the Respondent. The Union and the Respondent
have been parties to a series of collective-bargaining contracts
the last of which had a term from September 1, 1998 through
August 31, 2001.

The collective-bargaining agreement provides:

The Employer recognizes the Union as the sole collective
bargaining agent for the bargaining unit consisting of all em-
ployees in its employ, excluding part-time employees, as de-
fined below, Assistant Managers hired after September 1,
1998, executives, office employees, supervisors, warehouse
employees, drivers and guards. Whenever the word “employ-
ees” is used in this Agreement, it shall be deemed to refer to
all employees except for those specifically excluded above,
regardless of whether or not they are members of the Union.

In 1998 the Respondent purchased a company known as
Rockbottom which owned drug stores whose employees were
represented by other unions including Local 340-A of UNITE.
Some of the Rockbottom stores were not organized. At the time
of the instant hearing, Respondent operated about 240 stores in
the New York metropolitan area.
The Board has found that in the year 2000 Respondent ren-
dered unlawful assistance to UNITE at certain of its stores,
unlawfully recognized UNITE and unlawfully entered into a
contract with UNITE at certain of its stores, and engaged in
certain unlawful acts designed to disfavor ATC such as denying
ATC representatives equal access to its stores under threat of
arrest and attempting to conceal its ownership of stores from
ACT. 338 NLRB No. 140 (2003). More specifically, the Board
found that Rizzo informed Morro that Respondent had brought
UNITE into its stores because it had gotten a good deal finan-
cially from UNITE.

2 The record is corrected so that at page 305, line 7-8, the correct
phrase is “for any loss prevention or security issues”; at p. 334, LL 16,
replace the word “jinx” with the word “Jencks”; at p. 383, LL 14 re-
place “abstinent” with the word “obstinate.”
DUANE READE, INC. 1019
After a campaign pitting ATC against UNITE for the right to
represent employees at certain of Respondent’s stores, ATC
was selected by the employees as the majority representative of
both professional and non-professional employees in an elec-
tion held in October 2001. The Decision and Direction of Elec-
tion issued in Case No. 2-RC-22403 in August 2001 defined
two units as follows:
UNIT A (Professional Unit)
Included: All full-time and regular part-time Pharmacists em-
ployed by the Employer at the 142 stores known as the Allied
Trades Unit.

Excluded: All non-professional employees set forth in Unit B,
and all other employees, and guards and supervisors as de-
fined in the Act.
UNIT B (Non-Professional Unit)
Included: All full-time and regular part-time employees em-
ployed in the Employer’s 142 stores known as the Allied
Trades Unit.

Excluded: All other employees, including pharmacists set
forth in Unit A, part-time employees who work 30 hours or
less, during 12 consecutive weeks, assistant managers, execu-
tives, warehouse employees, drivers, guards, managers and
supervisors as defined by the Act.

The uncontradicted evidence shows that employees in the
Respondent’s stores have a very high rate of turnover. The
average cashier works for Respondent for only 6 weeks and the
average stock clerk works for only 8 weeks. Photo technicians
stay in Respondent’s employ for an average of 6 months.
Pharmacy technicians stay on the job for an average of over 1
year. Pharmacists are generally employed for a period in excess
of 3 years.
The Respondent also maintains a warehouse operation lo-
cated at two distribution centers which employ warehousemen
and drivers who are represented by Local 815, IBT. The uncon-
tradicted testimony shows that the warehouse workers tend to
be relatively highly paid and long term employees and that
most of them are full-time employees.
B. Dues Deductions
Article “Fourth” of the ATC collective-bargaining agreement
provides:

The Employer shall deduct uniform membership dues and ini-
tiation fees from the wages paid to each employee. The Em-
ployer shall make such deductions from the first payroll in
each month and transmit all such funds deducted no later than
the tenth day of each month. All funds deducted from the
wages paid to employees . . . shall be held in trust by the Em-
ployer and shall be considered at all times the property of the
Union, provided however, that prior to making such deduc-
tions the Employer has received from each employee on
whose account such deductions are made, a written assign-
ment, which shall not be irrevocable for a period of more than
one year or beyond the termination date of this Agreement,
whichever occurs sooner, and which may contain a clause that
such assignment shall be automatically renewed for additional
periods of one year, unless the employee shall terminate such
assignment in writing within thirty days prior to any expira-
tion date thereof.

The parties stipulated that Respondent made dues payments
to the Union pursuant to the dues checkoff provision of the
contract on a regular basis. The last dues period for which Re-
spondent made dues payments was August 2001; the payment
was remitted to the Union on November 12, 2001.3 After Au-
gust 2001 Respondent continued to deduct union dues from unit
employees’ paychecks through the pay period ending Decem-
ber 8, 2001. On December 12, 2001 Respondent refunded di-
rectly to the unit employees all dues collected from September
1 through December 8, 2001.
C. Benefit Funds
For many years Respondent has contributed to three funds
maintained by the ATC which were designed to provide vaca-
tion and related benefits, medical insurance (welfare) benefits
and a pension to employees.4 The Respondent made contribu-
tions to these funds on behalf of its ATC bargaining unit em-
ployees and also on behalf of its warehouse operation employ-
ees who are represented by the IBT.
The contract provided that the company contribute a per-
centage of its gross payroll for each employee to the Vacation
Fringe Benefit Fund regardless of the hours worked by the
employee. Payments to the Fund were to be made weekly. The
amount of vacation entitlement for each employee was deter-
mined as of July 1 of each year. Employees who had worked
less than six months had no vacation entitlement. If an em-
ployee worked at least six months but less than one year, he
earned one week’s vacation. An employee had to work seven
years to earn two week’s vacation, and longer periods of time
for more vacation entitlement. When an employee wished to
obtain vacation pay he was obliged to put in a request to his
store manager. The manager sent the request to payroll. The
payroll department then verified the entitlement and sent the
information to the Vacation Fund administrator. The Vacation
Fund then sent a check for the vacation at the employee’s rate
of pay. The company believed that this system produced delays
and mistakes.
The parties agree that Respondent has not made any pay-
ments to the Vacation Fringe Benefit Fund covering any period
after July 1, 2001.
The contract provided that the company would make
monthly contributions to the Allied Welfare Fund equal to
$59/wk for each employee regardless of the number of hours
worked by the employee. The contract also provided for
monthly contributions to the Union Mutual Fund equal to
$24/wk for each employee regardless of the number of hours
worked. The parties agree that Respondent has not made any

3 It was usual for Respondent to send dues payments to the Union
from two to three months after they were due.
4 In the collective-bargaining agreement the vacation fund is identi-
fied as the Vacation Fringe Benefit Fund; it provides vacation, be-
reavement and jury duty pay to employees as well as a Christmas bo-
nus. The pension fund is formally identified as the Union Mutual Fund
and the health insurance fund is identified as the Allied Welfare Fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1020
payments to the Welfare fund or the Pension Fund covering any
period after September 1, 2001. However, the funds continued
to cover the employees until the end of 2001.
D. Reimbursement for Unused Sick Leave
Article “Sixteenth” of the ATC collective-bargaining agree-
ment provides, in part:

All employees who have been employed for six months or
longer shall be entitled to receive five (5) days of paid sick
leave during each contract year. Employees shall receive a
day’s wages at their then current daily rate of pay for each day
of sick leave utilized. On or about August 31, 1999, and on or
about August 31 of each year thereafter during the term
hereof, employees shall be reimbursed for all unused sick
leave at their then current daily rate of pay for each day of un-
used sick leave.
The parties stipulated that pursuant to this provision of the
agreement that expired on August 31, 2001 “Duane Reade’s
payments to ATC unit employees . . . were due on or about
August 31 each year.”
The parties agree that Respondent made payments for un-
used sick leave to unit employees in September 2000 and No-
vember 2001. Respondent made no payments for unused sick
leave to unit employees in 2002. Respondent informed the Un-
ion in December 2002 that unit employees would not be paid
for unused sick leave until January 2003. In the event, Respon-
dent made these payments in February 2003.
During the negotiations for a successor agreement the com-
pany did not propose to change this provision of the contract.
The last, best and final offer implemented by the company,
described below, did not change the unused sick leave language
of the expired contract.
E. Request for Information
On August 13, 2001 Henry Hamburger, Esq., counsel to the
ATC, sent an e mail to James Rizzo, the Respondent’s vice
president for human resources and administration. The message
stated that a delegation of employees had visited Hamburger’s
office that day with questions whether some employees had
received the $.30/hr wage increases due on each anniversary of
their hirings. Hamburger’s note listed about 70 names with
social security numbers and work locations for most of them.
Hamburger asked for an immediate reply with the rate of pay at
hire for each employee and the date and amount of any subse-
quent wage increases. The Union asked for 20% interest per
month “If it turns out that any grievant is entitled to one or
more wage increases.”5 The next day, August 14, Hamburger
again wrote to Rizzo saying that although Seymour Stein is on
vacation, “we cannot emphasize too strongly the need for an
immediate response.”6On August 16 John Morro, the ATC
president, reiterated the need for an immediate response to the
Union’s request. Hamburger renewed his request on August 19,
October 12, October 31, November 8 and December 13 in a
number of e mails.

5 The record contains no evidence that any grievances were filed in
connection with this matter.
6 Seymour Stein is the Duane Reade director of human resources.
On December 21 the Respondent sent the Union a copy of its
original information request. To the left of each name on the
list, the hire date of the employee was provided. To the right of
each name were listed various dates and figures, apparently
meant to show the dates and amount of each subsequent wage
increase. The employer’s response did not give the employees’
hire rates as requested by the Union. The Union responded with
a request for further information on January 6, 2002. The in-
formation requested included hire rates for the listed employees
as well as specific information required to verify that contractu-
ally mandated raises had been granted. The Union’s request
stated “Your response raises a number of additional questions
which are set forth below. We realize that responding is costly
and consumes time and therefore we propose two alternatives
to requesting that Duane Reade respond to these questions.”
The alternatives suggested by the Union were to have a Union
staff person or auditor review the payroll records for the named
employees or for the Union to pay for an independent auditor to
review the payroll records. There is no evidence in the record
that the company responded to the January 6 request for further
information.
F. The Negotiations
Respondent’s vice president Rizzo testified that he began to
work for Duane Reade in October 1998, having spent many
years working in human resources for various companies.
Rizzo stated that from October 1998 to September 2000 he had
many conversations with Henry Hamburger, Esq., house coun-
sel to the ATC.7 One of the topics about which Rizzo and Ham-
burger spoke many times was the Respondent’s employee re-
tention problems and the high rate of turnover. Rizzo also told
Hamburger on many occasions that he thought Respondent was
paying too much to the employee benefit funds. Hamburger
suggested that the Union and Respondent should try to iron out
their positions before actual negotiations began for a successor
collective-bargaining agreement to the one expiring August 31,
2001.
In the meetings that ensued the Respondent was represented
by Rizzo, Daniel F. Murphy, Esq., director of human resources
Seymour Stein and vice president of store operations Jerry Ray,
Sr. The Union was represented by Eugene Friedman, Esq.,
president John Morro and first vice president Rey Rosado. As
indicated below, other people attended some of the sessions.

September 14, 2000

Respondent and the ATC met on September 14, 2000. The
Union team included the participants listed above and was also
accompanied by Steven Barasch, administrator of the Allied
Welfare Fund, Linda Glaser, administrator of the Union Mutual
Fund, and her husband, Richard Glaser who performs some
services for the funds.8 Attorney Hamburger was present but

7 Hamburger represented both the ATC and the ATC benefit funds
for many years. He had apparently ceased representing the benefit
funds at the time of the instant hearing.
8 Steven Barasch and Linda Glaser are the children of ATC founder,
George Barasch. ATC president Morro testified that Richard Glaser is
employed by LBG, which stands for Linda Barasch Glaser. Richard
DUANE READE, INC. 1021
Attorney Friedman was not. When the meeting began Rizzo
handed out a document headed “Objectives”. This document
provided:
Exclude Pharmacists as a covered position

Balance the H & W & Pension expense to 340A levels.
Achievable by suspending Benefit & Pension contributions
for the remaining four (4) months of this year.

Cancel retroactive payments of benefits. Return to six (6)
month waiting period before benefit payments begin, even if
this results in coverage beginning eleven (11) months from
date of hire. Only if Pharmacists are not in the bargaining unit.

Recognize part-time employees, over twenty hours, in the
bargaining unit. (UFCW, Local 1500 organizing drive)

Allow the Company to hire unlimited part-time employees.

Strike the conditions of having to work five (5) consecutive
days for forty (40) hours. Hours availability should be based
on business and spread over seven (7) days.

Language that renders whatever agreement we achieve null
and void if ATC is ever sold or merged with another union
and/or the current leadership loses control.

Withdrawal of all legal action filed against Duane Reade Inc.,
including pending non-discharge cases, filed for Arbitration.

Rizzo said his main concern was that the company needed to
continue growing and that the competition in the area from
other chains was formidable.9 Rizzo said that Respondent’s
employees were compensated through a benefit program that
was uncompetitive with other companies in New York. He said
the company was paying a lot into the funds and yet employees
did not have much coverage. Respondent’s contract with 340-A
UNITE provided less money for the benefit funds and more in
wages. Rizzo said a full time work force made sense only for
stores that remain open during normal business hours Monday
through Friday. By the year 2000 almost all Respondent’s
stores were open seven days a week and some were open 24
hours a day. The company wanted relief from the ratio of full-
time to part-time workers set forth in Article “First” of the col-
lective-bargaining agreement. The contract provided that em-
ployees would work five consecutive days but Respondent
wanted to split the work week to get full-time employees work-
ing on weekends.
Rizzo testified that the collective bargaining agreement pro-
vided that the company make contributions to the welfare and
the pension funds for employees who attained six months of
employment. However, the funds did not begin covering such
employees until five months later, that is after the employees
attained eleven months of employment. Rizzo said at the end of
1998 and beginning of 1999 he and Hamburger had worked out
a deal so that employees could be covered after six months of
employment. The agreement was incorporated into a side letter
which provided that for employees hired after January 1, 1999

Glaser does computer work for the pension fund and sends out letters
for the Union.
9 The competition included CVS, Walgreens, Rite Aid and Geno-
vese.
“such payments shall be owed and paid commencing with the
first day of the fifth month following the month in which such
employee commenced employment with the Employer. For
each employee employed on the first day of the sixth month
following the month in which such employee commenced em-
ployment with the Employer, payments to the [Funds] shall be
made retroactive to the first day of employment in accordance
with the terms of [the contract].” As a result, employees
achieved coverage after six months of work but the company
did not have to make retroactive payments for employees who
left its employ before becoming eligible for coverage.
Rizzo testified that at the September 14 session Barasch said
the funds wanted to reverse the side letter. Barasch further said
the funds would not give Respondent the relief it was seeking.
Barasch said the rate for the welfare fund would increase from
the $59 weekly figure in the current contract to $73/wk per
employee.
On September 14, Hamburger said the Union welcomed
part-timers but that it would not agree to an unlimited number
of them. The ATC did not want to become a predominantly
part-time representative. Morro remarked that the pharmacists
wanted to stay in the Union.
Rizzo replied that the Union representatives should consider
his objectives.
According to Rizzo, he and Hamburger spoke weekly during
this time period. Right after the September 14, 2000 meeting
Hamburger told Rizzo that the Union and the funds rejected all
the company objectives and would not consider them.
ATC President Morro testified that he was given the Com-
pany’s objectives on September 14, 2000. Morro knew that the
Company wanted relief from the funds and that it did not want
to participate in the vacation fund.

November 30, 2000

Morro testified that there was a second meeting on Novem-
ber 30, 2000 at the offices of Eugene Friedman, Esq. Besides
Morro and Friedman, the Union participants were Rosado, “Mr.
Reinsbach,” Linda Glaser, Richard Glaser and Steven Barasch.
Respondent was represented by Rizzo, Stein and Daniel Mur-
phy, Esq. Rizzo said the pension fund was over funded, the
health insurance was too costly and money was being put into
the vacation fund too far in advance. Rizzo said that Respon-
dent could not compete with the other pharmacy chains because
they did not have expensive benefit funds. Although Morro
testified that Steven Barasch, Linda Glaser and Richard Glaser
spoke at this meeting, he could not recall what they had said.
Morro also testified that the Union gave its formal written
demands to the company. This testimony is borne out by
Friedman’s notes of the meeting. Although Rizzo testified that
he did not meet Friedman until sometime in 2001, I find that his
recollection was not accurate. I also find that his recollection
that the company did not receive the Union’s written demands
until July 2001 was inaccurate. The Union’s formal demands
included:

Inclusion of part-time employees in unit

Include post-September 1, 1998 Assistant Managers in unit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1022
Include in unit stores where there is no contract with another
union and cover all stores to be acquired in the future by the
ATC agreement

Warning notices to be in writing and expunged after six
months

Four weeks vacation after 15 years and vacation pay to be
based on hours worked on a steady basis

Reimburse unused personal days at current rate of pay

Wage increases due on first day of each year of the three year
contract:

Pharmacist $1.00/hr
Assistant Manager $.75/hr
Planogram Team Cosmetic Supervisor, $.75/hr
Stockman and Cashier $.50/hr
Part-timers to be discussed

January 31, 2001

Morro testified that the parties met again in Friedman’s of-
fice on January 31, 2001. The Union asked for the accretion of
certain stores but Rizzo said they had been signed up by
UNITE. Morro said the stores had been given to UNITE by
Respondent. Morro said that Steven Barasch, Linda Glaser and
Richard Glaser spoke at this meeting but he could not recall
what they had said.

March 23, 2001

Morro testified that the parties met on March 23. Richard
Glaser was present but his wife and brother-in-law were not
there. Rizzo again asked for relief from the cost of the funds.
Friedman said the Union would try to be flexible and give the
company some relief. Glaser agreed with Friedman but he did
not speak much.
Rizzo recalled that in early 2001 Morro telephoned him to
say that Hamburger would no longer represent the Union in
negotiations.10 He set up a meeting to introduce Rizzo to Fried-
man. Rizzo said he met with Morro, Friedman and Stein in
February or March 2001. Also present were Richard Glaser,
Linda Glaser and Steven Barasch. Friedman had a copy of the
“objectives” that Rizzo had given the Union in September 2000
and the parties went over each subject. Barasch said that the
Union would not reduce the Welfare Fund contribution, in fact,
Barasch was thinking that instead of raising the amount from
$59 to $73 per week, the amount would go up to $75. Barasch
and the Glasers said that they wanted all payments remitted to
the Fund from the first day of employment and to do away with
retroactivity. Rizzo stated his belief that the funds were over
funded. He said Respondent wanted to provide better wages
and a less rich benefit program that was competitive with the
market place.
Friedman’s notes indicate that Richard Glaser was present
but not Barasch or Linda Glaser. The notes do not indicate that
the subjects testified to by Rizzo were discussed. I do not credit
Rizzo’s recollection of this meeting.

10 As indicated above, I find that Rizzo attended a meeting with
Friedman on November 30, 2000.
July 12, 2001

The Respondent was represented by Rizzo, Stein and Mur-
phy. Friedman, Morro, Rosado and Richard Glaser were pre-
sent on behalf of the ATC.
Rizzo testified that at the beginning of the meeting he asked
Glaser what his role was. Glaser replied that he was an observer
and that he might be in and out of the meeting. Friedman an-
nounced that he was doubling the Union’s wage demands. The
Union was now increasing its wage demand for pharmacists
from $1/hr to $2/hr for each year of the contract, a $6/hr in-
crease over the life of the contract. The Union also increased
the wage increase demanded for assistant manager from $.75/hr
to $1.50/hr, for stockmen/cashiers from $.50 to $1.10/hr, and
for pharmacy interns to $1.50/hr and technicians to $1.25/hr for
each year of the contract, and for the planogram and cosmetics
team from $.75/ to $1.25/hr. The Union would not agree to
exclude pharmacists from the unit and it wanted them to re-
ceive time and one-half for overtime. Friedman said the $24/wk
rate for the pension fund was maintained but now contributions
would start on the first day of employment. Friedman said the
Welfare Fund would rescind its demand for an increase to
$73/wk and go back to $59/wk per employee. However, be-
cause the Union wanted to end the retroactivity feature Rizzo
explained it was in effect increasing the cost of the funds since
80 percent of Respondent’s work force turned over in the first
six months of employment. Further the Union proposed adding
part-timers who had not previously been covered. The Union
proposed to accrete all existing stores and any new stores to the
unit. Respondent rejected the accretion demand and proposed
recognition by means of authorization cards. Rizzo said the
funds were over funded and thus Respondent was not competi-
tive in its market. Rizzo said he would study the proposal and
comment on it.
Murphy’s notes are in general accord with Rizzo’s testi-
mony. They show that Rizzo was concerned about the competi-
tive position of the company and that he found the Union’s
proposals very expensive. Rizzo told the Union that the funds
were overfunded and that the present system benefited the
funds and not the employees.
Morro testified that the Union raised its demands at the July
12 meeting as a reaction to its discovery that the company had
signed a collective-bargaining agreement with 340-A UNITE.
The UNITE contract provided higher wages and the ATC
wanted to show the employees that it was competitive with
UNITE. Morro acknowledged that the cost of benefit contribu-
tions to the ATC funds was higher than in the UNITE contract.
Friedman’s notes of the meeting say that he presented Union
proposals with updated wage and Welfare Fund demands and
that he gave copies of the original demands to the company.

July 26, 2001

The parties met on July 26. The Union was represented by
Morro, Rosado and Friedman. There was no fund representa-
tive present. Murphy, Rizzo and Stein appeared on behalf of
Respondent.
Rizzo testified that he responded to the Union demands at
this session. He said that Respondent would consider adding
part-timers depending on the negotiation of other economic
DUANE READE, INC. 1023
factors. He said that Respondent considered the Assistant Man-
agers to be supervisors. Rizzo said Respondent would agree to
expunge all disciplinary notices after two years with the excep-
tion of violations relating to theft and loss prevention. The
company said it would respond to the personal day reimburse-
ment proposal when it knew what the total economic costs of
the agreement would be. Respondent rejected the Union’s de-
mand that pharmacists be paid overtime.11 Rizzo said he could
not make a wage proposal because he did not know the eco-
nomics of the funds and what flexibility the Union would give
him as relief from fund contributions. Rizzo said Respondent
wanted to withdraw from the Vacation Fund and pay the em-
ployees directly. The company was paying six months in ad-
vance of the vacation year which meant a float of six months
equivalent to 4.4 percent of the payroll. Rizzo said if the com-
pany withdrew from the fund the employees would get their
vacation money faster and the money would be available for
the company until it had to be paid. Rizzo asked for an audit of
the funds and a funding holiday for the Welfare Fund and the
Pension Fund. Rizzo asked for information about the funds.
Friedman replied that Respondent had to contact the funds di-
rectly for information.
Rizzo testified that in his view the Union was making exor-
bitant wage demands and that he could not respond until he
knew what kind of benefit contribution relief he would get
because the costs of wages and benefits were linked. Rizzo said
he was unable to negotiate with the Union over the funds be-
cause Friedman said he had no control over them. As a result,
Rizzo could not come up with a wage offer until he knew what
the cost of benefit contributions would be. Rizzo believed the
pension fund had a large surplus because Respondent contrib-
uted $250,000 per month and Rizzo only knew of two (2) peo-
ple actually receiving a pension. The company had received
complaints from employees over the health benefit and it be-
lieved that for its $59/wk payment to the Welfare Fund the
benefits should have been better. Respondent knew that its
competition was faring better in the benefits area. Rizzo testi-
fied that the CVS chain provided almost no benefits and had a
one year waiting period for coverage. The Rite Aid chain had
salary and benefit costs below those in the current ATC con-
tract.
Morro testified that Rizzo said the benefit funds were over
funded and he repeated his request for relief from the fund con-
tributions. Morro replied that there were 1200 people vested in
the pension fund because the Union had not long ago lowered
the vesting period from five years to three years. Rizzo asked
for an audit of the funds and Friedman replied that he should
write to the funds directly with his request. Rizzo said the Va-
cation Fund was funded too far in advance. The company
wanted to withdraw from this fund. Friedman said the Vacation
Fund had been in existence for 40 years. Morro testified that
from July 26 forward the Respondent consistently said it
wanted to withdraw from the Vacation Fund. Morro testified
that more than two former unit members were receiving pen-

11 Respondent had treated the pharmacists as professionals under the
FLSA for over 40 years. It had paid them straight time for overtime and
it believed they should have a separate bargaining unit.
sions: he said “a number of people” were retired on pension,
but he did not say how many this was.
The record shows that Respondent did request audits of both
the Pension and Welfare Funds on August 6, 2001. The request
directed to the Welfare Fund was refused by counsel in early
September. The record contains no indication that audits were
performed nor what the result may have been.
On August 3, 2001 a Decision and Direction of Election is-
sued in case 2-RC-22361 et al for the unit represented by ATC.
Both ATC and 340-A UNITE were on the ballot. The Unions
were campaigning among the employees in August. Due to the
events of September 11, 2001 ballots were not counted until
October 19.

August 13 and 14, 2001

Rizzo testified that there was a session scheduled for August
13. Friedman was not there but was replaced by William Wolf,
Esq. Wolf told Rizzo that he had no authority to make any pro-
posals. Rizzo said he would present company proposals at the
next meeting. Rizzo said he had written to the benefit funds
about an audit but that he had not received any response. Mur-
phy’s notes show that Rizzo noted the upcoming election and
proposed that the contract be extended. Wolf’s notes show that
the parties discussed the filing of a refusal to bargain charge
and the extension of the contract and that the Union said it
would consider the matters. Wolf’s notes show that Rizzo men-
tioned that the company wanted pharmacists and assistant man-
agers excluded from the unit and that he wanted to audit the
benefit funds. Rizzo mentioned that the Welfare Fund had im-
proved its benefits. Rizzo said that the bargaining was one pot
and that money went either to benefits or to wages.
Rizzo testified that Friedman was present on August 14 with
the usual Union committee. Rizzo gave the company proposals
to the Union and explained each one. The Respondent wanted
to delete limitations on part-time employees. Rizzo said he
would consider the Union proposal to include part-timers in the
unit if the Union would agree to eliminate restrictions on the
number of part-timers in relation to full-time employees. The
company proposed that not more than three named Union rep-
resentatives could visit a store at one time and that visits not
interfere with normal store operations. Rizzo proposed chang-
ing the work week so that employees would not necessarily
receive two consecutive days off per week. Rizzo stated that the
company wished to exclude pharmacists and all assistant man-
agers from the unit.
Respondent asked for a one year funding holiday from the
Welfare and Pension Funds without any diminution in benefits
provided to employees. Rizzo repeated that he had asked for
information from the funds. Rizzo asked for Friedman’s help in
obtaining information from the funds but Friedman said he did
not represent the funds. Rizzo repeated that the funds were over
funded. Rizzo stated that the company had learned from the
employees that health benefits had been improved tremen-
dously. Rizzo asked the Union why the Welfare Fund had in-
creased benefits at a time when the Union was asking for more
money from the employer and the Union was unable to provide
any information about the state of the fund. The Union had put
in a “Cadillac plan” but had not notified the company and was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1024
asking for more money to pay for it. Rizzo pointed out that the
changes in welfare benefits must have a financial impact on the
company which was paying for the plan but that the Union
refused to provide any financial information to the company.
Rizzo said the company wanted to delete the Vacation Fund
from the contract and cease contributions as of July 1, 2001.
Rizzo asked for a wage proposal from the Union. Rizzo said
he could not negotiate economic issues if the Union was still
requesting a large wage increase and without any information
about the benefit funds nor any information about relief from
fund contributions. Rizzo said he could not address wages until
the Union responded to Respondent’s proposals on the funds.
Friedman replied that the company should forget about a 1-year
funding holiday. Friedman said he would make a wage pro-
posal at the next meeting. Friedman replied that the pharmacists
should be paid overtime for time worked after 40 hours per
week.
Rizzo proposed that the parties enter into a one-year agree-
ment effective September 1, 2001. Friedman replied that there
was a practice of three-year agreements. Rizzo again asked
Friedman to get some financial information from the funds and
Friedman replied that he would see what he could but that he
did not control the funds.

The company’s written proposal contained the following
paragraph:

All of the Employer’s proposals and any agreement reached
between the parties is/are expressly conditioned upon the
ATC being certified as the lawful bargaining representative of
the Employer’s employees.

As stated above, an election had been ordered at the existing
ATC-represented stores with both ATC and 340-A UNITE on
the ballot. Respondent said it would continue to negotiate with
ATC pending the election results. Rizzo proposed that any
agreement reached would be contingent on the Union winning
the election.
Morro’s recollection about the meetings was not accurate
and his testimony contradicted his affidavit. It seems probable
that Morro could not separate the events of the 13th and 14 th .
Morro recalled that Wolf told Rizzo that the Union had not
received any dues payments since May. Morro testified that he
and Friedman told the company that wages were the most im-
portant part of the negotiations. The Union knew that UNITE
had received a wage increase that took the basic wage from
$5.15 to $7.40 in three years. Morro and Friedman told Rizzo
they wanted the same thing. Morro testified that from Septem-
ber 2000 to August 2001 Rizzo had said the most important
issue for the company was the cost of the funds. Morro recalled
that the Union said it would give the company some relief.

August 24, 2001

Rizzo testified that on August 24 Friedman replied to the
company’s proposals and the parties discussed some of the
issues. Friedman asked the company what was meant by the
company’s statement that agreement was conditioned upon the
Union being certified. Murphy’s notes show that he replied that
Respondent would continue to bargain. The Union did not
agree to any of the company proposals. Friedman asked for a
wage proposal from the company. Rizzo said that he was frus-
trated in that the Union was not moving on its wage demands
and not providing information about the funds. Then the Com-
pany caucused and it decided to put a wage proposal on the
table to see if that would get the negotiations moving. The
Company proposed some small raises for certain employees:
$.10 for cashiers and stockmen and $.05 for pharmacy and
photo technicians. Rizzo emphasized that this was not the Com-
pany’s final offer.
Rizzo said the company intended to withdraw from the Va-
cation Fund. With 142 locations it was difficult to monitor va-
cations and some people waited months for a check from the
Fund. Friedman replied that the funds are an integral part of the
Union’s make-up and the company could not withdraw from
one of them; all of them are considered the same and the com-
pany had to stay in all of the funds. Friedman said the Union
would not give a funding holiday from the Welfare or Pension
Funds. Friedman promised to make a comprehensive proposal
at the next meeting.
Murphy’s notes show that the parties discussed the Com-
pany’s proposals in detail. The Union said that if there were a
three-year contract the Union would consider “cost analysis and
benefit costs.” Murphy’s notes show that Rizzo told the Union
that the pension fund was amassing funds without any payout
to the employees. There was an 80% turnover in employees
every five months. Rizzo mentioned that the welfare fund had
increased benefits.
Friedman’s notes also show that the parties discussed the
company’s proposal in detail. The parties discussed the ratio of
part-timers to full-time employees. Rizzo complained that he
had not received any response to his request for information
from the funds. Rizzo told the Union that the Pension Fund was
amassing money without making any payments and that it was
overfunded. The Welfare Fund had increased benefits and it
would need more money down the road.
Morro’s recollection confirmed Rizzo’s testimony about the
August 24 session. Rizzo’s wage proposal, which he said was
“just the start” and an attempt to narrow the gap, was not con-
sidered sufficient by the Union.

August 27, 2001

Rizzo testified that at this session the parties discussed part-
time employees. The company and the Union discussed the
funds but there were no changes in their respective proposals.
Friedman asked the company to supply the job duties of the
various employees in connection with the Union’s formulation
of a new wage proposal. At the end of the meeting Rizzo said
“we’re out of time”, the collective-bargaining agreement ex-
pired in four days and he saw no chance of an agreement if the
company did not know the total cost of the package.
Friedman’s notes show that the parties discussed various de-
tails about the composition of the unit. Rizzo said that the com-
pany would withdraw from the Vacation Fund. He explained
that the Company paid into the Fund 6 months in advance and
that the Fund had a huge float. Rizzo asked for more informa-
tion about the funds.
Murphy’s notes confirm Rizzo’s testimony and are in accord
with Friedman’s notes. In addition, Murphy noted that when
DUANE READE, INC. 1025
Rizzo talked about eliminating the Vacation Fund he said the
Fund had enough money in it to pay for continuing benefits and
that the Christmas bonus could be paid from the interest earned
by the Fund. Murphy’s notes show that Friedman asked Rizzo
on what basis he believed that a funding holiday for the Pension
and Welfare Funds was appropriate. Rizzo replied that he had
suspicions and perceptions and that he had asked for informa-
tion which was not supplied. Further, the Pension Fund had
decreased the time for vesting from five to three years and the
Welfare Fund was making constant improvements in benefits.12
Morro had no recollection of this meeting.

August 30, 2001

Rizzo recalled that at the August 30 negotiating session he
said that he was at the end of the rope. The contract expired in
less than 24 hours and the parties were very far apart. Rizzo
asked whether Friedman was prepared to make any moves.
Friedman said he was but that he had questions about the com-
pany’s contract with 340-A UNITE. Rizzo answered all of the
questions. Friedman asked about provisions relating to the pro-
portion of full-time and part-time employees. Friedman asked
about a vacation fund and Rizzo said there was none in the
UNITE contract. Rizzo told the Union that the health coverage
in the UNITE contract cost the company $215 per month for
each employee. Friedman asked Rizzo whether the company
would add to a wage increase a portion of the savings achieved
in any funding holiday for the benefit funds. Rizzo replied that
he was not interested in dollar for dollar tradeoffs. Rizzo again
asked for a 1-year funding holiday with no loss of benefits to
employees. The Union caucused for about 1 1/2 hours and then
Friedman said he had to break off the meeting to speak to some
Union people. Rizzo said he was willing to work through the
night but Friedman said he would make some moves the next
day.
Morro recalled that on August 30 the Union said it would be
flexible and give the company some relief on the benefit funds.
Friedman’s notes confirm Rizzo’s testimony that the Union
asked for and was given extensive information about the 340-A
UNITE collective-bargaining agreement. Murphy’s notes also
show that the Union asked for information about the cost of
benefits in contracts between the company and other unions. In
particular the cost of the drug benefit and medical insurance
were explained. There was discussion of Respondent’s request
for a funding holiday which was deemed “very important” by
Rizzo.

August 31, 2001

12 In response to questions posed by Counsel for the General Coun-
sel Rizzo testified that he was aware of pending RICO, ERISA and
LMRDA section 501 breach of fiduciary claims while he was conduct-
ing negotiations. On March 18, 2003 in Bona v. Barasch, 174 LRRM
2051, Judge Mukasey dismissed some claims for lack of standing and
permitted other claims to go forward. One of the plaintiffs in that action
is a Local 815 trustee of the three ATC Union funds. Morro is one of
the defendants in that suit against whom Judge Mukasey found the
plaintiffs had a reasonable likelihood of success if the allegations in the
Complaint were proved.
Rizzo testified that on August 31 he asked Friedman for the
Union wage position and he mentioned that he still had no in-
formation from the funds. The Company needed information to
resolve the issues. Friedman replied that the company could not
leave the Vacation Fund and that it would not be given a fund-
ing holiday for the Welfare or Pension Fund. Friedman said the
company had to move on its wage proposal and he said if the
Union gave a funding holiday it wanted 60 percent of the sav-
ings to go toward wage increases. Rizzo said he would not
trade dollar for dollar. The Union then proposed a 3-month
funding holiday and no more retroactivity for the health and
pension funds.13 The company countered with a higher wage
proposal. It asked for a 1-year funding holiday with an agree-
ment to audit the funds and if they were over funded, for future
funding holidays to be agreed upon. The company said it would
withdraw from the Vacation Fund. At some point Friedman
offered a 6-month funding holiday for the vacation fund with
the amount to be made up after six months and payments to be
continued monthly thereafter. Rizzo said he would agree to
limit the number of employees working under 20 hours per
week. Rizzo would agree to a 3-year contract. The company
still wanted assistant managers and pharmacists excluded from
the unit.
Friedman told Rizzo that the meeting had to end at 2:30 pm
so he could catch a train. Rizzo said the company wanted to
continue negotiations because the contract expired at midnight.
Rizzo stated that if an agreement were not reached the company
would cease paying into the funds. Friedman said that was not
good faith bargaining. Friedman said the Union would study
the company proposal and respond after Labor Day. Rizzo said
the Company would agree to a 1-year extension of the contract
while negotiations continued. This would include no contribu-
tions to the Welfare and Pension Funds and no contribution to
the Vacation Fund after June 30. The Union did not agree to the
extension.
Morro did not recall the August 31 session.
Murphy’s notes show that Friedman began the meeting by
making a proposal which was contingent on the pharmacists
and part-time employees being in the unit. The Union proposed
to freeze welfare payments at $59/wk with a three month wait-
ing period for coverage and no contributions during that time.
The Union proposed a 3-month funding holiday for the Pension
Fund. The Union proposed that no payments to the Vacation
Fund would be due for 6 months, but that a payment for the
entire six months would be due after January 1 and payment to
be made every two weeks thereafter. The Union calculated that
its proposals were worth $3 million and it wanted 60% of that
to be allocated to wage increases. Rizzo said the Union’s offer
should include a wage proposal. Rizzo remarked that the Union
was only offering a partial funding holiday and Friedman re-
plied, “If you want a year you aren’t getting it.” The company
responded by saying it would use its best efforts to limit part-

13 The Union proposed a funding holiday for the Welfare and Pen-
sion Funds in months 1,5 and 9 of the new agreement. The contribution
to the funds would remain at current levels; $59/wk for welfare and
$24/wk for pension. Certain adjustments in the eligibility periods were
also proposed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
timers but would not agree to a quota. It still wanted pharma-
cists and assistant managers out of the unit and no agreement
on two consecutive days off. The Company agreed to expunge
warning notices after two years. The company said it would
withdraw from the Vacation Fund as of July 1, 2001. It wanted
a one year funding holiday for the Welfare and Pension Funds
with no loss of benefits. If audits of the funds showed no sur-
plus in year 2 or 3 of the contract it would agree to maintain
current rates of contribution. Respondent repeated its offer of
wage increases of $.10 and $.05 in each year of a 3-year con-
tract.
Friedman’s notes seem to confirm Murphy’s notes. How-
ever, they are difficult to read due perhaps to the speed with
which they were made. Friedman’s notes are clear however that
the Respondent stated that it would stop contributing to the
ATC Welfare and Pension Funds as of September 1 and with-
draw from the Vacation Fund as of July 1. The Union said it
did not agree to that and that it wanted to negotiate.
Rizzo testified that as of August 31 the Union had made a
written wage demand which it had then doubled. Rizzo stated
that the company wanted to increase wages but that it had to
make sense out of the benefit areas in order to pay for it. Rizzo
testified that he had agreed with Respondent’s management that
if there were no tentative agreement at the end of August the
company would discontinue payments to the funds.

September 5, 2001

On September 5 the Union informed Rizzo that a sign had
been put up in one of the stores to the effect that the collective-
bargaining agreement had expired and that there was to be no
union activity in the store. Rizzo said the company had not
ordered this. Later Rizzo learned that an ATC member had
posted the sign. The sign was taken down.
When the September 5 negotiations began, the Union asked
for the company’s position on the funds. Rizzo repeated that
there was a perception that the funds were overfunded and this
provided no benefits to employees. The funds did not need
further contributions and this justified a funding holiday. The
company did not want to pay for vacations in advance. Rizzo
said that the company intended to withdraw from the Vacation
Fund effective June 30, 2001. Rizzo said the Respondent would
not make contributions to the Welfare and Pension Funds as of
September 1. He continued to demand a one year contribution
holiday from the Welfare and Pension Funds and an audit in
subsequent years to determine whether the holidays should
continue. Rizzo told Friedman that the lawyer for the funds had
rejected his demand for information and Friedman said he had
no control over the funds. Friedman said that the company
could not withdraw from the Vacation Fund; the funds are all
one package. Both Murphy’s and Friedman’s notes show that
Rizzo reviewed the history of negotiations about the funds so
far. Rizzo complained that although Barasch had asked for an
increase in Welfare Fund payments from $59/wk to $73/wk and
had then withdrawn this demand, the Welfare Fund had an-
nounced a big increase in benefits without talking to Respon-
dent and without supplying any information. Morro said the
fund was paying out $1.30 for every $1.00 it took in.
Friedman said the Union would not alter its wage demand
but that he would move on benefit issues. The Union modified
its funding holiday proposal for both funds so that no payments
would be due for months 1,5 and 8.14 With respect to the Wel-
fare and Pension Funds, the Union proposed eliminating retro-
active payments for new hires and to adjust the waiting period
for benefits to three months. The Union said the company could
not withdraw from the Vacation Fund but it continued to offer
to defer the first sixth months of payments. The Union changed
its demand for expunction of discipline to include one year with
no new incidents. The Union said any wage agreement would
have to be retroactive to September 1 and it asked for clarifica-
tion of the company’s position on the funds.
The Union asked the company to change its position. Rizzo
replied by explaining why the Vacation Fund issue was very
important to the company. Rizzo reiterated his position on
funding holidays. Rizzo said he would agree to a 3-month wait
for pension contributions without retroactivity and a 5-month
wait for welfare contributions with no retroactivity. The Com-
pany increased its wage proposal to raises of $.10, $.15 and
$.20 for cashiers and stock clerks in a 3-year agreement, and
$.05, $.10 and $.15 for pharmacy and photo technicians. The
company wanted the wage agreement to take effect on ratifica-
tion but the Union said wage increases had to be retroactive.
The company asked the Union to move on its wage demand.
Morro seemed to testify that the Union made a new wage
proposal on September 5, but this was not clear from the re-
cord. Moreover, none of the bargaining notes admitted into
evidence show a new Union wage proposal on this day.

September 10, 2001

The Union team included William Wolf, Esq. in place of
Eugene Friedman, Esq. Rizzo told Wolf that he had anticipated
a Union wage proposal. He said the company had made three
wage proposals. Rizzo said that the company had given its final
position on funding holidays for the Pension and Welfare
Funds. Rizzo said it was up to the Union to make an economic
move. Wolf said he could not respond to the request for an
audit because he did not control the funds. Wolf’s notes show
that Rizzo responded that the company did not trust the funds
and that the funds were an economic issue. Murphy said that
the Union had previously recognized a need for relief from the
funds. Murphy stated that the company was paying too much
into the funds and that the funds were paying out $1.5 million
bonuses. Wolf said the Union was tied to the funds but that it
could not control them. When Rizzo asked whether the funds
had authorized the three month funding holiday for the first
year of the contract, Wolf replied that he deferred to Friedman
on the funds. Wolf proposed changing the funding holiday
earlier offered by the Union to months 1, 3 and 7. Rizzo testi-
fied that he told Wolf that this was not a significant change.
Wolf replied that he was not authorized to do anything else.
The parties discussed their positions concerning expunction of
discipline.

14 The record contains no explanation by the Union or anyone else as
to the difference in a funding holiday for month 8 as opposed to month
9.
DUANE READE, INC. 1027
The Union said no dues payments had been received for June
and July. Rizzo said he would check on it.15 Rizzo testified that
as the meeting was drawing to a close Wolf asked why the
company didn’t just tell the Union that it wanted the 340-A
UNITE agreement. Rizzo blurted out that if the Union wanted
the same deal they could have a contract right now.
Morro’s recollection of the September 10 meeting was unre-
liable. He testified that Friedman was present.

September 28, 2001

Rizzo stated that when the September 28 meeting began
Friedman said he wanted to discuss the company proposal that
the Union take the 340-A UNITE contract. Rizzo replied that
he had not made such a proposal and he said it was an emo-
tional outburst to what the Union said. Rizzo apologized for
this. Rizzo told Friedman that the 340-A collective-bargaining
agreement would have been considered when the negotiations
began but it would be difficult to put it on that table at that
point. Rizzo testified that Friedman said the company had the
Union’s best offer, but it was not a final offer. Friedman said if
the Union won the upcoming election then everything would be
off the table.
Murphy’s notes show that Friedman said it was difficult to
come up with a wage proposal because the benefit fund issue
made life difficult. Rizzo said that the company had made three
wage proposals, agreed to sign a three-year contract rather than
a one-year contract and agreed on some form of expungement.
Rizzo asked whether the Union wanted to wait until after the
October election to reach agreement. Friedman’s notes show
that he told Respondent that after October the Union proposals
on the three benefit funds would be withdrawn and the Union
would be able to move on wages. Rizzo said the Union had to
make concessions on the funds in connection with a wage de-
mand. Friedman said he was dismissing that request out of hand
because Respondent was not even offering the UNITE contract.
Rizzo answered that the Union should cost out the UNITE con-
tract and “let’s bargain.” Rizzo said the Union had not offered
anything substantive. Then Friedman promised that the Union
would give Respondent its final position.
Morro testified that he could not recall the September 28
meeting.
Morro testified that the election took place on October 19
and that the ATC won by 782 votes to 445 for 340-A UNITE.16

November 15, 2001

Rizzo testified that the November 15 session was the first af-
ter the election and that he congratulated the Union on its vic-
tory.
Murphy’s notes show that Friedman began by saying that
now the negotiations were serious. The ATC had demonstrated
that it was the choice of the employees and this gave it a man-
date to achieve a contract. Friedman wanted a “sea change” in
the company’s reaction. Friedman said there was support for

15 Rizzo later learned that the checks were scheduled to go out and
they were eventually sent to the Union.
16 The Hearing Officer’s Report on Objections issued on December
16, 2002 showed that there were about 2633 eligible voters and that
1440 votes had been cast in total.
the Union and that the Union was prepared to take Union-like
action. He said there was a short leash and the parties needed to
negotiate a contract promptly. Friedman said the Union was
ready if the company wants to take it on.
Friedman said pharmacists had voted to be in the unit. He
said the contract should be retroactive to September 1, 2001.
Concessions relating to the funds were being withdrawn.
Friedman said the company should settle certain lawsuits and
pay the money it owed.17 Friedman said part-time employees
should be covered by the funds.
Both Murphy’s and Friedman’s notes show that Friedman
stated the Union Pension Fund demand. Friedman proposed a
3-month funding holiday for months 1, 3 and 7 with half rate
payments for the rest of the year. The Union wanted all part-
time employees covered at one-half the full contribution rate.
During the first year of the contract new hires would join the
plan on the 92 supernd day of employment with no retroactiv-
ity. In the second and third years of the collective-bargaining
agreement, the pension contribution rate would return to
$24/wk per full-time employee and one-half that for part-
timers. Also in the second and third years the contribution
would begin with the first day of employment.
Concerning the Welfare Fund, Friedman proposed that that
the company would contribute one-half the rate for part-time
employees. For the first six months of the new contract, the
company would contribute $50/wk for each full-time employee
and after that the rate would return to $59/wk. New employees
would join the fund on the 92 supernd day with no retroactivity.
The Union wished to retain the Vacation Fund but it pro-
posed that the company make a lump sum payment after 6
months of no payments and then resume regular monthly con-
tributions. The Union said any concessions it made on the funds
should be used to provide additional benefits to unit employees.
Rizzo testified the pension demand by the Union was a re-
gression. It was much more expensive than the current agree-
ment which provided for a six-month waiting period before
pension contributions were due. Under the current agreement as
modified by the side letter, if an employee left before working
for six months, as most Duane Reade employees did, no pay-
ments were due for the pension. If an employee worked beyond
6 months then the payments were due retroactively. Further, the
Union’s new proposal included part-time employees who were
not covered under the current system.
Rizzo told Friedman that the Union’s new proposal was
more expensive than what was already on the table. He re-
marked that in the past the Union had understood that benefit
concessions were linked to wage improvements.
Both Murphy’s and Friedman’s notes show that Rizzo re-
sponded to the Union’s demands. In place of the ATC welfare
and pension funds Rizzo offered an enrollment in HIP and par-
ticipation in the company 401(k) plan. Rizzo said the medical
plan cost $223/month per employee and was thus less expen-
sive than the Union welfare plan. The HIP plan included pre-
scription coverage and it had a six month waiting period for
eligibility. Rizzo said this plan was better than the ATC welfare

17 Apparently the trustees of some of the benefit funds had sued Re-
spondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
plan. Rizzo said the 401 (k) plan permitted employees to begin
contributions after 90 days. Rizzo pointed out that the 401(k)
plan is portable unlike the Union pension plan. Rizzo said that
the company would withdraw from the Vacation Fund and pay
benefits directly to the employees. He told the Union there was
no point in paying a third party to administer vacations. Finally,
Rizzo said the company would give a “very meaningful wage
increase.” Rizzo emphasized that since the year 2000 the Re-
spondent had been asking the ATC for relief from funds pay-
ments. Friedman asked questions about this offer and the com-
pany promised to provide the Union with more information
about the two plans. Friedman then stated that the company 401
(k) plan was rejected but that the Union would review the HIP
plan.
Then Friedman said the Union still demanded a $2 hourly
increase for pharmacists in each year of the contract. However,
the wage increase demands for other employees were changed.
The new demand was for a $.60 hourly increase immediately
and $.50 six months later, this to be repeated in the second and
third years of the contract. Rizzo said the wage demands were
now more expensive than anything the Union had asked for
previously amounting to $3.30 over three years for the non-
pharmacist employees. Friedman replied that “everyone should
know we are serious.”
Rizzo replied that he wanted a deal and that he would give
the Union a proposal at the next meeting.
Morro testified that he had analyzed the HIP plan and found
that it was inadequate in that employees would not be able to
afford the co-payments and that it did not have dental care. The
401(k) plan was illusory because low paid employees could not
afford to contribute part of their wages and the company match-
ing formula was very low.

November 21, 2001

Rizzo testified that on November 21 he informed the Union
representatives that he was disappointed with the last Union
change in position. As a result, Rizzo said, he would try to
move in a different direction and he offered the company 401
(k) plan and the HIP health coverage. Murphy’s and Fried-
man’s notes show that this had happened on November 15 as
described above.
Rizzo denied that the Union decreased it wage demand for
pharmacists to $1.90 per year and that the Union decreased its
wage demand for other employees to $.55 and then $.50. These
figures appear in Murphy’s notes and Friedman’s notes.
The notes of both Murphy and Friedman show that on No-
vember 21 Rizzo began by offering a wage increase of $.10,
$.15 and $.20 for cashiers, interns and technicians. For pharma-
cists the company offered $.30 in each year of a three year con-
tract. This was tied to an incentive plan which Rizzo explained
in detail. The company would withdraw from all three funds
and was offering the HIP and 401(k) plan. The company ex-
plained the 401(k) plan. Friedman replied that this would leave
the Union no choice and Rizzo reminded him that the Respon-
dent had asked for a one-year funding holiday.
Friedman rejected the HIP and the 401(k) plans. Friedman
said the Union was asking for a retroactive contract. The Union
proposed a three month funding holiday for the pension fund
with 1/2 contributions for six months and full contributions
thereafter. The Union proposed to lower welfare contributions
to $50/wk for the first six months and resume $59/wk thereaf-
ter. Part-time employees would be charged at 1/2 the rate. Wel-
fare contributions for new employees would start after 3
months with no retroactivity. The first lump sum payment to
the Vacation Fund would not be due for 6 months. The Union
demanded a wage increase of $1.90/hr for pharmacists in each
year of a 3-year contract. It promised to examine the incentive
proposal. Nonpharmacists would get an increase of $.55/hr in
the first month and $.50/hr in the seventh month of the year, to
be repeated in each year of the contract.
Rizzo responded that there would be a deal if it made eco-
nomic sense. Rizzo said he was disappointed that the Union
was nickel and diming the company. He said the fund and wage
demands were “out of whack.” Rizzo said the company would
offer more in wages if there were substantial movement on the
cost of the funds. Rizzo said that cost was very important to the
Respondent.

December 6, 2001

Rizzo testified that on December 6 Friedman rejected the
HIP plan. Friedman said there would never be an agreement
unless the company agreed to stay in all three Union funds.
Friedman said this was his final position. Rizzo asked for the
Union’s position on wages. Friedman replied that he would not
consider wages until the funds issues were resolved. When
Rizzo asked whether this was the Union’s final position Fried-
man replied that it was. At that point Rizzo withdrew to tele-
phone his management. Rizzo had been instructed that if the
Union offered no movement that day he was to make a last,
best and final offer on behalf of the company.18 Rizzo returned
to the bargaining and handed out a document dated December
6, 2001 which was in the form of an amendment to the expired
collective-bargaining agreement.19
Rizzo explained each point and asked whether there were
any questions. Rizzo told the Union that the company would
implement the provisions of its final offer on Monday, Decem-
ber 9. Friedman asked Rizzo for time to study the offer and
respond. Rizzo agreed to meet with Friedman but he said that
the company’s offer was final and would not be altered. The
parties agreed to meet on December 12. In the event, the Union
cancelled the meeting.
The Respondent’s last, best and final offer included the pre-
vious proposals on part-timers, assistant managers and other
items such as the incentive plan for pharmacists, the HIP and
401(k) plans and direct payment of vacations to employees.
However, the company’s final offer contained significant
movement on the wage offer. Now, the employer offered phar-
macists an incentive plan and a raise of $.60 in each year of a
three year contract. For other titles, the company offered raises
of $.40, $.30 and $.20 in each year of the three year contract.

18 This last best offer was prepared by Rizzo in consultation with
management a few days before the December 6 session.
19 The document listed changes under the phrase “Amend the follow-
ing provisions of the Agreement as set forth below.”
DUANE READE, INC. 1029
Rizzo testified that he believed the parties were at impasse
on December 6, 2001. Rizzo denied that the Union reduced its
hourly wage increase demand to $1.80 for pharmacists and for
other employees $.50 twice in each year of a three year con-
tract.
Both Murphy’s and Friedman’s notes show that after the
company proposal was made the Union asked questions about
the incentive plan and then the Union reduced its wage demand
to $1.80 per year for pharmacists without an incentive plan.
The Union said that incentive plans did not work and that no
drugstore chain in New York City had an incentive plan. The
Union also reduced its wage demand for all others to $.50 every
six months. Friedman’s notes show that he said that he had
more room to move and that he would address the Welfare
Fund costs. However, the ATC would not agree to a reduction
in benefits. Murphy’s notes show that Friedman compared the
costs of the HIP plan to the current ATC Welfare Fund and
tried to convince Rizzo that the Union proposal was less expen-
sive to the company than the HIP plan. Friedman said the Un-
ion would not agree to reductions in benefits for employees and
that it would not make any movement in the welfare or pension
plans. However, Friedman said he would reduce the costs of the
plans. Friedman said he needed time to review the company’s
offer and the parties agreed to meet on December 12.
Rizzo testified that the company implemented its last best of-
fer effective January 1, 2002. It provided the benefits consistent
with that offer.
Morro said that before December 6 the Union may have said
the Union would strike. However, the Union met with employ-
ees and found that they were not willing to strike. Various fly-
ers were given out by the Union to shop stewards and employ-
ees. These documents show that the Union was preparing a
strike plan in November and December.20 Rizzo stated that the
company knew the Union was making plans to strike in No-
vember and December and that it had hired a strike coordinator.
Morro testified that he knew from the first day of negotia-
tions that the company did not want to continue the Vacation
Fund. Morro never believed that the company would continue
to contribute to the Vacation Fund. Morro recalled that Rizzo
said more than once that the company would not contribute to
the Welfare Fund or the Pension Fund after August 31, 2001,
the expiration date of the collective-bargaining agreement. The
company always wanted a 1-year funding holiday for these
funds.
III. DISCUSSION AND CONCLUSIONS
A. Request for Information
There is no doubt that the Union is entitled to the hire rate
and wage increase information it requested on August 13, 2001,
and January 6, 2002. Respondent does not dispute the well
settled law that wage information is presumptively relevant to
the Union’s duty as majority representative. Curtiss-Wright

20 For example, a letter to shop stewards dated November 23, 2001
mentioned the preparation of a strike plan and a press release dated
December 5 charges that the company is bargaining in bad faith and
says, “it looks more than ever as though our strike preparations will be
needed.”
Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61 (3d Cir.
1965); Pennsylvania Power Co., 301 NLRB 1105 (1991).
Respondent argues that it was not required to provide the in-
formation to the Union because the demand was made in bad
faith and to harass the company. Respondent urges that “the
sheer breadth of the request, unaccompanied by anything but
the barest explanation of its relevancy, was vexatious.” Re-
spondent points out that that the August 13 request was made in
the midst of a hotly contested representation election between
UNITE and ATC and in the midst of negotiations for a new
contract. None of these arguments is convincing. First, there is
no evidence in the record of bad faith or an intention to harass
on the part of the Union.21 The company employs about 2633
unit members and it runs over 240 stores. A request for wage
information concerning 70 or so employees does not seem un-
reasonable, especially in view of the high rate of employee
turnover testified to by Rizzo. Moreover, the Union need not
give an explanation for a request for wage information nor need
it provide the employer with any proof that employees had
meritorious grievances. The Union has a duty to police the
contract and to ascertain that raises are being given properly.
Further, the fact that Stein and Rizzo were involved in negotia-
tions has no bearing on the request for information. A large
company such as Respondent doubtless does not require its
director of human resources and vice president for human re-
sources and administration personally to compile wage infor-
mation. Such information can easily be obtained by a payroll
clerk from computerized records. Finally, the January 6, 2002
request for information reiterated the initial request for each
employee’s hire rate, information that had already been re-
quested but not supplied, and asked for more precise informa-
tion about wages being paid prior to each increase. The Union
offered to have this information gathered at its own expense by
an independent auditor, surely evidence of good faith and
wholly devoid of a desire to harass the company. Respondent
did not respond in any way to this request.
I find that Respondent violated Section 8 (a) (5) and (1) of
the Act by refusing to provide the hire rate wage information
requested by the Union on August 13, 2001 and the details
concerning wage increases requested on January 6, 2002.
B. Change in Payment of Unused Sick Leave
The General Counsel states that the Respondent had a duty
to maintain existing wages, hours and other terms and condi-
tions of employment after the expiration of the collective bar-
gaining agreement unless it bargained to impasse concerning
proposed changes. NLRB v. Katz, 369 U.S. 736 (1962). The
General Counsel argues that it was unlawful for Respondent to
fail to pay employees for accrued unused sick leave on or about
August 31, 2002.

21 Indeed, the same documents that request the wage information
show that the Union vigorously represented employees on various
matters such as discipline and transfer, failure to pay overtime for time
worked in excess of 40 hours, store managers forcing employees to
continue working after they officially clock out, failure to replace nec-
essary equipment, racial slurs, sick leave, holiday pay, reimbursement
of expenses, workers compensation claims and the like.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
Respondent does not dispute that a sick leave provision is a
mandatory subject of bargaining which is not subject to unilat-
eral change. Kendall College of Art & Design, 288 NLRB 1205
(1988).
Respondent’s brief argues that “the provision did not require
payment as of any specific date”. Manifestly, this is incorrect.
Respondent itself stipulated that payments were due on or about
August 31 of each year. Further, the language of Article Six-
teenth, quoted above, is clear that payments of unused sick
leave are due on or about August 31 of each year.
Respondent argues that the contract language “specifically
provided that the sick leave payout benefit was only applicable
for the term of the Agreement.” The Respondent’s brief states
that the company had generally reimbursed employees for un-
used sick leave in September at or about the time that wage
increases took effect under Article Fifteenth of the Agree-
ment.22 Respondent points out that it paid employees unused
sick leave in 2001 after the expiration of the contract. As stipu-
lated by the parties, this payment was made in November
2001.23 Respondent urges that the “procedure” of paying un-
used sick leave at the same time as implementing a wage in-
crease was carried over into the agreement as “extended for
three years subject to the modifications contained in the final
offer.” Thus, Respondent concludes that because the agreement
as modified by the final offer provides for a January 1, 2003
wage increase it was privileged to follow the same “procedure”
as formerly and pay sick leave after January 1, 2003 rather than
on or about August 31, 2002.
Respondent also argues that the language of article sixteenth
constitutes a waiver of the Union’s right to bargain over the
timing of these payments after the expiration of the Agreement.
Respondent’s arguments ignore its own concession that
when it implemented its last offer it amended the existing
agreement. The record is clear that the final offer did not
change the provisions of Article Sixteenth. Thus, the contract as
implemented by Respondent requires payment of unused sick
leave on or about August 31 during the life of the agreement as
extended by Respondent’s implementation of its final offer.
There is nothing in the contract implemented by Respondent
tying the payment of sick leave to the implementation of wage
increases.
Respondent’s argument that Article Sixteenth of the contract
waives the Union’s right to bargain about the timing of unused
sick leave payments is without merit and requires no discus-
sion.
I find that Respondent violated Section 8(a)(5) and (1) of the
Act by failing to pay employees for accrued unused sick leave
on or about August 31, 2002.
C. Failure to Remit Dues Deductions to the Union
The General Counsel states that although an employer may
lawfully refuse to honor a dues checkoff clause after expiration
of a collective bargaining agreement the employer violates
Section 8(a)(1) when it continues to deduct dues pursuant to

22 Article Fifteenth provides wage increases effective in December
1998, September 1999 and September 2000.
23 No wage increase was given in September 2001 while the parties
were negotiating.
unrevoked checkoff authorizations but fails to remit the dues to
the union. There is no evidence in the record that any of the
unit employees herein revoked their dues checkoff authoriza-
tions between August 31 and December 12, 2001.
The Board has found that “by signing checkoff authoriza-
tions the employees . . . have exercised their Section 7 rights to
join and assist a labor organization. . . . [A]n employer inter-
feres with, restrains, or coerces employees ... where it retains
for itself dues that it checked off from employees’ paychecks
after the expiration of a collective-bargaining agreement.” Able
Aluminum Co., 321 NLRB 1071, 1072 (1996).
Respondent’s brief contends that “due to administrative
oversight” the company continued to deduct dues after the expi-
ration of the contract on August 31, 2001. The dues were re-
funded to the employees right after the company declared im-
passe and decided to implement its last best offer on December
6, 2001.
Respondent apparently argues that it did not engage in any
violation because it refunded the withheld money to the em-
ployees. The cases cited by Respondent are inapposite. Those
cases were decided in a context where the employers made
unilateral changes before the expiration of a contract, including
failing to remit dues to the Union. In the cited cases, the em-
ployers were ordered to remit the dues to the Union until the
expiration date of the contract and to refund dues, if they had
been withheld, to the employees. In those cases there was no
allegation that the employers had in fact checked off dues after
the contracts expired and the contingency was merely alluded
to as part of the remedy ordered by the Board. See R.E.C.
Corp., 296 NLRB 1293 (1989).
By contrast, in the instant case, it is clear that the Respondent
retained for itself dues that it checked off from employees’
paychecks for a period of three and one-half months while it
bargained with the Union. Respondent thus interfered with,
restrained and coerced its employees in violation of Section
8(a)(1) of the Act.
D. Discontinuing Payments to the Funds
The General Counsel argues that Respondent violated the
Act by unilaterally discontinuing payments to the Vacation
Fringe Benefit Fund covering periods after July 1, 2001 and the
Allied Welfare Fund and the Union Mutual Fund covering pe-
riods after September 1, 2001. As set forth above, Respondent
stipulated that it had not made these payments.
In resolving issues of fact relating to the negotiations I have
relied on uncontradicted testimony in the record and notes
taken by Counsel for the Respondent and Counsel for the Un-
ion. Where the testimony contradicts the notes, I have relied on
the notes which were taken by counsel at the meetings and
which are thus more likely to be reliable.
The record shows that the first time the Respondent proposed
to withdraw from the Vacation and Fringe Benefit Fund and
pay the employees directly was at the session of July 26, 2001.
At the August 14 session Respondent again said the company
wanted to delete the Vacation Fund and cease contributions as
of July 1, 2001. During the next meetings on August 24 and 27
Rizzo said that the company intended to withdraw from the
Vacation Fund.
DUANE READE, INC. 1031
The company’s first proposal relating to the Welfare and
Pension Funds was its request on September 14, 2000 for a four
month funding holiday for both of these funds. Beginning with
this meeting, Rizzo constantly emphasized to the Union nego-
tiators his belief that the funds were too expensive relative to
the company’s competition, that they were overfunded and that
they did not disperse enough benefits to the employees. Rizzo
also was constant in his demands for information about the
financial condition of the Welfare and Pension Funds. The
Union consistently responded that information could only be
obtained directly from the funds. The record shows that the
funds were discussed at nearly all subsequent meetings and that
the parties compared the cost of the ATC funds with the Local
340-A UNITE funds as well as the benefit costs of other drug-
store chains. The record is clear that Rizzo constantly empha-
sized to the Union that improvements in wages were linked to
the amount Respondent had to pay to the benefit funds.
The Respondent first asked for a one year funding holiday on
August 14, 2001. The Union replied on August 24 that it would
not agree to this. A funding holiday was discussed again on
August 27 and 30, and the company provided information
about the UNITE benefits. On August 31, the Union for the
first time proposed a three month funding holiday for the Wel-
fare and Pension Funds but it rejected a one year holiday. The
Union also proposed to reduce the “float” in the Vacation Fund
by proposing that no payments should be made for six months
after which a lump sum would be due. Respondent, according
to Murphy’s notes, repeated its earlier wage offer which it had
termed “not a final offer.” Rizzo also asked the Union for a new
wage offer.
Respondent had determined that unless a new agreement had
been reached by August 31 it would discontinue payments to
the ATC funds. On that day, Rizzo told the Union that if no
agreement were reached the company would cease paying into
the funds. The Union stated that it needed time to study and
respond to the company’s proposals: as set forth above, these
dealt with a number of subjects in addition to wages and bene-
fits. Rizzo then suggested a one year contract extension with no
contributions to any of the three ATC funds during the year.
The Union rejected this and said it wished to continue negotia-
tions.
At the negotiation session of August 31, 2001, the company
formally notified the Union that it would stop contributing to
the Welfare and Pension Funds as of September 1 and with-
draw from the Vacation Fund as of July 1.24
It is well-established that an employer may not make unilat-
eral changes in matters which are mandatory subjects of bar-
gaining. NLRB v. Katz, 369 U.S. 736 (1962). Thus, an employer
may not impose unilateral alterations in benefits and benefit
plans at the expiration of a contract absent the existence of a

24 Before August 31, Respondent said it intended to withdraw from
the Vacation fund after July 1 but the Union could have had no way to
know whether this was a bargaining ploy that might change during
negotiations. Respondent admittedly is always in arrears in making
various payment to the employees, the Union and the funds, and be-
tween July 1 and August 31 it was still possible that the company
would make up the payments to the Vacation and Fringe Benefit Fund.
good faith impasse. Taft Broadcasting Co., 163 NLRB 475
(1967).
It is clear from this summary of the parties’ discussions
about the funds that on August 31 they were still exploring their
positions and asking for information. The parties’ discussions
were based on the intertwined relationship between benefit
costs and wages. Neither side had made a final wage proposal.
Indeed, as set forth in the description of the negotiations in the
“Negotiations” section above, there were many other issues on
the table relating to work week, part-time employees, discipline
and the like. On August 31, the Union had made two significant
proposals for the first time: it had offered to reduce the six
month float on the Vacation Fund that Rizzo had complained
about and it had offered a 3-month funding holiday for the Pen-
sion and Welfare Funds; these two proposals dealt with issues
deemed vital by Respondent. Thus, there is no evidence that the
parties were at the end of their ability to negotiate. Neither
party had proclaimed that an impasse existed. Rizzo did not say
the fund contributions would be discontinued because of im-
passe. He merely said that the company would cease contribu-
tions because the parties had not concluded an agreement. And
Rizzo testified that before the August 31 bargaining session he
had agreed with Respondent’s management that if there were
no agreement by that date the company would cease payments
to all three funds.
Respondent’s brief argues that it was privileged to stop the
fund contributions because the Union did not furnish informa-
tion about the funds. This argument cannot be applied to Re-
spondent’s withdrawal from the Vacation and Fringe Benefit
Fund. Respondent stated two reasons in negotiations for its
wish to drop the Vacation Fund; first, that it was funded too far
in advance of need and it therefore had a float that Respondent
did not wish to finance and second, that it was an inefficient
way to manage the delivery of benefits and resulted in delays
and mistakes. The record does not show that Respondent ever
requested information about the Vacation and Fringe Benefit
Fund from the fund’s trustees.
The record does show, however, that Respondent asked the
Union for information about the finances of the Welfare and
Pension Funds and that the Union replied that the funds had
separate counsel and that information must be sought from the
funds directly. The record shows that Respondent asked for
information directly from the funds but that it was not supplied
before December 6, 2001. Even in the absence of the requested
financial information the record shows that the parties negoti-
ated about the welfare and pension benefits and that the Union
made concessions, offering a funding holiday and stating that it
would try to reduce the cost of the funds. Indeed, Respondent
cited the cost of the Local 340-A benefits in its effort to obtain
fund relief from the Union and the Union responded by com-
paring the costs of its welfare plan with the HIP plan. In fact,
the Union argued that its plan was cheaper for the employer.
Thus, the parties were able to negotiate about the welfare plan
on various occasions. Further, the Union was able to respond to
the employer’s desire to cut the cost of welfare and pensions by
offering funding holidays and reductions in payments for cer-
tain periods. Respondent has offered no legal authority for the
proposition that the inability of an employer to obtain informa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
tion about the financial condition of employee benefit funds
privileges it to discontinue contributions at the end of a contract
term in the absence of a good faith impasse in negotiations.
Respondent’s brief also argues that the parties had become
entrenched and reached impasse on the issue of all three funds
by August 31, 2001. This argument does not take into account
the facts in the record recited above. Respondent’s argument
fails to acknowledge the fact that it first proposed to withdraw
from the Vacation Fund only on July 26, 2001. Respondent
does not acknowledge the fact that it originally proposed
merely a four month funding holiday for the Welfare and Pen-
sion Funds and that it did not request a one year holiday until
August 14, 2001. As described above, the Union made a first
proposal to deal with the fund issues on August 31, 2001. On
that day, the Union proposed a three month funding holiday for
the Welfare and Pension Funds and it offered a proposal to deal
with the six month float in the Vacation Fund. Despite this
movement on the part of the Union, the Respondent announced
on August 31 that it would discontinue payments to all three
funds. There is simply no evidence in the record to support
Respondent’s assertion that the parties were entrenched and had
reached impasse. Indeed, the evidence is clear, as Rizzo himself
testified, that Respondent had determined before the meeting of
August 31 that it would cease its contributions to the three
funds unless it reached agreement with the Union. No interpre-
tation of the record supports the possibility that the parties
could reach a collective-bargaining agreement on August 31.
There was still a myriad of issues to be discussed. Further, the
record is convincing that Respondent was not eager to reach
agreement before the results of the election were known. By the
same token, the Union was not rushing to agreement before the
election. Each side hoped that a favorable election result would
strengthen its hand in the negotiations. Despite the fact that
negotiations had begun in September 2000 neither side had
made a serious economic proposal as of August 31, 2001.
Rizzo acknowledged that by August 31 the company had not
made a comprehensive economic proposal because it was con-
centrating on reducing the cost of the funds.
I find that Respondent violated Section 8 (a) (5) and (1) by
ceasing to make contributions to the Vacation and Fringe Bene-
fit Fund, the Allied Welfare Fund and the Union Mutual Fund.
E. Declaration of Impasse
An overview of the negotiations shows that Respondent had
made clear to the Union its desire for relief from Welfare and
Pension Fund payments from the beginning of discussions in
September 2000. From the very first, Respondent told the Un-
ion it wanted to limit its pension and welfare costs to levels in
the contract with Local 340-A UNITE. At that point, Respon-
dent asked for a four month holiday from the funds. Respon-
dent put the Union on notice that it wanted to exclude pharma-
cists from the unit, that it wanted the right to hire an unlimited
number of part-time employees and that it wanted to abolish the
notion of a five consecutive day work week.
The Union began by rejecting demands for fund relief. In-
deed, the fund representatives told the company that the Wel-
fare Fund would rise to $73/week. The Union rejected the no-
tion of unlimited numbers of part-timers. The Union maintained
that pharmacists should stay in the unit.
In addition, by the second meeting, the Union was aware that
the company objection to the Vacation Fund was based, in part,
on the fact that it was funded very early in the year and pro-
vided a large “float” of money to the Fund.
The Union’s early demands in the negotiations were for writ-
ten warning notices to be expunged after six months, an in-
crease in vacation and other matters. Significantly, the Union
set forth its wage demands in writing on November 30, 2000 by
requesting increases of $1.00 for pharmacists, $.75 for assistant
managers and certain others, and $.50 for stockmen and cash-
iers.
The discussions continued in the same vein for several
months, with the company demanding relief from fund pay-
ments and saying that in order to be competitive it had to offer
higher wages and pay less money into benefit funds.
As the negotiations progressed the Union learned that Re-
spondent had signed a new contract with Local 340-A UNITE.
As a result, the Union raised its wage demands, doubling some
of them. Thus it wanted $2/hour for pharmacists in each year of
the contract, $1.50 for assistant managers, $1.10 for stockmen
and cashiers. Rather than granting the company relief on the
funds, the Union proposed to do away with retroactive payment
for employees retained by the company and instead collect fund
payments from the first day of employment.
By July 26, Respondent had for the first time responded to
the expunction demand with a two year proposal except for
theft and loss prevention discipline. The company did not have
a wage proposal because it was still demanding relief on the
funds and linking that to wage increases. Respondent proposed
withdrawing from the Vacation Fund, a position it would reit-
erate at all subsequent meetings with the Union. For the first
time, Respondent asked for an audit of the benefit funds.
It must be remembered that during this time the Union was
facing an eventual election battle with Local 340A-UNITE.
Moreover, as found by the Board, Respondent was engaging in
conduct unlawfully to assist Local 340-A, including taking
steps to insure that employees at new stores joined Local 324-A
before the ATC could attempt to sign them up. During the Au-
gust 2001 negotiations, Respondent proposed extending the
contract for one year to see what the election results would be.
The parties continued to discuss the funds and Respondent
complained that the welfare benefits had been increased with
no notice to the company. Respondent continued to demand
information about the funds and it continued to link a wage
increase to relief from the funds.
As the August 31 expiration date of the collective-bargaining
agreement approached both the Union and Respondent changed
their proposals somewhat. The company offered a token wage
increase of $.10 and $.05 for various titles. The company con-
tinued to complain about the funds, questioning an increase in
welfare benefits when the fund wanted more money from the
employer and alleging that the pension was overfunded. The
parties continued discussing part-timers. The Respondent had
increased its demand from a 4-month funding holiday to a 1-
year holiday on payments into the pension and welfare funds.
DUANE READE, INC. 1033
After requesting information about the cost of the Local 340-
A benefits, the Union eventually proposed a 3-month funding
holiday for the Pension and Welfare Funds.25 The company
responded by changing its position on retroactivity of welfare
and pension contributions. The company increased by slight
amounts its wage increase proposals. The Union proposed
eliminating the float in the Vacation Fund by postponing the
first payment by 6 months. The Union also changed its expunc-
tion demand from six months to one year.
After the results of the election were known in October, the
Union relied on its victory to increase its demands. The Union
warned that it might take action and it began strike prepara-
tions. As the negotiations continued throughout the fall of 2001,
both sides changed their positions. The Union offered to reduce
the Welfare Fund contribution from $59 to $50 per week for the
first six months of the new contract. The Union increased its
wage demands for titles other than pharmacist. The Company
now offered to enroll the unit members in the 401(k) plan and
the HIP plan in place of the existing Union pension and welfare
plans. As this new phase of the negotiations progressed the
Union decreased its wage demand for pharmacists to $1.90 per
hour, with similar decreases for other employees and the com-
pany responded by increasing its wage offer and proposing an
incentive plan for pharmacists. On November 21, according to
Rizzo, he told the Union that the company would offer more in
wages if there were substantial movement on the cost of the
funds.
The changes in positions continued up to and including De-
cember 6, 2001, the last bargaining session, when the Respon-
dent announced that it was presenting its last, best and final
offer. This offer included the previous proposals on part-timers,
assistant managers and other items such as the incentive plan
for pharmacists, the HIP and 401(k) plans and direct payment
of vacations to employees. However, the company’s final offer
contained significant movement on the wage offer. Now, the
employer offered pharmacists a raise of $.60 in each year of a
three year contract in addition to the incentive plan, and raises
of $.40, $.30 and $.20 in each year for all other titles. Both
Murphy’s and Friedman’s notes show that after this proposal
was made the Union asked questions about the pharmacist in-
centive plan and then the Union reduced its wage demand to
$1.80 per year for pharmacists without an incentive plan. The
Union also reduced its wage demand for all others to $.50 every
six months. Friedman’s notes show that he said that he had
more room to move and that he would address the Welfare
Fund costs. However, the ATC would not agree to a reduction
in benefits. Murphy’s notes show that Friedman compared the
costs of the HIP plan to the current ATC welfare plan and tried
to convince Rizzo that the Union proposal was less expensive
to the company than the HIP plan. Friedman said the Union
would not agree to a reduction in benefits for employees and
that it would not make any movement in the welfare or pension
plans. However, Friedman said he would reduce the costs of the

25 The Union never changed its offer of a three month funding holi-
day, although it occasionally shifted the proposal from months 1, 5 and
9 to months 1,5 and 8. These changes are without significance.
plans. Friedman said he needed time to review the company’s
offer and the parties agreed to meet on December 12.
This recital of the bargaining history shows that movement
in the parties’ proposals continued steadily and even took place
on December 6, the day the company declared impasse. Rizzo
had agreed with company management that he would present a
final offer on December 6 and that he would announce its im-
plementation. Respondent adhered to its plan even though its
last best offer produced a reduction in the Union’s wage de-
mands and a statement by Friedman that he would address the
welfare and pension fund costs. Clearly, Respondent was de-
termined to declare impasse and implement its last offer even in
the face of continued movement and a desire to bargain on the
part of the Union. I note that at trial Rizzo denied that the Un-
ion had reduced its wage demand in response to his proposals
on December 6. This is evidence of Rizzo’s determination to
declare impasse on December 6 no matter what the Union may
have done.
The Board has commented that Taft Broadcasting “sets forth
the standards for determining whether parties have exhausted
the prospects of concluding an agreement and a bargaining
impasse exists. Factors such as the parties’ bargaining history,
their good faith, the length of time spent in negotiations, the
importance of the issues about which the parties disagree, and
the parties’ contemporaneous understanding of the status of
negotiations are all relevant parts of the analysis.” Intermoun-
tain Rural Electric Assn., 305 NLRB 783,788 (1991).
The bargaining history shows that the parties continued to
discuss the costs of their proposals, to change their positions
and to try to accommodate the other side’s needs right up to
December 6, the date the employer had determined to announce
that it would implement its final offer. Thus, it cannot be said
that the parties had exhausted the prospects for concluding an
agreement. On December 6 Friedman said he would reduce the
funds’ costs without reducing benefits. This was an issue of
major importance to both parties and had Friedman been given
the opportunity to formulate a proposal it might well have sig-
naled a major step toward a negotiated collective-bargaining
agreement. Significantly, the company’s wage offer presented
on December 6 was much higher than its previous offers and it
might have proven very attractive to the Union if bargaining
had continued. Friedman said on December 6 that he needed
more time to study and respond to the Respondent’s new pro-
posals but Rizzo’s announcement that the company would im-
plement the last offer within three days deprived the Union of
an opportunity to make further significant movements and ad-
vance its counterproposals. Lafayette Grinding Corp., 337
NLRB 832 (2002).
The length of the negotiations is not significant in the par-
ticular circumstances of this case. The record shows that both
parties were content to await the results of the election which
had been ordered in August 2001 and not concluded until that
fall. Respondent hoped, consistent with its unlawful assistance
to 340-A UNITE, that the ATC would lose the election. The
Union hoped it would win and thus gain more bargaining
power in the negotiations for a new contract. Thus, the fact that
the negotiations were protracted does not lead to a conclusion
that the parties were at impasse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
A discussion of the good-faith element required by Taft does
not show that Respondent bargained in good faith. Rizzo and
the company management had determined before December 6,
2001 that the company would implement the last, best of-
fer―an offer which was presented to the Union for the first
time on December 6. Despite the fact that the Union asked for
another meeting and stated that it would deal with a reduction
in cost for the welfare and pension funds Rizzo persisted in his
position that his offer would be implemented by Respondent.
Further, the Company had already engaged in violations of the
Act that went directly to the ability of the Union to represent
the employees. The company had failed between August and
December 2001 to provide the Union with wage increase in-
formation that was necessary for the Union to represent its unit
members. The Respondent had failed to remit to the Union the
dues which it was still withholding from the employees’ pay-
checks. Finally, the company had formally announced on Au-
gust 31 that it was unlawfully withdrawing from the Vacation
Fund and ceasing contributions to the Pension and Welfare
Funds. This action was calculated to injure the employees’
ability to continue their pension membership and to continue
with their medical insurance plan. Pension and welfare matters
are of vital importance to employees and any unlawful change
must have a major effect on the confidence of the employees in
their bargaining representative. As the Board found in Inter-
mountain Rural Electric Assoc., supra, unilateral action relating
to major topics that are crucial to the bargaining have an ad-
verse effect on the negotiations and prevent the attainment of a
valid impasse. 305 NLRB at 789. Here, the unilateral with-
drawal from the three benefit funds contributed to the parties’
inability to reach an agreement by changing the status quo and
moving the baseline for negotiations. Lafayette Grinding Corp.,
supra, 337 NLRB 833.
In conclusion, I find that the parties had not reached a good
faith bargaining impasse because they had not exhausted their
negotiations and because the Respondent’s unremedied unfair
labor practices hampered the parties’ ability to reach a negoti-
ated contract. The Respondent violated Section 8 (a) (5) and (1)
of the Act by implementing its last, best and final offer after
December 6, 2001.
CONCLUSIONS OF LAW
1. By refusing to provide hire rate wage information re-
quested by the Union on August 13, 2001 and the details con-
cerning wage increases requested on January 6, 2002 Respon-
dent violated Section 8 (a) (5) and (1) of the Act.
2. By failing to pay employees for accrued unused sick leave
on or about August 31, 2002 Respondent violated Section 8 (a)
(5) and (1) of the Act.
3. By retaining for itself and failing to remit to the Union
dues that it checked off from employees’ paychecks Respon-
dent violated Section 8 (a) (1) of the Act.
3. By unilaterally ceasing to make contributions to the Vaca-
tion and Fringe Benefit Fund, the Allied Welfare Fund and the
Union Mutual Fund Respondent violated Section 8 (a) (5) and
(1) of the Act.
4. By prematurely declaring impasse and unilaterally imple-
menting its final offer after December 6, 2001 Respondent
violated Section 8 (a) (5) and (1) of the Act.
5. The General Counsel has not shown that the Respondent
violated the Act in any other manner.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having failed to make contributions to the
Vacation and Fringe Benefit Fund, the Allied Welfare Fund,
and the Union Mutual Fund it must make whole its employees
by reimbursing them for expenses ensuing from its failure to
make such contributions, plus interest. Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn.2 (1980), enfd. 661 F.2d 940 (9 superth
Cir. 1981). Additional amounts shall be paid to the Vacation
and Fringe Benefit Fund, the Allied Welfare Fund and the Un-
ion Mutual Fund in the manner set forth in Merryweather Opti-
cal Co., 240 NLRB 1216 fn. 7 (1979). Interest shall be com-
puted in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).
The Respondent having unlawfully implemented its final of-
fer of December 6, 2001 it must rescind implementation of its
terms and restore the terms and conditions of employment ex-
isting prior to the unilateral change. In addition, Respondent
must restore the terms and conditions which applied to unused
sick leave prior to the unlawful change in September 2002.
Employees shall be made whole for losses suffered as a result
of Respondent’s unilateral changes in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), plus interest as
described above.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, Duane Reade, Inc., New York, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to provide requested wage information to the
Union.
(b) Failing to pay employees for accrued unused sick leave.
(c) Retaining for itself and failing to remit to the Union dues
that it checks off from employees’ paychecks.
(d) Unilaterally failing to make contributions to the Vacation
and fringe Benefit Fund, the Allied Welfare Fund and the Un-
ion Mutual Fund.
(e) Prematurely declaring impasse and unilaterally imple-
menting its final offer.
(f) 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.

26 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.
DUANE READE, INC. 1035
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide to the Union all of the information it requested
on August 13, 2001 and January 6, 2002.
(b) Rescind implementation of the final offer dated Decem-
ber 6, 2001 and restore the terms and conditions of employment
existing prior to the unlawful changes as described in the Rem-
edy section above.
(c) Make whole the Vacation and Fringe Benefit Fund, the
Allied Welfare Fund and the Union Mutual Fund and reimburse
employees for any expenses resulting from the unlawful failure
to make contributions to these funds in the manner set forth in
the remedy section above.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of reim-
bursement due under the terms of this Order.
(e) Within 14 days after service by the Region, post at all of
its facilities where employees are represented by the ATC cop-
ies of the attached notice marked “Appendix.”27 Copies of the

27 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-
notice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 31,
2001.
(f) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 18, 2004

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.”