Kankakee County Training Center for the Disabled, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 181 (N.L.R.B. 2018)

366 NLRB No. 181
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Kankakee County Training Center for the Disabled,
Inc. and American Federation of State, County
and Municipal Employees (AFSCME), Council
31, AFL–CIO. Cases 25–CA–166729, 25–CA–
166765, 25–CA–166785, 25–CA–168799, and 25–
CA–168802
August 27, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS PEARCE
AND MCFERRAN
On September 14, 2016, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent, the General Counsel, and the Charging
Party each filed exceptions and a supporting brief. The
Respondent filed answering briefs to the General
Counsel’s and the Charging Party’s exceptions, and the
General Counsel and the Charging Party each filed an
answering brief to the Respondent’s exceptions. The
General Counsel and the Charging Party also filed reply
briefs to the Respondent’s answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and
Order.2
The Respondent provides work/life training to
developmentally disabled individuals known as “clients”
or “consumers.” In late 2014, the Union conducted an
organizing campaign among the Respondent’s
employees. After the Union won the December 29, 2014
representation election, the Board certified it as the unit
employees’ exclusive collective-bargaining
representative on January 7, 2015. The parties began
bargaining for an initial collective-bargaining agreement

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 We shall amend the judge’s Conclusions of Law and Remedy and
modify his recommended Order to conform to the violations found and
to the Board’s standard remedial language. We shall further modify his
recommended Order to provide for the posting of the notice in
accordance with J. Picini Flooring, 356 NLRB 11 (2010). We shall
substitute a new notice to conform to the Order as modified.
a few months later. At the time of the hearing in this
case, they were still in active negotiations but had yet to
reach an agreement.
This case involves several allegations of unfair labor
practices by the Respondent. We adopt the judge’s
dismissal of the allegations that the Respondent violated
Section 8(a)(1) of the Act by separately instructing
employees Brian Mazzuchi and Priscilla Williams not to
talk about the Union during working time,3 and Section
8(a)(3) and (1) by suspending and terminating Williams.
We also adopt his finding that the Respondent violated
Section 8(a)(5) and (1) by failing to provide requested
personnel information to the Union.4 For the reasons
discussed below, we adopt the judge’s dismissal of the
allegation that the Respondent unlawfully subcontracted
unit information technology (IT) work to Duratech.
Contrary to the judge and our dissenting colleague,
however, we find that the Respondent unlawfully
subcontracted unit IT work, a second time, to Megaplex
without bargaining with the Union.5

3 Based on credibility, the judge found that Production Supervisor
Beverly Flowers counseled Mazzuchi for interrupting work, not for
talking about the Union. Even though the judge did not explicitly
address Williams’ disputed testimony that Flowers subsequently told
her that Flowers had counseled Mazzuchi for talking about the Union,
we find that by crediting Flowers’ testimony, the judge implicitly
discredited Williams’ testimony.
4 The Respondent argues on exception that it was required to
withhold this presumptively relevant information under Sections 2 and
5 of the Illinois Personnel Record Review Act (IPRRA), 820 ILCS 40
et seq., and that the judge erred by failing to balance this requirement
against the Union’s need for the information. We find no merit in this
position. Balancing is appropriate only where the employer shows that
it had a legitimate and substantial confidentiality interest in the
requested information, notified the union of this interest in a timely
manner, and offered a reasonable accommodation. See, e.g., Olean
General Hospital, 363 NLRB No. 62, slip op. at 6–8 (2015). Even
assuming that the Respondent met the notice requirement, it did not
satisfy the other two criteria. First, the Respondent failed to establish
the necessary confidentiality interest. Neither of the IPRRA sections
relied on by the Respondent—one requiring an employer to allow an
employee, on request, to inspect any personnel documents that may
have been the basis for an employment action, the other allowing an
employee who has filed a grievance against the employer to designate a
union representative to review his personnel records—barred the
Respondent from disclosing the requested personnel information to the
Union. And while IPRRA subsection 7(1) generally prohibits an
employer from disclosing an employee’s disciplinary records to outside
parties, it is explicitly inapplicable to the “labor organization
representing the employee.” Second, in refusing the Union’s request,
the Respondent failed to offer any accommodation to the Union.
5 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) by subcontracting unit production work to
temporary employees in 2015 without providing the Union with notice
and an opportunity to bargain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Allegedly Unlawful Subcontracting of Unit IT Work
A. Facts6
In early October 2015, Sherry Gregg, the Respondent’s
lone IT worker and a member of the bargaining unit,
resigned her position. Several days later, on October 14,
the Respondent informed the Union by email of Gregg’s
resignation and its plan to replace her. It explained that:
This is very important position here and we will be
looking at options with this. At the present time we
don’t have anyone in house with the skills or
qualifications for this job. We are looking at
outsourcing this right now until we see which way is
cost effective for KCTC. I want you to have notice that
we are looking at a company maintaining the
computers as it’s needed at this time until we decide
what is best.
The Union responded that outsourcing the IT work would
be an unlawful unilateral change and that the Respondent
had a duty to bargain over it. The Respondent countered
that:
Until we sit and talk, we have to have someone. The
computers have went down and KCTC funding is
billed through the computer systems, plus all
communication as you know. We have the need for
them to be fixed and running. We can either schedule
to meet right away or wait until October 21.
About a week later, consistent with its stated intent, the
Respondent eschewed bargaining and employed a
contractor called Duratech to replace a computer server,
which took about 2 weeks. Within a few months, another of
the Respondent’s servers crashed, and the Respondent again
hired a contractor—this time Megaplex—to replace it and to
recover information that had been located on that server. As
Graham testified, Megaplex “came in, and we installed a
whole new server.” At the hearing, Graham conceded that
the Respondent did not notify the Union of this second
instance of subcontracting. She also testified that she “[did
not] remember” whether the Respondent ever attempted to
fill the unit IT position.
B. The Judge’s Findings
The judge dismissed the allegation that the Respondent
violated Section 8(a)(5) and (1) by subcontracting unit IT
work without bargaining with the Union. Addressing
only the Duratech subcontracting, he found that the
Respondent established a compelling business

6 The judge found the following facts based on his review of CEO
Graham’s testimony and email correspondence between Graham and
Union Agent Jeff Dexter.
justification for its refusal to bargain over this change.
According to the judge, “[the Respondent’s] computer
system crashed[,] curtailing its ability to bill for work
performed and, presumably, obtain funding for its
operations, and without funding, they would be unable to
pay their employees.” Having noted at the beginning of
his decision that the complaint alleged only that the
Duratech subcontracting was unlawful, the judge did not
separately consider whether the Respondent’s later
subcontracting of IT work to Megaplex met the
requirements of the Act.
C. Discussion
The General Counsel and the Charging Party each
except to the judge’s failure to find the Respondent’s
Megaplex subcontracting unlawful. The Charging Party
also excepts to the judge’s finding that the Duratech
subcontracting was lawful. In its answering briefs, the
Respondent counters that:
The unrebutted evidence is that Respondent had
multiple servers go down which are necessary for its
billing, client care and other exigent business
circumstances. The Judge properly limited his finding
to the occurrence alleged in the complaint.
Nevertheless, given the finding of the [judge], one
would be hard pressed to see how other instances of a
similar nature would result in a different conclusion.

Thus, the Respondent argues that an unfair labor practice
finding would be improper on both substantive and
procedural grounds.
We agree with the judge, on the particular facts here,
that the Respondent’s subcontracting to Duratech was
not unlawful. However, unlike our dissenting colleague,
we find merit in the General Counsel’s and the Charging
Party’s exceptions regarding the Megaplex
subcontracting.
We first address the substance of these allegations.
During negotiations for a collective-bargaining
agreement, an employer is obligated to refrain from
making unilateral changes to employees’ terms and
conditions of employment unless the parties reach
overall impasse. Bottom Line Enterprises, 302 NLRB
373, 374 (1991), enfd. mem. sub nom. Master Window
Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994).
However, the Board has recognized an exception to this
rule “when economic exigencies compel prompt action.”
Id. The burden for meeting this exception is heavy: it
applies only to “extraordinary events which are ‘an
unforeseen occurrence, having a major economic effect
[requiring] the company to take immediate action.’”
RBE Electronics of S.D., 320 NLRB 80, 81 (1995).
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 3
Applying this standard to the specific facts presented
here, we agree with the judge that the initial
subcontracting to Duratech was lawful.7 However, its
later subcontracting to Megaplex did not meet this high
standard. It is indisputable that the server crash that led
to the Megaplex subcontracting was in no way
unforeseen. The Respondent had recently subcontracted
with Duratech to fix an identical computer system crash,
and was therefore on notice of the possibility that the
problem might recur, and with the resignation of Gregg,
it lacked IT coverage. Nonetheless, even though the
Union was insisting in negotiations that any proposed
outsourcing of IT work required bargaining, the
Respondent again contracted it out—this time to
Megaplex—without notice to the Union. By this time,
the Respondent had several months to hire new unit IT
workers, but made no apparent effort to do so. Thus, if
the Megaplex allegation is properly before us, it is clear
that the Respondent violated the Act.8
Regarding the Respondent’s argument that it would be
procedurally improper to find this violation, we
acknowledge that the complaint alleged that “[a]bout
October 14, 2015, Respondent outsourced the bargaining
unit work in the IT department,” and that the Respondent
thereby violated Section 8(a)(5) and (1). While not
named in the complaint, Duratech is the IT company
with which the Respondent contracted in mid-October
2015. As the Respondent correctly points out in its
answering briefs, the complaint did not separately allege
the subsequent Megaplex subcontracting to be an unfair
labor practice. Nonetheless, “[i]t is well settled that the
Board may find and remedy a violation even in the
absence of a specified allegation in the complaint if the

7 Regarding the Duratech subcontracting, the related server outage
occurred mere days after the Respondent’s lone IT worker
unexpectedly resigned, leaving the Respondent – through no fault of its
own—unable to bill for work or process the necessary funding for its
operations, and without any employee capable of addressing the
problem. Under these particular circumstances, we find that the
Respondent was temporarily privileged to act unilaterally.
8 We reject the dissent’s assertion that the record does not show that
the Megaplex subcontracting involved unit work. As our colleague
acknowledges, Graham testified that when the Respondent needed to
fix major server issues, former IT worker Gregg would perform that
work together with an outside contractor. He testified, Gregg “would
not do that on her own. She would have somebody else come in on the
outside to help her do that” (emphasis added). Graham further testified
that it was not possible for the Respondent to “take 2 weeks to
interview and try to get somebody in” to replace Gregg in October 2015
when the server needed to be replaced. The Respondent thereby
conceded that a unit IT worker would have played a significant role in
the server replacement and that at least some of the subcontracted IT
work was unit work. We further note that the Respondent did not claim
in its briefs to the Board that the Megaplex subcontracting did not
involve unit work.
issue is closely connected to the subject matter of the
complaint and has been fully litigated.” Pergament
United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d
130 (2d Cir. 1990). The Board applies this test “with
particular force where the finding of a violation is
established by the testimonial admissions of the
Respondent’s own witnesses.” Id. We find both prongs
of Pergament satisfied with regard to the Megaplex
allegation and that, contrary to our colleague’s argument,
the Respondent therefore had notice of the allegation.9
First, the Megaplex allegation is closely connected to
the Duratech allegation. The two plainly share the same
ultimate issue—whether the Respondent’s refusal to
bargain over the subcontracting of its IT work was
unlawful. They are also part of the same set of facts.
The Duratech and Megaplex subcontracting were close in
time and involved virtually identical computer hardware
malfunctions, requiring replacement of the computer
server.10 Indeed, at the hearing, CEO Graham described
Megaplex as simply “another [company] that . . . came in
because we had our other server . . . crash, and we lost
everything.” Her testimony about the Megaplex
subcontracting directly followed that about the Duratech
subcontracting, was part of the same line of questioning
by the General Counsel, and elicited no objection that it
was beyond the scope of the complaint. The two
instances of subcontracting are inextricably linked, part
and parcel of the Respondent’s steadfast refusal to

9 See, e.g., Parts Depot, Inc., 332 NLRB 733, 733–734 (2000)
(fulfillment of Pergament test established notice); Service Employees
International Union, Local 32BJ v. NLRB, 647 F.3d 435, 447 (2d Cir.
2011) (Board may find violation not specifically alleged if “parties had
sufficient notice to satisfy due process—i.e., ‘if the issue [wa]s closely
connected to the subject matter of the complaint and has been fully
litigated’” under Pergament); NLRB v. Mackay Radio & Telegraph Co.,
304 U.S. 333, 349–350 (1938) (due process requirement satisfied
because “record [showed] that [party] understood the issue and was
afforded full opportunity to justify the action of its officers”).
10 The judge found that the Megaplex subcontracting occurred “[i]n
about June 2016.” However, Graham testified at the July 2016 hearing
in this case that Megaplex performed this work “months ago roughly,”
and that it might have taken “months” because “it was a lot of work.”
Thus, the record reflects—and we find—that the Respondent actually
subcontracted the work several months prior to June 2016.
Our colleague not only exaggerates the length of time between the
Duratech and Megaplex subcontracting, he also misstates the nature of
the work that each company performed, which involved the
replacement of the server. His claim that Megaplex repaired a server
instead of replacing it was apparently based on the judge’s offhand
remark that Megaplex merely repaired the server. As noted above,
Graham testified that Megaplex “came in, and we installed a whole new
server.”
Regardless, these alleged differences would not alter our finding that
the two instances are closely connected.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
bargain with the Union over the performance of its IT
work.11
Second, the parties fully litigated the Megaplex
allegation. “[T]he determination of whether a matter has
been fully litigated rests in part on whether the absence
of a specific allegation precluded a respondent from
presenting exculpatory evidence or whether the
respondent would have altered the conduct of its case at
the hearing, had a specific allegation been made.”
Pergament, supra at 335. The Respondent has not shown
that the lack of formal reference to this allegation in the
complaint in any way compromised its defense. It does
not dispute that it subcontracted IT work to Megaplex
without bargaining with the Union. Graham, the
Respondent’s CEO, provided the essential details in her
testimony. The Respondent chose not to question her or
any other manager or employee in an effort to further
justify or explain its actions. And it does not argue that
more explicit notice of this allegation would have altered
its litigation strategy. Rather, it effectively concedes that
the record contains all of the necessary evidence, stating
in its answering briefs that the judge’s dismissal of the
Duratech allegation makes it difficult “to see how other
instances of a similar nature would result in a different
conclusion.”12 The Respondent therefore suffered no
prejudice from the General Counsel’s failure to formally
allege this particular violation.
In sum, the Respondent had sufficient notice of the
Megaplex allegation to satisfy the requirements of due
process. Graham’s testimony established the necessary
elements of the Megaplex allegation, which overlapped
in all material respects with the Duratech allegation
included in the complaint.13 Given the opportunity both
during and after the hearing to present any additional
evidence or argument that might have been pertinent to
the Megaplex allegation, the Respondent opted to stand
on the existing record in this case. The Board has
consistently found unalleged violations to have been
fully and fairly litigated under similar circumstances.14

11 Contrary to our colleague’s suggestion, our finding that the
Duratech subcontracting was lawful under Bottom Line Enterprises,
supra, and RBE Electronics, supra, has no bearing on whether the two
allegations are closely connected under Pergament.
12 By that time, the General Counsel had explicitly addressed the
Megaplex allegation in both his posthearing brief to the judge and his
exceptions brief to the Board.
13 Our colleague concedes that “the record includes some evidence
pertaining to [this allegation],” but fails to appreciate its pervasiveness
as well as the significance of Graham’s admissions.
14 See, e.g., Transpersonnel, Inc., 336 NLRB 484, 484–485 (2001)
(high-ranking manager confirmed occurrence of unalleged violation
during same months-long time period as similar alleged violations),
enf. denied in relevant part on other grounds 349 F.3d 175, 180–183
(4th Cir. 2003); Northern Wire Corp., 291 NLRB 727, 727 fn. 3 (1988)
We therefore find that the Respondent violated Section
8(a)(5) and (1) by subcontracting unit IT work to
Megaplex.
AMENDED CONCLUSIONS OF LAW
1. The Respondent 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. By engaging in the following conduct, the
Respondent violated Section 8(a)(5) and (1) of the Act.
(a) The Respondent failed and refused to furnish the
Union with the information it requested on November
16, 2015, which is relevant and necessary for the
performance of its duties as the exclusive collective-
bargaining representative of unit employees.
(b) The Respondent unilaterally subcontracted unit
production work in 2015.
(c) The Respondent unilaterally subcontracted unit
information technology work to Megaplex in 2016.
AMENDED REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
We shall order the Respondent to rescind (1) its
unilateral 2015 subcontracting of unit production work,
and (2) its unilateral 2016 subcontracting of unit
information technology work, and restore the status quo
ante regarding this work, until such time as the
Respondent and the Union reach a collective-bargaining
agreement or a lawful impasse based on good-faith
negotiations.15 The Respondent shall make whole its
employees for any losses in earnings and other benefits
which they may have suffered as a result of the
Respondent’s unlawful unilateral subcontracting of unit
production work and unit IT work. All payments to
employees are to be computed in the manner set forth in

(employer had opportunity to solicit responsive testimony related to
unalleged violation that occurred during same year-long period as
similar alleged violations), enfd. 887 F.2d 1313, 1321–1322 (7th Cir.
1989); Furr’s Cafeterias, Inc., 251 NLRB 879, 879 fn. 3 (1980)
(employer admitted facts of unalleged violation that “related to the
heart of the complaint which allege[d] other instances of disregard of
the obligation to bargain with the Union”), enfd. mem. 656 F.2d 698
(5th Cir. 1981).
15 At the compliance stage of these proceedings, the Respondent may
introduce any evidence that was not available prior to the unfair labor
practice hearing to demonstrate that restoration of the work would be
unduly burdensome. See St. Vincent Medical Center, 349 NLRB 365,
368 fn. 5 (2007); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989).
The Respondent may also attempt to show that no unit employees
suffered losses due to the unilateral subcontracting.
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 5
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest, as prescribed
in New Horizons, 356 NLRB 6 (2010).
In addition, in accordance with AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016), we shall order
the Respondent to compensate employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
25, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
Finally, we shall order the Respondent to furnish to the
Union in a timely manner the information requested by
the Union on November 16, 2015.
ORDER
The National Labor Relations Board orders that the
Respondent, Kankakee County Training Center for the
Disabled, Inc., Kankakee, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally subcontracting unit production work.
(b) Unilaterally subcontracting unit information
technology work.
(c) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit
employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining
representative of employees in the following bargaining
unit:
All full time and regular part time employees, including
Bus Driver, Bus Rider, Bus Rider Floater, Casual
Laborer, Order Filler, Casual Labor Lead, Department
Lead, Developmental Instructor, Developmental
Trainer, Rehabilitation Developmental Trainer, Direct
Care, DSP, ADSP, Directional Trainer, Rehabilitation
Directional Trainer, Directional Trainer/Transportation,
Employment Specialist, Order Fulfillment Bunge,
House Manager, IT Tech, Maintenance Worker,
Production Floater, Rehabilitation Floater, Semi Driver,
Warehouse Overseer, Teacher, and all other employees
as defined by the Act employed by the Employer at its
Bradley, Bourbonnais, and Kankakee, Illinois facilities;
Excluding Lead Development Trainer, Transportation
Supervisor, Professional employees, Business Office
Clerical Employees, Confidential employees, Guards
and Supervisors, as defined in the National Labor
Relations Act.
(b) Rescind the subcontracting of unit production
work that was unilaterally implemented in 2015 and
restore the status quo ante regarding this work, until such
time as the Respondent and the Union reach a collective-
bargaining agreement or a lawful impasse based on
good-faith negotiations.
(c) Rescind the subcontracting of unit information
technology work that was unilaterally implemented in
2016 and restore the status quo ante regarding this work,
until such time as the Respondent and the Union reach a
collective-bargaining agreement or a lawful impasse
based on good-faith negotiations.
(d) Make all affected employees whole, with interest,
in the manner set forth in the remedy section of this
Decision and Order, for any loss of earnings and other
benefits suffered as a result of the Respondent’s
unilateral subcontracting of unit production work in 2015
and unit information technology work in 2016.
(e) Compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
25, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
(f) Furnish to the Union in a timely manner the
personnel information requested by the Union on
November 16, 2015.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its Kankakee, Illinois facility copies of the attached
notice marked “Appendix.”16 Copies of the notice, on

16 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized
representative, 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 addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. The
Respondent shall also duplicate and mail, at its expense,
a copy of the notice to all former employees who were
affected by its unlawful conduct. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all
current employees and former employees employed by
the Respondent at any time since September 1, 2015.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn
certification of a responsible official on a form provided
by the Region attesting to the steps that the Respondent
has taken to comply.
Dated, Washington, D.C. August 27, 2018
____________________________________
Mark Gaston Pearce, Member
____________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN RING, dissenting in part.
The complaint alleges that the Respondent violated the
Act by failing to bargain with the Union about
outsourcing IT work to an entity called Duratech in
October 2015. I agree with my colleagues that the judge
properly dismissed this allegation.1 The majority goes

Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
1 I agree that the Respondent acted lawfully under the principles
stated in Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd.
mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087
(9th Cir. 1994), and RBE Electronics of S.D., 320 NLRB 80, 81 (1995).
Accordingly, I find it unnecessary to decide whether I agree with all the
on, however, to find that the Respondent did violate the
Act by outsourcing other IT work to another entity,
Megaplex, on a later date. The unilateral outsourcing of
IT work to Megaplex was not alleged in the complaint; it
is not closely related to the Duratech allegation and was
not fully and fairly litigated at the hearing; and it is not
supported by record evidence in any event. Accordingly,
I respectfully dissent from this violation finding.
The relevant facts, which are set forth in full in the
judge’s decision, are as follows. Unit employee Sherry
Gregg, the Respondent’s sole “IT person,” resigned in
October 2015. The record specifically indicates that
Gregg set up computers and printers. A week later, the
Respondent’s computers and servers crashed, preventing
the Respondent from performing its crucial billing
function. On October 14, the Respondent notified the
Union of its intent to subcontract its IT work.2 The
Respondent proceeded to subcontract the work to
Duratech around October 21, after the Union protested
the subcontracting but failed to reply to the Respondent’s
offer to meet and discuss the issue. Duratech worked on
the Respondent’s computer systems for about 2 weeks.
More than 7 months later, around June 2016, the
Respondent experienced another server crash and
contracted with an entity called Megaplex to repair the
server and recover data that had been stored on it. The
Respondent did not notify the Union about this
subcontracting.3
As stated above, the complaint did not allege that the
Respondent’s subcontracting of IT work to Megaplex
was unlawful. Undeterred, the General Counsel and the

limitations those decisions place on an employer’s right to act
unilaterally in response to exigent circumstances.
For the reasons stated by my colleagues, I also join them in (i)
adopting the judge’s dismissal of the allegations that the Respondent
violated Sec. 8(a)(3) and (1) of the Act by suspending and discharging
employee Priscilla Williams; (ii) adopting the judge’s dismissal of the
allegations that the Respondent violated Sec. 8(a)(1) of the Act by
separately instructing employees Brian Mazzuchi and Priscilla
Williams not to talk about the Union during working time; and (iii)
adopting the judge’s finding that the Respondent violated Sec. 8(a)(5)
and (1) by failing to provide requested personnel information to the
Union.
2 Graham’s email to Union Staff Representative Jeff Dexter stated:
As of last week we don’t have an IT person as she has resigned. This
is very important position here and we will be looking at options with
this. At the present time we don’t have anyone in house with the skills
or qualifications for this job. We are looking at outsourcing this right
now until we see which way is cost effective for [the Respondent]. I
want you to have notice that we are looking at a company maintaining
the computers as it’s needed at this time until we decide what is best.
Graham later stressed that the Respondent could not wait for
negotiations before fixing its computers.
3 As of the hearing in this case, the Respondent had not hired
anyone to replace Gregg.
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 7
Charging Party contend in their exceptions that the Board
should reach this instance of unalleged subcontracting
and find that it violated the Act. Remarkably, my
colleagues agree. Putting the cart before the horse, they
first address the merits of this so-called issue, finding the
Megaplex subcontracting unlawful on the basis that,
unlike the event that precipitated the Duratech
subcontracting, the June server crash was foreseeable,
and hence no exigency excused the Respondent’s failure
to bargain over it. There is no evidence that the
Megaplex subcontracting even involved bargaining-unit
work. Indeed, to the contrary, Graham testified without
contradiction that “[w]hen it came to something bigger as
far as server issues, the server going down, things like
that, [Gregg] would not do that on her own. She would
have somebody else come in on the outside to help her
do that.”4 Only after concluding that the Respondent’s
subcontracting to Megaplex would be unlawful do my
colleagues consider whether the Megaplex
subcontracting is even properly before them in the first
place. They find that it is, on the theory that it is closely
related to the Duratech subcontracting and was fully and
fairly litigated. See Pergament United Sales, 296 NLRB
333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). The
majority is incorrect on both counts.
It should go without saying that the Board must first
satisfy itself that an unalleged violation is properly
before it before opining on the merits. And the
Megaplex issue is not properly before the Board. It is
not closely related to the Duratech subcontract: the two
involve entirely separate instances of subcontracting
occurring more than 7 months apart. (To bolster their
“closely related” finding, the majority backdates the
Megaplex subcontracting to “several months prior to
June 2016,” even though there are no exceptions to the
judge’s finding that it occurred in “about June 2016.”5)

4 My colleagues contend that this testimony actually demonstrates
that the work the Respondent subcontracted to Megaplex was
bargaining-unit work. They say it proves that when the Respondent
needed to fix major server malfunctions, Gregg would “perform that
work together with” an outside contractor. This interpretation reads too
much into the words “help her,” especially in light of uncontradicted
testimony that Gregg’s duties involved setting up computers and
printers. Inflating Gregg’s duties even further, the majority finds that
Gregg would have played a “significant” role in the Megaplex server
repair work based on Graham’s testimony that the Respondent
subcontracted the prior server work to Duratech because it would have
taken too long to hire “somebody in.” Of course, the Duratech and
Megaplex subcontracts were two different contracts to perform
different work. In addition, and contrary to the majority’s implication,
Graham never testified that the hypothetical “somebody” would have
been a replacement for Gregg.
5 My colleagues reliance on Graham’s imprecise testimony
regarding the date of the Megaplex subcontracting cannot, in these
The two contracts involved different work as well: the
Duratech contract was to replace a server, while the
judge found that the Megaplex contract was to repair a
different server and recover data. Indeed, my colleagues
themselves distinguish the two instances of
subcontracting by finding that the Megaplex subcontract
was foreseeable while the Duratech subcontract was not.6
Nor was the Megaplex subcontracting fully and fairly
litigated. It is well settled that the “fundamental
elements of procedural due process are notice and an
opportunity to be heard.” Lamar Advertising of
Hartford, 343 NLRB 261, 264 (2002) (citing Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950)). “The primary function of notice is to afford
respondent an opportunity to prepare a defense by
investigating the basis of the complaint and fashioning an
explanation of events that refutes the charge of unlawful
behavior.” Pergament United Sales, Inc. v. NLRB, 920
F.2d 130, 135 (2d Cir. 1990). The Respondent was not
placed on notice that the Megaplex subcontracting was at
issue. It is true that the record includes some evidence
pertaining to it, as the majority notes. But as the Board
and courts have observed, “‘the presence of evidence in
the record to support a charge unstated in a complaint . . .
does not mean the party against whom the charge is
made had notice that the issue was being litigated.’”
Enloe Medical Center, 346 NLRB 854, 855 (2006)
(quoting Conair Corp. v. NLRB, 721 F.2d 1355, 1372
(D.C. Cir. 1983)); see also NLRB v. Quality C.A.T.V.,

circumstances, serve as a substitute for the judge’s unexcepted-to
finding of when the subcontracting occurred.
6 There is no merit to the majority’s view that the Megaplex
subcontracting is “part and parcel” of the Respondent’s “steadfast
refusal to bargain with the Union over the performance of its IT work.”
Apart from the Megaplex subcontract, the only other instance of IT
subcontracting on this record was the Respondent’s subcontract with
Duratech, and my colleagues agree that the Respondent was excused
from bargaining over that subcontract by exigent circumstances.
The majority also erroneously finds that the Respondent, in its
answering brief, effectively conceded that the record contains all the
necessary evidence for ruling on the Megaplex subcontracting. To the
contrary, the Respondent emphasized in its answering brief that the
judge properly limited his analysis to the allegations in the complaint,
which concern the Duratech subcontract. The Respondent additionally
stated that no charge was filed “relative to the company named by the
General Counsel in the General Counsel’s Brief in Support of
Exceptions,” i.e., Megaplex. In these circumstances, it is simply unfair
to characterize the Respondent’s statement that the judge’s dismissal of
the Duratech allegation makes it difficult “to see how other instances of
a similar nature would result in a different conclusion” as a concession
that it would not have altered its litigation strategy in the face of an
additional allegation. A far more plausible explanation for the
Respondent’s decision not to address the merits of the Megaplex
subcontracting issue it that there is no such issue and that it believed
the Board could be trusted to recognize as much and accord the
Respondent due process of law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Inc., 824 F.2d 542, 547 (7th Cir. 1987) (“[T]he simple
presentation of evidence important to a . . . claim does
not satisfy the requirement that any claim at variance
from the complaint be ‘fully and fairly’ litigated in order
for the Board to decide the issue without transgressing . .
. due process rights.”). The majority’s finding that the
Megaplex subcontracting was fully and fairly litigated
cannot be reconciled with these principles.
The determination that the Megaplex issue is not
before the Board properly ends the inquiry. However,
since my colleagues address the merits, I will do so as
well.
I disagree that an 8(a)(5) violation regarding the
Megaplex subcontract was established on this record. To
show that the Respondent had a duty to provide the
Union with notice and an opportunity to bargain before
subcontracting work to Megaplex, the General Counsel
was required to prove, among other things, that the
subcontract involved bargaining unit work. See
generally Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203 (1964). The General Counsel failed to
make this showing. As stated by the General Counsel,
Gregg’s duties involved setting up computers and
printers, while the Megaplex subcontract involved
repairing a crashed server and recovering data stored
therein. There is no evidence that Gregg ever did, or
even could have, performed that work, an issue that
Graham highlighted at the hearing.8 The majority’s
finding that the second server crash was foreseeable, and
therefore subcontracting to deal with it was subject to the
duty to bargain (unlike the Duratech subcontracting), is
equally unfounded. No evidence supports the view that
the second server crash was any more foreseeable than
the first, or, indeed, the notion that any server crash can
be foreseen in advance.9 Nor is there any support for the
majority’s implicit finding that the second server crash

8 For the reasons explained above, the majority’s effort to support
their unit work finding with selected bits of record evidence is
unavailing. I also disagree with my colleagues’ suggestion that they
may properly find that the Megaplex subcontracting involved unit work
merely because the Respondent did not contend otherwise in its
exceptions or its answering briefs. The Respondent can hardly be
faulted for failing to argue this “unit work” point when it was not
properly on notice that the so-called issue to which this point is
subordinate—the Megaplex subcontract—was indeed at issue.
Moreover, the majority relies on this absence of exceptions by the
Respondent to support its conclusion that the work subcontracted to
Megaplex was unit work, even though the judge made no findings on
the issue. At the same time, the majority disregards the judge’s
unexcepted to finding that the Megaplex subcontracting occurred in
about June 2016. I can perceive no valid justification for this internally
inconsistent analysis.
9 I cannot accept the majority’s unfounded claim that Duratech’s
prior successful replacement of a different server put the Respondent
“on notice” that another server would crash.
did not present the same exigent circumstances that
justified immediate action when the first server crashed.
For all of these reasons, even if I were to reach the
issue—and as explained above, I believe the Board
cannot do so—the record evidence does not support the
majority’s finding that by subcontracting work to
Megaplex unilaterally, the Respondent violated Section
8(a)(5) of the Act.
For the foregoing reasons, as to this issue, I
respectfully dissent.
Dated, Washington, D.C. August 27, 2018
____________________________________
John F. Ring, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT unilaterally subcontract unit production
work.
WE WILL NOT unilaterally subcontract unit information
technology work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 9
representative of our employees in the following
bargaining unit:
All full time and regular part time employees, including
Bus Driver, Bus Rider, Bus Rider Floater, Casual
Laborer, Order Filler, Casual Labor Lead, Department
Lead, Developmental Instructor, Developmental
Trainer, Rehabilitation Developmental Trainer, Direct
Care, DSP, ADSP, Directional Trainer, Rehabilitation
Directional Trainer, Directional Trainer/Transportation,
Employment Specialist, Order Fulfillment Bunge,
House Manager, IT Tech, Maintenance Worker,
Production Floater, Rehabilitation Floater, Semi Driver,
Warehouse Overseer, Teacher, and all other employees
as defined by the Act employed by the Employer at its
Bradley, Bourbonnais, and Kankakee, Illinois facilities;
Excluding Lead Development Trainer, Transportation
Supervisor, Professional employees, Business Office
Clerical Employees, Confidential employees, Guards
and Supervisors, as defined in the National Labor
Relations Act.
WE WILL rescind the subcontracting of unit production
work that we unilaterally implemented in 2015 and
restore the status quo ante regarding this work, until such
time as the Respondent and the Union reach a collective-
bargaining agreement or a lawful impasse based on
good-faith negotiations.
WE WILL rescind the subcontracting of unit
information technology work that we unilaterally
implemented in 2016 and restore the status quo ante
regarding this work, until such time as the Respondent
and the Union reach a collective-bargaining agreement or
a lawful impasse based on good-faith negotiations.
WE WILL make whole, with interest, all affected
employees for any loss of earnings and other benefits
suffered as a result of our unilateral subcontracting of
unit production work in 2015 and unit information
technology work in 2016.
WE WILL compensate employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and WE WILL file with the Regional Director for
Region 25, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
WE WILL furnish to the Union in a timely manner the
personnel information requested by the Union on
November 16, 2015.
KANKAKEE COUNTY TRAINING CENTER FOR
THE DISABLED, INC.
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-166729 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Raifael Williams, Esq., for the General Counsel.
Steven Mills, Esq. and Bryan Jones, Esq. (Mills Law Offices),
for the Respondent.
Melissa Auerbach, Esq., Dowd, Bloch, Bennett, Cervone, Auer-
bach & Yokich, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on July 19 and 20, 2016, in Kankakee, Illi-
nois. The consolidated complaint, which issued on April 29,
2016, was based upon unfair labor practice charges and amend-
ed charges that were filed between December 28, 20151 and
February 1, 2016, by American Federation of State, County and
Municipal Employees (AFSCME), Council 31, AFL–CIO (the
Union). The complaint alleges that Kankakee County Training
Center for the Disabled, Inc. (Respondent), violated Section
8(a)(1) of the Act by prohibiting employees from talking about
the Union during working time while permitting them to talk
about other subjects, and violated Section 8(a)(3) and (1) of the
Act by suspending Priscilla Williams on November 13 and then
discharging her on November 19 because of her union and
protected concerted activities. It is further alleged that in Sep-
tember and October, the Respondent subcontracted and out-
sourced bargaining unit work without prior notice to the Union
and without affording the Union an opportunity to bargain
about this conduct, and that since about November 16 the Re-
spondent has failed and refused to furnish the Union with rele-
vant information that it requested, all in violation of Section
8(a)(5) and (1) of the Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. FACTS
The Union filed a petition to represent the Respondent’s em-
ployees and at a Board election that was conducted on Decem-

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ber 29, 2014, a majority of the employees voted to be repre-
sented by the Union. During the campaign Williams was the
most (or one of the most) active employee in supporting the
Union, soliciting employees to sign authorization cards for the
Union. After the Union was certified, she was elected to be the
chief steward and is on the Union’s bargaining committee.
Beginning a few months after the election, the parties began
negotiations for a collective-bargaining agreement, and alt-
hough some issues have been resolved, the parties have not
reached complete agreement on contractual terms and negotia-
tions continue. The Respondent conducted one preelection
meeting with all of the employees that was led by Steve Mitch-
ell, Respondent’s CEO in about early December 2014. Wil-
liams and employee Brian Mazzuchi testified that Mitchell
asked why they wanted a union and he said that he felt that they
didn’t need one; that they had an open door policy and the Un-
ion only wanted their money. Employee Schwana Murphy testi-
fied that Mitchell said that they didn’t need a union. Williams
testified that in about November 2014 while she was speaking
to Diane Graham, the CEO of the Respondent, and previously
the Vice President, in Graham’s office, Graham asked her why
they wanted the Union and Williams said that they wanted to be
respected at the job. Graham told her that it didn’t bother her
either way, whether they get the Union or don’t get the Union.
November 13 Incident
The principal portion of this hearing involved a disagreement
between Williams and employee Anthony Viveros that took
place on November 13 at approximately 4:15 p.m. in the park-
ing lot of the Respondent’s facility. Williams was suspended on
that day and was discharged on November 19 for her actions in
that incident; Viveros was not disciplined. Numerous employ-
ees and supervisors testified about what occurred on November
13, requiring major credibility determinations. Earlier that day,
employee Brian Mazzuchi was called into Production Supervi-
sor Beverly Flowers’ office; HR Director Julie Galeaz was also
present. He testified that Flowers told him that a fellow em-
ployee said that Mazzuchi was “strong-arming him” about the
Union. He said that wasn’t true, but that the employees had the
right to discuss the Union and Flowers said, “No, you do not.”
He replied that if it didn’t interfere with production, they could
talk about the Union just like they could discuss the weather
and she said that the employees were not allowed to talk about
the Union. Flowers testified that she had a verbal counseling
with Mazzuchi on November 12 or 13. She had received com-
plaints about him interrupting work of the floor by talking to
other employees and interrupting the production and move-
ments of the product although she does not know what he was
talking about. She told him that he couldn’t interrupt the work;
he said okay, and left the office. After he left, Flowers saw
Williams nearby and called her into the office and told her that
Mazzuchi had been counseled about disrupting other people’s
work. Williams testified that she was asked by Galeaz to come
to Flower’s office to talk about an issue that they had with
Mazzuchi talking about the Union. They said that Mazzuchi
was bullying employees about the Union and that he couldn’t
talk about the Union on the floor and Williams responded that
if they could talk about the weather, they could talk about the
Union. Flowers also told Williams that she was told that Wil-
liams was telling people that she (Flowers) couldn’t fire any-
one, and Williams denied saying that. Flowers said that she had
a statement saying that Williams had said that she couldn’t fire
anyone and Williams said that she didn’t care what the state-
ment said, that she never said it and she was not a liar. Flowers
never showed her the statement and Williams left the office.
Alyssa Royster testified that in early November, while she was
at the facility, she and Viveros were discussing a past problem
that she had at work and Williams approached them and said
not to worry about it: “I’ll talk to Bev. Me and Bev, I have it in
for Bev, I will take care of that.” Viveros testified that a few
days prior to November 13, Royster told him that she was
afraid of losing her job and Williams overheard their conversa-
tion and told her not to worry about it, and that she would help
her. She said that as Royster was part of her crew, she would
talk to Flowers about it and she did not have to worry about
losing her job. Later that day Williams told Viveros that she
had spoken to Flowers “. . . and there’s no way she can do any-
thing because like I talked to her.” Viveros then went to speak
to Flowers and asked her if Williams had spoken to her about
Royster possibly losing her job, and Flowers told him that she
did not have any such conversation with Williams. Flowers
testified that shortly prior to November 13, Viveros had come
to her office and said that Williams had told him that nobody
could get in trouble as long as they were part of her crew. He
said that Royster was in trouble and Williams told her that she
didn’t have to worry because she was part of her crew. Flowers
told him that this did not happen and when Williams came into
her office, she related this conversation to her.
Royster testified that as she was clocking out on November
13, Williams approached her and asked why Viveros was lying
about her and making things up and telling Flowers lies.
Royster said that she didn’t know what she was talking about
and left the building. Williams testified that after clocking out
on November 13, she walked to the parking lot and began talk-
ing to Royster, who was sitting in the back seat of a car and
asked her if she told Flowers that she said that Flowers couldn’t
fire anybody, and Royster said that she didn’t talk to anybody.
At about that time, Viveros walked out:
And he approached me, calling out, hollering my name, yell-
ing at me, and then he got closer and called me an F’ing liar,
and I said, no, you’re the one that’s a liar because I never
talked to you about anything, and he said, yes, you did, and I
said, no, I didn’t. I don’t talk to you about the union stuff and
he said, yes, you did, and why would you want to have a un-
ion at this little facility. You all so dumb you want to have a
union at a nonprofit facility. And then he went on about that,
and…kept saying that I was an F’ing liar, I called him a dumb
ass, and he said we’re the dummies for having a union at this
place . . .
At that time employees Annette Roberts and Carolyn Lawrence
were standing behind the car about five to 10 feet from her.
Another employee, LeMoris Burtis came out, and Williams
called him over to tell Viveros that they had a union, and when
Burtis said that they do have a union, Viveros said that they
don’t have a contract. While this disagreement continued,
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 11
Flowers came out to the parking lot and stood between them
and told Williams that she had to calm down and be a role
model and Williams asked why she was talking directly to her,
and Flowers said, “Because you represent the Union.” As she
and Burtis were walking away, Viveros continued to call them
dummies because there was no union contract. She asked
Flowers if they had a union, and Flowers said that there was a
union, but there was no contract. Flowers told her to calm down
and go home and she and Burtis went to their cars. She testified
that during this incident, she never threatened to hit Viveros
and none of the Respondent’s “clients” were present to witness
this incident, although one client was sitting on the patio, about
20 to 30 feet away.
April Gaines, who has been employed by the Respondent
since March 2014, testified that when she exited the building
she saw Williams standing by the car talking to Royster.
Viveros came out of the building a few minutes later and start-
ed “yelling, screaming and cussing” at Williams. He said that
there was no union and she said that there was a union; he
called her an F’ing liar and she called him a dumb ass. Other
than Royster, Viveros and Williams, the only other employees
that she remembers being in the area were Burtis and Schwana
Murphy. Gaines gave a statement to Williams after the event
that Williams gave to the Respondent on November 19. In the
statement, Gaines stated that she was in the car while this inci-
dent was taking place and that when Viveros came out of the
building, he got loud and Williams got loud asking why did he
lie to management about her. During this argument, a client
began walking toward them and Williams told him to go back
to the facility, which he did; Viveros called Williams an F’ing
liar and she called him a dumb ass.
Schwana Murphy, who has been employed by the Respond-
ent for 12 years, testified that Williams and Viveros were “hav-
ing a conflict.” Other than Williams and Viveros, the only other
employee that she remembers being in the parking lot at that
time is Annette Roberts. She did not see any clients in the area.
She heard Viveros tell Williams, “You don’t have a fucking
union” and Williams called him a dumb ass. She did not hear
Williams threaten him. She told Williams to leave it alone and
they got in Murphy’s car and left. Roberts, employed by the
Respondent for 16 years, testified that when she left the build-
ing she saw Williams standing alongside a car talking to
Royster. Viveros came out of the building and walked to the car
and was “. . . doing hand gesturing and hand movements, and
he . . . got like in her face,” and then backed away, but she
could not hear what was said. Carolyn Lawrence, who has been
employed by the Respondent for 23 years, testified that when
she left the facility Williams was standing by the car talking to
Royster. Viveros approached them and said, “What the F are
you talking to her for?” She also observed him making hand
gestures to Williams, but Williams never moved and she did
not hear anything that Williams said. She also gave a statement
to the Union to support Williams.
Burtis, who has been employed at the facility for over a year,
testified that he left the building shortly after 4:15 p.m. and
saw Williams and Viveros “. . . kind of going back and forth.”
Viveros was saying that it was dumb to believe that there is a
union because Respondent is a nonprofit and she said that there
was a union. Williams called him over and asked if there was a
union, and he said that there was a union, and Williams also
asked Flowers if there was a union, and she said that there was,
but they didn’t have a contract. He did not see any clients in the
area and both Williams and Viveros were using their hands as
they spoke, but he did not hear any profanities or threats of
violence. He gave a statement for Williams at the request of
another employee which was written by Margo Smith; he read
and signed it. He told Flowers that he didn’t want to get in-
volved in the incident and was not asked by the Respondent to
provide a statement.
Royster2 testified that after she left the building she sat in
Austin Murphy’s car in the rear middle seat. Williams came up
to the car and asked, “Where’s Tony?” and they told her that he
was probably clocking out, and should be out soon. At that time
she saw a client, Gary, on the patio about 20 feet from the car.
As Viveros was walking toward the car, Williams started
“storming” toward him and “yelling profanity. . . at him.” She
accused him of lying about her to management and called him a
stupid fucking dummy and a fat piece of shit. At the time she
moved to about an inch from his face. While this was occur-
ring, Royster called Flowers to come out and she came out and
stood between Williams and Viveros, telling them that they
were on work property and had to act professionally. Williams
told Viveros, “You’re lucky I don’t bust you in the lip” and he
replied that if she did he would call the police. Williams re-
plied, “Snitches get stitches and wind up in ditches.” Flowers
told Williams that she had to calm down and leave and she
started to walk away and then came back screaming that the
Union does not support dumb-dumbs. During this time, Viveros
was leaning against the car with his hands in his pocket. Flow-
ers told Williams that she had to stop because “Gary,” the cli-
ent, was nearby, and Williams then walked to her car and left.
After the incident she was asked to name the people who wit-
nessed it, and she gave a statement to the Respondent about the
incident.
Viveros testified that he left the building and walked to Aus-
tin Murphy’s car and saw Williams talking to Royster and
Murphy. When she saw him she called him a “fucking snitch.”
He said that he didn’t know what she was referring to, and she
said that he snitched on her to Flowers and he said that he only
told Flowers what she had told him and Royster. She continued
calling him names, a liar, a fat piece of shit, an idiot, stupid and
a fucking snitch. She then said that he was lucky that she didn’t
“bust you in your fat lip” and he said that, if she did, he would
call the police. She said, “You’re a snitch, snitches get stitches
and wind up in ditches.” He did not raise his voice to her. She
then said that he was being stupid and that the Union does not
represent dumb-dums. He told her that they didn’t even have a
contract, and she said that we still have the Union and he said,
“What’s a union without a contract?” She continued to scream
at him and he saw that Gary, a client, was about five feet away
and told her, “Are you screaming in front of a client. We’re

2 Flowers is Royster’s aunt and she lived with Flowers for about 6
months in 2015. In addition, Royster and Viveros dated until shortly
before the hearing commenced. Royster gave an affidavit to the Board,
but her testimony about it is so confused that it will not be considered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
supposed to be role models for them.” She responded, “That’s
Gary. Gary fucking knows me. It doesn’t even matter that they
hear.” Flowers then came out, told Gary that he should leave
the area and stood between them and Williams began to walk
away, but came back and started screaming more names at him.
She then walked to her car and left the area. At the conclusion
of the incident, Galeaz asked him for the names of the people
who were present at the incident, and he gave her the names as
well as a statement about the incident.
Although he did not testify at the hearing, Austin Murphy’s
statement about the incident was received in evidence. It states:
Priscilla approached my car, sticking her head in my window,
looking for Tony, who wasin the building. When Tony came
outside Priscilla cornered him next to the passenger door,
screaming at him. Priscilla called him a “fucking idiot” at
which time a client had approached. She then continued to
call Tony “a dumb -dumb” and “fucking stupid.” She also
told him “snitches get stiches,” and told him “I want to bust
your lip open,” and “hit you in your ugly ass face.” All of this
was going on while a client was still present. Priscilla contin-
ued calling him “stupid and childish” and screamed in his face
more, restating that he was a “fucking moron.” She informed
him that this was all over him talking behind her back and
continued to call him names in front of a client. Then Bev
came out and asked Priscilla to calm down. She would not
calm down at first, and then eventually left the parking lot
eyeballing Tony, telling him to watch his back and started
walking back towards Tony a second time. Then Bev told her
to leave and she would take care of it and she then proceeded
to her car and left, telling Tony to watch out.
Flowers testified that at the time of the incident, she was in
her office with Theresa Burley, Respondent’s program manag-
er. She received a call from Royster that Williams was attack-
ing Viveros and she immediately went to the parking lot and
told Burley to tell Galeaz to meet her there. When she got out-
side, Gary3 had his arms in the air and told Flowers, “You need
to handle Priscilla. She’s yelling and cussing.” When she got
near the car she saw Williams yelling at Viveros in his face and
repeatedly calling him a fucking liar, while he was leaning back
against the car. She tried to get between them and told Williams
numerous times to calm down and go home. Williams threat-
ened to bust him in the lip and he said that he would call the
police. She said that snitches wind up in ditches with stitches.
After about 20 minutes she was able to get Williams to go to
her car. After Williams left, Flowers told all those present that
they should meet with Galeaz to prepare statements of what
occurred. Burley testified that after Flowers received a call on
her cell phone, she left and told her to get Galeaz to come out-
side. About 5 or 10 minutes later, as she got outside, she heard
Williams yelling at Viveros that snitches get stitches. Flowers
was trying to get between them to calm the situation, saying
that Williams is supposed to set an example. Williams said that
she wanted to put her fucking hands on Viveros and he said that
they have to be adults and shouldn’t be saying things like that.

3 In the statement that she gave about the incident, she did not
mention a client being present.
Williams called him a dumb-dumb and said that they have a
union. She did not hear him yell, curse her, call her names or
threaten her. Flowers was able to get between them and Wil-
liams went to her car and drove away.
November 19 Disciplinary Meeting
On November 13, Respondent sent a letter to Williams say-
ing that she was suspended immediately without pay pending a
pre-disciplinary meeting to be held on November 18. At the
same time, the Respondent also sent her a letter entitled: “Pro-
posed disciplinary action” stating:
Please be advised that the employer is seeking discharge
based upon an occurrence that happened on 11-13-15. It is re-
ported that you approached another employee called him
names cursed at him and threatened the individual. All in vio-
lation of KCTC’s gross misconduct policies. Critical Offense:
Threatening, intimidating or assaulting an employee/ Use of
foul, vulgar language. As a result of the foregoing event a de-
cision has been made to discharge you.
Attached to these letters was Respondent’s Progressive Disci-
pline/Performance policy.
Attending the November 19 meeting were Williams, Jeff
Dexter, staff representative for the Union, and Smith, and for
the Respondent, Galeaz and Flowers. Williams testified that
Galeaz began the meeting by asking Williams if she knew the
purpose of the meeting and she said that she did. Galeaz then
gave her statements about the incident written by Viveros,
Royster, Burley, Flowers and Austin Murphy. She testified that
she started to tell them her version of what occurred on No-
vember 13, but Galeaz said that they were going to take a break
and Flowers and Galeaz left the room to make copies of the
statements; when they returned they said that they decided to
discharge her. Williams then gave them statements of the inci-
dent that she had received from Gaines, Burtis and Ayala.
Smith, who is on the Union’s bargaining committee, testified
that Galeaz and Flowers gave them copies of the statements
that they had collected about the incident and the Union gave
them copies of statements that they had gotten from three em-
ployees. Galeaz and Flowers left the office to make copies of
the statements and returned about 15 to 20 minutes later and
said that they had decided to discharge Williams based upon
the evidence that they had gotten. She was asked by counsel for
the Respondent:
Q. Would cussing alone be a critical offense?
A. Yes, if clients are around, but between staff, off
clock, I would say no.
Dexter testified that at this meeting, Galeaz and Flowers
gave them copies of the statements that they had received and
Dexter asked them to present their evidence, but they did not
respond. He asked what Williams was being disciplined for
and, again, they didn’t respond: “They only had documents.”
Dexter then said that if it related to the November 13 incident,
that was “off the clock” and he was unaware of any policy re-
lating to conduct engaged in off the clock. Williams then gave
Galeaz the three statements that they had received and asked if
they had interviewed any of those witnesses and they said that
they hadn’t. Galeaz took them and said that she wanted to make
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 13
copies of them and Dexter told her that they wanted to bargain
over the effects of the decision. Galeaz and Flowers left the
room to make copies of the statements and when they returned
she said that they had made a determination that Williams was
terminated. Dexter again said that the Union demanded that the
Respondent bargain about the impact and effects of the decision
to terminate Williams, and Galeaz said that the meeting was
over. There was no bargaining about the decision to terminate
Williams.
Galeaz testified that she and Graham decided on the evening
of November 13 that Williams would be suspended and she
was discharged on November 19. These decisions were based
upon her discussions with Viveros, Royster, Burley and Austin
Murphy and the statements that they wrote for her. At the meet-
ing on November 19, she explained the reasons why they were
meeting and gave the Union copies of the statements they had
received and asked if there were any witness accounts that the
Union wanted to present or if Williams wanted to give her ver-
sion of the incident. The only response was that Williams hand-
ed Galeaz the three statements that she had obtained, she read
them and handed them to Flowers, who also read them. They
took them to Graham and decided that the decision to terminate
Williams stood. They considered it a Critical Offense, as it
involved the use of foul and abusive language threatening em-
ployees and was gross misconduct, which provided for termina-
tion. Galeaz testified that they didn’t interview anyone other
than the four individuals who gave statements on November 13
because:
To those that were in the group in the parking lot when I went
out to the parking lot, that those were the only staff that were
out there, and…all of their statements to me stated that there
was no one else in the area.
Although normally she would ask the employee involved to
give her a statement of what occurred, in this case she deter-
mined that there was no need to ask Williams for a statement
based upon what she learned from the four statements that she
had received. In addition, the three statements that Williams
gave her on November 19 did not refute the facts regarding the
Critical Offense that she was charged with.
Flowers testified that at the November 19 meeting, Galeaz
handed the Union the four statements and asked if Williams
had anything to provide, and Williams gave her the three state-
ments that she had obtained. After Galeaz read each one she
passed it to Flowers, who also read them. Dexter asked them to
make copies of the statements and they went to Graham’s of-
fice and told her of the statements. Graham asked if Williams
had provided her side of the incident and Galeaz said that she
only provided the three statements. Graham testified that after
the November 13 incident, they asked the individuals who gave
them statements if there was anybody else in the parking lot
who would have knowledge of the events and “…every one of
the people that gave the statements said there was no one else
that was out there that seen it from the beginning to the end.”
She testified that the initial decision to suspend Williams was a
joint decision made by her, Galeaz, and counsel based upon the
November 13 incident.
Request for Information
On November 16, Dexter wrote to Graham, inter alia:
AFSCME Council 31 has been notified recently regarding
discipline being issued to Kankakee County Training Center
Employee and Union activist Priscilla Williams. It is
our understanding that this unilateral discipline occurred on or
about 11/13/2015 . The decision to discipline Priscilla Wil-
liams obviously has an impact on this employees hours, wag-
es and working conditions. With that in mind AFSCME
Council 31 demands to bargain over the decision, impact and
effects of this decision. In addition it is AFSCME’s position
that if the Employer refuses to bargain with the Union and
move forward with its discipline and /or proposed discipline,
that decision will be in violation of the National Labor Rela-
tions Act (NLRA) and will subject the Employer to an Unfair
Labor Practice.
To avoid such a scenario, we request that you retract the dis-
cipline of Priscilla Williams, and cease and desist such actions
until such time as the Employer and the Union have met and
bargained to a mutually satisfactory resolution of this issue.
Please provide me with dates that you or your representatives
is available to meet to begin the bargaining
process over this issue.
Should you refuse to respond to this demand to bargain and
/or move forward with this unilateral decision to discipline
Ms. Williams, AFSCME Council 31 will view such refusal as
a refusal to bargain and will seek resolution through the Na-
tional Labor Relations Board.
In addition, Please provide any and all information relating to
discipline being considered and administered including but
not limited to: All Employees /persons involved in the alleged
incident; All witnesses the Employer will be interviewing;
The Union steward(s) who will be present during manage-
ments interview of the alleged incident;
The names, job titles, and last known address of all persons
with knowledge of relevant facts concerning this matter;
The date of hire of all persons who are alleged to have been
involved in the alleged incident;
A copy of each of the affected employee’s evaluations and
personnel file;
The date(s) of interviews that are to be conducted and the Un-
ion Official /Steward who will be attending the interviews of
witnesses relating to the alleged incidents;
The Union steward(s) who will be present during manage-
ments interview of the alleged incident;
Documentation concerning alI the affected employee’s prior
discipline, if any;
Copies of all written or otherwise recorded statements made
to the Employer concerning this matter;
Copies of all investigatory reports concerning this matter;
Copies of all rules, regulations, laws, or standards which the
employee is alleged to have violated in this matter;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Copies of all records of any pre-disciplinary meetings which
were held concerning this matter;
A Complete and concise statement of the charges which were
issued concerning this matter;
The names, job titles, and last known address of all persons
with knowledge of relevant facts concerning this matter;
Copies of any documents which the Employer considered as
support for this disciplinary action;
Copies of any and all documents and a list of witnesses the
Employer relied on to issue this discipline.
Please respond within two (2) days of receipt of this letter.
On November 17, Graham sent an email to Dexter stating:
Meeting about this is not a problem at all. We scheduled the
pre-disciplinary meeting for Wednesday for that reason. I will
give you copies of the statements and the policy that was vio-
lated tomorrow.
Dexter testified that the Respondent replied to two of these
items, the rules, regulations, and standards requested and the
employees’ statements. He also testified that he receives a list
of Respondent’s bargaining unit employees every 3 months and
had last received the list in about October. Graham testified that
prior to the pre-disciplinary meeting she called Dexter, told him
what information she was going to provide, and offered to sit
down with him to talk regarding his request, but he never re-
sponded to this offer.
Failure to Bargain Regarding Subcontracted and
Outsourced Work
Mazzuchi testified that in about September he worked with
about 10 temporary employees who were employed by Agente
Staffing. They performed the same work as he did, and they
remained employed by the Respondent for 3 or 4 months. Dex-
ter testified that in about November he was told by Mazzuchi
that the Respondent was using temporary employees to perform
bargaining unit work.4 He told Dexter that they employed about
10 temporary employees who were performing bargaining unit
work that he normally does and that the Respondent has con-
tinued to use these employees to perform bargaining unit work.
Dexter was asked if he requested that the Respondent bargain
about the use of these employees, and he testified: “We had an
ongoing proposal from the initial point as it relates to the use
of, or lack thereof, use of non-bargaining unit personnel that we
had been representing since January 2015.” He testified that
this proposal related to both outsourcing and the use of tempo-
rary employees. Graham testified that in 2015 the Respondent
used Agente and Kelly Services to provide temporary employ-
ees to perform production work, when needed. They used be-

4 This work is also performed by the clients at the Respondent’s
facilities as training for possible future employment. It often involves
assembling products and it is performed by the clients and the
Respondent’s employees. Because it is an important tool to use for
training the clients, it is important not to lose this work so the
Respondent used the temporary employees to help complete the work
on a timely basis.
tween five and 10 of these temporary workers when needed,
depending upon the workload and used additional temporary
employees in about April 2016. She testified that she had a
conversation with Dexter about it in August: “We also talked
about it in contract negotiations that because of the way that our
business works, that there are times that we have to use temps.”
The Respondent has used these temporary employees to per-
form this work very frequently in the past, as well. Graham also
testified that at a negotiating session in April, she told the Un-
ion how important it is for them to use temps because of the
business fluctuations, and he said that it would not be a prob-
lem and that they would negotiate an agreement on the use of
temps. She testified that there was a TA on the use of tempo-
rary employees, but no overall contract agreed to with the Un-
ion. Dexter testified that he did tell Graham that he would agree
to the use of temporary workers as part of an overall collective
bargaining agreement, but no such agreement has been reached.
The other issue involving subcontracting work involves the
Respondent’s IT Department. Graham testified that in October,
Sherry Gregg, the Respondent’s IT person and member of the
bargaining unit, resigned and at the same time their computers
and servers crashed. On October 14 she sent an email to Dexter
stating:
As of last week we don’t have an IT person as she has re-
signed. This is very important position here and we will be
looking at options with this. At the present time we don’t have
anyone in house with the skills or qualifications for this job.
We are looking at outsourcing this right now until we see
which way is cost effective for KCTC. I want you to have no-
tice that we are looking at a company maintaining the com-
puters as it’s needed at this time until we decide what is best.
Dexter responded:
As I am sure you are aware, outsourcing of work without an
agreement with the Union is a unilateral change. While the
Union understands the situation, it does not negate the Em-
ployer’s responsibility to negotiate with the Union over this
issue.
Graham responded:
Yes. Until we sit and talk, we have to have someone. The
computers have went down and KCTC funding is billed
through the computer systems, plus all communication as you
know. We have the need for them to be fixed and running.
We can either schedule to meet right away or wait until Octo-
ber 21st.
Graham testified that after Gregg resigned, their computers
crashed and that they couldn’t do their billing because their
systems were down. Because she didn’t hear anything further
from Dexter about bargaining on the subject, about a week later
the Respondent employed Duratech to correct the situation and
they worked on the computer system at the facilities for about 2
weeks. In about June 2016, one of the Respondent’s servers
crashed and they employed another company, Megaplex, to
repair it and to make required changes in their computer sys-
tem. However, the Respondent has not employed anyone to
replace Gregg. Dexter testified that at a bargaining session on
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 15
October 21, the Union repeated its position that they were “en-
titled to the integrity of the bargaining unit” as it related to
temporary employees and that “when we should get an agree-
ment, with integrity of bargaining, how that would apply for
subcontracting.” No final agreement was ever reached on this
issue.
III. ANALYSIS
The principal allegation is that Respondent suspended Wil-
liams on November 13 and discharged her on November 19 in
retaliation for her Union and protected concerted activities, in
violation of Section 8(a)(3) and (1) of the Act. The evidence
clearly establishes that Williams was one of the most (or the
most) active supporter of the Union during the organizational
drive from September through December 2014 and she has
continued her support for the Union as the chief steward and
member of the Union’s Bargaining Committee. The question
therefore is whether she was suspended and discharged because
she engaged in this activity, or whether she was discharged
because of her actions on November 13. Under Wright Line,
251 NLRB 1083, 1089 (1980), in Section 8(a)(3) or (1) cases
turning on employer motivation, the General Counsel must first
make a prima facie showing sufficient to support the inference
that the protected conduct was a “motivating factor” in the
employer’s decision. If that is established, the burden shifts to
the employer to demonstrate that the same action would have
been taken even in the absence of the protected conduct.
Clearly, the Respondent was aware of Williams’ extensive
union activity, if not before the election, then certainly after the
election when she was on the Union’s bargaining committee
and was selected to be the chief steward. That the Respondent
suspended her shortly after the incident and did not question
any employee other than Viveros, Royster, Murphy, Flowers
and Burley and discharged her on November 19, without disci-
plining Viveros establishes the prima facie showing required by
Wright Line, supra. Whether the Respondent would have sus-
pended and discharged her even in the absence of her protected
activity is a much more difficult question, requiring difficult
credibility determinations regarding the events of the afternoon
of November 13. In making these findings I have taken into
consideration, and find that, considering the nature of the dis-
pute between Williams and Viveros, Williams instigated the
incident after learning from Flowers that Viveros asked her
whether what Williams said about her alleged influence at the
facility was true as Williams and Royster each testified that
when Viveros came outside Williams asked her if they told
Flowers that Williams said that she (Flowers) couldn’t fire
anyone. I have also taken into consideration the lack of evi-
dence of union animus on the part of the Respondent. During
the campaign, the Respondent only had one meeting of the
employees where Mitchell asked why they wanted a union and
that he felt that they didn’t need one. In addition, Graham told
Williams that it didn’t bother her either way whether the em-
ployees had a union or didn’t have a union. What I haven’t
considered is the Union’s argument that Williams’ actions on
November 13 were not grounds for termination because it oc-
curred after she clocked out. As the incident occurred at the
Respondent’s facility, I reject this argument.
Based upon the above, and my observation of the witnesses,
I found Burtis and Flowers to be the most credible and I credit
Flowers’ testimony over that of Mazzuchi and find that she
counseled him for interrupting work, rather than talking about
the Union and therefore recommend that this 8(a)(1) allegation
be dismissed. As regards the November 13 incident, although I
do not believe that Viveros’ actions were as innocent as is por-
trayed in his and Royster’s testimony, I credit Flowers’ testi-
mony that when she got there, she saw Gary in the area and
Williams was calling Viveros a fucking liar and was threaten-
ing to hit him. And, although she stood between them, it took a
while before she could convince Williams to leave and go to
her car. Based upon this credited testimony, I find that the Re-
spondent has satisfied its Wright Line burden and recommend
that this allegation that Williams was suspended and discharged
in violation of Section 8(a)(3) and (1) of the Act be dismissed.
Counsel for the General Counsel’s brief requests that I find that
the Respondent violated Section 8(a)(5) and (1) of the Act by
failing to bargain with the Union over Williams’ suspension
and discharge. However, as this is not alleged in the complaint,
I will not make such a finding.
The complaint next alleges that the Respondent violated Sec-
tion 8(a)(5) by failing and refusing to provide the Union with
certain of the information that it requested on November 16: a
copy of the personnel files, evaluations and past discipline of
all bargaining unit employees, and a copy of Williams’ person-
nel file, evaluations and past discipline. The evidence establish-
es that after receiving the Union’s information request, the
Respondent gave the Union a copy of the statements that it
received as well as their Rules and Regulations, but not the
other information requested, including the two items stated
above. Section 8(a)(5) requires an employer to furnish the Un-
ion representing its employees with information that is relevant
to the union in the performance of its bargaining responsibili-
ties. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979),
and information about terms and conditions of employment of
bargaining unit employees is presumptively relevant and must
be produced. It is well established that an employer must pro-
vide a union with requested information “if there is a probabil-
ity that such data is relevant and will be of use to the union in
fulfilling its statutory duties and responsibilities as the employ-
ees’ exclusive bargaining representative.” Associated General
Contractors of California, 242 NLRB 891, 893 (1979), enfd.
633 F.2d 766 (9th Cir. 1980). The personnel files, evaluations,
and past discipline of Williams and all bargaining unit employ-
ees would have been relevant to the Union in attempting to
establish disparate treatment of Williams at the November 19
meeting. By failing to furnish the Union with this information
prior to the meeting, the Respondent violated Section 8(a)(5) of
the Act.
The final allegation is that by subcontracting bargaining unit
work and using temporary employees to perform the work, and
by outsourcing the IT work after Gregg left its employ, without
prior notice to, or bargaining with, the Union, the Respondent
violated Section 8(a)(5) of the Act. As regards the allegation
that the Respondent failed to bargain with the Union about
outsourcing the IT work to Duratech, the Board recognizes an
exception in these 8(a)(5) and (1) cases where the employer can
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
establish a “compelling business justification,” for the action
taken. Winn-Dixie Stores, Inc., 243 NLRB 972, 974 fn. 9
(1979), or where “economic exigencies compelled prompt ac-
tion.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991).
The Board recognizes as “compelling economic considera-
tions” only those “extraordinary events” which are “an unfore-
seen occurrence, having a major economic effect [requiring] the
company to take immediate action.” Angelica Healthcare Ser-
vices, 284 NLRB 844, 852–853 (1987); Hankins Lumber Co.,
316 NLRB 837, 838 (1995), and the employer carries a heavy
burden of demonstrating that this particular action had to be
implemented promptly. Triple A Fire Protection, Inc., 315
NLRB 409, 414 (1994), enfd. 136 F.3d 727 (11th Cir. 1998);
Our Lady of Lourdes Health Center, 306 NLRB 337, 340 fn. 6
(1992). Even where the employer has satisfied these require-
ments, it must also demonstrate that the exigency was caused
by external events beyond its control or was not reasonably
foreseen. RBE Electronics of S.D., Inc., 320 NLRB 80, 82
(1995).
I find that the Respondent has established a “compelling
business justification” for subcontracting the IT work to Du-
ratech after Gregg resigned. The evidence establishes that its
computer system crashed curtailing its ability to bill for work
performed and, presumably, obtain funding for its operations,
and without funding, they would be unable to pay their em-
ployees. This is similar to the facts in Central Rufina, 161
NLRB 696 (1966), where the employer was in the business of
grinding sugarcane into raw sugar, a seasonal operation. After
its mill developed major mechanical difficulties, greatly de-
creasing its grinding operation, in order to avoid spoilage of the
sugarcane, the employer decided to cease grinding at a loss and
to subcontract the grinding work to other mills. In reversing the
trial examiner, and finding no violation, the Board stated:
Unlike Fibreboard and related cases, the Respondent in the
instant case was not seeking to gain an economic advantage at
the expense of its employees or of the Union. Rather, the Re-
spondent was faced not only with the inability to operate effi-
ciently because of matters beyond its control, but also, in view
of the curtailment of its bank credit on which the Respond-
ent’s operation was completely dependent, with the inability
to operate at all. It would appear, therefore, that in the circum-
stances of this case, the factors which lead to the Respond-
ent’s decisions to subcontract and to terminate its grinding are
not “peculiarly suitable for resolution within the collective
bargaining framework [citing Fibreboard, 379 U.S. 203, 213–
214];” on the contrary, it seems certain that no amount of
give-and-take in the bargaining negotiations could have fore-
stalled the Respondent’s inevitable decision to cease opera-
tions for the season.
As I find the Respondent’s dilemma analogous to that of the
employer in Central Rufina, I recommend that this allegation
be dismissed.
The remaining issue is whether the Respondent subcontract-
ed bargaining unit work to temporary employees without prior
notice to the Union and without affording the Union an oppor-
tunity to bargain about it, in violation of Section 8(a)(5) and (1)
of the Act. The evidence establishes that in September, Maz-
zuchi reported to Dexter that the Respondent was employing
temporary employee to perform work that is performed both by
Respondent’s clients and by bargaining unit employees. At the
time, the Union had an outstanding bargaining proposal that
would have restricted the Respondent from using such employ-
ees and the Respondent had not previously notified the Union
that it had obtained temporary employees from Kelly to per-
form this work. In Sociedad Espanola de Auxilio Mutuo y Be-
neficencia de P.R., 342 NLRB 458, 458 (2004), the Board stat-
ed: “the Board has held that subcontracting is a mandatory
subject of bargaining if it involves nothing more than the sub-
stitution of one group of workers for another to perform the
same work and does not constitute a change in the scope, nature
and direction of the enterprise.” Further, even where the em-
ployer had a past practice in the performance of its work, when
a union has been newly certified, the employer must bargain
with the union about “the subsequent implementation of those
practices that entail changes in wages, hours, and other terms
and conditions of employment of unit employees,” rather than
continuing the practice, as it did here. Mackie Automotive Sys-
tems, 336 NLRB 347, 349 (2001). By employing temporary
employees to perform the work that unit employees regularly
perform, without notice to, or bargaining with, the Union, the
Respondent violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to furnish to the Union all the information that
it requested on November 16, which information was relevant
to the Union as the collective bargaining representative of cer-
tain of the Respondent’s employees, the Respondent violated
Section 8(a)(5) and (1) of the Act.
4. By subcontracting certain bargaining unit work to tempo-
rary employees, in about September, without prior notice to or
bargaining with the Union, the Respondent violated Section
8(a)(5) and (1) of the Act.
5. The Respondent did not violate the Act as further alleged
in the Consolidated Complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that the Respondent cease and
desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. In this regard, I recommend
that the Respondent be ordered to negotiate with the Union
prior to employing temporary employment agency employees
and, if any temporary employees are still employed by the Re-
spondent in this unit, to restore the status quo ante by restoring
the unit to where it would have been absent the employment of
these temporary employees. Further, I would leave for the
compliance stage the determination of whether backpay is due
because of the employment of these temporary employees.
Gunderson Rail Services, LLC, 364 NLRB No. 30 (2016). I
would also recommend that within 20 days of receipt of this
Decision, the Respondent furnish the Union with a copy of the
KANKAKEE COUNTY TRAINING CENTER FOR THE DISABLED, INC. 17
personnel files, evaluations, and past discipline of all bargain-
ing unit employees and a copy of Williams’ personnel file,
evaluations, and past discipline.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Kankakee County Training Center for the
Disabled, Inc., its officers, agents, successors and assigns, shall:
1. Cease and desist from
(a) Failing and refusing to notify and bargain with the Union
over the use of temporary employees.
(b). Failing to furnish the Union with information that it re-
quested, which information was relevant to the Union as the
bargaining representative of certain of the Respondent’s em-
ployees.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Notify and bargain with the Union prior to the employ-
ment of temporary employees to perform work performed by
the bargaining unit employees.
(b) Within 20 days from the receipt of this Decision, furnish
the Union with copies of the personnel files, evaluations and
past discipline of all bargaining unit employees, including Wil-
liams.
(c) Within 21 days after service by the region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the region attesting to the steps that the
Respondent has taken to comply.
(d) Within 14 days after service by the region, post at its fa-
cility in Kankakee, Illinois, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since September
1, 2015.

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all 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
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.”
Dated, Washington, D.C. September 14, 2016
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected
activities.
WE WILL NOT employ temporary employees in bargaining
unit positions without first notifying and bargaining with Amer-
ican Federation of State, County and Municipal Employees
(AFSCME) Council 31, AFL–CIO (the Union).
WE WILL NOT refuse to furnish the Union with information
that is relevant to it as the collective-bargaining representative
of certain of our employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the rights guaranteed to you by Section
7 of the Act.
WE WILL notify and bargain with the Union prior to employ-
ing temporary employees in bargaining unit positions.
WE WILL furnish the Union with the information that it re-
quested on November 16, 2015.
KANKAKEE COUNTY TRAINING CENTER FOR THE
DISABLED, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/25-CA-166729 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.