Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 57 (N.L.R.B. 2004)

KAISER FOUNDATION HOSPITALS
343 NLRB No. 8
57
Kaiser Foundation Hospitals; Kaiser Foundation
Health Plan, Inc.; and the Permanente Medical
Group, Inc. and Office and Professional Em-
ployees International Union, Local 29, AFL–
CIO and Aikya Param. Cases 32–CA–19771–1
and 32–CB–5477–1
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
On August 12, 2003, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent Employer and the Respondent Union each filed
exceptions and a supporting brief. The General Counsel
filed limited exceptions and a supporting brief. The Re-
spondent Union filed an answering brief to the limited
exceptions. The General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
explained below and to adopt the recommended Order as
modified.
We adopt the judge’s finding that the Respondent Em-
ployer violated Section 8(a)(1), (2), and (3) by extending
recognition to the Respondent Union as the collective-
bargaining representative of the research assistants, in-
forming the research assistants that the collective-
bargaining agreement’s union-security clause applied to
them, and applying the agreement to them. We further
agree that the Respondent Union violated Section
8(b)(1)(A) and (2) by accepting recognition from the
Respondent Employer as the collective-bargaining repre-
sentative of the research assistants, informing the re-
search assistants that the collective-bargaining agree-
ment’s union-security clause applied to them, and apply-
ing the agreement to them. As the judge found, the addi-
tion of the research assistants into the bargaining unit
was not lawful, regardless of their alleged community of
interest with unit employees, because the research assis-
tants historically had been excluded from the bargaining
unit. See United Parcel Service, 303 NLRB 326, 327
(1991), 17 F.3d 1518 (D.C. Cir. 1994), cert. denied 513
U.S. 1076 (1995).1

1 The Respondent Union argues that the recognition clause here did
not explicitly exclude the research assistants and that this case is thus
distinguishable from United Parcel Service and is governed by Austin
Cablevision, 279 NLRB 535 (1986). We disagree. In Austin Cablevi-
sion, the Board clarified a unit to include a group of employees that had
come into existence prior to the execution of the most recent collective-
We also agree with the judge in rejecting the Respon-
dents’ argument that the addition of the research assis-
tants to the bargaining unit was not an accretion, but
rather was a recapture of bargaining unit work, sanc-
tioned by Lockheed Martin Tactical Aircraft Systems,
331 NLRB 1407 (2000). In Lockheed Martin, the union
protested to the employer that graphic artists, who were
not included in the office and clerical bargaining unit,
were doing work covered by the collective-bargaining
unit. Id. at 1407. The parties audited the nonbargaining
unit employees and determined that 26 out of the 76
graphic artists primarily did office and clerical work. Id.
That work was returned to the bargaining unit, and the
graphic artists who performed the unit work were given
the option of transferring into the unit in order to do the
transferred work. Id. Prior to allowing the incumbents
to take the reclassified jobs, the union determined that no
bargaining unit employees were on layoff status with
recall rights who could return to do the recaptured work.
Id. The Board found that the conduct of the employer
and union was not unlawful. In doing so, the Board spe-
cifically acknowledged that the General Counsel was not
alleging that the parties were attempting to expand the
unit description by including a historically excluded clas-
sification. Id. at 1408. Here, however, the General
Counsel has made that allegation. Thus, an issue critical
to our resolution of this case was not presented in Lock-
heed Martin.2
Moreover, the cases are factually distinguishable in
several critical respects. In Lockheed Martin, the parties
did not treat the graphic artists as a classification. In-
stead, the parties looked at the work of each particular
graphic artist. Only the work covered by the collective-
bargaining agreement was transferred to the bargaining
unit. The fact that bargaining unit members in layoff
status, if there had been any, would have been given the
disputed graphic artists’ work, demonstrates that in

bargaining agreement. Id. at 536–537. The classification of employees
in dispute in Austin Cablevision, however, had not been historically
excluded from the bargaining unit. Id. at 536. Here, conversely, the
Respondents do not dispute that the research assistants have been his-
torically excluded from the bargaining unit.
Neither do we find merit to the Respondents’ reliance on John P.
Scripps Newspapers, 329 NLRB 854 (1999). In John P. Scripps, the
Board found that where the bargaining unit is described functionally,
new employees who perform job functions covered by the unit descrip-
tion should be included in the unit, unless the unit functions they per-
form are merely incidental. Id. at 859. The unit here is not described
functionally and, therefore, the Board’s treatment of functionally de-
scribed units is inapposite. See Archer Daniels Midland Co., 333
NLRB 673, 673 fn. 2 (2001).
2 Chairman Battista notes that he did not participate in Lockheed
Martin. He does not pass on the validity of that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD58
Lockheed Martin the work was transferred, not a classifi-
cation of employees.
In contrast, here, the Respondents treated the research
assistants as a classification. The record is clear that the
audit committee did not interview individual research
assistants to ascertain how much bargaining unit work
they did or to segregate their bargaining unit work from
their other work. Moreover, the Respondents’ witnesses
testified that they were aware that there were research
assistants who did no bargaining unit work. Without
undertaking an individualized assessment, like the one
undertaken in Lockheed Martin, the Respondents trans-
ferred the research assistant classification as a whole into
the bargaining unit. Thus, we find that the Respondents
captured a classification, not just bargaining unit work,
as they allege.
Finally, we find merit to the General Counsel’s excep-
tion to the judge’s failure to order make-whole relief for
the research assistants who were unlawfully transferred
into the bargaining unit and subjected to the terms of the
collective-bargaining agreement. To the extent that those
research assistants suffered a loss of benefits as a result
of their transfer, the Respondents must compensate them
for that loss. See American Tempering, Inc., 296 NLRB
699, 709 (1989), enfd. mem. 919 F.2d 731 (3d Cir.
1990). Moreover, we modify the judge’s recommended
Order to make clear that nothing in our Order should be
construed to authorize or require the Respondent Em-
ployer to withdraw or revoke any benefits that have been
granted to the research assistants as a result of the Re-
spondents’ imposition of the contract and their unlawful
grant and acceptance of recognition of the Respondent
Union as the research assistants’ representative. See
Brooklyn Hospital Center, 309 NLRB 1163, 1164
(1992), enfd. 9 F.3d 218 (2d Cir. 1993); King Radio
Corp., 257 NLRB 521, 527 (1981).3
ORDER
A. The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as

3 We find it unnecessary to pass on the General Counsel s exception
to the judge’s failure to find that the Respondent Union violated Sec.
8(b)(1)(A) by announcing to the research assistants at the May 10 meet-
ing that their continued employment was contingent on their member-
ship in the Respondent Union. Such a finding would not add materially
to the remedy. The remedy here effectively rescinds the application of
the contract and its union-security clause to the research assistants and
prohibits the Respondents from informing the research assistants that
the union-security provisions apply to them. See Area Transportation,
299 NLRB 751, 751 fn. 2 (1990), enfd. 957 F.2d 328 (7th Cir. 1992)
(finding it unnecessary to pass on judge’s failure to find surface bar-
gaining where judge already had found an unlawful refusal to execute
an agreement and unilateral changes because surface bargaining finding
would not affect the remedy).
modified below and orders that the Respondent Em-
ployer, Kaiser Foundation Hospitals, Kaiser Foundation
Health Plan, Inc., and the Permanente Medical Group,
Inc., of California, collectively and singly, their officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(c) of the
Order.
“(c) Applying the unit contract to those employees; but
nothing in this Order shall authorize or require the with-
drawal or elimination of any wage increase or other im-
proved benefits or terms or conditions of employment
which may have been established pursuant to such con-
tract.”
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
“(c) Jointly and severally with the Respondent Union
make the research assistant employees whole for any
losses they may have suffered by reason of any change in
their employment conditions effected by the application
to them of any contract with the Respondent Union, with
interest, in the manner set forth in the remedy section of
this Decision.”
3. Substitute the attached appendix A for that of the
administrative law judge.
B. The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent Union,
Office and Professional Employees International Union,
Local 29, AFL–CIO, its officers, agents, and representa-
tives, shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(c) of the
Order.
“(c) Applying the unit contract to those employees; but
nothing in this Order shall authorize or require the with-
drawal or elimination of any wage increase or other im-
proved benefits or terms or conditions of employment
which may have been established pursuant to such con-
tract.”
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
“(c) Jointly and severally with the Respondent Em-
ployer make the research assistant employees whole for
any losses they may have suffered by reason of any
change in their employment conditions effected by the
application to them of any contract with the Respondent
Employer, with interest, in the manner set forth in the
remedy section of this Decision.”
3. Substitute the attached appendix B for that of the
administrative law judge.
KAISER FOUNDATION HOSPITALS 59
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
At the heart of the National Labor Relations Act is the
principle that employees may freely select or decline
union representation. When the employees in a job clas-
sification, such as the research assistants in our depart-
ment of research, have long been unrepresented, it is
necessary and appropriate to first determine that a major-
ity of such employees desire representation before recog-
nizing a union to represent them and applying a collec-
tive-bargaining agreement with a union-security clause
and union-security payment obligation to those employ-
ees.
After a trial at which we and the Office and Profes-
sional Employees International Union, Local 29, AFL–
CIO submitted evidence and argued our case, the Na-
tional Labor Relations Board found that we inappropri-
ately recognized the Union as the exclusive representa-
tive for purposes of collective bargaining of our research
assistant employees in our department of research and
the Union inappropriately accepted such recognition.
The Board also found that we inappropriately applied
our contract with the Union to those employees, includ-
ing the union-security provisions of that contract, and
improperly informed those employees they were bound
by its terms.
Finally, the Board found that we inappropriately and
improperly collected and remitted to the Union, union-
security payments from these employees.
The National Labor Relations Board has required us to
post this notice and to honor the promises we now make
to our employees in it.
Accordingly,
We give our employees the following assurances.
WE WILL NOT grant recognition to the Union as the ex-
clusive collective-bargaining representative of our re-
search assistant employees in our division of research, at
a time when the Union does not represent a majority of
those employees, and will not so recognize the Union
unless and until the Union is certified by the Board as
their representative.
WE WILL NOT apply our contract with the Union, in-
cluding its union-security provisions, to our research
assistant employees in our division of research, unless
and until the Union is certified by the Board as their rep-
resentative. However, the Board has not authorized or
required us to withdraw or eliminate any wage increase
or other improved benefits or terms and conditions of
employment which the research assistant employees have
received pursuant to such a contract.
WE WILL NOT inform our research assistant employees
that our contract with the Union, including the union-
security provisions, applies to them.
WE WILL NOT collect union-security payments from re-
search assistant employees and remit those payments to
the Union.
WE WILL NOT in any like or related manner violate the
National Labor Relations Act.
WE WILL withhold and withdraw all recognition of the
Union as the exclusive collective-bargaining representa-
tive of our research assistant employees in our research
division unless and until the Union is certified by the
Board as their representative.
WE WILL jointly and severally with the Union make the
research assistant employees whole, with interest, for any
losses they have suffered by reason of any change in
their employment conditions effected by any contract
with the Union.
WE WILL jointly and severally with the Union make
whole all research assistant employees for any and all
union-security payments made by those employees pur-
suant to a collective-bargaining agreement’s union-
security language, with interest.
KAISER FOUNDATION HOSPITALS; KAISER
FOUNDATION HEALTH PLAN, INC.; AND THE
PERMANENTE MEDICAL GROUP, INC.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD60
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
At the heart of the National Labor Relations Act is the
principle that employees may freely select or decline
union representation. When the employees in a job clas-
sification, such as the research assistant employees in the
Department of Research of the Kaiser Foundation Hospi-
tals, Kaiser Foundation Health Plan, Inc., and the Perma-
nente Medical Group, Inc., have long been unrepre-
sented, it is necessary and appropriate to first determine
that a majority of employees desire representation before
recognizing a union to represent them and applying a
collective-bargaining agreement with a union-security
clause and union-security payment obligations to those
employees.
After a trial at which we and the Employer submitted
evidence and argued our case, the National Labor Rela-
tions Board found that Kaiser Foundation Hospitals, Kai-
ser Foundation Health Plan, Inc., and The Permanente
Medical Group, Inc., inappropriately recognized us as the
exclusive representative for purposes of collective bar-
gaining of the research assistant employees in their De-
partment of Research and that we inappropriately ac-
cepted such recognition.
The Board also found that we inappropriately applied
our contract with Kaiser Foundation Hospitals, Kaiser
Foundation Health Plan, Inc., and The Permanente Medi-
cal Group, Inc., to those employees, including the union-
security provisions of that contract, and improperly in-
formed those employees they were bound by its terms.
Finally, the Board found that we inappropriately and
improperly collected union-security payments both di-
rectly from employees and indirectly from the Employer
who had in turn collected the moneys from these em-
ployees.
The National Labor Relations Board has required us to
post this notice and to honor the promises we now make
to our members and the research assistant employees in
the department of research of Kaiser Foundation Hospi-
tals, Kaiser Foundation Health Plan, Inc., and the Perma-
nente Medical Group, Inc.
Accordingly,
We give our members and the research assistant em-
ployees in the department of research of Kaiser Founda-
tion Hospitals, Kaiser Foundation Health Plan, Inc., and
the Permanente Medical Group, Inc., the following as-
surances.
WE WILL NOT accept recognition from the Employer as
the exclusive collective-bargaining representative of the
Employer’s research assistant employees in its division
of research at a time when we do not represent a majority
of those employees and will not accept such recognition
in the future unless and until we are certified by the
Board as their representative.
WE WILL NOT apply our contract with the Employer,
including its union-security provisions, to the research
assistant employees in the Employer’s division of re-
search unless and until we are certified by the Board as
their representative. However, the Board has not author-
ized or required the Employer to withdraw or eliminate
any wage increase or other improved benefits or terms
and conditions of employment which the research assis-
tant employees have received pursuant to such a contract.
WE WILL NOT inform the Employer’s research assistant
employees that our contract with the Employer, including
its union-security provisions, applies to them.
WE WILL NOT collect union-security payments either
directly from research assistant employees or indirectly
from the Employer who provides such payments after
collecting them from employees.
WE WILL NOT in any like or related manner violate the
National Labor Relations Act.
WE WILL withdraw, disclaim, and refuse any role as the
exclusive collective-bargaining representative of research
assistant employees in the Employer’s division of re-
search unless and until we are certified by the Board as
their representative.
WE WILL jointly and severally with the Employer make
the research assistant employees whole, with interest, for
any losses they have suffered by reason of any change in
their employment conditions effected by any contract
with the Employer.
WE WILL jointly and severally with the Employer make
whole all research assistant employees for any and all
union-security payments made by those employees to us
directly or indirectly by payment to the Employer pursu-
ant to a collective-bargaining agreement’s union-security
language, with interest.
OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 29, AFL–CIO
Jo Ellen Marcotte, Esq., for the General Counsel.
Bonnie Glatzer, Esq. (Thelen Reid & Priest LLP), of San Fran-
cisco, California, and Daniel R. Fritz, Esq. (Kaiser Founda-
tion Health Plan, Inc.), of Oakland, California, for the Re-
spondent Employer.
KAISER FOUNDATION HOSPITALS 61
William H. Carder, Esq. (Leonard, Carder, Nathan, Zucker-
man, Ross, Chin & Remar, LLP), of Oakland, California,
for the Respondent Union.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
this case in trial in Oakland, California, on April 29, 30, and 31,
2003, pursuant to a consolidated complaint and notice of hear-
ing issued by the Regional Director for Region 32 of the Na-
tional Labor Relations Board on September 13, 2002. The
consolidated complaint is based on two charges filed by Aikya
Param, an individual (the Charging Party) on June 28, 2002.
The first charge, docketed as Case 32–CA–1977–1 is against
Kaiser Foundation Hospitals, Kaiser Foundation Health Plan,
Inc., and the Permanente Medical Group, Inc. (the Respondent
Employer or the Employer). The second charge, docketed as
Case 32–CB–5477–1, is against Office and Professional Em-
ployees International Union, Local 29, AFL–CIO (the Respon-
dent Union or the Union, and, collectively with the Respondent
Employer, the Respondents).
Respecting the Respondent Employer, the complaint, as
amended, alleges, and the Employer’s answer denies, inter alia,
that the Respondent Employer recognized the Respondent Un-
ion as the exclusive bargaining representative of the Em-
ployer’s research assistants employed in its division of research
(the research assistants) and applied to those employees an
existing collective-bargaining agreement with the Union cover-
ing an office and clerical unit including a union-security clause.
The complaint alleges and the answer denies that these actions
occurred at a time when the Union did not represent a majority
of research assistants. The complaint further alleges and the
answer denies that the Employer informed certain research
assistants that they were subject to the union-security clause
obligations of the contract, deducted union-security payments
from research assistant pay, and remitted these moneys to the
Union. Finally, the complaint alleges, and the answer denies,
that this conduct by the Respondent Employer violates Section
8(a)(3) and (1) of the Act.
Respecting the Respondent Union, the complaint, as
amended, alleges, and the Union’s answer denies, inter alia,
that the Respondent Union accepted the recognition of the Re-
spondent Employer as the exclusive bargaining representative
of the Employer’s research assistants employed in its division
of research and applied to those employees an existing collec-
tive-bargaining agreement with the Employer covering an of-
fice and clerical unit including a union-security clause. The
complaint alleges and the answer denies that these actions oc-
curred at a time when the Union did not represent a majority of
research assistants. The complaint further alleges and the an-
swer denies that the Union informed certain research assistants
that they were subject to the union-security clause obligations
of the contract and that the Union received moneys directly
from the research assistants to fulfill those obligations and also
received such payments indirectly from the Employer who had
collected them from research assistant employees. The com-
plaint alleges, and the answer denies, that this conduct by the
Respondent Union violates Section 8(b)(1)(A) and (2) of the
Act.
On the entire record, including helpful briefs from the Re-
spondent Employer, the Respondent Union, and the General
Counsel, I make the following
FINDINGS OF FACT1
I. JURISDICTION
There is no dispute and I find the Respondent Employer, in-
cluding each of the three captioned entities, Kaiser Foundation
Hospitals, Kaiser Foundation Health Plan, Inc., and the Perma-
nente Medical Group, Inc., is and has been at all times material
individually and collectively an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.2
II. LABOR ORGANIZATION
The record establishes, there is no dispute, and I find the Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Employer is a major Health Maintenance Organization
(HMO) that operates in California and other States. It operates
hospitals, clinics, and the various associated support and ad-
junct facilities modern health maintenance requires. It has nu-
merous facilities and a substantial employment complement in
Northern California including the eastern portions of the San
Francisco Bay area (the East Bay). The Union has for many
years represented office and professional employees in the East
Bay and elsewhere including a unit of the Employer’s East Bay
office and clerical employees (the unit). The unit as of the time
of the hearing comprised approximately 2700 employees en-
gaged a broad range of office, clerical, and other duties. The
unit is covered by a collective-bargaining agreement, which
contains a union-security clause.
The Employer’s division of research has been in existence
since 1961. The division conducts medical research and pub-
lishes studies and papers associated with that research. It is
primarily funded by external grants and contracts with health
care entities such as the Federal National Institutes of Health.
The division has grown over time with its mid-1980 compli-
ment of perhaps 65 employees, expanding to 350–400 employ-
ees as of the time of the hearing. The division is located in
facilities in Oakland. Most employees work in a building at
2000 Broadway, Oakland, with others working in a building at
3505 Broadway. Some division employees on occasion travel

1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings are based on the pleadings, the
stipulations of counsel, or unchallenged credible evidence.
2 The Respondent Employer, and each of its three constituent parts:
Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and
the Permanente Medical Group, Inc., stipulated that the various legal
theories of joint employer, single employer, etc., are not at issue in this
case and, each of the three entities named does not contest a finding
that they are the Employers of the employees involved.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD62
to other of the Employer’s area or regional facilities in conjunc-
tion with their research duties.
The division’s research is comprised of separate individual
studies which may continue for a period of years. The division,
as of the time of the trial, was conducting over 2000 active
studies. The senior administrators in charge of individual pro-
jects or studies are “principal investigators” and research asso-
ciates. These individuals act as project managers or coordina-
tors in overseeing the day-to-day work on the project and its
supporting employees. Associated employees include health
information coders, administrative assistants, research assis-
tants, receptionists, main and data entry clerks, librarians, li-
brarian assistants and information technology employees, labo-
ratory assistants, and research nurses. Some of these positions
have long been included in the unit and represented by the Un-
ion, others have never been included. The research assistant
position was originally without the unit and, as described be-
low, was thereafter included in it.
The position of research assistant came into existence at least
as long ago as the early 1980’s. The numbers of employees in
this position has grown from that time. The parties stipulated
that as of July 1, 2002, there were approximately 80 research
assistants. Prior to the events in contention discussed in detail
below, the research assistants had not been in the unit nor in
any other established bargaining unit nor represented by a labor
organization.
The unit members represented by the Union work in a large
number of positions in a large number of facilities in various
organizational units of the Employer. Over time, the duties of
individual jobs evolve, job titles change, and jobs are created
and discontinued. The Union adduced evidence that for years it
has had difficulty tracking and monitoring the Employer’s em-
ployee job structure as it has evolved. Union agents credibly
testified that they have long received complaints from unit
members respecting job changes, transformations of positions
from represented to unrepresented status, and the transfer of
employees from established represented positions to new un-
represented positions. In effect from the Union’s perspective,
the total unit employee complement—as a result of “leakage,”
i.e., the wrongful movement of work from unit jobs into unrep-
resented jobs and other forms of improper work and job classi-
fication transmutation—was not growing in step with the total
numbers of the Employer’s nonrepresented staff.
At least as long ago as 1988, in apparent response to the Un-
ion’s complaints, the Respondents had initiated a “jurisdictional
review” of various Employer job positions. That process re-
sulted in the reclassification of certain positions and the inclu-
sion of those positions within the bargaining unit. Although in
the process of that 1988 review the Union had asked for a list of
all the Employer’s nonrepresented office and clerical positions,
the list ultimately provided the Union did not include the posi-
tion of research assistant and in consequence the research assis-
tant position was not reviewed by the parties in that process.
B. Events
In 1998 the Union again received reports from members that
nonunit employees were doing unit work. Among the positions
involved was that of research assistant, a nonrepresented posi-
tion. Grievances were filed by the Union concerning these
jurisdictional issues. The Respondents engaged in a series of
meetings from September 1998 onward dealing with these is-
sues. During that process, the Employer provided information
to the Union regarding its nonrepresented positions and in-
cluded in its disclosures information regarding the position of
research assistant. With respect to many nonrepresented or
nonunit positions, the Union asserted that the positions were in
their entirety office clerical positions and by rights ought to
have been and ought to be within in the unit. The various job
positions were discussed and the parties agreed that the review
process would continue. The Respondents were to identify and
review the positions under challenge and would determine if
certain then nonunit, unrepresented, positions were appropri-
ately to be changed to represented unit positions and further
agreed that, if agreement was not reached on particular unit
matters, the parties would resolve those disputes by arbitration.
The review of some positions was completed and agreements
reached by the Respondents as to a portion of these. Other
positions identified as part of the original review process in
1998 were as yet unexamined and remained for review. The
research assistant position was one such position. The process
continued apace on an informal basis into 1999–2000, but was
put on hold during the 2000 contract negotiations. The meet-
ings for those negotiations produced an agreement to establish a
joint labor management committee to audit the disputed non-
unit positions—one of which remained the research assistant
position.
In late 2001 and into early 2002, the joint labor management
committee, comprised of agents and representatives of the Re-
spondents, met on numerous occasions. The participants con-
sidered and reviewed the Employer’s job profiles and other
documentation and discussed and considered various job posi-
tions. The department of research position of research assistant
was discussed. The Respondents reached an agreement on the
proper treatment of the research assistant position which is
described in a letter from the Employer’s senior labor relations
representative, Clifford Gates, to the Union’s president and
business manager, Tamara Rubyn, dated April 29, 2002. The
letter states in part:
This letter will memorialize our agreements regarding the ac-
cretion of job classifications as a result of our meetings of
April 25, 26, and 27, 2002. The discussion below indicates
what I understand we have done and the agreements we have
reached.
In reference to the Division of Research we have agreed that
the classifications of Research Assistant and Senior Research
Assistant shall be accreted to the OPEIU Local 29 bargaining
unit. Moreover, we have agreed those working conditions for
Research Assistant and Senior Research Assistant shall re-
main status quo until the parties negotiate a side letter that
recognizes the unique operational needs of the Division of
Research.
The research assistants were informed of the Respondents’
agreement by e-mail from the Employer’s director of research
on or about May 6, 2002, and in a meeting held on May 10,
attended by Rubyn for the Union.
KAISER FOUNDATION HOSPITALS 63
The parties further refined the research assistant agreement
and its final implementation occurred on or about July 1, 2002.
The Respondents agreed that incumbent research assistants
with 5 or more years of service could elect to be “grand-
fathered” out of the represented unit. The remaining research
assistants were given an opportunity to bid for vacant positions
outside the unit. Contract wage rates were applied to the re-
search assistants who remained save that no individual’s wage
was decreased. Fringe benefits for the now-represented re-
search assistants were shifted from the Employer’s package
provided unrepresented employees to the contractually pro-
vided package. As of July 1, 2002, the “non-grandfathered”
research assistants had been included in the unit and the terms
of the contract applied to them from that point on.
The “non-grandfathered” research assistants were at no time
polled respecting their wishes concerning unit placement or
union representation. There is no dispute that both Respon-
dents informed the research assistants in the unit that the terms
of the union-security clause in the contract applied to them.
Further the Union has received union-security obligation pay-
ments from research employees and the Employer has deducted
those from some research assistant employees’ compensation
and remitted those fees to the Union.
C. Analysis and Conclusions
1. The issues narrowed
Many of the elements of the government’s prima facie case
are not in dispute. Thus, there is no dispute that the Respon-
dents agreed to include the research assistants in the bargaining
unit and thereafter implemented that agreement. There is no
dispute the Respondents applied in relevant part the current
collective-bargaining contract to the research assistants. There
is no dispute that the contract contains a union-security clause
and that the research assistants were subject to its terms by the
Respondents. Further, there is no dispute that the Respondents
informed the research assistants now covered by the contract
that they were subject to the obligations of the contract union-
security clause and that the Employer collected employee mon-
ies pursuant to the terms of the union-security clause and remit-
ted those monies to the Union which, either directly from re-
search assistant employees or indirectly from the Employer
who collected and remitted the funds, knowingly accepted
them.3 Finally, there is no contention that the research assis-
tants were polled respecting their opinion of whether or not
they wished to be included in the unit.

3 The Respondent Union also argues that it did not improperly fail to
inform employees of their rights to pay a reduced fee to the Union
under the contract. I do not take the substance of the statements re-
specting just what employees were obligated to do under the union-
security clause to be the issue respecting what was told employees. I
view the issue as simply one of whether or not the Respondents told the
research assistants they had obligations under the union-security clause.
Thus, it is unnecessary to go further and I only find that the employees
were told by the Respondents’ agents that they were in the represented
unit which was covered by a collective-bargaining agreement contain-
ing a union-security clause which obligated them to pay moneys to the
Union.
The issue in dispute is whether or not the Respondents could
properly under the facts presented include the research assis-
tants in the represented bargaining unit. If that action was im-
proper, then the admitted actions described in the preceding
paragraph were wrongful and the General Counsel’s complaint
allegations respecting them are sustained. Such actions, as
alleged, if undertaken with respect to employees who are enti-
tled as a matter of law to express their collective opinion re-
specting inclusion in the larger unit, would for the Employer
clearly violate Section 8(a)(3) and (1) of the Act and would for
the Union violate Section 8(b)(1)(A) and (2) of the Act. Con-
versely, if the inclusion of the research assistants in the larger
unit was not improper, the actions under challenge by the Gen-
eral Counsel in its complaint are simply not improper and the
complaint will fail in its entirety.
The heart of the dispute then, indeed essentially the entirety
of the dispute, is the propriety of the unit inclusion of the re-
search assistants. That issue, once resolved, given the undis-
puted facts set forth above, concomitantly produces the legal
consequences described above and, in my view, carries the
entire case to a definitive resolution of all allegations of the
complaint.
2. The positions of the parties
At the threshold, the Respondents argue that the entire matter
should be deferred to the Respondents’ settlement of the juris-
dictional disputes respecting research assistants under their
negotiated dispute resolution process. On the merits of the
issue, the Respondents make a twofold argument. First, they
argue that the research assistants were a proper accretion to the
bargaining unit. Thus, they assert the research assistants share
a strong community of interest with the unit employees, have
substantial interchange with them, and meet the other tests set
forth in King Radio Corp., 257 NLRB 521, 525 (1981), for
finding an accretion. Second, and independently, they argue
that their agreement to reclassify the research assistants as unit
positions was simply an effort to restore the unit by recapturing
unit work “slippage,” a process explicitly lawful under the
Board’s decision in Lockheed Martin Tactical Aircraft Systems,
331 NLRB 1407 (2000).
The General Counsel argues that deferral is inappropriate
with respect to unit issues. Counsel for the General Counsel
argues that a unit accretion in the traditional sense is not possi-
ble where the unrepresented employees had historically existed
for the time involved. Finally, the government argues that the
Respondents’ work recapture arguments are not sustainable on
the facts of the case. The issues are discussed separately below.
3. The deferral issue
It is somewhat abstract to consider deferral to an arbitral
process that was not invoked because the parties agreed on the
actions here under challenge. Further and dispositive of the
issue, however, is the General Counsel’s citation of Marion
Power Shovel Co., 230 NLRB 576, 577–578 (1977), for the
long-held Board position that matters of statutory policy such
as unit matters are for the Board and not an arbitrator to decide.
In agreement with the General Counsel, I find that deferral is
not appropriate on the facts of the instant case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD64
4. The issue of accretion
The parties ably and in detail litigated the community of in-
terest between the unit employees and the research assistants.
The threshold issue in this area however is the General Coun-
sel’s assertion under United Parcel Service, 303 NLRB 326
(1991), that accretion is simply not appropriate, irrespective of
community of interest evidence, when the group whose accre-
tion is being advanced has been historically excluded from the
unit.
In United Parcel Service, the employer and union had ex-
tended an existing nationwide unit to include a group of em-
ployees who had historically been excluded from that unit. The
Administrative law judge found the group of employees to be a
lawful accretion to the unit and dismissed the complaint distin-
guishing the General Counsel’s cited case: Laconia Shoe Co.,
215 NLRB 573, 576 (1974). In United Parcel Service, the
Board reversed the judge. It discussed the doctrines involved at
327:
In furtherance of the statutory duty to protect employees’ right
to select their bargaining representative, the Board follows a
restrictive policy in finding accretion. See, e.g., Towne Ford
Sales, 270 NLRB 311 (1984), One aspect of this restrictive
policy has been to permit accretion only in certain situations
where new groups of employees [emphasis in original] have
come into existence after a union’s recognition or certification
or during the term of a collective-bargaining agreement. If
the new employees have such common interests with mem-
bers of an existing bargaining unit that the new employees
would, if present earlier, have been included in the unit or
covered by the current contract, then the Board will permit
accretion in furtherance of the statutory objective of promot-
ing labor relations stability. Gould, Inc., 263 NLRB 442, 445
(1982).
No such accommodation of the collective-bargaining
process is required or warranted, however, where the par-
ties to a bargaining relationship have historically failed to
include an existing group of employees from a bargaining
unit. If a group of employees is in existence when a union
is recognized or certified, then the statutory right of those
employees to select a bargaining representative can be
honored and they can be included in the unit at that time
without any disruption of labor relations stability. If a
group of employees comes into existence during the term
of a contract for an existing unit, then the parties must
timely address the unit status of those employees prior to
executing a successor agreement. Should they fail to do
so, the parties have only themselves to blame for any in-
stability resulting from the existence of a group of em-
ployees having interests in common with unit employees
but excluded from representation in the unit.
The limitations on accretion discussed above and ap-
plied in Laconia Shoe and related precedent require nei-
ther that the union have acquiesced in the historical exclu-
sion of a group of employees from an existing unit, nor
that the excluded group have some common job-related
characteristic distinct from unit employees. It is the fact of
historical exclusion that is determinative. [Emphasis in
original.]
There is no dispute that the research assistant employees’ po-
sition has been extant and staffed continuously for over 20
years, has always been outside the unit and all other represented
units, and that many contract cycles have passed during this
period of the research assistants position’s existence. The
Board, in Gitano Group, Inc., 308 NLRB 1172 (1992), refused
to accrete a group of employees whose positions were in exis-
tence outside the represented unit even though their presence
was unknown to the union involved. The Board made clear
that even when ignorance or mistake occurs, historical exclu-
sion from a unit is a bar to out-of-time accretion of that group
into the unit by the parties.
I find United Parcel and its progeny definitive and pursuant
to its holding and analysis find it is impermissible to accrete the
research assistant employees into the unit because they have
historically been excluded from it. Accretion is not a legitimate
reason to justify the unit transfer involved.
5. The Respondents’ recaptured work argument
The Respondents argue that their agreement to incorporate
the research employees in the unit is not and was not in fact an
action designed to add to the work done by the employees of
the unit or an action that in fact did so. Rather, it was a correc-
tive action restoring unit work, which had been slipping away
over time by the assignment of unit work to out-of-the unit
employees. The Respondents argue that, either as an exception
to the accretion restriction of United Parcel or as a completely
different restoration of unit work rather than accretion of new
employees, their agreement as an act of restoration was explic-
itly sanctioned by the Board in Lockheed Martin Tactical Air-
craft Systems, 331 NLRB 1407 (2000).
In Lockheed Martin Tactical Aircraft Systems, 331 NLRB
1407 (2000), the General Counsel challenged the employer and
union’s agreement to accrete previously unrepresented employ-
ees into an existing unit. The judge found that the group ac-
creted into the unit had historically been excluded and on that
basis held the accretion improper and found a violation. The
Board reversed the judge finding the application of an accretion
analysis to the facts of the case error.
The Board held that, whereas in accretion cases the parties
add to the scope of the existing unit, in Lockheed the parties did
not seek to expand the unit.
Rather they sought to adhere to the scope of the bargaining to
which they had agreed by returning unit work to the unit to be
performed by employees in the job classification that, by their
agreement, should have been performing the work all along
[331 NLRB 1407 fn. 6 at 1408.]
Thus, the Board concluded Lockheed involved an agreement to
return work that had “seeped out” of the unit over the course of
time. In essence the actions of the parties were restorative and
not expansionary. They sought to restore the status quo ante
rather than capture, augment, or accrete new work into the unit.
The Respondents argue that the process under challenge
came into being as a result of the Union’s conclusion that the
work of the represented unit members was being poached by
KAISER FOUNDATION HOSPITALS 65
other employees in nonrepresented job categories—both those
positions newly created and those long in existence. The Un-
ion’s specific complaints to the Employer in these regards and
the Union’s grievances caused the parties to initiate the process
which involved the audit or review of both unit and nonunit
positions. The Respondent Employer notes on brief at 12–13:
As part of a negotiated dispute resolution process, Kaiser and
Local 29 agreed to jointly audit the disputed classification, in-
cluding the previously excluded RAs, to determine whether
the work performed was “office and clerical” work that be-
longed in the unit. Based on this audit, Respondents deter-
mined, in good faith, that RAs performed work substantially
similar to various unit positions, and were thereby depriving
the bargaining unit of work that rightly belonged to it. Re-
spondents agreed to settle the jurisdictional dispute about RAs
by returning that work to the bargaining unit, and transferring
the incumbent employees into reclassified unit positions.
The Respondent Union emphasizes that the jurisdictional re-
view and audit process undertaken by the Respondents explic-
itly arose in part because of “the union’s perception that there
has been a migration of union positions to non-union status.”4
The Respondent Union also urges that no distinction be drawn
between Lockheed’s creation of a new bargaining unit classifi-
cation and the Respondent Employers’ simple transfer of the
research assistant position into the represented unit without
essential change.
The General Counsel opposes the Respondents’ Lockheed
argument on the facts of the instant case arguing that in Lock-
heed the parties explicitly dealt with issues of unit work per-
formed by nonunit employees, audits were undertaken measur-
ing the amount of work so performed. As a result of the audit
of some 76 jobs, 26 were reclassified as unit positions and the
positions were given new job titles. The General Counsel notes
further that in Lockheed the General Counsel did not contest the
fact that the 26 individuals transferred had been doing unit
work and, importantly, did not contend that the employer and
the union in transferring the employees were attempting to
expand the unit. Counsel for the General Counsel notes the
Board analyzed the situation to be equivalent of an employer’s
determination to recall 26 employees from layoff to do the
newly restored unit work previously done by nonunit individu-
als.
The General Counsel notes that the work of the research as-
sistants in the instant case, to the degree that they did work
arguably categorized as “unit work,” had always done so. No
leakage or slippage was at issue. The research assistants’ duties
and tasks relevant to the Union have not changed over time.
Further, argues the government, the Respondents did not in fact
audit or otherwise seek to quantify the unit work supposedly
done by research assistants. Rather, the Respondents looked to
community of interest evidence to determine the unit placement
of these employees and, on that impermissible basis; deter-
mined it was appropriate to transfer the position of research
assistant employees unaltered into the unit.

4 Language taken from an internal communication of the Respondent
Employers’ labor relations manager dated March 3, 2002 (R. Exh. 9).
The dispute between the parties on the applicability of Lock-
heed to the instant case is largely factual. The Respondents
seek to characterize their process as one of unit work recapture
or restoration as was held permissible in Lockheed. The Gen-
eral Counsel in essence argues that, with respect to the research
assistants position’s transfer into the represented unit, the Re-
spondents were not simply restoring “job leakage,” but were
rather making a unit determination that, under the accretion
analysis supra, could only have been done years ago and is now
impermissible. The Respondents’ actions in the General Coun-
sel’s view simply did not involve a question of restoring bits
and pieces of unit work to the unit. Rather, it simply involved
capturing the entire job classification that had long been extant
and had never been considered part of the unit. The parties
may have viewed the transfer as correcting an ancient error in
unit placement, but did not—and could not have—determined
that with regard to the research assistants they were addressing
or correcting a recent change in the work of the employees in
the position.
I resolve this important factual dispute in favor of the Gen-
eral Counsel and against the Respondents. The record is quite
clear that the existence of the research assistant classification is
longstanding. It is also clear that the duties of the employees in
the classification, in fact and in the eyes of the Respondent
Employer during the process that resulted in the classification’s
transfer into the unit, had not changed in any way significantly
relevant to issues of unit job leakage. Thus, the Respondent
Employer’s Labor Relations Representative, Cliff Gates, testi-
fied that he recommended the reclassification because the re-
search employees were doing unit work and that an arbitration
might go against the Employer, if it opposed the transfer. Criti-
cally in my view, he also testified that he did not believe the
research assistant position had “changed materially” over the
past 5 or 10 years. Rather, he testified that it was his view that
the position at all times involved unit work and therefore at all
times should have been appropriately part of the represented
unit. Thus by his testimony the wrong he was righting by trans-
ferring the research assistants into the unit was clearly historical
and not of recent vintage. The remainder of the evidence sup-
ports and confirms this basis for the action taken.
It is true that “migration,” “leakage,” or other terms for loss
of unit work was in the Respondent Union’s mind’s eye when it
pressed its claims regarding many different jobs on the Em-
ployer. Clearly the parties were endeavoring to restore such
work to the unit as part of the process. That restorative process
is, in my view, laudable for it encourages stability in labor rela-
tions. Unit adjustments or employee transfers to restore work
to the unit recently lost to such leakage would clearly be per-
missible under Lockheed. It seems clear however, and I find,
that other job positions under review were not evaluated on a
job “leakage” basis, but rather were treated as simply histori-
cally misexcluded positions that should have at all times been
included in the unit. Thus, I find the review process also—as in
the instant case involving the research assistants—involved
righting more longstanding or “original” wrongs of improper
noninclusion of certain job classification in the unit. I specifi-
cally find that this is what was at issue respecting the research
assistants and what was the motivation for the transfer. I reject
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD66
the contention that recently lost work was a factor respecting
these employees. Such a transfer of employees from nonrepre-
sented to represented status is not sanctioned by Lockheed and
is impermissible under an accretion analysis as described
above. There is therefore no basis under Lockheed for finding
the unit transfer of the research assistants appropriate.
6. Summary and conclusions
Based on all of the above, the briefs of the parties, and the
record as a whole, I have found that the instant case is not ap-
propriately deferred to the parties’ arbitral process. Further, I
have found that the transfer of the research assistants into the
represented unit, without an expression of a desire by a major-
ity of those employees to be represented, may not be justified
either as an accretion or as a restoration of unit work leakage.
It is therefore unjustified, improper, and an unfair labor prac-
tice. Given the finding that the research assistant employees
were wrongfully transferred into the unit, it follows that the
contract was improperly applied to them including the con-
tract’s union-security clause. All this being so, the allegations
of the complaint described above respecting each Respondent
are sustained.
Thus, I find that the Respondent Employer violated Section
8(a)(1), (2), and (3) of the Act as alleged in the complaint by
granting recognition to the Union as the exclusive collective-
bargaining representative of the Respondent Employer’s re-
search assistant employees in its division of research at a time
when the Union did not represent a majority of those employ-
ees, by informing research assistant employees that the con-
tract’s unit security provisions applied to them, by applying the
unit contract to those employees, and by collecting union-
security payments from research assistant employees and remit-
ting those payments to the Union.
I further find that the Respondent Union violated Section
8(b)(1)(A) and (2) of the Act by accepting the Employer’s grant
of recognition as the exclusive collective-bargaining represen-
tative of the Employer’s research assistant employees in its
division of research at a time when the Union did not represent
a majority of those employees, by informing those employees
that the contract union-security provisions applied to them, and
by accepting, either directly from employees or indirectly by
collection from employees by the Employer and remittance to
the Union, union-security payments from research assistant
employees.
REMEDY
The General Counsel in his complaint seeks an order prohib-
iting the Respondent Employer from recognizing the Respon-
dent Union as the collective-bargaining representative of its
research assistants and prohibiting the Respondent Union from
accepting such recognition unless and until the Respondent
Union is selected by the Respondent Employer’s research assis-
tants in a Board-conducted election. The complaint further
seeks an order requiring the Respondents refrain from applying
the terms of the unit contract to research assistants unless and
until a Board certification has been issued. Finally, the com-
plaint seeks an order directing the Respondents, jointly and
severally, to reimburse all payments received from research
assistant employees, directly to the Union or through the collec-
tion and subsequent remittance by the Employer, made pursu-
ant to the union-security clause of the contract, with interest to
be computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
The remedies the General Counsel seeks are traditional for
the violations found and will be included in this order. Further,
having found that the Respondents violated the Act as set forth
above, I shall order them to cease-and-desist there from and to
post remedial Board notices. Further, the language on the Board
notices will conform to the Board’s recent decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), that notices
should be drafted in plain, straightforward, layperson language
that clearly informs employees and members of their rights and
the violations of the Act found.
CONCLUSIONS OF LAW
On the basis of the above findings of fact, and the record as a
whole, and Section 10(c) of the Act, I make the following
1. The Respondent Employer is, and has been at all times
material, an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union is, and has been at all relevant
times, a labor organization within the meaning of Section 2(5)
of the Act.
3. The Respondent Employer violated Section 8(a)(3), (2),
and (1) of the Act by engaging in the following acts and con-
duct:
a. By granting recognition to the Union as the exclusive col-
lective-bargaining representative of the Respondent Em-
ployer’s research assistant employees in its Division of re-
search at a time when the Union did not represent a majority
of those employees,
b. By informing research assistant employees that the con-
tract’s union-security provisions applied to them,
c. By applying the unit contract to those employees, and,
d. By collecting union-security payments from research assis-
tant employees and remitting those payments to the Union.
4. The Respondent Union violated Section 8(b)(1)(A) and (2)
of the Act by engaging in the following acts and conducts:
a. Accepting the Employer’s grant of recognition as the exclu-
sive collective-bargaining representative of the Respondent
Employer’s research assistant employees in its Division of re-
search at a time when the Union did not represent a majority
of those employees;
b. By informing those employees that the contract union-
security provisions applied to them;
c. By applying the unit contract to those employees; and
d. By accepting, either directly from employees or by collec-
tion from employees by the Employer and remittance to the
Union, union-security payments from research assistant em-
ployees.
5. The unfair labor practices described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
KAISER FOUNDATION HOSPITALS 67
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
A. The Respondent Employer, Kaiser Foundation Hospitals,
Kaiser Foundation Health Plan, Inc., and the Permanente Medi-
cal Group, Inc., of California, collectively and singly, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting recognition to the Union as the exclusive collec-
tive-bargaining representative of the Employer’s research assis-
tant employees in its division of research at a time when the
Union did not represent a majority of those employees.
(b) Informing research assistant employees that the con-
tract’s union-security provisions applied to them.
(c) Applying the unit contract to those employees.
(d) Collecting union-security payments from research assis-
tant employees and remitting those payments to the Union.
(e) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Rescind and withdraw the recognition given the Union as
the exclusive collective-bargaining representative of the Re-
spondent Employer’s research assistant employees in its divi-
sion of research unless and until the Respondent Union is se-
lected by the Respondent Employer’s research assistants in a
Board-conducted election.
(b) Rescind and withdraw the unit contract’s application to
research assistant employees in its division of research unless
and until the Respondent Union is selected by the Respondent
Employer’s research assistants in a Board-conducted election.
(c) Jointly and severally with the Respondent Union reim-
burse all research assistant employees for any payments made
under the terms of the contract union-security clause, with in-
terest, in the manner set forth in the remedy section of this deci-
sion.
(d) Preserve and within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all records, including an electronic copy of such
records if stored in electronic form, necessary to determine if
the terms of this Order have been complied with.
(e) Within 14 days after service by the Region, post copies of
the attached notice at its San Francisco Bay area facilities as set
forth in “Appendix A.”6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, in English and
such other languages as the Regional Director determines are

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections shall be waived for all purposes.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
necessary to fully communicate with employees, after being
signed by the Respondent Employer’s authorized representa-
tive, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted in each of
the facilities where research assistant employees are employed.
Reasonable steps shall be taken by the Respondent to ensure
the notices are not altered, defaced, or covered by other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent Employer has gone out of business or
closed one or more of the facilities involved in these proceed-
ings, the Respondent Employer shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at the closed
facility or facilities at any time after July 1, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent Employer has taken to comply.
B. The Respondent Union, Office and Professional Employ-
ees International Union, Local 29, AFL–CIO, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Accepting the Employer’s grant of recognition as the ex-
clusive collective-bargaining representative of the Respondent
Employer’s research assistant employees in its division of re-
search at a time when the Union did not represent a majority of
those employees.
(b) Informing those research assistant employees that the
contract union-security provisions applied to them.
(c) Applying the unit contract to those employees.
(d) Accepting, either directly from employees or by collec-
tion from employees by the Employer and remitting to the Un-
ion, union-security payments from research assistant employ-
ees.
(e) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Reject and refuse the recognition given the Union as the
exclusive collective-bargaining representative of the Respon-
dent Employer’s research assistant employees in its division of
research and continue to decline to represent the employees
unless and until the Respondent Union is selected by the Re-
spondent Employer’s research assistants in a Board-conducted
election.
(b) Rescind and withdraw the unit contract’s application to
research assistant employees in the division of research unless
and until the Respondent Union is selected by the Respondent
Employer’s research assistants in a Board-conducted election.
(c) Jointly and severally with the Respondent Employer re-
imburse all research assistant employees for any payments
made under the terms of the contract union-security clause,
with interest, in the manner set forth in the remedy section of
this decision.
(d) Preserve and within 14 days of a request, or such addi-
tional time as the regional director may allow for good cause
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD68
shown, provide at a reasonable place designated by the Board
or its agents, all records, including an electronic copy of such
records if stored in electronic form, necessary to determine if
the terms of this Order have been complied with.
(e) Within 14 days after service by the Region, post copies of
the attached notice at its San Francisco Bay area facilities set
forth in the “Appendix B.”7 Copies of the notice, on forms
provided by the regional director for Region 32, in English and
such other languages as the Regional Director determines are
necessary to fully communicate with employees, after being
signed by the Respondents’ authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
days in conspicuous places, including all places where notices
to employees are customarily posted in each of the facilities
where unit employees are employed. Reasonable steps shall be
taken by the Respondent to ensure the notices are not altered,
defaced or covered by other material. In the event that, during
the pendency of these proceedings, the Respondent Employer
has gone out of business or closed one or more of the facilities
involved in these proceedings, the Respondent Union shall
duplicate and mail, at its own expense, a copy of the notice to
all current and former department of research research assistant
employees employed by the Respondent at the closed facility or
facilities at any time after July 1, 2002.
(f) Within 21 days after service by the Region, file with the
regional director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent Union has taken to comply.