Inland Counties Legal Services

National Labor Relations Board - Board Decisions

Jun 23, 1995

317 N.L.R.B. 941 (N.L.R.B. 1995)

941
317 NLRB No. 134
INLAND COUNTIES LEGAL SERVICES
1 The Union button read ‘‘District 65, UAW, AFL–CIO.’’
2 We reject the Respondent’s reliance on certain appellate court de-
cisions involving facts distinguishable from those in this case. In
NLRB v. Harrah’s Club, 337 F.2d 177 (9th Cir. 1964), the court
found that the button worn had no relation to any Sec. 7 right. The
court emphasized that the button was not worn in solidarity with
others, during an organizing campaign, or, as was the case here, dur-
ing collective-bargaining negotiations. In Davison-Paxon Co. v.
NLRB, 462 F.2d 364 (5th Cir. 1972), the court found that the wear-
ing of a button stating ‘‘Vote Retail Clerks Union, AFL–CIO’’ was
unprotected. The court emphasized that the button detracted from the
employer’s marketing plan that was to have its employees model
clothing sold by the employer while working in selling areas. In ad-
dition, the court noted that the button negatively affected discipline
and production because it created animosity between prounion and
antiunion employees. Nor is United States Department of Justice v.
FLRA, 955 F.2d 998 (5th Cir. 1992), cited by the Respondent, on
point. There the court found that the wearing of a union button by
a border patrol agent was unprotected. The court emphasized that
duties of these agents were paramilitary and thus they needed to
abide by strict uniform requirements.
Inland Counties Legal Services and Workers
Unidos, National Organization of Legal Serv-
ices Workers, District 65, United Automobile,
Aerospace & Agricultural Implement Workers
of America–UAW, AFL–CIO. Cases 31–CA–
18436, 31–CA–18601, 31–CA–18926, 31–CA–
19292, and 31–CA–19508
June 23, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On September 29, 1994, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified.
The judge dismissed the complaint allegation that
the Respondent violated Section 8(a)(1) of the Act by
ordering an employee to remove a union button. We
find merit to the General Counsel’s exception, for the
reasons set forth below.
The Respondent operates a public service law office
that is funded by the Federal Legal Services Corpora-
tion and is under its oversight. On March 17, 1992, the
Respondent’s supervisor, Roy King, requested that em-
ployee Evelyn Frost, a secretary, remove her union
button.1 King advised Frost that she would risk being
‘‘written up’’ if she did not remove the button. Frost
removed her union button.
Irene Morales, the Respondent’s executive director,
testified that early in her career with the Respondent
she was advised that the Respondent maintained a pol-
icy against wearing buttons of any political nature be-
cause the Respondent’s clients have a wide range of
legal problems and come from a variety of social, reli-
gious, and political backgrounds. She also testified that
from time to time a prospective client will approach
the Respondent about a dispute involving a labor
union, and that on occasion Frost substituted as a re-
ceptionist or notary and thus came into direct contact
with the public. Frost testified that she was unaware of
any policy preventing the wearing of her union button.
Additionally, she testified that she had worn the button
in the past and had never been subjected to any dis-
cipline for doing so. Her testimony was unrebutted.
The judge dismissed the 8(a)(1) the allegation. He
reasoned that Frost’s right to wear a union button
would normally be protected, pursuant to Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945), but that
the right was not an absolute one, and was subject to
a ‘‘special circumstances’’ test, citing Control Serv-
ices, 303 NLRB 481 (1991). The judge found that the
Respondent had shown ‘‘special circumstances’’ here
warranting the direction to remove the union button. In
this regard, the judge noted that the Respondent’s ac-
tion was tied to the public nature of its work and fund-
ing, and that the Respondent, therefore, had established
a need to avoid open displays of partisanship. Accord-
ingly, the judge dismissed the 8(a)(1) allegation. We
disagree.
As the judge noted, the right of employees to wear
union insignia while working as a form of expression
is protected under Section 7 of the Act.2 Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 801–803
(1945). An employer may, limit or ban however, the
wearing of union insignia at work if ‘‘special cir-
cumstances’’ exist. Mack’s Supermarkets, 288 NLRB
1082, 1098 (1988). Special circumstances exist if an
employer can show by substantial evidence that the
wearing by its employees of insignia for a union ad-
versely affected its business or was necessary to main-
tain employee discipline and that, because of delete-
rious effects on these interests, the employer’s ban on
the wearing of such insignia outweighs the employees’
statutory right to do so.
Neither the mere possibility that the Respondent’s
employees may come into contact with a customer or
supplier nor an employer’s interest in avoiding con-
troversy among its clientele that an expression of union
membership or support might engender outweighs the
employees’ Section 7 right to wear these emblems. Id.
Nordstrom, Inc., 264 NLRB 698, 701–702 (1982).
Likewise, the pleasure or displeasure of an employer’s
customers does not determine the lawfulness of ban-
ning employee display of insignia. Howard Johnson
Motor Lodge, 261 NLRB 866, 868 fn. 6 (1982).
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Morales, the Respondent’s executive director, testified that Frost
had been advised of the policy on wearing buttons of a political na-
ture. In its brief, the Respondent alludes to the oversight by its fund-
ing agency, the Federal Legal Services Corporation, which prohibits
the Respondent or any of its employees from intentionally identify-
ing with ‘‘any partisan or non-partisan political activity associated
with a political party or association, or the campaign of candidates
for public or party office.’’ We find that the Respondent’s blanket
ban, which includes the prohibition against wearing a union button,
goes beyond these regulations.
4 The record shows that the Respondent’s secretaries work a ma-
jority of their time in an area separate from where prospective cli-
ents are greeted and escorted to their attorney. We do not find Mo-
rales’ testimony, cited above, that Frost was visible to the Respond-
ent’s clients and occasionally had direct contact with them disposi-
tive. First, Frost testified that she had worn her button on other occa-
sions without any response from the Respondent. Additionally, the
Respondent provided nothing more than conclusionary testimony
about the composition of its clientele. Potential offense to clients is
not sufficient to overcome the Sec. 7 right, as discussed above.
An employer seeking to ban union insignia bears the
burden of establishing substantial evidence of special
circumstances. Government Employees, 278 NLRB
378, 385 (1986). We find that the Respondent failed
to carry that burden here by presenting substantial evi-
dence warranting a finding that Frost’s wearing a
union button affected prospective clients, funding,3
employee discipline, or the provision of services. The
Respondent here has shown nothing more than that
Frost had some client contact4 and that on occasion a
prospective client had a complaint against a labor orga-
nization. These factors do not, in our view, constitute
‘‘special circumstances’’ and do not justify prohibiting
employees with limited client contact from wearing
such a union button. Nordstrom’s, above.
Regarding the judge’s finding that the nature of the
Respondent’s mission requires that it avoid open dis-
plays of partisanship, we note that the the button’s
content ‘‘District 65, UAW, AFL–CIO,’’ is neither po-
litical, partisan, or provocative. Cf. Virginia Electric &
Power Co., 260 NLRB 408, 409 (1982). Nor does it
fall within the limits of the regulations governing the
Respondent’s operations as discussed above, as it does
not align the agency or the wearer with any political
party or campaign. Thus, even assuming the Respond-
ent’s prospective clients come in contact with an em-
ployee wearing such a button, we find that the Re-
spondent has failed to present any evidence of either
actual or potential injury. Moreover, as for the specula-
tion of the Respondent and the judge that the button’s
message might make a negative impression on clients,
the Respondent provides no basis for inferring that a
union button would prejudice its interests or the inter-
ests of its clients. Moreover, the mere possibility of
such offense does not outweigh the employees’ right to
wear such items. Escanaba Paper Co., 314 NLRB 732
(1994).
We, accordingly, find that the Respondent violated
Section 8(a)(1) of the Act by ordering Frost to remove
a button displaying union insignia.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inland
Countries Legal Services, Riverside, California, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the remaining paragraphs.
‘‘(a) Barring employees from wearing union insig-
nia.’’
2. Substitute the attached notice for that of the ad-
ministrative 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to bargain collectively
in good faith with Workers Unidos, National Organiza-
tion of Legal Services Workers, District 65, United
Automobile, Aerospace & Agricultural Implement
Workers of America–UAW, AFL–CIO in the follow-
ing unit that is appropriate for the purposes of collec-
tive bargaining:
INCLUDED: All employees including staff at-
torneys, graduate law clerks, paralegals, legal sec-
retaries, clerk-typists, receptionist/clerk typist, ac-
counting clerk/secretaries, program librarians and
administrative legal secretaries employed by us at
our locations in Blythe, Indio, Montclair, River-
side, San Bernardino and Victorville, California.
EXCLUDED: Confidential employees including
administrative assistants, managerial employees
including bookkeepers, temporary employees,
guards and supervisors including executive direc-
tors, senior administrative assistants, full-charge
943INLAND COUNTIES LEGAL SERVICES
1 Sec. 8(a)(1) of the Act provides that ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 7.’’
Sec. 7 of the Act provides that ‘‘Employees shall have the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all such activities except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in Section 8(a)(3).’’
2 Sec. 8(a)(5) of the Act provides that ‘‘It shall be an unfair labor
practice for an employer . . . to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of
Section 9(a).’’
3 Pars. 10(a-c), 12, 13, and a portion of par. 28 of the third amend-
ed consolidated complaint.
bookkeepers, controllers and managing attorneys,
as defined in the Act.
WE WILL NOT fail or refuse to provide the above-
named labor organization with information requested
by it that is reasonably necessary or useful to it in rep-
resenting employees in collective bargaining with us.
WE WILL NOT prevent employees from wearing
union insignia.
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, on request, bargain collectively in good
faith with the above-named labor organization as the
exclusive collective-bargaining representative of our
employees in the unit described above with respect to
the wages, hours, and working conditions of all the
employees in the above-described unit.
WE WILL provide the above-named labor organiza-
tion with information requested by it that is reasonably
necessary or useful to it in representing employees in
collective bargaining with us.
INLAND COUNTIES LEGAL SERVICES,
INC.
Arthur Yuter, Esq., for the General Counsel.
David M. Diver, Esq. (Reid & Hellyer), of Riverside, Cali-
fornia, for the Respondent.
Terry Skotnes, of Artesia, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Los Angeles, California, on March
2, 3, 24, 25, 26, 30, and 31, 1993. This case is based on a
series of unfair labor practice charges filed by Workers
Unidos, National Organization of Legal Services Workers,
District 65, United Automobile, Aerospace & Agricultural
Implement Workers of America-UAW, AFL–CIO (the Union
or Workers Unidos). On September 30, 1992, the Regional
Director for Region 31 of the National Labor Relations
Board issued a second order consolidating cases, third
amended consolidated complaint, and notice of rescheduled
hearing (the complaint), stemming from unfair labor practice
charges filed by the Union against Inland Counties Legal
Services, Inc. (Respondent or ICLS), in Cases 31–CA–
18436, 31–CA–18601, 31–CA–18926, 31–CA–19292, and
31–CA–19508. A timely answer to this complaint was filed,
and on March 3, 1993, a stipulation of facts was entered into
by Respondent, the Union, and counsel for General Counsel.
The hearing began on March 2, 1993, and continued for
a total of 7 days, ending on March 31, 1993.
At the hearing, and based on a motion by counsel for the
General Counsel, agreed to by both the Union and Respond-
ent, the following paragraphs were severed from the com-
plaint and remanded to the Regional Director for further
processing: paragraphs 9, 11, 20(a), 20(b), 21, 22(a), 24, 26,
and 27. Further, based on a motion by counsel for the Gen-
eral Counsel, agreed to by both Respondent and the Union,
the following was withdrawn from the complaint: paragraphs
15(b) and 25(a) and (b); also withdrawn from paragraph 23,
second line, was the word ‘‘physical.’’ Thus, the complaint,
as amended, alleged generally that Inland Counties Legal
Services, Inc. (Respondent), committed certain violations of
Section 8(a)(1)1 and (5)2 of the Act.
On May 6, 1993, counsel for the General Counsel submit-
ted a motion to withdraw allegation, specifically those allega-
tions that had been extensively litigated concerning the ques-
tion of whether or not Respondent had violated Section
8(a)(5) of the Act by unilaterally issuing a memorandum set-
ting forth ‘‘Standards for Supervision of Legal Work.’’3 The
Union filed a letter advising that I wished to withdraw these
allegations, received on May 11. After some seeming confu-
sion, Respondent chose to oppose the withdrawal of the alle-
gations, relying generally on such premises as the importance
and novelty of the issues presented and the costs and other
expenses it had been put to in defending these allegations.
Having considered the matter, I have determined that under-
standable as Respondent’s views may be there is no warrant
to deny the General Counsel the sort of control over the con-
tent of complaints as is generally exercised by him. Nor, in
my view is it necessary in my opinion in order to protect the
Respondent’s equities. Accordingly, I shall grant the motion
to withdraw allegations, and shall make no findings of viola-
tive conduct based thereon. To the extent that such conduct
has been litigated, however, and is demonstrative of the ef-
forts of the parties to either reach, or obstruct, agreement on
a collective-bargaining agreement, I have determined to fully
utilize the evidence adduced on the issue, giving such evi-
dence the weight I deem appropriate.
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and to
file briefs. Based on the record, my consideration of the
briefs filed by counsel for the General Counsel and counsel
for Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, and it is admitted, that Respondent
is a nonprofit corporation duly organized and existing under
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Although both Michael Givel, an employee who served as the
Union’s president and as a negotiator for the Union, and Skotnes
claimed that the stipend was granted annually by ICLS, I find and
believe that this was not the case: Morales, whose testimony was su-
perior to either of them, testified that the stipend had only been
granted on two other occasions since the early 1980s.
5 The following version of events is taken largely from counsel for
the General Counsel’s brief, together with the stipulations of fact en-
tered into by the parties.
the laws of the State of California, with an office and prin-
cipal place of business in Riverside, California (the facility),
where it is, and at all times material has been, engaged in
providing legal services; further, that in the course and con-
duct of its business operations, Respondent annually derives
gross revenues in excess of $250,000 and annually purchases
and receives goods or services valued in excess of $5000
from sellers or suppliers located within the State of Califor-
nia, which sellers or suppliers receive goods in substantially
the same form directly from outside the State of California.
Accordingly, I find and conclude that at all times material
Respondent is, and has been, an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
at all times material the Union is, and has been, a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Labor Relations History
Respondent is a nonprofit corporation that delivers legal
services to indigent people in the areas where its five offices
are located. As such, it is funded by public funds, largely ob-
tained from an agency of the U.S. Government, the Legal
Services Corporation, and, of equal import, necessarily sub-
ject to control by that grantor.
At all times material Irene Morales, Henry Ares, Michael
Dewey, Roy King, and Don Clark have been agents of Re-
spondent within the meaning of Section 2(13) of the Act, and
supervisors within the meaning of Section 2(11) of the Act;
and since about November 14, 1989, the Union has been the
9(a) representative of the specified unit of Respondent’s em-
ployees.
Respondent became aware of the Union through a letter
dated August 9, 1989, from Terry Skotnes, the Union’s orga-
nizer. Skotnes was later permitted to address Respondent’s
board of directors at the September 1989 meeting. Respond-
ent and the Union signed a stipulated election agreement on
October 2, 1989, providing for an election on October 30,
1989. Following certification on November 14, 1989, Mo-
rales persuaded Respondent’s board to permit her to nego-
tiate an end-of-year stipend with the Union, instead of allo-
cating the funds for equipment.4
B. The Union’s Version of the Negotiations5
and Arguments
1. The request for information
In a letter dated May 15, 1992, the Union requested that
it be provided with certain information. Specifically, it re-
quested a current unit census with each employee’s salary,
hire date, date of birth, gender, residential zip code, as well
as information related to each employee’s existing health
care coverage. Terry Skotnes testified that Respondent has
never responded to this information request, even to the point
of questioning the Union’s basis for its request. Respondent
never informed the Union, or asserted at trial, that any of the
requested information was unavailable, or would have been
onerous or burdensome to collect.
2. The direction to remove union button
On or about March 17, 1992, at Respondent’s San
Bernardino office Supervisor Roy King requested that Evelyn
Frost remove a union button. Without contradiction, Frost
testified that she had worn a union button to the office ap-
proximately six or seven times, that King saw her wearing
her union button on these occasions, and except for March
17, King never said anything to her about wearing a union
button.
In the morning of March 17, 1992, for the first time, King
told Frost that pursuant to directions from Executive Director
Morales, he was directing Frost to remove the union button
under penalty of being ‘‘written up.’’ Frost testified, still
without contradiction, that where she was working on March
17 was not within the normal view of Respondent’s clients,
and in particular on that day ‘‘I was busy doing some dec-
larations and I was not going to see anybody.’’ Finally, Frost
testified that she was aware of no dress code, that wearing
the union button did not affect her job performance, and
there were no safety considerations involved.
3. The alleged assault
On January 8, 1993, a collective-bargaining meeting took
place. Present for the Respondent were Ares, Morales,
Dewey, and Chavez. Among those present for the Union
were Evelyn Frost and Michael Givel. At one point in this
meeting Respondent, through Ares, presented its health insur-
ance proposal. During Ares’ explanation Frost asked him if
it was correct that employees were being required for the
first time to contribute 30 percent of the cost of this insur-
ance; Ares told Frost that was correct. Frost then stated,
‘‘This is ridiculous.’’ There is no dispute that immediately
after Frost’s ‘‘This is ridiculous’’ comment, Ares directed the
entire management bargaining team to get up and begin leav-
ing the room. Frost testified that ‘‘[Ares] became very upset
and angry. The entire management team got to their feet’’
945INLAND COUNTIES LEGAL SERVICES
and (inferentially Ares) stated, ‘‘We’re leaving.’’ Givel testi-
fied, ‘‘Mr. Ares got physically enraged. His cheeks were red.
He looked very, very angry. And he said, ‘‘[T]hat’s it. We’re
leaving.’’ Even Morales testified that after Frost said, ‘‘That
is ridiculous,’’ Ares said, ‘‘Let’s go.’’
To this point no obscenities were uttered by anyone. Mo-
rales testified that after asking about the employee 30-percent
contribution Frost was ‘‘muttering things.’’ Ares testified that
after Frost’s question ‘‘she was going on. And it wasn’t stop-
ping.’’ Unlike Morales, Ares did not characterize Frost’s
comments as ‘‘muttering,’’ but claimed ‘‘she continued and
was getting louder.’’ Neither Ares nor Morales testified what
Frost was saying, or how she was assertedly disrupting the
meeting. All the witnesses have testified that the manage-
ment team, at that point, began to leave. Ares said, ‘‘We
started going out that aisle.’’ Morales said, ‘‘[W]e got up to
go.’’
As the management team was leaving the room Frost said,
‘‘You don’t have to leave. I’ll leave. He’s so full of shit.’’
As the management team started walking out Morales heard
Frost say, ‘‘[Y]ou are full of shit.’’ Ares testified, ‘‘So, I
stood up to leave and was going down that way, and [Frost]
yelled out, ‘he is full of shit.’’’ Only Ares claimed that Frost
‘‘yelled out’’ the comment. Givel and Frost testified that her
comment was ‘‘under my breath,’’ and even Morales testi-
fied only that ‘‘I heard Evelyn say . . . .’’
On Ares hearing Frost’s ‘‘you are full of shit’’ comment,
Ares demanded that she repeat it. She replied, ‘‘You heard
me.’’ Frost testified that Ares then ‘‘turned on his heel and
he came over to me, and he got within a foot of my face,
very angry, and I was absolutely certain that he was getting
ready to hit me.’’ Frost saw Ares’ actions as ‘‘a threat, and
I definitely perceived a threat. There is no question in my
mind, or in the mind of anyone else who was present, that
there was a definite threat.’’ Frost reiterated that ‘‘There was
no question in my mind that he really planned to hit me. The
next day I was broken out in a rash.’’ Without contradiction,
Frost asserted that the rash covered her face, neck, hands,
and whole body, and it persisted for several days, requiring
medical treatment. She stated that such a rash was unique in
her experience, and according to her doctor possibly caused
by extreme stress, which Frost clearly attributed to Ares’ ac-
tions toward her at the January 8 meeting.
Gives recollection of the confrontation corroborated
Frost’s testimony: ‘‘Mr. Ares with his fists clenched and still
visibly enraged got into her face. He was about twelve
inches at the most from her. He was pointing at her. He was
telling her—he told her to take it back and apologize. And
it appeared to myself, as well as talking to other team mem-
bers, that he looked like he was on the verge of hitting her.’’
Ares testified that ‘‘I am at the doorway,’’ and that ‘‘I am
halfway going out the door’’ when Frost made her ‘‘full of
shit’’ comment. After requesting that she repeat her com-
ment, Ares testified, ‘‘She said I am leaving . . . picked up
her fur coat . . . and started for the door. And I was stand-
ing where the door is, so I moved out of the way, and she
stormed out.’’ Yet Ares twice asserted that he never came
closer than 7 or 8 feet from her! ‘‘Judge: How close did you
come to Ms. Frost?’’ ‘‘Answer: I would say about seven or
eight feet.’’ ‘‘Judge: And the closest you ever claim you ever
came was seven or eight feet?’’ ‘‘Answer: That is correct.’’
Morales testified that she started out the door and went
into the hallway as Frost ‘‘bustled to get out,’’ indicating
that she was in the hallway before Frost exited the room.
Dewey testified that he left the room before Morales left;
therefore he, too, was out of the room before either Frost or
Ares exited.
4. Surface bargaining
The Union and Respondent met for 29 ‘‘official’’ (plus
several ‘‘side-bar’’) collective-bargaining meetings from
March 8, 1991, to March 19, 1992. The Union’s initial pro-
posal was presented prior to the first meeting; Respondent’s
first proposal was presented to the Union just prior to the
ninth meeting.
The Union claims that from the commencement of bar-
gaining through the 24th meeting on December 11, 1991, the
Union’s initial positions evolved and moved substantially in
the direction of what an employer would find more ame-
nable.
Over the course of the negotiation year counsel for the
General Counsel argues that Respondent engaged in substan-
tial conduct reflecting its ‘‘demonstrable hostility toward the
bargaining process.’’ For example twice Respondent walked
out of bargaining meetings without adequate provocation, but
merely to assert its control of, and frustrate, the process. The
first time, at the meeting on August 6, 1991, Ares asserts
that Givel called him ‘‘a shit’’ for making a comment about
negotiations. Ares does not even claim there was any other
provocation or disturbance. Givel’s comment was sufficient,
by itself, for Ares to direct the entire management bargaining
team to get up and leave the negotiating room, demanding
‘‘an apology within five minutes or we are going home.’’
Ares and the management team retired to the hotel lobby, to
wait the allotted 5 minutes for the demanded apology, which
did not come. The management team then went to dinner in
the hotel. About 45 minutes later, during dinner, Givel ap-
proached Ares at his table. Givel said, ‘‘For what it is worth,
I apologize. That was not an appropriate comment. I under-
stand that.’’ Ares responded, ‘‘Well, Mike, that is just not
good enough anymore. This back and forth stuff, and you
can do whatever you want, and we will get back together
again isn’t good enough.’’
The General Counsel argues that the second time occurred
at the January 8, 1992 meeting, as detailed above. The Gen-
eral Counsel claims that Ares directed the management team
to get up and leave the bargaining room after Frost’s ‘‘that
is ridiculous’’ comment, before the ‘‘you are full of shit’’
comment was even made. Morales testified that Frost was
‘‘muttering things,’’ and Ares testified that ‘‘she was going
on. And it wasn’t stopping,’’ but, argues the General Coun-
sel, neither testified in any specific way how Frost was dis-
rupting the meeting or impeding progress. After Frost’s ‘‘you
are full of shit’’ comment and after she had left the room
Ares said to the remaining union bargaining team, ‘‘Hey, if
you want to keep meeting with us, I want an apologize [sic]
from this person here or we are not going to meet anymore.’’
As the meeting broke up, either Givel or Union Vice Presi-
dent Robinson came into the hallway and said to Ares, ‘‘For
what it’s worth, I am sorry for her behavior.’’ Ares re-
sponded, ‘‘Hey, fellows, we have a history of this. It doesn’t
do any good, and it is just not good enough. I want her to
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
apologize in front of the rest of the team here, and that will
signal that we are really serious here.’’ (Emphasis added.)
Counsel for the General Counsel also asserts that there are
two clear examples of Respondent’s controlling and unrea-
sonable approach to the bargaining process. First, at the July
30, 1991 bargaining meeting Ares testified about Respond-
ent’s union business proposal, which reads at section 2:
‘‘Stewards will normally investigate violations of this Agree-
ment during non-working hours. Any investigation during
working shall [sic] shall neither be excessive nor interfere
with job duties.’’ Ares told the Union:
I will let you investigate, and you can come and visit
as the business agent, and we won’t get picky about
how much time stewards spend investigating and you
can meet with management, and it is all on pay.
Q. What do you mean can investigate?
A. Grievances, if they so desire, on company time.
Well, it is on their time, but if it went into company
time, we are not going to be tick-tack about it.
Later in his testimony Ares was asked whether he granted
the Union time to investigate grievances during working
hours, without loss of pay. He responded:
No, no. I corrected myself. I said during non-busi-
ness time, but if it slipped into business time, it is not
a major problem with us. I will give you language on
that across the table, but I am not going to put it in
writing that you could do it during business hours.
Q. So, your written proposal did not reflect that in
strict terms?
A. No, it did not. But I gave them my word across
the table, that we wouldn’t be that strict on it.
Q. But you refused to put that in writing?
A. That is correct.
According to counsel for the General Counsel, this shows
that Respondent adopted a tone of ‘‘trust me, I’m the nego-
tiator, but I won’t put it in writing’’ and as such is an indicia
of bad-faith bargaining.
The second example occurred at the December 16, 1991
meeting when the Union proposed Respondent give employ-
ees the annual Christmas bonus, as it had historically done.
Skotnes made clear that this proposal was not intended to be
part of the collective-bargaining agreement. Ares testified,
‘‘[A]nd here we are in December, and they are the ones
keeping us from an agreement, wanting a Christmas bonus.
I found that extremely ludicrous, and I just said, Christmas
bonus, I can tell you what we are going to tell you. I can’t
believe your proposal.’’ The Union asked him just to take a
look at it and to get back on it. Ares continues, ‘‘I just said,
‘Well, I know—certainly you have been talking to us about
not considering economic packages, and you can’t have it
both ways, so undoubtedly you are going to get a big fat no
on a Christmas bonus. You don’t deserve it. And apparently,
it had been a tradition for many years.’’’
The General Counsel also attacked the actions of Morales,
as she represented Respondent in negotiations. Although he
claims that Ares provided the most fodder for the conclusion
that Respondent’s intent during bargaining was inimical to
good faith and designed to undermine the process, Morales
also made her contribution. For example she testified about
her view of the Union’s paralegal proposal, article II–A. This
proposal, at section 4, in essence asserts that court decisions
and laws authorize unlicensed advocates, including para-
legals, to represent clients in Federal, state, and local admin-
istrative hearings; and based on this right Respondent should
recognize that there is neither a legal or ethical requirement
for authorization by a licensed member of the California Bar
in order for unlicensed advocates to engaged in such rep-
resentational activities. Morales testified that she saw this
proposal ‘‘[A]s paralegals wanting to practice law without a
license.’’ Notwithstanding the feigned umbrage taken by Mo-
rales, it is absolutely without dispute that the language of the
Union’s proposal is a correct statement of the law. See
Board’s Rules and Regulations, Section 102.38, which ex-
plicitly provides that ‘‘Any party shall have the right to ap-
pear at such [administrative] hearing in person, by counsel,
or by other representative, to call, examine, and cross-exam-
ine witnesses . . . .’’
According to counsel for the General Counsel, another in-
dicia of Respondent’s intent to frustrate bargaining was re-
flected by its position on the subjects covered by its manage-
ment rights clause. The first management rights proposal was
submitted by Respondent on August 15, 1991; its second and
expanded version was submitted at the final meeting on
March 19, 1992. Respondent’s philosophy behind the man-
agement rights clause was, as Ares stated, ‘‘management
must maintain its management rights . . . . We already have
those rights, and we are not giving them up.’’ Testifying as
the experienced labor negotiator he claimed to be:
Q. In your understanding, are the management rights,
as you have phrased them . . . are they non-mandatory
or permissive subjects of bargaining?
A. They are non-mandatory . . . if a union can bar-
gain, they can ask for anything they want. If manage-
ment so desires to give them some of these manage-
ment rights, then they will certainly take them.’’
The language of Respondent’s management rights proposal is
certainly very broad, explicitly encompassing, inter alia, the
right to ‘‘select and hire, discipline and discharge employees,
establish and require employees to meet standards of per-
formance . . . establish new positions, increase or decrease,
or eliminate the number of positions [and] . . . decide the
work to be performed.’’ Further, this proposal provided that
Respondent has the right to:
make reasonable rules of procedure and conduct to
maintain order, safety, and efficiency; and from time to
time have the right to change or modify these same
rules . . . [as well as] transfer, promote or demote em-
ployees, layoff or otherwise relieve employees from
duty for lack of work and when necessary subcontract
work normally performed by bargaining unit employ-
ees.
Beyond the specifics of the provision itself, Ares testified
that ‘‘caseload,’’ ‘‘transfers,’’ the ‘‘library,’’ ‘‘intake,’’ and
‘‘clerical workload’’ were all ‘‘management right types of
items and types of proposals that we were not interested in
giving up to the Union . . . those are items we were not
about to concede to employees or to the Union to make deci-
sions upon.’’ And, further, ‘‘Certainly, [the Union has] a
right to ask and to negotiate for anything they wish to talk
947INLAND COUNTIES LEGAL SERVICES
about, and I have never taken a position that I am absolutely
refusing to discuss it. My position was, we are going to
claim those types of things are things that we at ICLS do
not wish to give to the Union, and certainly not in this first
contract.’’ Later, as a question to Ares:
You regarded such matters [caseloads] as being a man-
agement prerogative, and whether you were required le-
gally to bargain about them or not, it was something
that you did intend to fight to preserve solely as a man-
agement prerogative?
A. That is correct.
Q. Is that one of the issues which is part of what you
view as the current impasse?
A. Yes, sir.
Finally, Ares stated to the Union, ‘‘If any of these are a
problem, we can address those types of problems, but I do
not want to see these types of proposals in our contract, and
I did not want to open the door to the usurping of manage-
ment’s responsibilities and rights. The direction I am going
to head in this negotiation is to maintain these management
rights. I will be willing to address any problems on the
side.’’ (Emphasis added.)
As counsel for the General Counsel sees it, as reflected by
Ares’ comments on the enumerated subjects, including those
listed in Respondent’s management rights proposals, Re-
spondent had no intention to bargain about any of these sub-
jects. Although Ares recognized the Union’s right to talk
about or propose anything, according to counsel for the Gen-
eral Counsel, it is apparent that talk was the limit of Re-
spondent’s willingness to hear. As he sees it, on these mat-
ters, there is a total absence of evidence showing Respond-
ent’s open mind and sincere desire to reach agreement, as
well as indicia that it ‘‘knew [its proposals] were totally un-
acceptable to the Union and which, unless modified or de-
leted, would preclude agreement.’’
Further indicia, in the General Counsel’s view, of Re-
spondent’s undermining the bargaining process include its
admitted abrogation of agreed-to bargaining rules. As set
forth in the stipulated record, the parties agreed on March 26,
1991, that ‘‘Non-economic issues will be negotiated first.’’
As Skotnes explained the Union’s rationale:
We had experienced in other negotiations, especially
first contract negotiations, when the economic items hit
the table that sometimes that took a lot of the wind out
of bargaining around the non-economic items which are
very important, that once you start talking about
money, people tend to forget the important items that
are in the basic first contract agreement like seniority.
There is no dispute, says counsel for the General Counsel,
that Respondent introduced economic proposals for discus-
sion at the September 5, 1991 bargaining meeting, explicitly
in violation of the agreed-on bargaining procedure. It ad-
duced many reasons supporting its decision to violate this
agreement, however, all basis asserted were unilateral: The
Union never implicitly or explicitly agreed to the modifica-
tion in procedure. Initially, on being asked, ‘‘Q. And during
the course of the bargaining sessions, were these ground
rules modified in any fashion?’’ Ares testified, ‘‘A. I would
say so, a number of times.’’ On being asked for specifics
Ares later modified this position on cross-examination. He
was asked whether there were ‘‘any instances that [any of
the ground rules were] altered when one of the parties was
not in mutual agreement with the alteration?’’ He replied,
‘‘A. No. No, I cannot.’’ Morales asserted that the Union
broke the ground rules earlier when it presented its August
22, 1991 proposal, by its incorporation into article 59 of that
proposal major sections of Respondent’s personnel manual
that to some degree encompasses economic issues. Although
the Union explicitly objected to Respondent regarding break-
ing the ‘‘non-economics first’’ ground rule, however, Mo-
rales admitted she never informed the Union of her view that
its August 22 proposal may also have violated the rule, serv-
ing as either an excuse or predicate for Respondent’s own
violation. Further, it is evident that no ‘‘economics’’ part of
the Union’s article 59 proposal was made the subject of dis-
cussion at the bargaining table; rather it is apparent that such
inclusions, like similar inclusions in the Union’s initial bar-
gaining proposal, were made for completeness and later dis-
cussion. Although it is not asserted that the ground rules
amounted a contract subject to the strictures of section 8(d),
it is contended that Respondent’s breach of the agreed-on
procedure was one additional factor reflecting an attempt to
frustrate bargaining by introducing new and potentially con-
tentious items into the discussion basket when there was lit-
tle agreement on existing proposals.
Counsel for the General Counsel points out that the Board
has held that in determining whether there was a lack of
good-faith effort to reach agreement, it could consider the
presence of unreasonable bargaining demands. Although the
Board has disclaimed any intent on passing on the accept-
ability of each proposal, the insistence on ‘‘extreme propos-
als’’ could be part of the evidence considered in determining
whether a demand was designed to frustrate agreement. Here,
in addition to some of the items reserved in the management
rights clause, Respondent’s revised arbitration procedure can
be viewed as an extreme proposal, one foreseeably objection-
able to the Union.
In Respondent’s May 14, 1991 proposal, arbitration was
provided using the FMCS as a source of arbitrators. On No-
vember 6, 1991, Respondent presented its revised grievance
procedure proposal, which provided that an arbitrator be cho-
sen from the Judicial Arbitration & Mediation Service
(JAMS). As Givel testified without contradiction, JAMS is a
service that would cost $350 per hour plus expenses. Be-
cause Respondent’s arbitration proposals required the loser to
pay all expenses, this proposal effectively prohibited a small
bargaining unit from taking all but the most blatant and egre-
gious contract violations to arbitration. Counsel for the Gen-
eral Counsel asserts, ‘‘Certainly including such a provision
can only be with the intent of frustrating the process to avoid
reaching an agreement, notwithstanding Respondent’s pro-
fessed explanation.’’
The General Counsel also asserts that another example of
Respondent’s attempt to control, and thereby frustrate the
bargaining process is evidenced by it conduct in canceling
the December 19, 1991 bargaining meeting. The Union pre-
sented a package proposal to Respondent at the meeting on
December 11, 1991. No substantive discussion took place at
that time, or at the following meeting on Monday, December
16, with regard to the Union’s proposals, which represented
substantial movement from the Union’s earlier positions. At
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Tuesday, December 17, meeting, for the first time, Re-
spondent reviewed the Union’s new proposal. Givel testified,
‘‘Mr. Ares said that they reviewed [them], they didn’t like
them, they didn’t meet management’s needs and they were
leaving.’’ Ares, a bit more expansively, testified that he re-
sponded to the Union’s December 11 proposals by saying:
There is nothing new here. What these are is the
same proposals that you had made on March 8th that
are typed. It is a nice looking package, but it is still
management rights taken over by the Union. There was
language differences and some movement, but in es-
sence the core of a basic agreement was not there. It
was still basically the same package that they had been
stressing for the last nine or ten months.
There was nothing new in the union proposals that
said that the management of ICLS will be run by the
management of ICLS, and so I didn’t see that there was
any real movement.
Ares testified that his response to the Union’s December 11
proposal was ‘‘I wanted to send [the Union] a signal that we
were not going to change our position, and we were going
to be consistent with that. So, that was the emphasis from
our side.’’ Therefore, instead of bargaining based on the
Union’s new proposals, or even engaging in substantial dis-
cussion of at least the elements in the proposal that Ares ac-
knowledged had reflected some movement, Respondent sim-
ply ‘‘broke off negotiations and just walked out.’’ It was
only 8:30 or 9 p.m. Without dispute, Respondent then can-
celed the meeting that had been scheduled for Thursday, De-
cember 19. See Respondent’s letter of Wednesday, December
18, which confirmed this cancellation. In this letter Respond-
ent reiterates, as the basis for its action, that ‘‘the Union did
not move substantially on the proposals management had
previously presented to the Union.’’ According to counsel for
the General Counsel, not only does Respondent’s position re-
flect intransigence on its own management rights proposals,
but further demonstrates that it sought to control and thereby
frustrate the entire bargaining process by precluding agree-
ment, or even discussion on the subject in which the Union’s
positions had changed. Also, Ares misstates the extent of Re-
spondent’s own proposals as of December 17. On direct ex-
amination he testified, ‘‘We basically that evening empha-
sized the fact that they had a complete agreement from us
already that encompassed 15 percent wage increases and the
like which I pointed out numerous times, a complete set of
language proposals.’’ According to counsel for the General
Counsel, however, it later appeared that Ares incorrectly as-
serted that Respondent’s proposals were complete, that its
health plan, pension plan, and the contractual clauses related
to preamble, duration, and severability were absent.
Another of counsel for the General Counsel’s examples of
frustration related to meetings concerned the June 4, 1991
meeting that Respondent failed to attend. At the end of the
May 21, 1991 meeting Ares claims that the Union told him,
‘‘unless I gave them written counters there wouldn’t be any-
more meetings.’’ ‘‘Q. So, they were refusing to meet with
you again until they got written counter proposals?’’ ‘‘A:
That is right.’’ About a week after the May 21 meeting Ares
asserts he telephoned Givel to set up another meeting. He
claims Givel responded, ‘‘No, you didn’t give us counters on
all our proposals, and we told you that was key.’’ And again,
‘‘I subsequently called Mike [Givel]. He said, You didn’t
give me counters. I am not going to meet with you . . . he
would not meet until he received in writing written counter
proposals.’’ Ares then claims he spoke to Union Committee-
man Steve Robinson, and again to Givel to set up a meeting;
both times he was rebuffed. Finally, Ares testified that he
twice called Skotnes, who never returned his calls.
Givel specifically contradicts Ares’ assertions: the Union
did not inform management either that it would refuse to
meet again until it received management’s counterproposals,
or that it would not give its own counterproposals until it had
received all of management’s counterproposals to the
Union’s earlier positions. Givel unambiguously testified that
he set up a bargaining meeting with Ares for June 4 during
the phone call Ares made shortly after the May 21 meeting.
Another example, in counsel for the General Counsel’s
view, of Respondent acts that specifically frustrated bargain-
ing occurred at a meeting in August. Givel testified that dur-
ing one of the ‘‘sidebar’’ meetings he had with Ares, there
was ‘‘written’’ agreement by Ares on reducing the number
of months required for a temporary employee to be included
in the unit from 12 to 3, as was sought by the Union. Yet
on returning to the regular bargaining meeting, Respondent
without explanation reverted to its original 12-month posi-
tion. Givel testified that this event was an example of the
frustration that led to the dissolving the small group formula.
The January 8, 1992 bargaining meeting ended abruptly
after the alleged assault on Evelyn Frost. Thereafter, Re-
spondent sent two letters to the Union. In the first, dated Jan-
uary 30, 1992, Respondent specifically acknowledged that it
had informed the Union on January 8 that ‘‘there were to be
no negotiating sessions until Evelyn Frost apologized to the
management team.’’ In its second letter of February 6, 1992,
Respondent reiterated that it continued to refuse to meet and
bargain with the Union until: (1) a written apology was re-
ceived from Givel; and (2) written assurance that Frost
would publicly apologize at the next meeting. It is the Gen-
eral Counsel’s position that Respondent is absolutely not
privileged to refuse to bargain in this circumstance. It is
noted here as one more very substantial indicia of Respond-
ent’s approach to its bargaining obligation and its intent to
ultimately frustrate the bargaining process.
Notwithstanding its walking out of the January 8 meeting,
and its twice-reiterated refusals to meet and bargain there-
after, on March 5 Respondent finally did agree to set up a
new bargaining meeting. The scheduled date was March 19,
1992, representing the longest hiatus in the history of these
bargaining negotiations.
As the March 19 meeting began, three ICLS Program
Managers were present for the first time. Contrary to Re-
spondent’s position, however, Givel testified that Ares stated
these three program managers were new bargaining team
members who would be in attendance from then on. Ares
began the meeting:
I told them from the beginning—I said, fellows, if
we can’t get an agreement, we don’t meet. This is the
night that we need an agreement . . . . If you are seri-
ous about an agreement and get these management
rights proposals of your[s] off the table, we can have
an agreement tonight. This is a great package for the
employees and the members of this Union.
949INLAND COUNTIES LEGAL SERVICES
6 The following version of events is largely as related in Respond-
ent’s brief, together with the stipulations of fact entered into by the
parties.
Ares then presented Respondent’s latest proposal that even
Morales acknowledged the Union would find less acceptable
than its prior proposals. Ares stated that there were three to-
tally new proposals: severability, preamble, and term of
agreement, and ‘‘There are 22 proposals [of the total 29 pro-
posals] that are the same. Maybe there is a little bit of some
change, minor, to make it flow on the 22. There are four that
are different.’’ Ares noted the four major different proposals,
including grievance procedure, severance pay/layoff, union
security, and checkoff. After presenting the proposal, the
Union retired to caucus and examine the new proposal.
During this initial caucus, which lasted about 90 minutes,
the union team examined the new proposal to locate the
changes from earlier proposals, and to assess the new dif-
ferences. During this process the Union discovered that there
were many changes that had not been itemized by Ares. For
example, while Ares had alerted the Union to Respondent’s
deletion of the checkoff provision in the new proposal, not
until the Union examined the proposal in caucus did it dis-
covered that the union-security clause was also substantially
(and from the Union’s perspective) changed to a much more
regressive proposal. Other parts the Union felt were mis-
represented by Ares in his presentation included the health
and safety committee article, the vacation article, and leave
of absence article. As Skotnes testified, ‘‘It disturbed us
quite a bit that, in fact, there were more things that had been
changed than had been told us in the summary and we real-
ized it was quite a lengthy document and we needed to go
over it in more detail.’’
After the caucus, about 7 p.m., Givel informed Respondent
that the Union needed more time to study the new proposal,
that a new bargaining meeting should be set up. Ares re-
sponded that management wanted to bargain that night, and
would not agree to give the Union time to study the pro-
posal. The Union raised the point that Respondent had been
given time to take home and examine its last proposal when
it was presented at the December 11 meeting, and in fact
there had been no bargaining on the Union’s December 11
proposal until the meeting on December 17. Respondent
called for a caucus, which lasted about 20 minutes.
The parties returned, and for a short period discussed not
substance but whether bargaining should continue that night,
as was preferred by Respondent, or at another time, as was
preferred by the Union. This discussion was followed by an-
other 15 to 20-minute caucus. On return, Morales gave a
speech stating her position, admittedly reading from a pre-
pared text. After her speech the Union called another caucus.
As Skotnes testified, ‘‘We were a little bewildered. We
didn’t quite understand why they were insisting that night to
proceed when what we were asking for was to really do jus-
tice to their proposal . . . . So we decided we were going
to stand our ground and again request dates for bargaining.’’
At this point Skotnes estimated it was about 8:30 p.m.
When the parties reconvened Skotnes told Respondent that
the Union wanted to bargain, but it also wanted to take a
close look at the proposal, pointing out that it was patently
regressive in some areas, noting union security in particular.
He emphasized that the Union wanted to continue bargain-
ing. At that point Morales stated Respondent’s proposal was
its last, best, and final offer. Skotnes asked her, ‘‘How can
you expect us to conclude a contract tonight after you hand
us that regressive proposal?’’ Morales responded, ‘‘[I]f [the
Union] didn’t bargain that night she would never meet with
us again.’’ Skotnes asked her to calm down, that she didn’t
mean it. Morales then reiterated, ‘‘that she would never meet
with us again.’’
Morales admitted she said, ‘‘If you go home tonight, I am
not going to meet with you again.’’ And again, ‘‘If you go
home tonight and you don’t—without bargaining with us, I
am not going to meet with you again.’’ Ares, quoting Mo-
rales, ‘‘You leave me no alternative but to believe in fact
you don’t want an agreement, and this is going to be the last
time we meet.’’
There is also little dispute that the Union’s position at this
meeting, as noted above, was it wanted to study the proposal,
but definitely wanted another meeting to bargain about it.
Morales was asked, ‘‘Q. Did the Union make it clear that we
wanted to return to bargain after looking at your proposals?’’
She answered, ‘‘A. Yes, you did. When you came and you
talked, you made that statement at the very beginning.’’ Only
Ares could not accurately recollect this critical request. Ares
was asked, ‘‘Q. To your recollection, did anybody from the
Union ask for another meeting?’’ Ares replied, ‘‘A. No.’’
According to counsel for the General Counsel, to the de-
gree that the testimony of Skotnes and Morales is different
regarding events and statements at the March 19 meeting,
Skotnes should be credited.
On March 24, Morales sent a long letter to the Union, in
which she reiterated that Respondent’s proposal was its last,
best, and final offer; the Union was given a deadline of April
15, 1992, to accept it. Specifically, Morales’ stated, ‘‘Please
advise us by letter of your acceptance.’’ By letter to Morales
dated March 31, 1992, Skotnes requested several specified
dates in April for bargaining meetings. Morales responded by
letter to the Union on April 13, 1992, stating, ‘‘Inasmuch as
there have been no new developments, or communications
from the union indicating that, in fact, they would be willing
to accept our last proposals, we see no reason to meet with
the union.’’ Although Morales in part predicated her refusal
to meet on the fact that ‘‘there have been no new develop-
ments,’’ she also testified that in the history of the current
bargaining neither the Union nor Respondent ever provided
the other side with a response to a proposal outside of a bar-
gaining meeting ‘‘because we had wanted the bargaining to
take place at the table.’’ The Union agreed that there had
never been an occasion when it responded to any company
proposal outside a bargaining meeting.
As a final point, there was substantial testimony regarding
attempts by the Union to have outside parties intervene in the
process as mediators, or to try and get the bargaining meet-
ings restarted. None of these efforts was successful.
C. Respondent’s Version of the Negotiations6
Almost immediately following the Union’s certification,
Morales was advised by Skotnes in a letter of an alleged vio-
lation of the Act concerning health insurance. Skotnes stated,
‘‘[T]he Union will do whatever is necessary to protect our
members including the filing of Labor Board Charges and
other actions.’’ In response to the insurance issue, Morales
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 It seems clear from the record that Skotnes did not have a com-
plete union correspondence file.
told Skotnes that she was willing to set up an insurance com-
mittee, which Skotnes agreed to, but failed to follow up on.
The Union next alleged a violation of the Act when Givel
was transferred only a few miles from the Riverside ICLS
office to the San Bernardino office. Morales met with
Skotnes and Givel, in an attempt to address Givel’s concerns
as well, despite the claimed ‘‘business necessity’’ of the
move. As Morales testified, an unfair labor practice com-
plaint did not issue on either issue.
As viewed by Respondent, since then, the Union has lived
up to its promise to ‘‘file Board Charges and other actions.’’
By the time that this consolidated complaint, including 5 sep-
arate charges, came to hearing, there were 13 charges filed
by the Union, each involving multiple issues and all involv-
ing substantial time spent in reply. Ares’ later pronounce-
ments that the Union was ‘‘charge happy’’ reflected Re-
spondent’s view of the Union.
Respondent also came to view the Union as ‘‘grievance
happy.’’ In 1990, Richard Bittner, a Workers Unidos member
and official, filed over 100 grievances on behalf of the em-
ployees generally, over issues such as community education,
community workers, clerical, and caseload, which ultimately
became incorporated into the Workers Unidos’ contract pro-
posals of September 1990. Givel testified that Bittner was the
lawyer’s bargaining representative and admitted on cross-ex-
amination that the Union filed an unfair labor practice charge
concerning ICLS’ purported failure to process Bittner’s
grievances.
Bargaining actually commenced between ICLS and the
Union at the end of 1989, concerning the stipend, and all
bargaining unit employees received bonuses before Christ-
mas.
Later, in a letter dated March 18, 1990, the Union, through
Givel, submitted a request for information and bargaining
commenced over the release of information, the costs, and
the relocation of the ICLS Riverside office. Negotiations in-
volving the use of ‘‘voice mail,’’ the phone system, office
security, earthquake training, and the location of a copy ma-
chine also occurred during this time.
After three sessions in April and May 1990 concerning
bargaining over the information request the Union declared
an ‘‘impasse’’ and walked out. The Union then requested the
information directly from Joseph Cohen, the chairperson of
the ICLS board of directors. In the meantime, ICLS urged
the Union to return to the table. It also provided the Union
with the extensive and specific information it had requested
in November 1989 concerning health insurance policies, pre-
miums, including both the Kaiser and Nebo insurance plans,
and dental plan information that ICLS continues to utilize to
the present. This information was provided in February 1990,
May 1990, and later supplemented in November 1990, with
wage and benefit information, by employee, throughout the
organization.
Nevertheless, the Union accused ICLS of bad-faith bar-
gaining. For example, although Skotnes testified that he had
not received the wage and benefit information later requested
on May 15, 1992, Respondent claimed that this information
was current and comprehensive, as provided by ICLS at the
end of November 1990 when it was sent to the Union’s bar-
gaining team member, Russell Jauregui. As Morales’ No-
vember 20, 1990 letter indicates, she was responding to
Jauregui’s October 1990 correspondence with the updated
wage and benefit information in accordance with the instruc-
tions given by the Union in Givel’s March 26, 1990 letter.7
By March 1991, ICLS had been pushing the Union to es-
tablish dates to commence the substantive negotiations. In
the meantime, although the Union had declared an ‘‘im-
passe’’ with respect to the information request, Givel once
again addressed the board of directors concerning the release
of information issue. In a letter to Givel dated March 4,
1991, Morales set forth a succinct synopsis of the attempts
to bargain over the information issue and the status of nego-
tiations through February 1991. Morales stated, the only in-
formation request by ICLS from the Union during that time
concerned the IRS status of the pension plan proposed by the
Union. Rather than providing a response, the Union charac-
terized this request as failure to bargain in good faith and
‘‘delaying tactics.’’
On February 13, 1991, by letter, Workers Unidos ex-
pressed its desire to commence substantive negotiations. At-
tached to that letter was a letter from Victorville bargaining
unit members requesting that Workers Unidos ‘‘start imme-
diate negotiations on salary increases and worker’s benefits’’
rather than ‘‘language issues.’’ That letter further stated, ‘‘we
understand the overall importance of other issues such as
sharing in the decision-making process, but we do not feel
that linking the salary increases and benefits to these other
issues is necessarily beneficial.’’
Having received this letter, Morales concluded, despite the
numerous unfair labor practice charges that had been filed
and the grievances and difficulties in the bargaining process,
a ‘‘quick contract’’ might be reached. With this in mind, she
employed the services of Ares, an experienced negotiator
who had negotiated some 50 to 75 collective-bargaining
agreements over a period of 20 years. Before negotiations
began, Morales advised Ares that this was the charter that
both she and the ICLS board of directors requested of him.
Concerned about low salaries last upgraded in 1987 and
employee turnover, ICLS wanted to avoid a protracted nego-
tiation. Ares found this unusual charter to get ‘‘a fair agree-
ment reached as quickly as possible’’ to be refreshing be-
cause it avoided many of the impediments that normally
exist when management does not want to reach an agree-
ment.
When substantive bargaining commenced on March 8,
1991, Morales attended the bargaining session with the rest
of the ICLS bargaining team, Ares, Michael Dewey, and
Margie Chavez. She introduced Ares to the union bargaining
team, telling them Ares had been retained as ICLS chief ne-
gotiator and that he had authority to negotiate a labor con-
tract for ICLS. Ares’ introduction was greeted with enthu-
siasm by the union team. At that first session, Ares stated
that he was to be the chief spokesperson for ICLS. With no
professional business agent present, Ares tried to lead the
process to set ground rules. He asked Givel, the union presi-
dent, if he was going to be the chief spokesperson. Givel
said no. The Union responded that they all had the right to
speak on any and all issues at the table. As Givel testified,
the Union had five negotiators and each had equal authority
to speak. As Morales testified, this was consistent with their
prior negotiations and is evidenced by their earlier letter of
951INLAND COUNTIES LEGAL SERVICES
March 26, 1990: ‘‘[A]ll five members of the bargaining team
are authorized to communicate and bargain with Manage-
ment over all the various issues that will be brought to the
table through our contract proposal.’’
The union bargaining team consisted of Michael Givel,
Evelyn Frost, Russell Jauregui, Steve Robinson, and
Habeebah Akbar. Skotnes, the UAW organizer, only assumed
the role of providing guidance and advice to the union mem-
bers and was not part of the union bargaining team.
At the March 8, 1991 session the Union proposed that
noneconomic or ‘‘language’’ issues be discussed first. In the
spirit of cooperation, Ares agreed to this as one of seven
written ‘‘ground rules.’’ These ground rules were subse-
quently reduced to writing and signed by the parties at the
March 26, 1991 session.
The second bargaining session occurred on March 21,
1991. At that session, Givel made a speech insisting on a
‘‘democratic system in the workplace.’’ Ares requested that
the Union explain their various noneconomic proposals at
that time. Almost immediately after the commencement of
this explanation, Robinson accused ICLS of ‘‘surface bar-
gaining.’’ As both Ares and Skotnes agreed in their testi-
mony, however, it is typical in bargaining sessions that the
parties explain the basis for their proposals. Ares stated that
this gave Respondent the opportunity to begin to formulate
counterproposals based on the wants and needs of the Union
as expressed in the explanation of their proposals.
On the March 26 session, the Union at first refused to
continue explaining their proposals until ICLS gave counter-
proposals. Skotnes, who attended the bargaining sessions for
the first time, made a comment to the effect that the Union
would not have to make this explanation if Ares had read
and understood the proposals before he came to the session.
Ares had to insist on their explanations to know ‘‘why that
proposal is important to them’’ before they agreed to con-
tinue. It was at the March 26 meeting when Ares first met
Skotnes that he asked to meet with Skotnes to ‘‘get this thing
rolling,’’ only to be told that Skotnes lacked authority to bar-
gain.
These explanations continued until the April 9 session
when Ares commenced explanation of his assessment of the
Union’s proposals as he agreed to in order to keep things
moving when the Union requested counters to all their pro-
posals. Ares testified that this explanation was given in order
to attempt to apprise the Union that many of their proposals
were extreme and with hopes of expediting the bargaining
process. Ares continued his explanation through April 17,
1991. Throughout this time, there was interaction by the
Union concerning Ares’ impressions of the Union’s propos-
als. When Ares told the Union that ICLS would not go to
the extremes of the Union’s hiring proposals, the Union
‘‘said they were strike issues from the second and third
meeting.’’ It was at these early meetings when ICLS began
to find it difficult to deal with because there was no union
spokesperson to control the group’s outbursts.
In the meantime, ICLS was developing its own non-
economic counterproposals. The concept that both Morales
and Ares arrived at was to give substantive language ‘‘up
front’’ in order to hasten the negotiation process. This ap-
proach was chosen to get the Union to reduce its numerous
and extreme proposals. Ares was faced with the absence of
a union business agent and an inexperienced union negotiat-
ing team that had already ‘‘talked strike,’’ accused ICLS of
surface bargaining, and demanded written responses to all of
their proposals, with the stated intention of creating a
‘‘democratic new social order’’ at ICLS. By advancing pro-
posals concerning union recognition, union security with
checkoff, union representation, probationary employees, dis-
cipline and discharge, and a grievance procedure including
binding arbitration, ICLS hoped to get the Union’s attention
so that it would realize that ICLS was serious about reaching
a quick contract and avoiding protracted negotiations.
When these proposals were given to the Union on or about
May 13, 1991, Givel canceled the proposed May 14 session
because the Union wanted to study the proposals given, but
also because Givel insisted that ICLS present written coun-
terproposals to all the Union’s initial proposals. The Union
insisted on this requirement even while it was giving its ex-
planation of the proposals in the March sessions, and contin-
ued to insist on this over the next 7 months and 26 of the
29 meetings. Givel also canceled a May 28 proposed session
for the same reason. He testified that the Union attended a
proposed session on June 4, 1991, but that Management
failed to appear as scheduled. As Michael Dewey explained,
however, he had spoken to Steve Robinson on the morning
of June 4, 1991, and advised him that there was no meeting.
Both Morales and Ares denied the Union’s contention that
this session had even been agreed to.
The next session that did occur was on May 21. Ares gave
ICLS’ ‘‘official response’’ to the Union’s contract proposals,
because the Union now had the benefit of ICLS’ counter-
proposals. Ares declared that certain union proposals re-
mained too extreme and others he had counterproposals for
that night or would be giving additional counterproposals
later. Frost and others became obstreperous while Ares was
explaining that ICLS would not accept the concept of a ‘‘hir-
ing committee’’ of bargaining unit members and that hiring
was the exclusive province of Management. Frost interrupted
saying that Ares could not tell them what to do and contin-
ued with similar interruptions. When the ICLS committee
took a break because of these interruptions, Givel advised
Ares that he ‘‘understood’’ the problem, but could not com-
mit for the deportment of the other members, nor could he
speak for the other members of the union bargaining team.
When the session resumed, Ares asked each member if they
would agree to the proposition that each party would allow
the other to speak without interruption or obstreperousness.
After they all agreed, Ares continued his explanation con-
cerning all of the union proposals. Again, however, accusa-
tions were made by the Union that Ares was failing to bar-
gain in good faith because he had not given full written
counterproposals to all of the Union’s initial language pro-
posals.
Prior to the next bargaining session, Ares contacted Givel
in an attempt to schedule another bargaining session, to
which Givel stated, ‘‘[N]o, you didn’t give us counters on
all our proposals.’’ Ares suggested a private one-on-one
meeting to which Givel said, ‘‘No.’’ It was during this con-
versation that Ares told Givel that the negotiation was get-
ting out of control and that Ares saw ‘‘a real impasse’’ in
moving forward if the Union continued to insist on written
counterproposals to everything. Ares then contacted Steven
Robinson, union vice president, with the same request, to
which he replied, ‘‘no’’ to private one-on-one meetings and
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 After some debate, it became clear that the parties had begun ne-
gotiations only on the premise that all agreements were to be in
writing, subject to agreement on an complete contract.
‘‘no’’ to bargaining sessions until the Union received
counters on all their proposals. Then, Ares tried to contact
Skotnes. Skotnes testified that he received no message that
Ares had called. The Union does not dispute, however, that
Ares did contact both Robinson and Givel, as he stated.
At the June 1991 ICLS board of directors meeting the
Union marched into the board meeting with placards claim-
ing ‘‘unfair’’ bargaining and ‘‘Saddam Hussein tactics,’’ that
followed with newspaper coverage, while the Union refused
to meet and bargain. Givel conceded that the disparaging
‘‘Saddam Hussein’’ placard was at that public demonstration
and carried into the board meeting.
At the July 25 meeting, the Union advised ICLS that it
was setting a ‘‘target’’ of August 29, 1991, as the date when
the parties would reach a collective-bargaining agreement.
ICLS immediately agreed in principle with August 29 as a
target date for completing negotiations and set up numerous
negotiating sessions to try to meet that goal. The Union also
requested that the sessions be extended in length from 4 to
6 or more hours. Ares agreed that the sessions could go
longer than 4 hours, as they had already in fact done, al-
though this was in direct contravention to the written ground
rules, which state that, ‘‘negotiation meetings will normally
be scheduled for a 4-hour session, but actual negotiations can
be less if desired.’’ During this session, the Union again de-
clared that full written counterproposals were mandatory and
again accused Ares of failure to bargain in good faith on that
basis.
On July 30, 1991, one of the proposals being discussed
was the Union’s article on union business. In the May 14,
1991 proposals, ICLS had agreed to provide the Union with
a bulletin board at every office on which it could post union
related information. An issue arose with respect to ICLS’
counterproposal, however, which excluded the placement of
political and religious material on the bulletin board. ICLS
had a concern that material of this nature could be offensive
to clients, employees, visitors, and funding source monitors.
The Union insisted on its right to post anything it chose on
the bulletin boards. It accused ICLS of not understanding its
position and trying to run the Union. When asked to explain,
Skotnes referred to, as an example, Desert Shield and the
Union’s expectations to be able to post material against it.
Givel testified that the bulletin board issue was ‘‘a bone of
contention.’’ Skotnes also testified that this issue was ‘‘a
sticking point in the Union business article.’’
Toward the end of the July 30 session, Frost again became
obstreperous, accusing Ares of being ‘‘asinine,’’ and ICLS’s
resistance to the Union’s position as being ‘‘totalitarian’’ and
‘‘censorship.’’ In the August 1 session, Frost testified that
she apologized for calling Ares ‘‘stupid,’’ although she testi-
fied that ‘‘I might have apologized for saying it. I didn’t
apologize for thinking it.’’ At that same session, the parties
were getting close to an agreement on the probation article.
Givel advised ICLS that he would have to poll the union
members prior to signing off on it. This procedure was not
part of the written ground rules.8
On August 6, Givel announced that they had chosen not
to poll the employees, without explanation. Discussion com-
menced on the grievance procedure. ICLS had proposed a
‘‘loser pay all’’ clause. Ares then reminded the Union about
their August 29 deadline and advised the Union that it had
to start dropping its extreme proposals to run the program.
At this point in the August 6 session, the Union once
again became boisterous and obstreperous, when Givel told
Ares that he was ‘‘full of shit’’ and engaged in other ad
hominem attacks. As a result, the ICLS bargaining team left
the room, as now a third disruption in negotiations had oc-
curred. The ICLS team was waiting in the hotel lobby when
Skotnes came out. Ares had a discussion with Skotnes to
persuade him to assist in taking control of the negotiations.
Skotnes stated that he had no authority to do so and that he
simply came when he was called. As Skotnes testified, ‘‘On
August 6th, he [Ares] was encouraging me to talk to him
one-on-one about negotiations.’’ Ares viewed Skotnes as
‘‘the man I would look to in a normal negotiation.’’ Skotnes
steadfastly refused, however, to engage in any such discus-
sions with Ares. After this, Ares advised Givel in a side
meeting that the negotiations were going to an impasse as a
result of these disruptions. He then proposed the one-on-one
‘‘side bar’’ process to which the Union agreed.
This resulted in the second change to the ground rules
agreement.
Later that evening, the ‘‘sidebar’’ sessions began. These
sessions were private meetings between Ares and two union
members, typically Givel and Jauregui. From that date
through the August 19, 1991 session productive negotiations
occurred. The only signoff, promotions, occurred while the
‘‘sidebar’’ process was in place. Throughout that time, Ares
pushed the Union to sign off on numerous other articles in-
cluding, grievance procedure, discipline and discharge, per-
formance evaluations, no strike/no lockout, seniority, union
recognition, nondiscrimination.
On the August 15 session, ICLS presented its management
rights proposal, one which it insisted on throughout the
course of bargaining. According to Respondent, this proposal
was far from draconian, given the fact that ICLS itself had
modified it through other proposals concerning discipline and
discharge, performance evaluations, grievance procedure, lay-
offs, promotions, and related articles.
On August 21, Ares contacted Givel by telephone. He ad-
vised Givel that because the Union’s self-imposed deadline
was little more than 1 week away, the following day’s bar-
gaining session should be the last on noneconomic issues.
Givel testified that he recalled this communication by Ares.
Rather than being cooperative, the Union’s attitude changed
on August 22 to hostility. They accused Ares of ‘‘take
backs’’ between the sidebar sessions and the general ses-
sions. The Union then unilaterally ended the sidebar sessions.
It was then that the Union presented a proposal labeled, ‘‘Ar-
ticle 59 Severability; Savings; Separability; Modification;
Non-derogation; Incorporation.’’ Section 3 of that proposal
incorporated over 50 sections of the ICLS personnel manual
and the ICLS equal opportunity policies. None of this had
been submitted in the Union’s original proposals nor had
there been any discussions of ‘‘incorporation’’ of the ICLS
personnel manual which, in many sections, otherwise modi-
fied and changed the original proposals of the Union. More-
over, at the end of this evening, the Union presented by
Givel’s count 10 or more additional proposals. Ares testified
that those proposals were presented after midnight and at
953INLAND COUNTIES LEGAL SERVICES
least one counter on discipline and discharge was presented
at 1:15 a.m. Although Givel testified that this did not include
‘‘take backs,’’ he later stated that there were not any ‘‘for
the most part.’’ As the analysis of the Union’s proposals pre-
pared by Dewey clearly indicate there were extensive take
backs and substantial new proposals, especially considering
the ‘‘Article 59’’ supplement from the personnel manual.
Morales properly characterized these August 22 proposals by
the Union as a ‘‘whole new contract’’ from the Union.
As a result, on August 26, 1991, ICLS, through Morales,
sent a letter to the Union expressing its disappointment with
the Union’s actions. ICLS also declared its desire to resume
negotiations, however, offering to meet on September 4 or 5
and advising the Union it would present economic proposals
to the Union to ‘‘encourage good faith negotiations that will
also lead to an agreement on all unresolved language propos-
als.’’ (Jt. Exh. 18.) In response, on August 28, 1991, Givel
sent a letter outlining some 37 or more areas in which the
parties had failed to reach agreement. Givel continued to de-
mand the Union receive counterproposals stating, ‘‘we re-
quest that you provide us with an inter- and intra-Article
compromise package in the next five working days that re-
flects all of the issues that we outlined above.’’ Curiously,
Givel continued to insist on this demand despite the fact that
Skotnes testified that he did not believe that it was necessary.
In this August 28, 1991 letter, Givel stated the Union ‘‘re-
established some of its prior negotiating positions,’’ explain-
ing that this was due ‘‘to management’s intransigence on the
bulletin board issue.’’
On September 5, 1991, ICLS presented a package of eco-
nomic proposals to the Union and explained each proposal
in detail. Ares advised the Union that ICLS’ economic pack-
age included proposals averaging ‘‘15 percent wage increases
in the first year,’’ 22 to 23 percent over the next 3 years and
included flextime. He also requested a response to ICLS’
August 15 management rights proposal, but received none.
The Union refused to discuss these proposals or even to ask
any questions. Instead, the Union stated it wanted written
counterproposals on all previous union noneconomic lan-
guage proposals and charged a violation of the ground rules
written ‘‘contract.’’ At this session, Robinson stated that he
believed the parties were ‘‘ninety percent there,’’ although it
was clear from Givel’s letter of August 28, 1991, that the
parties had failed to reach agreement on all issues except
one. At this meeting, Skotnes asked whether this was ICLS’
last, best, and final offer. Ares said, ‘‘no,’’ but it was getting
close and they wanted to see some movement from the
Union.
On September 10, ICLS presented proposals concerning
leaves of absence, which the Union also deemed to be ‘‘eco-
nomic’’ issues and therefore refused to discuss. During this
session, as with the subsequent sessions, noneconomic issues
continued to be discussed. As Morales stated, and Ares con-
firmed, at no point had ICLS demanded that economic issues
only be discussed on and after September 5, 1991. During
the September 10 session the Union also proposed additional
language concerning the ‘‘bulletin board issue.’’ The Union
characterized this proposal as one of its most important and
continued to insist that it be allowed to put any information
or material on the bulletin board that it saw fit. The Union’s
proposal on that date allowed the employer to request to re-
move material deemed offensive only for the shortest pos-
sible time, but to put it back up as soon as the visitors left.
ICLS again requested a management rights proposal from the
Union only to be again told none would be forthcoming until
ICLS responded to Givel’s August 28 letter and provided full
counterproposals to all of the Union’s initial proposals. In his
testimony, Skotnes confirmed that ICLS conveyed ‘‘strongly
they wanted a management rights proposal.’’ Skotnes advised
ICLS that ‘‘whatever is left is what you get.’’
In the September, November, and December sessions the
management rights proposal was discussed. In a memoran-
dum dated November 5, however, the Union indicated that
they would provide a management rights counterproposal
only in return for ‘‘management’s written counter proposals
on transfers, job descriptions and HandsNet.’’ In that same
memorandum, the Union requested ICLS’ counterproposals
on health insurance and pensions, economic proposals that
the Union had insisted they would not discuss until the lan-
guage issues were resolved. In the November 5 meeting,
Ares requested a response on management rights only to be
told there would be none until ICLS responded to Givel’s
August 28 letter. Ares replied, ‘‘[B]ased on the serious pro-
posals we had made, you can’t be serious.’’ In response, the
Union then provided a handwritten 18-word management
rights proposal, which Ares commented that he deemed to be
unacceptable.
The Union then proposed a ‘‘paragraph by paragraph’’ ap-
proach to sign offs, which ICLS rejected. Although Skotnes
disputed that the Union proposed ‘‘paragraph’’ signoffs on
September 5, he ultimately admitted that the Union had, in
fact, made this proposal. With that, the Union stated that
management rights was therefore ‘‘off the table.’’ Discussion
of management rights did not occur again until the December
11 presentation of the ‘‘New Mechanism,’’ in which the
Union conditioned management rights on ‘‘substantial
progress on all other articles that we are now presenting in
this new comprehensive package. If such progress does not
occur, then we will not sign off on this management rights
clause and it will, unfortunately have to be taken off the bar-
gaining table.’’ As Skotnes testified, ‘‘[M]anagement rights
hinges on what’s expressly written in the rest of the docu-
ment.’’ He later admitted that all of the items listed as
‘‘management rights’’ in the December 11 version of the
Union’s proposal were modified or restricted by the agree-
ment.
Another proposal on which significant discussion occurred
during this time period was grievance procedure. ICLS had
steadfastly maintained that issues of attorney competence
should not be part of the arbitration process in the grievance
procedure. On November 6, 1991, however, ICLS presented
a proposal including this issue in the grievance procedure but
modifying the choice of arbitrators from the Federal Medi-
ation and Conciliation Service (FMCS), to the Judicial Arbi-
tration and Mediation Service (JAMS). ICLS argued that this
change was necessary because JAMS arbitrators were retired
superior court judges who could more capably assess issues
of attorney competence than FMCS arbitrators, who were not
judges and not necessarily even lawyers. Furthermore, ICLS
argued that the Union was ‘‘grievance happy,’’ given its ex-
perience with the Union’s having filed more than 13 unfair
labor practice charges and over 100 grievances during the
course of its existence at ICLS. As both Skotnes and Ares
testified, this issue was never resolved by the parties despite
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discussion throughout the November sessions and in the De-
cember 11 session, prior to the Union’s presentation of the
‘‘New Mechanism.’’
Ares and Morales testified that on December 11, at the
end of the meeting, the Union presented this ‘‘New Mecha-
nism,’’ which was represented in the memorandum attached
to it to be ‘‘a new comprehensive package.’’ Skotnes testi-
fied that this ‘‘New Mechanism’’ was presented with the
hopes of showing ‘‘significant movement’’ on the part of the
Union, but which again incorporated previously unexplored
sections of the personnel manual and modifications to some
articles. As Skotnes testified, this December 11 package in-
cluded article 11 on case acceptance, which provided that the
employee case handlers had the right to accept or reject any
client case by a majority vote. This is the same proposal it
had made initially. On that evening, although requested to
explain its new package, the Union did not explain any of
the changes to these proposals. After reviewing it, however,
Morales noted that the one sign-off, promotions, was absent
from this ‘‘comprehensive’’ proposal. Moreover, as Dewey’s
analysis demonstrates, the ‘‘significant movement’’ was only
a change in form rather than substance. Morales later charac-
terized this ‘‘New Mechanism’’ as a ‘‘third collective bar-
gaining agreement’’ presented by the Union, due to the sig-
nificance of the unexplained modifications.
At the December 16 session, the Union requested that
ICLS bargain over a yearend bonus. This ‘‘bonus’’ was not
intended by the Union to be part of the collective-bargaining
agreement, as both Skotnes and Givel confirmed in testi-
mony. This proposal was rejected by ICLS for this reason
and for the Union’s continuing refusal to discuss any other
economic issues.
On December 17, Ares responded to the ‘‘New Mecha-
nism’’ ‘‘proposal by proposal.’’ He testified that he was
‘‘very, very disappointed’’ with the ‘‘New Mechanism’’ and
told the Union that although there were language changes,
‘‘it is still management rights taken over by the Union.’’
ICLS then gave counterproposals on discipline and discharge,
probation, seniority, nondiscrimination and performance eval-
uations. Although counterproposals to ICLS’ counters were
thereafter discussed, Skotnes testified that he was dis-
appointed over these counterproposals by ICLS because there
were no significant changes in response to the ‘‘New Mecha-
nism.’’ Ares responded by telling the Union that ICLS had
been consistent in presenting proposals—that ICLS had of-
fered a basic agreement with ‘‘all the basic rights a union
should have,’’ with the employer maintaining management
rights and the Union getting ‘‘a big economic package.’’
Ares testified that ICLS had not changed some of its
counters because there was no real movement in the Union
‘‘New Mechanism’’ proposals, which still sought the man-
agement and control of ICLS. The Union again asked Ares
whether he had given ICLS’ last, best, and final offer. Ares
told the Union ICLS was ‘‘getting there.’’
Thereafter, ICLS advised the Union that it was cancelling
a tentatively scheduled session for December 19, but pro-
posed four dates following the holidays commencing with
January 7, 1992. In the January 7 and 8 sessions, ICLS con-
tinued to discuss ‘‘noneconomic’’ proposals.
Following discussion of noneconomic proposals on the
January 8 session, Henry Ares began discussing the ICLS
health care proposal. That proposal had been previously re-
quested by the Union in correspondence, at the bargaining
table and by Givel at the December 1991 ICLS board meet-
ing. It included employee participation by paying 30 percent
of the health insurance premiums in order to effectively re-
duce the premium payments for employees with dependents.
As Ares was explaining the background of the proposal and
how it would work, Frost once again interrupted him, asking
if employees would be required to pay a portion of the pre-
mium under this proposal. Ares responded that it would and
attempted to continue the explanation until he was inter-
rupted again by Frost, stating that the proposal was ‘‘ridicu-
lous’’ and making other disruptive comments. Ares requested
Frost to hold her questions until he finished his presentation.
The disruption continued. Ares then gestured to Givel and
others on the union bargaining team for their assistance.
Frost continued to be disruptive. Ares then asked Givel, to
please control Frost to no avail. Givel responded nonverbally
by raising his hands out to his side, palms up, and then said
Frost was free to speak anytime she wanted to. Ares said he
would finish the health care proposal presentation, then the
meeting would be ended and continued another night. Frost
became louder. Because this disruption had now occurred for
the fourth time despite each union bargaining team member’s
assurance that it would no longer occur, Ares stated that the
session was ended. Ares and the ICLS team got up and
began to leave the room. With Ares near the doorway, Frost
exclaimed that Ares was ‘‘full of shit.’’ Ares, who was leav-
ing, carrying books in one hand, stopped, and raised the
other hand, palm up, and looking at the union team, asked
whether they had heard her remark. He then asked Frost to
repeat what she had said. Frost angrily got up from the table,
taking her coat and papers with her, saying that no one could
tell her what to say, and immediately left.
It is at this juncture that there is a conflict in the testi-
mony: Frost testified that Ares approached her and got with-
in a foot of her while demanding that she repeat what she
had said. Ares said he was about 7 to 8 feet away. Morales’
‘‘bench’’ estimate was 5 to 7 feet. Dewey testified that
‘‘there was no assault.’’ Frost stated that this ‘‘incident’’
somehow constituted an ‘‘assault,’’ which later caused her to
have a rash. She admitted that everything Ares testified to
was indeed said, however, and more: when Ares asked for
an apology, she replied, ‘‘when pigs fly.’’ Despite the fact
that Frost claimed that she was ‘‘assaulted,’’ however, and
Givel made the same assertion, both he and Robinson apolo-
gized to Ares for her outburst shortly after this meeting.
Moreover, Givel called out an apology to Ares from the bar-
gaining room. Despite this alleged ‘‘assault,’’ no one made
an effort to restrain Ares or accuse Ares that evening, but
instead apologized to him. The Union did not ever bring this
‘‘incident’’ up as a problem at the next meeting.
As a result of this pattern of significant disruption of the
bargaining process, ICLS advised the Union that there would
be no further bargaining sessions at that time until Frost
apologized for her unprofessional conduct. Dewey testified
that he was advised that Frost would apologize at the pre-
viously scheduled January 30 meeting. Given the fact that
there had been no response by the Union until that date,
however, the meeting at the hotel had already been canceled
by ICLS, as memorialized in a letter dated January 30, 1992,
by Dewey. ICLS offered three dates to resume negotiations.
An exchange of correspondence then ensued. In a response
955INLAND COUNTIES LEGAL SERVICES
letter also dated January 30, Robinson indicated that Frost
would not apologize. Further, he accused Ares, whom he de-
scribed as ‘‘your $100 an hour consultant,’’ of ‘‘physical in-
timidation’’ and assault. The Union’s letter was circulated to
all union members and the ICLS board committee. On Feb-
ruary 6, Dewey stated that, due to the refusal to apologize,
‘‘no further meetings will be agreed to by ICLS at this
time.’’ That letter further cited to the disruptive and counter-
productive behavior exhibited by the union bargaining team
and referred to the warnings ICLS had given the Union about
any further disruptions.
As Morales testified the disruptions were a waste of time
and money. She said that she believed ICLS was justified on
insisting that the Union control disruptions, given the late
stage of the negotiations. Morales termed the Union’s public-
ity about the incident ‘‘very insulting. It was a flat out lie.’’
During the hiatus, Morales then received numerous letters
from all over the country, urging her to fire Ares. The letters
were filled with accusations against ICLS, which was criti-
cized for not giving higher wages, although ICLS had in fact
offered substantial wage increases and a benefits package
months earlier. Givel testified in January 1992 a strike peti-
tion was signed by a majority of the bargaining team mem-
bers that threatened management with a strike.
On February 12, 1990, Givel sent a letter containing an ad
hominem attack on Ares, including allegations that he was
a ‘‘$100/hour Union-busting business consultant’’ who ‘‘pro-
ceeded to maliciously and threateningly assault the 62 year
old female member of our bargaining team . . . .’’ Incon-
gruously, however, that letter also stated, ‘‘we related to your
$100/hour business consultant, that if it meant anything, we
are sorry.’’
Despite these circumstances and despite the fact that Frost
refused to apologize for her conduct, in a letter dated March
5, 1992, ICLS accepted the Union’s offer to negotiate on
March 19, 1992.
On March 9, Skotnes requested postponement of the
NLRB hearing on the consolidated cases set for March 17,
1992, in order to file additional unfair labor practice charges,
including charges of failure to bargain in good faith. Givel
stated that this particular charge dated back to November
1991, some 4 months earlier, as well as the January 8 ‘‘inci-
dent’’ involving Evelyn Frost, which occurred 2 months ear-
lier. On March 17, 1992, 2 days before the scheduled bar-
gaining session, the Union filed an unfair labor practice
charge, alleging bad-faith bargaining.
At the commencement of the March 19, 1992, bargaining
session the Union was presented with all of ICLS’ contract
proposals in one package. Management attorneys from the
other ICLS offices attended this session as observers. Irene
Morales explained that, due to the Union’s public comments
that an ‘‘assault’’ had occurred, ICLS managing attorneys
had approached her requesting to know what was happening
in negotiation sessions. As a result, she invited the managers
to attend this negotiation session to see for themselves.
Ares commenced the session with a detailed explanation
of the package, including the changes to the proposals, the
additional proposals, and minor revisions to other proposals.
Ares told the Union an agreement was needed, that ICLS
would be flexible, but would insist on retaining management
rights. The Union asked no questions, made no counter-
proposals, and did not even attempt to resume discussion on
proposals that had been discussed on the January 7 and 8
sessions. Despite the fact that the Union ‘‘understood what
was there,’’ it simply refused to bargain in the face of ICLS’
insistence and encouragement to stay and negotiate. What en-
sued was the Union’s announcement that it was going home
and would not bargain that evening. A series of caucuses oc-
curred in which ICLS hoped to foment negotiations. During
one of the caucuses, Ares advised Morales that she should
prepare notes and attempt to talk to the Union to convince
them to negotiate. When Ares addressed the Union again, he
encouraged questions, but got none. He emphasized that
ICLS had offered substantial wage increases: ‘‘You don’t
like 15 percent wages on [sic] the first year; over three years
23, 24 percent, when everyone else is getting three percent
. . . You don’t want attorney bar dues paid?’’ The Union re-
fused to negotiate.
At the last portion of this bargaining session, Morales
spoke to the Union. When she began speaking, she ‘‘begged
them basically’’ to stay, there was laughter from the other
side of the table. She encouraged the Union to offer counter-
proposals throughout the course of her discussion. Morales
referred to the types of proposals ICLS had made, such as
wages, flextime, and grievances. She repeatedly asked the
Union to stay and bargain. The Union’s response was to
mock the presentation. At the end of this talk, Skotnes ob-
served, ‘‘You are not in touch with reality. Nice speech.’’
After repeatedly asking the nion team if they were willing
to bargain that night, Morales declared that this package was
ICLS’ ‘‘last, best and final offer.’’ Skotnes asked Morales if
she was serious and whether she even knew what was in
these contract proposals. He then asked Ares if this was in-
deed the Company’s position. Ares confirmed that this would
be the last, best, and final offer. Ares also asked Skotnes if
he would stay and bargain that evening, to which he replied,
‘‘no.’’ The last question posed to the Union was whether
they would present any counteroffers that night to ICLS’
contract proposals, to which they also replied, ‘‘no.’’ This
session ended at approximately 8:30 p.m., despite the fact
that numerous other sessions had lasted well after 12 p.m.
Both Ares and Morales testified they were certain of impasse
at this point.
Given this state of affairs, ICLS sent a letter, by Morales,
recapping the events of March 19, the status of the proposals
and offering the Union until April 15, 1992, to accept the
last, best, and final offer. In response, in a letter dated March
31, 1992, Skotnes only requested additional dates for bar-
gaining. No member of the union bargaining team gave any
reply to Morales’ March 24 letter, given the fact that Skotnes
was not a member of that team and had consistently acted
only as an advisor to the bargaining team members. There-
fore, on April 13, 1992, Morales directed a second letter to
the Union advising them of the April 15 ‘‘deadline’’ and re-
questing acceptance of the March 19 proposals by that date.
Again, there was no response by the union bargaining team.
In fact, from March 19, 1992, to the commencement of this
hearing on March 2, 1993, there has been no correspondence
directed to any member of the ICLS bargaining team by the
Union.
Instead, Givel recommenced efforts to involve ICLS Board
Chair Joseph Cohen. Givel called Cohen on or about May
4, 1992, and discussed the status of negotiations with him.
According to Givel, Cohen requested a ‘‘recap’’ of bargain-
956 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing. Both Givel and Skotnes were well aware that Cohen was
not a member of the ICLS bargaining team, however, nor
was it their stated intention to bargain with him at that time.
What resulted was a letter by Givel containing some 27 areas
in which the parties were not in agreement on language pro-
posals and 22 economic provisions in which no agreement
had been reached. In response, Cohen pointed this out to
Givel and directed him to, ‘‘please contact Irene Morales, the
leader of the Management Negotiation Team with any other
concerns you may have with respect to negotiations.’’ No
such contacts through the commencement of this hearing
have been made. Furthermore, it is clear from Skotnes’ letter
to union members dated October 23, 1992, that the Union’s
position remained unchanged from March 19, 1992, and as
early as December 11, 1991.
In the meantime, the Union continued its campaign of in-
volving third parties that had been so disruptive of the bar-
gaining process previously. On March 17, 1992, Frost sent
a letter to State Assemblyman Eaves, just 2 days prior to the
recommencement of negotiations. That letter cited managerial
problems and unspecified unfair labor practices that caused
ICLS to prepare extensive responses for State Assemblyman
Eaves’ office and ICLS’ funding source, the State Bar of
California Board of Governors, and Legal Services Trust
Fund Program. Letters were written to California State Sen-
ator Presley and to California State Assemblyman Clute, re-
quiring additional hours spent in responses. These letters sug-
gested a ‘‘mediation’’ process, outside of collective bargain-
ing as contemplated by the National Labor Relations Act,
and again cited ICLS for unspecified improprieties. Most re-
cently, on January 19, 1993, ICLS met with, and was re-
quired to reply to, United States Congressman George Brown
concerning the same allegations. Moreover, in a newspaper
article, the union representatives stated that ICLS was under
investigation for other improprieties, which was untrue. The
upshot of all of these investigations was no finding of any
wrongdoing on ICLS’ part.
On or about March 17, 1992, Roy King, then managing
attorney of the San Bernardino ICLS office, requested that
Frost remove a union button at the San Bernardino office.
Frost testified that she had used this button to hold her
blouse together on that day, and for St. Patrick’s Day be-
cause the button was green. Frost stated that she had worn
the button on previous occasions but was not told to remove
it. On this occasion, King asked Frost to remove the button
in a kitchen area of the San Bernardino office.
Frost acknowledged that the ICLS office she works in is
a law office; that members of the public pass by the rooms
in which the secretaries work; and that numerous clients and
other members of the public come into the San Bernardino
office. Frost was on duty at that time and was never sub-
jected to any form of discipline for having worn the button.
As Morales testified, secretaries do come into routine contact
with the public in ICLS offices. Frost regularly substituted
as a receptionist, was an office notary and was at times as-
signed to other offices.
Morales testified that early in her career at ICLS she was
advised of the policy against wearing buttons of any political
nature. The reason for this is that clients come to ICLS with
a variety of legal problems and from a variety of social, reli-
gious, and political backgrounds. Morales testified that cli-
ents periodically come into ICLS’ offices with complaints
against labor unions. As a result, it has been and continues
to be the ICLS policy that employees do not wear buttons
of any political nature or of any other type. The intention is
not to exclude the union buttons per se, but any and all but-
tons, given the nature of the work done at ICLS.
On December 5, 1990, Irene Morales, executive director of
Inland Counties Legal Services, issued to the staff of all
ICLS offices a document entitled ‘‘Standards for Supervision
of Legal Work.’’ This ‘‘Standards Memorandum’’ dated De-
cember 4, 1990, was the product of considerable time and ef-
fort.
On August 7, 1990, Morales called a program manage-
ment committee meeting of ICLS’ five branch office manag-
ing attorneys, following malfeasance by a paralegal in the
ICLS program who had been fired for misconduct involving
the unauthorized practice of law, fraud, theft, and deceit. In-
vestigation revealed that this paralegal had interviewed nu-
merous people, most of whom were poor, elderly, or spanish-
speaking, as are many of ICLS’ clients generally. Some of
these people were eligible for legal services through ICLS
and others were not. All believed that they were being pro-
vided legal services by an attorney or that the work product
of this paralegal was being supervised by an ICLS attorney.
Still others believed that ICLS was assisting them because
they came to know the paralegal through the paralegal’s em-
ployment at ICLS. Some said that they paid money for serv-
ices that were required by government funding sources to
have been rendered for free. Some Spanish-speaking people
thought the paralegal was an attorney because the word ‘‘ad-
vocate’’ was used by the paralegal in correspondence and, in
spanish, the word for lawyer is ‘‘abogado’’ or ‘‘abogada.’’
The investigation revealed that this problem was extensive
and ICLS received numerous calls from people who said
they were ‘‘clients’’ of the program, but who were not reg-
istered with ICLS. Several victims were accompanied by
Morales and a managing attorney to file police reports in-
volving these allegations of misrepresentation and theft.
As a result of this incident, and its far-reaching con-
sequences, the program’s major grantor, the Legal Services
Corporation (LSC), began an investigation of the problem,
after Morales provided information to LSC concerning the
circumstances surrounding these incidents, as she is required
to by LSC’s rules and regulations. In a letter dated Novem-
ber 6, 1990, Susan Sparks, manager, monitoring, compliance
and review division of the Legal Services Corporation, di-
rected Morales to give a detailed report including all perti-
nent documents surrounding the incident. That letter required
Morales to give a response by November 20, 1990.
On November 20, 1990, Morales asked for a second copy
of the previous letter from LSC, as well as additional time
to respond. The November 6 letter from Sparks required
ICLS to provide detailed information on 11 separate topics,
including efforts by ICLS to prevent a recurrence of these
problems. In the interim and before Morales’ response to
LSC, the standards memorandum was issued by ICLS on De-
cember 5, 1990.
On December 10, 1990, Morales sent ICLS’ response to
Sparks. In part, the response noted that ‘‘the program began
to develop procedures for improving case supervision and
apprising program clients of paralegal representation’’ refer-
ring to and attaching a copy of the standards memorandum.
The letter also noted that nonattorneys are not allowed to
957INLAND COUNTIES LEGAL SERVICES
provide legal work or advice in California, nor does Califor-
nia license paralegals, and as a result, it is essential that all
legal work be supervised by an attorney.
The Union alleged that the promulgation of the standards
memorandum was in response to its letter of December 2,
1990, concerning new contract proposals entitled ‘‘Commu-
nity Worker, Graduate Law Clerk, and Paralegal Job Secu-
rity.’’ Evelyn Frost, a legal secretary in the San Bernardino
ICLS office, testified that she herself would sign letters pre-
pared by attorneys but, following the issuance of the stand-
ards memorandum, she was required to find the attorney to
sign the letter, an effort that took approximately 15 addi-
tional minutes during each workday. Frost did not testify that
she worked any overtime or that this requirement changed
the basic nature of her work. Neither Frost nor Michael
Givel, a paralegal II (and Workers Unidos President), testi-
fied that ICLS had a past practice of allowing, as a matter
of policy, all legal secretaries throughout the five branch of-
fices to sign legal correspondence. Morales testified that
ICLS’ past practice ‘‘has been that attorneys and paralegals
sign correspondence,’’ which is consistent with standard law
office practices.
Givel testified that, ‘‘under the direct supervision of li-
censed attorneys, I draft pleadings, I do administrative hear-
ings, I do client intake and the like.’’ Later, Givel testified
that the standards memorandum represented a change in
ICLS past practice because bargaining unit paralegals were
assigned to bargaining unit lawyers who now had ‘‘semi-
supervisorial capacity and powers over bargaining unit para-
legals regarding their work.’’ Givel vaguely alluded to an in-
crease in ‘‘the actual paperwork and so forth that occurred
and review that occurred,’’ with a resultant increase of 2 to
4 hours per week. Givel later admitted that, although this
was on average 2 hours more work per week, he did not stay
late or arrive early any more than ‘‘once in a while.’’ In fact,
Givel only worked a 30-hour week, and his overtime records
did not indicate any appreciable change in overtime follow-
ing the promulgation of the standards memorandum.
Givel also testified that counsel and advice (CAO) forms
were required to be initialed by an attorney, and documents
and correspondence were to be reviewed by attorneys, which
constituted another change in past practice. Although Givel
testified about the supposed impact of this standards memo-
randum on paralegals in one branch office, no testimony was
presented by any bargaining unit attorney or other clerical
staff concerning the alleged impact of this memorandum on
bargaining unit attorneys.
With respect to Frost, Givel stated that she must now
search out Givel or an attorney for a signature on cor-
respondence. Givel stated, however, that ICLS has always
had a work order form in which paralegals and attorneys
could use in which they could indicate, ‘‘work to be done
whenever . . . work rush, due today or due as soon as pos-
sible . . . and there’s an open ended box at the end.’’ Thus,
this form can be used to indicate instructions concerning the
attorney’s or paralegal’s availability or need for signature by
them that day.
D. Discussion and Conclusions
1. The request for information
The first issue to be decided concerns the request for in-
formation as set forth in a letter dated May 15, 1992. The
Union requested that it be provided with certain information,
specifically, a current unit census with each employee’s sal-
ary, hire date, date of birth, gender, residential zip code as
well as information related to each employee’s existing
health care coverage. Terry Skotnes testified that Respondent
has never responded to this information request. Respondent
never informed the Union, or asserted at trial, that any of the
requested information was unavailable, or would have been
onerous or burdensome to collect.
Indeed, I find no warrant for Respondent’s failure to pro-
vide the information requested, and as a consequence, con-
clude that the failure to do so was, and is, illegal.
In dealing with a certified or recognized collective-bar-
gaining representative, one of the things which employers
must do, on request, is to provide information that is needed
by a bargaining representative for the proper performance of
its duties. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). Following an appropriate request, and limited only
by considerations of relevancy, the obligation arises from the
operation of the Act itself. Ellsworth Sheet Metal, 224 NLRB
1505 (1976). In each case, the inquiry is whether or not both
parties meet their duty to deal in good faith under the par-
ticular facts of the case. NLRB v. Truitt Mfg. Co., 351 U.S.
149 (1956). Processing grievances is, as argued by counsel
for the General Counsel, clearly a responsibility of a union,
and an employer must provide information requested by the
union for the purposes of handling grievances. United-Carr
Tennessee, a Division of TRW, Inc., 202 NLRB 729 (1973).
The legal standard concerning just what information must be
produced is whether or not there is ‘‘a probability that such
data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees’ ex-
clusive bargaining representative.’’ Bohemia, Inc., 272
NLRB 1128 (1984). The Board’s standard, in determining
which requests for information must be honored, is a liberal
discovery type standard. Brazos Electric Power Cooperative,
241 NLRB 1016 (1979). The Board, in determining that in-
formation is producible, does not pass on the merits of the
grievance underlying a request such as was made in this
case; and the union is not required to demonstrate that the
information sought is accurate, nonhearsay, or even ulti-
mately reliable. W. L. Molding Co., 272 NLRB 1239 (1984).
Counsel for the General Counsel argues that Respondent
failed and refused to provide the Union with any of the in-
formation sought in the Union’s request and seeks a remedy
this refusal.
There appears to be no dispute that Respondent has failed
to respond to the Union’s letter requesting this information.
Indeed, I see no argument concerning this matter in Re-
spondent’s brief. Accordingly, I find and conclude that In
failing and refusing to provide the information requested,
which is clearly presumptively appropriate, Respondent vio-
lated Section 8(a)(5) of the Act. I shall order an appropriate
remedy for such illegal action.
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Atlanta Hilton & Tower, 271 NLRB 1600 at 1603 (1984).
10 American Meat Packing Corp., 301 NLRB 835 (1991).
11 General Electric Co., 150 NLRB 192 (1964).
2. Frost’s union button and its removal
On or about March 17, 1992, at Respondent’s San
Bernardino office Supervisor Roy King requested that Evelyn
Frost remove a union button.
Frost acknowledged that the ICLS office she works in is
a law office; that members of the public pass by the rooms
in which she and other secretaries work. Clients and other
members of the public come into the San Bernardino office.
Frost was on duty at that time and was never subjected to
any form of discipline for having worn the button. As Mo-
rales testified, secretaries do come into routine contact with
the public in ICLS offices. Frost regularly substituted as a
receptionist, was an office notary, and was at times assigned
to other offices. Morales testified that early in her career at
ICLS, she was advised of the policy against wearing buttons
of any political nature. The reason for this is that clients
come to ICLS with a variety of legal problems and from a
variety of social, religious, and political backgrounds. Mo-
rales testified that clients periodically come into ICLS’ of-
fices with complaints against labor unions.
Counsel for the General Counsel is quite correct in point-
ing out that Frost’s right to wear a union button would nor-
mally be protected by the Board, pursuant to Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793 (1945). That right is not
an absolute right, however, and is subject to a ‘‘special cir-
cumstances’’ test. Control Services, 303 NLRB 481 (1991).
Here, while bearing in mind the importance on not lightly
circumscribing the ability of employees to communicate their
union sympathies to one another, I find that Morales has
shown the presence of special circumstances to warrant the
direction to remove the button. The mere fact that the Re-
spondent represents people in their disputes with labor orga-
nizations might not privilege such an action, but, when it is
tied to the public nature of the Respondent’s work, and its
funding, I find that the need to avoid to avoid open displays
of such partisanship has been made out.
Accordingly, I shall dismiss this allegation of the com-
plaint.
3. The alleged assault
The facts of this incident are not recalled remarkably dif-
ferent by the two sides, except when it comes down to de-
scribing the distance between Ares and Frost, and the imme-
diacy of the alleged threat he presented to her.
Ares was adamant in his assertion that he never got within
6–7 feet of Frost. Frost and Givel claimed that he came with-
in a foot or so and seemed so angry as to be on the verge
of striking Frost.
Contrary to the arguments of counsel for the General
Counsel, I found Ares to be highly credible, not only with
respect to the facts of this particular allegation, but with re-
spect to his entire testimony.
Just the opposite, I found both Frost and Givel to be ex-
ceedingly poor witnesses. Frost seemed to be so motivated
by anger that I would have great difficulty believing that she
would restrain herself from an opportunity to exagerate and
portray herself as victimized, no matter what the truth might
be.
My assessment of the credibility of Givel is set forth con-
cerning the surface bargaining issues, below.
Given the relative credibility of the witnesses for, and the
witnesses against, the truth of these allegations, I have no
hesitance in finding that these allegations are unproven. Ac-
cordingly, I shall dismiss them.
4. The alleged surface bargaining
The General Counsel does not contend that any single act,
statement or proposal by Respondent from March 1991
through April 1992 constitutes a per se unlawful act or re-
fusal to bargain in good faith. Rather, it is the General Coun-
sel’s position that Respondent’s overall conduct, evidenced
by many individual acts, statements, and bargaining propos-
als, demonstrated an effort to frustrate the possibility of ar-
riving at any agreement.9 As the Board stated in American
Meat Packing,10 and relying therein on its earlier decision in
General Electric,11 the task ‘‘in bad-faith bargaining cases is
to assess from the aggregate of a party’s conduct whether
that party’s intent during bargaining was to reach agreement
on the terms of a contract,’’ or ‘‘which reflects a cast of
mind against reaching agreement . . . rather the serious in-
tent to adjust differences and reach an acceptable common
ground.’’
Applying these maxims to the case at hand has proven dif-
ficult. This is because there are literally dozens and dozens
of factual disparities between the testimonies of Givel, Frost,
and Skotnes, who testified on behalf of the Union, and Ares
and Morales, who testified on behalf of the Respondent. In
the main, when there was objective evidence to support one
side’s version over the other’s, the parties resolved the prob-
lem by means of a stipulation. The disputes that remain are
for the most part not susceptible to objective resolution. In
fact, in many of the instances, witnesses on the same side
of the question recall and recount the incident at least slight-
ly differently from one another. Thus, I confess my inability
to resolve each of the myriad credibility conflicts one by one
with any measure of confidence that I have done so cor-
rectly.
The same uncertainty is not present, however, when I view
the totality of the picture. For I found both Ares and Morales
to be credible witnesses. Indeed, Morales is one of those wit-
nesses whose testimony seems to simply ring with both truth
and accuracy.
Unfortunately for the General Counsel and the Union, the
same cannot be said of either Givel or Frost. I have already
stated my general impressions of the testimony of Frost; they
are no less true regarding this issue of surface bargaining.
Givel, while glib and articulate, was no better. In fact, Givel
seemed at pains to show his scorn for both the processes of
this trial and other participants in it. Although others testified
he repeatedly exhibited a snearing smile of disbelief; al-
though he testified with the same smile what in evidence,
seemingly at what he thought to be the inanity of the ques-
tions he was asked. Thus, it requires no stretch of the imagi-
nation to see him as having been accurately portrayed by Re-
spondent, as one who used the negotiation process as a vehi-
cle to relieve himself of personal frustrations. That is not a
conclusion reached by me, however, as it is not necessary to
decide this case. I merely point out that a number of Re-
959INLAND COUNTIES LEGAL SERVICES
12 Taft Broadcasting Co., 163 NLRB 475 (1967).
spondent’s actions in the course of a year and a half of nego-
tiations are more readily seen as reasonable responses to pro-
vocative behavior on the part of the Union’s negotiators
when one bears Givel’s demeanor in mind.
The fly in this reasoning’s ointment is the presence of
Skotnes. Skotnes was not a liar or fabricator. Quite the oppo-
site. Were it not for the strength of both the witnesses
arrayed against him, I might well find that the testimony of
Skotnes was sufficient to carry the day for the Union. In the
end, I cannot explain many of the discrepancies between his
testimony and that of Ares and Morales, except as honest
mistakes, and failures of recollection. Neither, however, can
I resolve them by resort to objective criteria. In the end, I
am left to say that I must find, as I do, that Skotnes’ testi-
mony, impressive as it was, was insufficient to overcome
that of Ares and Morales.
Thus, I conclude that counsel for the General Counsel has
failed to carry his burden of proof regarding the surface bar-
gaining allegations because I must resolve credibility con-
flicts between the two sides generally in favor of that version
presented by Ares and Morales. Because I further find that
they did not present testimony that admitted violations of the
Act, but, instead, denied and explained away other evidence
seeming to suggest violations of the Act, I must find that
they did not engage in surface bargaining.
I accept as true the Respondent’s evidence that it entered
into negotiations willingly, and with a sincere desire to reach
agreement on a collective-bargaining contract. And, given the
evidence, I also accept as true the argument of Respondent
to the general effect that over the months and months these
negotiations dragged out, and given the willingness of the
Union to resort to means other than bargaining to achieve its
goals, it recognized a need to be quite cautious in dealing
with the Union. I have little doubt that Respondent hardened
its positions on such matters as management rights provi-
sions, or employee bulletin board use, after seeing what it
came to view as a penchant on the part of the Union to re-
sort to political or public relations tactics and supporters.
I do not find that it was illegal, or wrong, for the Union
to resort to such tactics as carrying out a demonstration at
a board meeting of Respondent, or seeking support from po-
litically powerful figures, or by instigating a letter writing
campaign against Respondent by resort to newspapers. Nor
do I find that there was anything wrong with resort to nu-
merous grievances, and/or unfair labor practice charges at the
time that the collective-bargaining process was getting under-
way. Indeed, as I must, I concede that it may possibly be
that each tactic, each grievance, each charge, was justified.
But, it remains true in my opinion that such tactics may well
have, as claimed by Respondent, given Respondent pause
and caused it to conclude that the Union’s was more inter-
ested in street theater than in a resolution of the issues divid-
ing the negotiators.
This is expecially true when it is recalled that the Union’s
proposals in reaction to Morales ‘‘standards’’ memorandum
can easily be interpreted as evidencing a desire for employ-
ees to simply take over the management of the Respondent.
Of course, I have no way of knowing just how serious the
Union was in making such proposals as, for example, having
employees review incoming cases to determine if the firm
would take them. But, I can easily understand how Respond-
ent became alarmed at being faced with such proposals, and
reacted by tightening up its management rights proposals.
Similarly, the claim that it constitutes an unfair labor practice
on the part of management to insist that attorneys do attor-
neys’ work (as Respondent showed was and is required by
both the licensing authority of the State of California and its
grantor, the Legal Services Corporation), seems to me have
been well calculated by the Union only to have raised the
very sort of response that it did from the Respondent, i.e.,
extra caution.
Similarly, the Respondent’s response to the Union’s tactics
at the bargaining table seems well within the boundaries of
permissible conduct. As counsel for the General Counsel
points out, I concede that the Union’s ‘‘non-choirboy’’ lan-
guage is the sort of thing that must be anticipated will occur
from time to time in negotiations, and will not be deemed
to lose the protections of the Act for the speaker. That, how-
ever, is not the question here. No one has sought to dis-
cipline any employee for speaking to Respondent’s represent-
atives in a way that they objected to. Instead, as I see it, the
management team simply put pressure on the union’s team
to do more to conduct the negotiations in a more civil man-
ner before it would proceed. To say that the speakers are
protected by the Act is one thing; to say that their opposite
negotiators must smilingly accept being called ‘‘full of shit,’’
‘‘asinine,’’ ‘‘totalitarian,’’ or ‘‘stupid,’’ is quite another.
They are as free to speak back as the initial speaker is to
keep saying things they find offensive and objectionable. In
the end, it is up to the parties to find or work out means of
expression that do not hinder the course of negotiations.
Ultimately, Respondent, after 29 formal meetings, and a
number of informal meetings, after dealing with the griev-
ances, the unfair labor practice charges, the ‘‘theater,’’ put
a proposal on the table. Although the Union characterizes it
as incomplete, I cannot so label it. It did not have each and
every item in it that might be thought to be appropriate if
someone else were to make the proposal. But, it cannot be
called insubstantial. Among other things it called for liberal
wage increases for the employees.
Given the long period of time the negotiations had gone
on for, the number of meetings, the lack of success in nego-
tiations to date, and the seriousness of the issues still divid-
ing the parties, plus the inability of the parties to even be
able to talk seriously with one another, I cannot say that the
Respondent’s determination that the talks were at an impasse
in March 1992 was wrong, or outside the guidelines of Taft
Broadcasting.12 I find that they were at impasse at that time.
At that time, and since then, the Union has insisted that
no impasse exists, and that it wishes to resume or continue
negotiations. The Union has even expressed a willingness to
be reasonable and flexible if the Respondent will by resume
negotiations. As I view the Union’s communications with the
Respondent, however, the Union has failed to do enough to
break the impasse, and compel the Respondent back to the
bargaining table, as it could easily do. The Board has held
that in order to break an impasse, a union’s ‘‘offer’’ must
be sufficient to enable a determination of whether or not it
represented ‘‘any change, much less a substantial change,
from the [u]ion’s prior position in negotiations with the
[r]espondent.’’ Holiday Inn, Downtown-New Haven, 300
NLRB 774 (1990). I find that there is no evidence in this
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 All outstanding motions, if any, inconsistent with this rec-
ommended Order are hereby denied. If no exceptions are filed as
provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections
to them shall be deemed waived for all purposes.
14 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
case that such change, much less a substantial change, in the
Union’s position has occurred as to relieve the impasse.
I find and conclude that the Respondent has not been
proven to have engaged in surface bargaining in violation of
Section 8(a)(5) of the Act and I shall recommend dismissal
of these allegations.
Summarizing all the above, I find and conclude that Re-
spondent violated Section 8(a)(5) and (1) when it failed and
refused to respond to the request for information from the
Union, as set forth above.
It is further found that Respondent did not violate the Act
in any other respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth above have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to in-
dustrial strife burdening and obstructing commerce.
V. THE REMEDY
Having found that Respondent has engaged in, and is en-
gaging in, unfair labor practices in violation of Section
8(a)(5) and (1) of the Act, I shall order it to cease and desist
therefrom, and to take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Inland Counties Legal Services, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since on or about 1993 Respondent has violated Section
8(a)(5) and (1) of the Act by failing and refusing to provide
information as requested by the Union that is reasonably nec-
essary to the performance of its duties.
4. The bargaining unit described below is an appropriate
unit for collective bargaining within the meaning of Section
9(b) of the Act:
INCLUDED: All employees including staff attor-
neys, graduate law clerks, paralegals, legal secretaries,
clerk-typists, receptionist/clerk typists, accounting
clerk/secretaries, program librarians and administrative
legal secretaries employed by the Respondent at its lo-
cations in Blythe, Indio, Montclair, Riverside, San
Bernardino and Victorville, California.
EXCLUDED: Confidential employees including ad-
ministrative assistants, managerial employees including
bookkeepers, temporary employees, guards and super-
visors including executive directors, senior administra-
tive assistants, full-charge bookkeepers, controllers and
managing attorneys, as defined in the Act.
5. The above unfair labor practices have an effect on com-
merce as defined in the Act.
6. Respondent has not violated the Act in any other re-
spect.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Inland Counties Legal Services, Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union as
the exclusive bargaining representative of its employees in
the appropriate bargaining unit set forth below, by failing
and refusing to provide information necessary to the Union’s
performance of its duties.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the above-named labor organization with the
information requested in its letter of May 15, 1992, as speci-
fied in paragraph 16 of the third amended consolidated com-
plaint, as further amended at the trial.
(b) Post at its offices and facilities in Blythe, Indio,
Montclair, Riverside, San Bernardino, and Victorville, Cali-
fornia, copies of the attached notice marked ‘‘Appendix.’’14
Copies of the notice, on forms provided by the Regional Di-
rector for Region 31, after being signed by the Respondent’s
authorized representative, 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 customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.