Preterm, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1979

240 N.L.R.B. 654 (N.L.R.B. 1979)

654 DE(ISIONS OF NATIONAL. LABOR RELATIONS BOARD
Preterm, Inc. and District 1199 Mass. National Union
of Hospital and Health ('are Employees a Division
of RWDSU/AF-CIO. ('ases I CA 12325 and I
CA 12326
February 9. 1979
DE'CISION ANI) ORI)LR
B'I ('H1AIRM\N FANNIN \N) MIl IHI RS JINhlKIS
,\N) MI RPIIt
On March 17. 1978, Administrative Law Judge
Herbert Silberman issued the attached I)ecision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
then filed cross-exceptions and a brief and a reply to
Respondent's exceptions. Subsequently, Respondent
submitted a reply brief in response to the General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs.
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge, except
as modified below, and to adopt his recommended
Order, as modified.
The Respondent operates a reproductive health
care clinic in Brookline, Massachusetts. After con-
ducting a representation election in May 1975. the
Regional Director for Region I certified the Charg-
ing Party as the exclusive representative of certain
employees of the Respondent.2 Negotiations for a
collective-bargaining agreement commenced on De-
cember 1. 1975. Despite their attendance at 21 bar-
gaining sessions over a 10-month period, the parties
proved unable to reach an agreement, and the em-
ployees went out on strike on October 19, 1976. After
the strike began and prior to the hearing in this case,
the parties attended four additional collective-bar-
gaining sessions but once again were unable to reach
an agreement.
Responident has excepted Io celtlrin cledihiliht ldings iiade h Ithe
Adiilristlirtive l.aw Juidge. It is the Board's eslahlishcd poilicy 1not it rel
rule ian Admlnistrative las lJudge's iesolution, wilh respect io credihilits
unless the cleai preponlderance tf all ofhe leles ilian e lelce c ollice, I1i
tha lie res lulitons ire incorrect .Siltlld II) Ia/ P dln',h i, s.rI 91
NIlRB 544 (1951)). efdl 188 F.2d 362 (3d (d ' 1951) We ha e callslull
exlrlined the record and ind f i o basis for rscersiig his fildings
I ssenilll. the balgluilg i unl ti descrihed a1 part B.(2). of thci Admiiis-
Illaiise La.w ludge's I)ecisllln. Iclides coiunseloers. te ihol tnll li and pap
clinic ooudiilotrs, nulrses aides. ald trailnee, ad excludes secretaries
hookkeepingi eriploecs. lu rses. aind phlsistiil Irl Septeileli 1976. the
Regional D)ireclor clarified the unit and added the clasification l s 11 ricdltl
chart clerks .id.ltiiig fficers receptilloists iind malllite Ince eiplowc.
240 NLRB No. 81
After carefully examining all testimonial and doc-
umentary evidence in the record, we agree with the
Administrative Law Judge's conclusion that Respon-
dent attended and nominally participated in numer-
ous bargaining sessions without any intention of
reaching an agreement and that it purposefully en-
gaged in bargaining tactics which effectively preclud-
ed the negotiation of a contract. Thus, the Adminis-
trative l.tw Judge found, and we agree, that
Respondent persistently refused to negotiate con-
cerning economic issues despite the Union's repeated
request for such discussion 3 attempted to exclude
from the bargaining unit certain categories of em-
ployees includable under the terms of the Regional
[)irector's Certification of Representative, 4 ada-
mantl\ refused to consider anv provision concerning
union security or any alteration of its proposed vol-
unteers clause, unreasonably delayed in responding
to the Union's repeated requests for the job descrip-
tions of employees, and refused to meet with union
negotiators on a number of occasions, including dur-
ing a 2-month period after charges were filed against
the Ulnion by Respondent and prior to the dismissal
of the charges.
We further agree with the Administrative Law
Judge's finding that Respondent's conduct during
the bargaining session of October 18, 1976, the day
before the strike was scheduled to commence, consti-
tutes particularly strong evidence that Respondent
failed to take seriously its duty to bargain in good
faith. [he proposals submitted by Respondent dur-
ing the October 18 meeting were more restrictive
than agreements reached earlier or cut back substan-
tialli the then-current benefits of employees. By its
demnonstrated unwillingness to engage in meaningful
negotiation, Respondent frustrated and undermined
the collective-bargaining process. Accordingly, on
the basis of the record as a whole and in light of the
totalitv of Respondent's conduct during the negotia-
tions, we hold that the Administrative Law Judge
correctly concluded that Respondent violated Sec-
tion 8(a)(5) and (I) of the Act.
We disagree, however, with the Administrative
lawi Judge's conclusion that Respondent's position
Ilitll thc le I nion suggested that tioneconomic issues be discussed
fil. hbut laiier t requested discusslion of ages and other economic issues.
R,poindent he refused to discuss such issues for mans months In addi-
tion. sxe ote. is found bs Ie Adinistrative l.aw Judge, that Ili more than
i se;ll i re iialiioll Respondenl atal o Iille g'e the in ltin a comprehen-
.le contract draft. tho ugh it refused to use the l nion's cnlrac draft of
Decemlberl 5 1975. u a sosinkiit model fromil which to neolutiate.
4 Rcsponident did not gree accepl the Regional )irector's description
if he bahirguHIiiig unit until Novembher 19. 1976. Prior ito that date. Respon-
dclt iisisted the esclusioin from the ulit of trainees and part-time em-
plo cs who sorked lesser thln 16 hours per week. noisilhstanding the fact
that the Regiol )iector'r ( ertification of Representtre f NIa, 1975
IlLtCideld in the ilit both triices ald regular part-lime emploees.
PR I RM%, IN(. h655
on the question of manlall enlellt ilits constiluled e -
idence of a refusal t harn gaill ood faith. Respon-
dent submitted its mIlanzagement-rights propo, al dur-
ing the June 8, 1976, negotiating sessioln. It prox ded,
intltr al/ia, that except where such riglhts are specifical-
1 relinquished or limited hb the contract, the I1m-
plo ver retains all prior rights and. in addition. etains
the unquestionedl right to milnage the affairs of the
clinic and to direct the work force. In addition. the
June 8 proposal conferred on Respondent a nuimlher
of specific rights ith respect to the opera tion of the
clinic and the utilization of emplo\ees. encluding. tii-
ter alia, the right to discontinue processes or opera-
tions or to discontinue their performance ,, emplo-
ees: the right to relieve emploees frol dut\ for in
legitimiate reason in the best interests of' ellplo\ces:
the right to prescribe. modif'. and enforce reasolln-
able rules regarding discipline and work perfor-
mance; and the richt to establish contracts or suh-
contracts for clinic operations. minallI. Respondent's
proposal provided that such rights were tlunrevie\ahle
in an 5 grievance or arbitration proceedilng but that
the manner of the exercise of such rights might be
subject to the grievance procedure.
Reasoning that Respondent's chief neotia tor in
all probabilit} kne that the broad nlanagemlcnt-
rights clause he had proposed \xould he unacceptable
to the Union and would result in fruitless discussion
the Administrative Las Judge concluded that tlhe
clause in issue constituted another inldicium that Re-
spondent's conduct was designed to prolong the ne-
gotiations. We disagree. It is not illegal r we for al
employer to propose and bargain concerning a broad
management-rights clause.' Henee, Respondent did
not violate Section 8(a}(5) b the mere act of propos-
ing the provision in question. And, \while a rigid and
inflexible insistence on the inclusion in a contract of
a sweeping management-rights clause ma\ under
some circumstances constitute evidence of bad-faith
bargaining, the record reveals that Respondent did
not adopt an intransigent position wvith respect to the
provision in question. After a brief discussion of the
management-rights proposal on June 8. the parties
moved on to discuss other issues. On Aucust 19. the
Union submitted a counterproposal dealing with
management rights. On August 25. Respondent sub-
mitted its own counterproposal. which the Ilnion
agreed to accept on that date. Ilence. contrar\ to the
Administrative Law Judge's conclusion. it appears
that Respondent, though it waited 6 months t(o suh-
I' I R B ' er i Iln ' ( 4.,,t, 'n 41 t S ')
'
1 'S'
lexis Intllirs', Int, 140 NI RB 527 i29 I1() 11
I,-.. S., Is bel /h1,.,. st, e S c .,e , . 2" NI RB 11173 I7,1's hIS 1197(
Gull .orss ( hintsrs /it 224 N I RHB Its6 7' " J I}7, Il s ttl r H,7 P lJi r ;
( h' ,,i ul1,,( ,,,, (,, I, 1 1 N1 RB H I1S 9t
mlit it, initial proposal of broad mIanagement ricIts
that ere not to be re\ ie\'able in a rie\anice or arbi-
tration proceeding. did not in fact impede te negoti-
atia process ill subIIllitting its proposal.
\'e further disagree with the A,\dmlinistraItiv'e \1c
.ludee's conclusion that the bellicose and arulenInta-
tis\e hehavior of l.eon Kowal. Responldent's chief
lnedltlator. cotistituted independent e\idence of Re-
sfoident's refusall to bargain in good faith. While
Ko,\\al adl i ttedlJ entated in a Ill umber of rgcuments
\ith unilon rpresentati\es during the nectiations,
such beh;tsior often accompanies attelmpts b\ the
parties to hallmmel (out tan areemenlt and to conpro-
mise their differences. In our \ies. Koi\al's bellicose
Imaillne. standing alone, \was no1l sufficienItl\ extreme
r dis rulpt is e to constitute evidence of refusal to
balrcail inl ood faith.
With respect to Respondent's questio)ninc of its
health care emplo\ees about their strike intentions.
the \Admilistratias.e aw Judge found that Respon-
dent ma\ lax full\ engage in such qestioning but
that Resplondent \iolated Section 8a)(1) b\ telling
emllplo\ees that their jobs would he in eopard if
the\ did not respond to the questioning. For the rea-
ssiis stated bel(ow, we aree with these findings.
After the I:nion sent Respondent a 10-da\ notice
concerning .ts intention to institute a strike. as re-
quired b Section 8l of the Act. Diane Richards.
Respondent's director, instructed Preterm's supervi-
sors to ask all employees whether the\ intended to
\vorlk dfurIin the strike. Subsequentl\, Yrionne Sulli-
\aln. the coordinator of medical records and tele-
ph1(ne c ounselors s ind i\iJdua I questioned I I ern-
plo ces. asking each whether she intended to report
for \'*ork on the first day of the strike. Sullivan ex-
plained that she wuas asking for scheduling purposes.
Vv'lnle to of the questioned employees. Ann Wax
and J1 oan .Levile. refused to respond to her inquir.
Sullivan told each womrnan that if she refused to an-
sler Sullian would assume she Nwas not coming to
\ork and was therefo)re putting her job in jeopardy.
On (ctober 5. 1976. 5 da's later, Respondent cir-
culate a questionnaire aong its emploees to de-
termiric s\hether or not the\ would report for work
durin g the strike. he memorandum which accompa-
nied the questionnaire explained:
lr. Small la negotiator for the tUnionJ also
charted Preterm u-ith having committed alln n-
fair labor practice hb making inquiries concern-
ing , our intentions of reporting to work on Oc-
tober 19. 1970. We are assured we can inquire of
our emplo\ees as to their intentions of comnin
to work at the beginning of the strike. Our pur-
pose in askingyou is to make it possible to schedule
incoming patients and have employees available
PRH [RM. INC. 655
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take care of them. We want to assure you that
you are free to make your own decision. No repri-
sals will be taken against you whatever your deci-
sion may be.
If you refuse to answer, we will not know whether
you will be working and will therefore have to
schedule a replacement.
The Administrative Law Judge concluded that a
health care institution which has received a 10-day
strike notice may properly attempt to determine
whether or not employees intend to participate in the
anticipated strike. We agree. In enacting Section 8(g),
Congress was concerned about insuring the continu-
ity of patient health care. Accordingly, the Adminis-
trative Law Judge correctly concluded that once an
employer receives a 10-day notice and a strike there-
fore appears imminent he may properly attempt to
determine the need for replacements by asking em-
ployees if they intend to strike.
The Administrative Law Judge held, however, that
Sullivan exceeded the bounds of permissible inquiry
in warning employees Wax and Levine that if they
refused to answer her inquiry she would assume they
would not report for work during the strike and were
therefore putting their jobs in jeopardy. Sullivan's re-
marks could reasonably have been interpreted by the
employees as a threat to discharge them if they par-
ticipated in the strike. Inasmuch as such threats vio-
late Section 8(a)( 1) of the Act.7 we adopt the Adinin-
istrative Law Judge's holding.
In reaching his conclusions, the Administrative
Law Judge, in addition to analyzing Sullivan's con-
versation with Wax and Levine. also stated that he
believed the strict safeguards of Johnnie's Pouhltr (Co.
and John Bishop Pouhllr ('o. "should be relaxed" in
cases involving the interrogation of prospective strik-
ers by health care institutions. The General Counsel
excepted, contending that the safeguards outlined in
Johnnie's Poultrr Co., supra, and Stru.vsnes Constrluc-
tion Co., Inc.,9 should regulate the manner in which
such interrogation is dconducted. citing the Board's
decision in Commercial Manogement, Inc., 233
NLRB 665, 676 (1977).
We agree with the General Counsel. In order to
lessen the inherently coercive effect of the polling of
its employees. Respondent had an obligation to ex-
.S'irt, Dnrhritn g (Ctpam . 219 NI.RB 1046 1105) (1975). I,,,,,
(Ioqrir e (lnprc'.. 169 NLRH 290, 292 (1968X). cnfd Hi part 416 2d
1126(D(. ir. 1969): ( Ao utdrA.'l, Ia , 15 NLRB 1182, 1186 (1',166)
s 146 NI.RB 770 (1964). cIlnfoceilentl deiied 344 t.2d 617 8th (i 1965)
' 16s NlRB 11)62 (1967).
plain fully the purpose of the questioning, to assure
the employees that no reprisals would be taken
against them as a result of their response. and to re-
frain from otherwise creating a coercive atmosphere.
By the failure of its representative to comply with
these requirements in questioning a number of em-
ployees, Respondent interfered with, restrained, and
coerced its employees in the exercise of their right to
engage in protected concerted activity.
In contrast, however, Respondent's memorandum
of October 5 satisfied these requirements in full. That
memorandum explained the purpose of the question-
naire in a clear manner, informed the employees that
they were free to make their own decision, and as-
sured them that no reprisals would be taken against
them because of their decision on whether or not to
strike. Hlence, in distributing its memorandum and
questionnaire, Respondent did not exceed its right to
determine the strike intentions of its employees.
Til. RtMltl)'r
In adopting the Administrative Law Judge's rec-
ommended Order, we agree with him that backpay
shall commence for each striking employee 5 days
after he or she makes an unconditional offer to re-
turn to work. Drug Package Companym Inc., 228
NLRB 108 (1977). This provision is, however, subject
to the caveat that if Respondent herein has already
rejected or hereafter rejects, unduly delays, or ig-
nores any unconditional offer to return to work, or
attaches unlawful conditions to its offer of reinstate-
ment, the 5-day period serves no useful purpose and
backpay will commence as of the date of the uncon-
ditional offer to return. Nelport NewNes Shipbuilding
and Drl Dock Compani. 236 NLRB 1637 (1978). And
while here bound by these cases as representing the
Board majority view, Chairman Fanning and Mem-
ber Jenkins note that, in accordance with their dis-
sent in Drug Package Company, Inc., they would
make whole employees who apply for reinstatement
without a 5-day waiting period.
Respondent excepted to the Administrative Law
Judge's recommendation that Respondent be or-
dered to reimburse the employee-members of the
Union's negotiating committee for any wages lost
while attending past negotiating sessions. We have
decided to adopt the Administrative Law Judge's
recommendation. See M.F.A. Milling Company, 170
NI.RB 1079 (1968), enfd. sub no. Local 676, Labor-
er', 463 F.2d 953 (D.C. Cir. 1972). However, interest
on such wages should be computed in the same man-
ner as the interest on backpay rather than at the spe-
cific rate of 7 percent specified by the Administrative
Law Judge.
PRETERM. INC 657
Wi \\ill ,ol in an\ like or related manner
interfere with. restrain. or coerce our employees
in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
W' .l 1 . upon request. bargain collectivel\
concerning rates of pa,. wages. hours of e-
plo mcnlt. and other terms and colnditions of
ernplomnent ith District 1 199 Mass. National
ilnion of lospital and lealth (Care Emploees,
a Division of RWI)Sl ,AFL ('10. as the exclu-
si',e collective-bargaining representative of all
the employees in the appropriate unit described
below. and if an agreement is reached. \kw w\ia
embody it in a signed contract. The U[nion's cer-
tification year shall extend I ear from the date
such new hargaining negotiations begin. The ap-
propriate unit is:
All full-time and regular part-time counselors,
telephone counselors, the abortion coordina-
tor. nurses aides, superxisor of the telephone
room. pap clinic coordinator. medical chart
clerks. admitting officers, receptionists. in-
cluding the first floor receptionist and medical
cenllte'r nIl;;lner. nlailltenance cmplox\ee. and
trainees. employed at the Employer's Brook-
line. Massachusetts, location, but excludinl
bookkeeping employees. administrative assis-
tant, administrative secretar. medicll direc-
tor's secretary, all other coordinators, coun-
selor trainiig assistants, and e\xaluators.
student interns. registered nurses, licensed
practical nurses. physicians. phsicians' assis-
tanlts. guards and supervisors as defined in
the Act.
W\I \ lll reimburse eplo\ee-nlemhbers f the
union negotiating committee for ages lost, if
ain., wuhile attending past negotiating sessions.
with appropriate interest.
Wi S i. upon their application, offer imme-
diate and full reinstatement to their former jobs
or. if those jobs no longer exist, to substantiall
equivalent positions without prejudice to their
seniorit\ and other rights and privileges previ-
ollsls enjioed. to) all our emplo\ees l ho have
engaged in a strike which began on October 19.
1976, and ho have not alread been reinstated.
dismissing, if necessary. anN emploees hired as
replacements since the beginning of the strike. If
insufficient jobs are not available for these em-
ployees, they shall be placed on a preferential
hiring list and will be offered employment before
any other persons are hired for such work.
W wi llt make such applicants whole for an'
loss of earn ings. together with interest thereon.
OR[)ER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended. the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative aw Judge. as modified
below. and hereby orders that the Respondent, Pre-
term. Inc., Brookline, Massachusetts. its officers.
agents. successors, and assigns. shall take the action
set forth in the Administrative Law Judge's recom-
mended Order. as so modified:
I. Insert the following as paragraph (c) and relet-
ter the remaining paragraphs accordingl:
"(c) Coercivel interrogatinig emploees concirn-
ing their intention to work during a strike and threat-
ening job loss for failure to respond."
2. Add the phrase "as modified by the remed sec-
tion of the Board's [)ecision" to the last sentence of
paragraph 2(a).
3. Substitute the following for paragraph 2(d):
"(d) Make whole each employee-mlemlber of the
negotiating committee of the Union for earnings lost
while attending past bargaining sessions, with intelr-
est computed in the same manner as that specified b\
the Administrative Law Judge for the comiputatiaon
of interest on backpa."
4. Substitute the attached notice for that of the
Adnministrative Law Judge.
APPEtNDLIX
Noi( L( To F.I o)' ais
P()s t I) Ot ()R R U I i
N , t1N0\ I LABOR Ra I \1I(N B RD
An Agency of the Ulnited States Go\erminent
After a hearing in which all parties had an opportu-
nity to present evidence, to examine and cross-eamll-
ine witnesses, and to submit legal briefs. it has been
determined that we hax\e iolated the National I.abor
Relations Act, and we ha\e been ordered to post the
following:
WI A itl No fail or refuse to furnish the
Union. with reasonable promptness, informla-
tion dunl requested bh it concerning etlplo\ees'
wages, hours. or terms or conditions of emplo\-
menit that is relevant to the tnion's collective-
bargaining duties. including the adiliistratio0
of any subsisting contract.
Wtr. W111 No)t coercivel F interrogate emplo eces
about their intention to work durinti a strike or
threaten job loss for their failure to responid,
WiL \\ii I ci threaten to replace permanentlN
any emploNees who participate i it lawful strike
in protest of our unfair labor practices.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they may suffer by reason of any refusal on our
part to reinstate them beginning 5 days after
their application for reinstatement until the date
of our offer of reinstatement.
PRI IIRMN IN(
DECISION
SIAII-MINI Of I11t: CASI
HFRBRI SILBERMAN. Administrative Law Judge: These
consolidated proceedings were heard in Boston, Massachu-
setts, on various days between February 28 and March 31.
1977. In addition, the deposition of Yvonne Sullivan taken
on April 21, 1977, was made part of the record by an Order
issued on May 2, 1977.1 Thereafter, pursuant to leave given
the parties, briefs were filed with the Administrative Law
Judge on behalf of General Counsel and Respondent.
Upon the entire record in the cases and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS f01 FA('T
F] Ill!e BI SINtSS OF RFSPOND)IN I
Preterm, Inc., herein sometimes called the Company, the
Clinic, or the Employer, is a nonprofit Massachusetts cor-
poration engaged in providing family planning services on
an outpatient basis from its place of business in Brookline,
Massachusetts. Respondent's annual income is in excess of
$250,000, and annually it receives medical supplies, mate-
rials, and equipment valued in excess of $50,000 which are
shipped to its Brookline facility through channels of inter-
state commerce from locations outside the Commonwealth
of Massachusetts. The complaint alleges, Respondent ad-
mits, and I find that the Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II IiE I.ABOR OR(GANIZAION INSOI.V.D
District 1199 Mass. National Union of Hospital and
Health Care Employees, a Division of RWDSU/AFL
CIO, herein called the Union. is a labor organization with-
in the meaning of Section 2(5) of the Act.
II 1LE INi AIR LABOR PR Ti('CES
A. The Pleadings
The charge and the amended charge of unfair labor
practices in Case I CA-12325 were filed by the Union on
October 14 and November 29, 1976, respectively.2 A com-
plaint thereon was issued on January 5, 1977, which was
amended on February 24, 1977, and was further amended
I Upon review of the rlepositio n of Y\ionne Sullivan. I find tha ti hce ale
no pending obhectlons Io any of the answers gen] bh Yonne SulIh.an
All dates refer it 1976 unless othrvise stalted.
at the opening of the hearing. The complaint, as amended,
in substance, alleges that, in violation of Section 8(a)(5)
and (I) of the Act, since April 14, 1976, Respondent has
refused to bargain collectively with the Union as the duly
certified representative of a unit of the Company's employ-
ees, as alleged in paragraph 13, by:
(a) refusing since April 14, 1976, to submit or dis-
cuss economic proposals unless the Union agreed to a
recognition clause proposed by the Company which
would exclude certain job classifications included in
the collective-bargaining unit certified by the Board:
(b) refusing since October 8, 1976, to submit or dis-
cuss economic proposals after the Union had issued a
10-day notice of strike;
(c) making a proposal on October 18, 1976, the last
of 21 negotiating sessions before the commencement
of a strike, increasing the number of hours of work per
week required for an employee to retain or to obtain
full-time employee status:
(d) refusing to furnish the Union information re-
quested by it regarding: (I) the job classifications of
employees in the collective-bargaining unit, (2) em-
ployer and employee contributions under the Com-
pany's Blue Cross/Blue Shield health plan, (3) the life
insurance and disability insurance policies, and (4)
"the names of all employees and their wages and the
base salary for job classifications":
(e) imposing as a condition before it will make eco-
nomic proposals that agreement be reached on all
noneconomic issues despite repeated requests by the
Union for economic proposals.
The complaint further alleges that on October 19 Respon-
dent's employees went on a strike caused by Respondent's
unfair labor practices. Respondent duly filed an answer to
the complaint denying that it has engaged in the alleged
unfair labor practices.
By an Order of the Board on March 24, 1977, reversing
a contrary ruling by the Administrative Law Judge, Case
I CA 12326 was consolidated with Case I CA-12325,
and the complaint in the latter case was further amended
to reflect such consolidation and to add to paragraph 13
the following:
(f) interrogating employees about their strike inten-
tions and, at the same time, threatening permanently
to replace them, which was done on October 7, 1976,
by Respondent's agent. Yvonne Sullivan;
(g) during negotiations, on October 18, 1976, by its
agent, Leon Kowal, in the presence of employees, reit-
erating its refusal to give economic proposals because
of the pending strike notice;
(h) on October 18, 1976, by its agent, Leon Kowal,
threatening permanently to replace employees who are
alleged to be unfair labor practice strikers:
(i) threatening to replace permanently employees
who are alleged to be unfair labor practice strikers by
Respondent's agent, Diane Richards, in a letter writ-
' charge f unfaii labor pracltices as filed bh the nionl in said case on
()lohc 14
PRETERM IN('. 659
ten by her to Respondent's employees on October I.
1976.
These additional allegations of unfair labor practices were
duly denied by Respondent.
Thereafter, during the hearing, counsel for the General
Counsel made a motion further to amend the complaint h,
alleging that the incidents set forth in subparagraphs (f).
(g), (h), and (i), of paragraph 13 of the complaint constitute
violations of Section 8(a)( I ) independent of the alleged vio-
lations of Section 8(a)(5). This motion was denied. Subse-
quently. by a motion in writing dated Jul' 7. 1977. General
Counsel moved to amend the complaint by deleting sub-
paragraphs (f) through (i) inclusive from paragraph 13 of
the complaint and repeating the subparagraphs separatel
as incidents constituting interference with and restraint
and coercion of employees in the exercise of their rights
guaranteed in Section 7 of the Act. Respondent dul filed
objections to this motion. I deny the motion for the follow-
ing reasons: First, subparagraphs (f) through (i) inclusive
were added to paragraph 13 of the complaint by an Order
of the Board. I have no authority to act upon General
Counsel's motion. which would modify the Board's Order.
Second. the proposed amendment is unnecessary. The
events embraced by the allegations set forth in subpara-
graphs (f) through (i) were fully litigated at the hearing.
The complaint alleges that they constitute iolations of
Section 8(a)(1) as well as 8(a)(5). The remedN will be the
same regardless of whether or not these allegations are
pleaded as violations of Section 8(a) I ) independent of anx
other violations of the Act.
The underpinning of the complaint. as explained bh
counsel for the General Counsel in her opening statement.
is that the Company engaged in negotiations with the
Union with no intention of reaching an agreement, and the
incidents set forth in paragraph 13 are illustrative of Re-
spondent's bad faith.
B. Background
1. The Employer's operations
Preterm. Inc., operates an ambulatory clinic in the area
of reproductive health care. It provides abortion. g)neco-
logical, female sterilization. and male sterilization services.
As an adjunct to the abortion clinic, the CompanN operates
a postabortion clinic which provides checkups for patients.
The abortion (AB) clinic and the gynecological (GYN)
clinic each serve about 12.000 patients per ear. The Com-
pany employs approximately 100 persons on its regular
payroll and about 40 independent contractors, mostly ph 3-
sicians. The abortion clinic, gynecological clinic. laparos-
copy clinic, vasectomy clinic, and postabortion clinic are
staffed with lay counselors who provide the patients with
information concerning the procedures involved and other
relevant matters and, in the case of the abortion clinic, with
counselors who remain with the patients while they are
submitting to the medical procedures.
The principal management officials of the Company are
Jane Levin, its administrator, and Diane Richards, its di-
rector. Also functioning in supervisory capacities are Deb-
orah Feinbloom, coordinator for abortion counseling, and
Yvonne Sullivan, coordinator for telephone counseling and
the medical records department.
2. The representation proceedings
A petition having been filed hb the Union in ('ase I
R( 13642 seeking certification as a representative of the
(ompan's emploees and a hearing thereon having been
held, a Decision and Direction of Election was issued on
April 14. 1975. b the Regional Director for Region I. The
I)ecision disposed of arious disputes concerning the com-
position of the appropriate collecti\e-bargaining unit. ex-
cept that no determination was made with respect to medi-
cal chart clerks, the supervisor of the medical chart room,
receptionists. admitting officers. and the maintenance em-
plo\ee. in accordance with the Board's decision in Bapit
Medical (enter -Princeton. 216 NI.RB 516 (1975). and
those emploxees were permitted to vote subject to chal-
lenge. Ihe talls of ballots for the election held on Ma's 1).
1975. shows that of approximatelN 51 eligible voters, 39
,otes were cast for the Union, 3 ,otes were cast against the
Union, and 8 ballots were challenged. As the challenged
ballots were not sufficient to affect the results of the elec-
tion, the Regional [)irector for Region I issued a ('ertifica-
tion of Representative, dated May 19, 1975, certifying the
Union as the exclusive representative of the emploees in
the following described unit:
All full-time and regular part-time counselors, tele-
phone counselors, the abortion coordinator, nurses'
aides, supervisor of telephone room, pap clinic coordi-
nator. and trainees, employed at the Emploser's
Brookline. Massachusetts. location, but excluding
bookkeeping employees, administrative assistant. ad-
ministrative secretary. medical director's secretar. all
other coordinators, counselor training assistants and
evaluators, student interns, registered nurses, licensed
practical nurses, physicians, physicians' assistants.
guards and supervisors as defined in the Act.
Subsequently, on September 8. 1976. the Regional Director
for Region I issued a Decision and Clarification of Bar-
gaining Unit in Case I UC 192, which clarified the certi-
fied unit described above b adding as included categories
"medical chart clerks, admitting officers, receptionists. in-
cluding the first floor receptionist and medical center man-
ager. maintenance employee." The Company and the
Union participated in 15 negotiating sessions before the
date on which the unit clarification decision was issued.
C. he Negoiaztions
I. Introduction
Although the certification was issued on May 19, 1975.
more than 6 months elapsed before the Union requested a
meeting with the Company. The explanation for the dela
is that, because there was a large turnover of personnel
during the summer months. the employees waited until the
work force had become stable before thes hegan to draft
their contract demands, and in consequence it was Novem-
ber before thes were able to assemble their proposals.
PRETERM, IN.
Yvonne Sullivan, coordinator for telephone counseling and
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company was represented at the negotiating ses-
sions by its attorney. Leon Kowal, who sometimes was as-
sisted by his associate. Harold Kowal. Jane Levin and Di-
ane Richards also attended negotiating sessions, although
neither attended all the meetings. The union representa-
tives at the negotiating sessions were its president, Elliott
Small, and its organizer. Deborah Megrian. Another or-
ganizer, Ken Allen, attended the December 1, 1975. meet-
ing but thereafter resigned his position with the Union and
attended no later meetings. Elliott Small attended all meet-
ings except those on December 1. 1975, and February 9
and August 19, 1976. Deborah Megrian attended all the
negotiating sessions except the one on June 14. In addition
to the union representatives, the employees were repre-
sented by members of their negotiating committee. The
committee was informally selected. In practice, anyone
who volunteered to attend a negotiating session was
deemed a member of the committee. From time to time,
members of the Union's negotiating committee prepared
and circulated among the Company's employees newslet-
ters which described the progress of the negotiations and
other matters of interest to the employees.
The Company and the Union participated in 25 negoti-
ating sessions between the first meeting on December 1.
1975, and the last meeting prior to the hearing in these
cases on January 24, 1977. There were 21 meetings between
December I, 1975, and October 19, 1976, when the em-
ployees went on strike. The last nine meetings preceding
the strike were conducted under the auspices of Federal
mediators, as were the four meetings held thereafter. The
principal issue in this case is whether the Company partici-
pated in the negotiations with a good-faith intention of
arriving at a collective-bargaining agreement if possible or
whether the Company attended meetings, exchanged pro-
posals, and engaged in related activities merely to convey
the appearance that it was engaged in collective bargain-
ing, although it had no intention of reaching an agreement
with the Union a tactic which is calculated to frustrate
negotiations, disillusion employees with their representa-
tive, and undermine the strength of the Union. Subsidiary
to this basic question is whether certain conduct of the
Company, independent of the Company's general negotiat-
ing tactics, constitutes violations of the Act.
The Company adduced considerable testimony about
events not directly related to the negotiations, such as the
distribution of handbills to the neighbors of Mrs. Levin
and Mrs. Richards. damage to property of the Clinic and
of its principals (for which union responsibility was not
established), and union misconduct in connection with the
picketing of the Company's premises. Events occurring
away from the negotiating sessions can influence a party's
attitude in regard to the bargaining.4 The strike and other
conduct was intended to exert pressure on the Clinic to
conclude an agreement with the Union. However, such tac-
tics can backfire, and instead of weakening resistance to
the union's demands they sometimes strengthen the em-
ployer's resolve. In this case the strike and the other pres-
sures against the ('ompany were not successful. I have giv-
4See af/et ar l r/s. Inr . 233 NRB 107' (1977).
en consideration to the evidence adduced at the hearing
regarding such extraneous events, and in reaching my deci-
sion I have taken into account the fact that a firm resolve
not to capitulate to a strike, to force, or to other pressures
exerted away from the bargaining table is understandable,
is not unlawful, and does not evidence bad faith in the
collective-bargaining negotiations.
The principal witnesses in regard to the negotiations
were Deborah Megrian for the General Counsel and Leon
Kowal for Respondent. Both Megrian and Leon Kowal in
large part depended on notes, which they and others had
taken, to describe the transitions about which they testi-
fied. There is considerable conflict between the testimony
of Mrs. Megrian and Mr. Kowal. The latter undertook the
difficult task of representing Respondent in the hearing of
these proceedings and also offering himself as the principal
witness for the Company. The transition from advocate in
the case to a witness in the case is difficult to make. In this
Leon Kowal was unsuccessful. His testimony, which re-
flects his passionate advocacy of his client's cause, went
beyond the recitation of events as he remembered them to
include perorations justifying his bargaining conduct and
angry outbursts. Megrian was an unruffled and straightfor-
ward witness. Although I do not accept all her testimony, I
find that she was more creditable than Leon Kowal and
was generally a reliable witness.
There were 14 days of hearing in this matter, and many
exhibits were introduced in evidence. To summarize all the
testimony and to describe all the exhibits would unduly
lengthen this Decision. My discussion of the evidence is
limited to such facts as I believe are helpful in describing
the bases for my conclusions. The description below as to
what transpired at each of the meetings purports neither to
be complete nor to set forth the topics discussed in the
sequence that they were discussed. However, my findings
are derived from consideration of all the evidence adduced
at the hearing, including the conflicts of testimony, and not
from just the events herein summarized.
2. The meetings
December 1, 1975: Present were Leon Kowal, the Com-
pany's attorney and principal negotiator, Union Organiz-
ers Ken Allen and Deborah Megrian, and four members of
the bargaining committee. No substantive subjects were
discussed. Allen promised that he would mail to Leon
Kowal the Union's demands. Allen suggested, and Kowal
agreed, that the negotiators would consider and discuss
noneconomic issues before the economic issues.
On December 5, 1975, the Union mailed to Leon Kowal
a draft of a contract and additional departmental de-
mands. The items are simply phrased and not lengthy.5
December 29, 1975, andJanuarv 26, 1976. These sessions
In ts brief. in explaining why the negotiations were protracted. Respon-
dent asserts that each of the nion's demands "had to be reviewed b the
Respondentl and a response prepared. Review included the cost of each
dema;d." It is noted. howvever, that no eidence was adduced that Respon-
dent had attemlpted to compute the cost of an); of the Union's demands. At
lnone of the bargaining sessions did Respondent advert to the cost of an
itnll Iii support f its positiotn in regard thereto. Also. responses were not
subitted all the nion's demands. and no response whatsoeser was
suhnmiltted to any of the s-called departnlental demarlds.
PRETERM. INC. 661
were devoted to a review and discussion of the Union's
contract proposals. At the December 29 meeting. the
Union requested that the Company furnish job descrip-
tions for all the bargaining unit positions and information
regarding its life, health, and disability insurance, including
Blue Cross/Blue Shield, which it currently was providing
its employees. The Company promised that it would give
the Union the requested information. 6 At the January 26
meeting, the Union submitted to the Company 16 demands
on behalf of the abortion counselors and 4 demands on
behalf of the gynecological counselors.7 There was very lit-
tle discussion of the various departmental demands, and
after the strike began the Union offered to withdraw all the
departmental demands. Also at the January 26 meeting.
Union President Elliott Small reaffirmed the under-
standing that the noneconomic issues would be discussed
before the economic issues.
February 2. At this meeting the Company submitted
several proposals, which are set forth below.
a. Recognition
In its contract draft (GC-3),8 the Union included the
following recognition clause: "Those covered under the
contract will be all aides, counselors, telephone counselors,
receptionists, chart room people. autoclave technicians,
and maintenance people." The Company's proposal (GC
4) was as follows:
The Employer recognizes the Union as the collec-
tive bargaining agent for the following classifications
of its Employees who are employed at its location in
Brookline, Massachusetts:
All full time Abortion Counsellors. Gyn Counsel-
lors and Telephone Counsellors:
Excluded are all other Employees including:
Nurses Aides,
Office and Medical Clerical Employees.
Bookkeeping Employees.
Medical Chart Clerks.
Administrative Assistant.
Administrative Secretary.
Coordinators.
Receiptionist. Office Clerical.
Admitting Officers,
Counsellor Training Assistants and Evaluators.
Supervisor of Telephone Room and Medical Chart
Room.
Student Interns,
Trainees.
Registered Nurses.
Licensed Practical Nurses.
Physician's Assistants,
"On Septemher 8. the ('ompans gae the k non a bookiel describieg lie
emplotees' Blue (ros Blue Shield coserace It uas not until \osxernthr 2t
that the ( ormp.lans prolided all the inforritiion that the l Tinll prelousl
had requested
Stmilar departmental demands had heen suhbmitted iih the D)ceciil
contract proposals cioerine nurses llides. Iitluoclae technlcll.is .Inl ICei-
phone counselors
f8 or reference purposes the exhibit number, of sarioul docutu'ls in
esidence ill he noted i.( (' "or "R "
Registered Nurse Practitioner.
Doctors.
Medical Center Manager,
Maintenance Employees,
Guards and Supervisors within the meaning of the
Act.
For the purposes of this Article only Employees
who are regularly scheduled and are regularly em-
ployed for 20 or more hours per week shall be consid-
ered full time employees.
The Employer agrees to meet and bargain with ac-
credited representatives of the Union on all matters
pertaining to wages, hours and conditions of employ-
ment.
Although the Union's recognition clause is inartfull,
phrased, in general it includes the classifications described
in the May 19, 1975, certification plus the undetermined
classifications referred to in the Decison in ase I-RC
13642. The recognition clause submitted by the Company.
on the other hand, almost completely ignores the Decision
in that case, which, over the objections of the Employer.
specifically included in the appropriate unit the following:
part-time employees; nurses aides: abortion coordinator:
supervisor of telephone room; pap clinic coordinator; and
trainees. Nevertheless. these classifications-as well as the
classifications which were permitted to vote subject to
challenge- were excluded from the recognition clause pro-
posed by the Company. Leon Kowal's explanation for
these deviations from the certification is that the Union
was "seeking to negotiate into the contract the four chal-
lenged positions: and frankly, my first instinct was, since
thev were trying to add some, I would leave a few out to
negotiate." However, the difference between the Union's
tactic and the Company's tactic is that the Union sought to
include in the recognition clause the classifications as to
which the Regional Director had deferred decision, while
the Employer sought to exclude not only those classifica-
tions but also classifications which were specifically includ-
ed in the certified unit. Although in the course of bargain-
ing the Employer receded to some extent from its
obstructionist position regarding exclusions from the certi-
fied unit. it remained steadfast in its insistence that part-
time employees (except those who work at least 20 hours
per week-later changed to 16 hours per week) and train-
ees should be excluded-despite the language of the certifi-
cation .
During the discussions at this meeting, it was agreed that
the abortion coordinator should be included in the recog-
I helie Rcion.al I)lrectr mnade the flloing finding in the Dt)eciin and
)irection of iection i ( ase I RC 13e42: 1 lie tntpIocr claissfle, .all
cnllploees uhtl, uo .r more thn 32 hours per neck as fulil-illlle id tll uhio
o.rk less .as 1p rl-time It is ell scitled that regiularl s chedtled parl-tinic
cnlplo ees re icluded in the unit ulih full-time ernplosees I liitel, SIiiti
( ai .tfh. a (r.up, 213 N .RB 321 ( 1
9 7
41 Itur( /-( ln ,t,,, .;p'.I
i., 141 NI RB 24). 244 245 [ 19631 Iheretore. ll regular prt-inl eitmplo\-
ees Hi), ork 11 lobh clilsiflcalluon, i the unit described intrl re nicluded i
the (it" I he fa[ lhatI the I nu nas iu lhne to nm.lke sitie ot IIe S [
lioAred the I plo\er' p lllon h\ ecluding frolu the unilt palt Ilti erll-
plo, ee uho uork less Irthan 12 houtrs per eek erelk suggests hi the
I Ilion n\.lk ullinllg I i bh lld to the ( ompaln'\s ilr.nslgentce n1d nl [ tha[ht hCe
( opAi had i , li. re on for seeking to niodifl tIhc Ccrl fiti.ll on, ill le
.lrd it ip l-lllllCe enpl]"ec,
PRETERM. INC. 61
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nized unit and that the supervisor of the telephone room
and chart room should he excluded. Also, it was agreed to
exclude the supervisor of Saturday counselors. m](
b. Seniority
The Company's proposal (GC-5) is as follows:
(a) Seniority shall be based upon length of service
and shall he applicable solely within classifications.
(b) Seniority shall become effective upon the com-
pletion of an Employee's probationary period and
shall begin from his/her first day of employment in
the classification.
(c) The probationary period shall be 3 months of
continuous employment from the date of hire, during
which time the Clinic, at its sole discretion may termi-
nate said employment. If an Employee accepts a posi-
tion in another classification she will be on probation
for an additional 3 month period.
(d) The principle of seniority shall be recognized in
the laying off and rehiring of Employees insofar as it is
consistent with efficient operations.
Where a layoff is to occur the Clinic will attempt to
apply it in the following order within each classifica-
tion:
1. Temporary Employees
2. Regular part time Employees
3. Regular four day Employees
4. Regular 5 day Employees
Where it is necessary to lay off 4 and.or 5 day Em-
ployees and part-time positions are available said Elm-
ployee may elect to work part time with the 5 daN
Employees having the first option in order of their
seniority. Recall of Employees will be made in the in-
verse order of seniority in the same manner as de-
scribed above.
(e) An Employee shall cease to have seniority rights
if:
(I) He/she quits voluntarily.
(2) He/she is discharged for proper cause.
(3) He/she is absent for five (5) consecutive work-
ing days without notifying the Clinic.
(4) He/she does not return to work within three (3)
working days after being recalled by the Clinic by a
letter sent by registered mail with return receipt re-
quested, addressed to him her at the last address he
she has given the Clinic.
(5) He/she exceeds a leave of absence without writ-
ten approval of the Clinic.
(6) An Employee has been on lay off for a period of
9 months or length of service in their classification.
whichever is sooner.''
This is an extremely restrictive proposal which was
bound to develop controversy. First, it gives the Employer
I inda (hirchirello, the 1ccupanil (o Il l p i .110 ltl6 , p cuirmluted 1o1 ilt
under challenge hec;ause on Ihe rc.ord heflie liltt the KRegilnl [)de)1l il
a;,U unalhle to deterTilne her super,isor s1.AL1u
tlhe Unon' cltract draft also irllC des al enitrlt? loiltti
wide discretion in its application, as the principle of senior-
ity is recognized only "insofar as it is consistent with effi-
cient operations." Second, seniority accrues only after
completion of a 3 months' probationary period. Third, se-
niority applies within classifications only. Thus, employees
who change positions within the Company lose their ac-
crued seniority: and some classifications have very few em-
plovees, so that as to them the seniority proposal is almost
valueless. Fourth, although 4-day and 5-day employees
theretofore had been considered by the Employer full-time
employees. the Company's proposal gives preference to 5-
day employees over 4-day employees.
c. Grievance procedure GC 3I and arhitration (GC-14)
The Company's proposals in regard to these topics differ
from the Union's proposals. Agreement on an arbitration
provision was reached at the June 28 meeting, but there
was no agreement as to a grievance procedure. The Union
objected to the Company's proposed grievance procedure
because: (I) a grievance at the first step had to be in writ-
ing: (2) a grievance had to be signed by an employee and
could not be signed by the Union: and (3) the employees
were given 5 days from the date of the occurrence, rather
than from the date on which they obtained knowledge of
the occurrence, within which to file a grievance.
d. Bulletin hoard
The employer submitted the following (GC' 16):
The Clinic shall provide a Bulletin Board for the
purpose of posting notices of Union meetings or
Union activities. No statements derogatory of the Em-
plover shall be posted.
The corresponding provision in the Union's contract
draft is as follows:
I. A representative of the Union shall have reason-
able access to the Employer's premises for the purpose
of conferring with the Employer, delegates of the
Union and/or Employees, and for the purpose of ad-
ministering this Agreement.
2. The Employer shall provide Bulletin Boards
which shall be used for the purpose of posting proper
Union notices. Such Bulletin Boards shall be placed
conspicuously and at places readily accessible to
workers in the course of employment.
Agreement was reached with respect to the Company's
bulletin board proposal at the June 14 meeting.
e. Meetings
The ompany submitted the following proposal (GC-
12):
Employees who are required to attend Clinic meet-
ings for any purpose shall be paid for time spent at
the appropriate hourly rate.
This provision was agreed to in June.
PRETERM, IN('. 663
f. I olut feerv
The Compan submitted the following proposal (ti(
17):
It is understood and agreed that the principle of
using volunteers in connection with the non-profit and
community related interests of the clinic shall be
maintained. Employees shall cooperate fully with vol-
unteers.
The Union was willing to accept the provision provided
that language was added to the effect tnat volunteers
would not be used to displace bargaining-unit employees.
At this meeting and at subsequent meetings, this proposal
was the subject of considerable discussion. While leon
Kowal insisted that it was not the intention of the (ompa-
ny to replace employees with volunteers and that the ('om-
pany had not done so in the past. he was adamant in his
refusal to consider the modification suggested bh the
Union. His objection was that conflicts of opinion could
develop as to whether or not volunteers were used to dis-
place bargaining unit members and that such disputes
could lead to a plethora of arbitrations. It would not seem
that the language proposed bh the Union , namel. that vol-
unteers would not be used to replace bargaining unit em-
ployees. would, in practice, be subject to misinterpretation
or would prevent the Employer from expanding its use of
volunteers as its activities increase.
At this meeting the Union again requested that the ('om-
pany furnish it with job descriptions.
February 9. Elliott Small did not attend this meeting.
and Organizer Deborah Megrian acted as the Union's
spokesman. Leon Kowal complained about the fact that
Mrs. Megrian was the third union representative with
whom he had to negotiate since December I. 1975, and
also complained about what he considered to have been
delays caused by the Union in the negotiations particu-
larl the hiatus between the certification and the first meet-
ing on December 1. 1975.
There then was considerable discussion not about the
inclusions or exclusions from the unit but about what pro-
cedure could be followed to resolve the so-called chal-
lenged positions. Leon Kowal explained that a unit clarifi-
cation proceeding could be brought or the Company could
refuse to bargain and the unit then would be resolved in an
unfair labor practices proceeding but that either route
would take a long time. 2
At this meeting the Compan? submitted a proposal re-
garding workweek. In its contract draft. the Union includ-
ed the following:
1L teol Koual testified that "l.\ rellor i no, 1I1lta tenc \il ee1tlllil
[f-ehruar 5 9. thre in the nursec aide, ailld Ihe aut cla. i l C ttlt Cilll thiI
ended mn part of the agreelienti. aid oin thatt da. l Io this da~. he oiix
thing uc %e cCIer discussed as far its aL , o nlcectC d lh.lt the routglltiin
clait el, il least ti he hre ,tf ix ntnirx. ht I xlid it he t rlln I,
re,ognie an classifications hich u ete In t certfied h the hBoir "Ird I do
nol credit this lesinlo '. the ncitliotn anld ¢ei nuItnt, frOIll the unit sele
a recurrcnl ubject of d iscUtiSll drilltite The c ottLi. otit illd I cl K-tll'
testinoin cstahlishes that, at lcat i th resplc t ," p ai t lt ien cl ,oce , tid
trainees. Ihe ( mplpan\ at 1i tI a LepCP d hc detcrIte lliltllll rlected I-
the Regional l)lrector, coItl on I t d )lreCtllr i I lelon itld ( criltli-
ttiiti
Hours The regular workweek for all full-time em-
ployees shall consist of 32 hours per week.
Employees get I 2 hour out of every 4 hours sched-
uled work. t he taken whenever and in however many
installations employee wants. taking into consider-
ation clinic needs. mploees are to be paid overtime
if the, aire unable to take the full break.
Ihe Company submitted the following proposal G(' 1):
.4 BOR OI'N ('OL NS'ELORS .-I'I) ('N (')'.N'SE-
LORS WORK WEEK
(A) It is understood and agreed that the operations of
the clinic are conducted six da's per week. consisting
of several different hourl 5 working schedules each daN
within the hours of 7:00 am. to 10:30 p.m.
(B) the (linic shall from time to time establish dailv
and weekly work schedules as required to meet its op-
erating needs, providing however that no Employee
shall e scheduled for more than 5 days per week with
a dail, schedule not to exceed 8 hours of work:
(() here sill be 45 minutes of off-duty time with pa
during each full days work to be taken in 15 minute or
longer segments at times directed or appro.ed b\ the
tmrployee's Supervisor.
Section A of the Cnompanv's proposal was agreed upon.
Fhe Union requested that section B include language to
the effect that schedule changes would not be made arbi-
traril. capriciousl . or in bad faith. No agreement was
reached on this. Paragraph C represented a diminution of
an existing benefit. because employees had been receiving
60 minutes' time off during each workda . l.eon Kowal's
expla nation for this latter change was that many employees
do not work their full shift but go home when their patient
load is completed and that therefore breaktime should be
reduced. The Union's position was that it wished to retain
the present breaktime of I hour. The Union also objected
to the provision that breaks would be taken onl, at times
directed or approved by the employee's supervisor. al-
though it was willing that some language be included that
breaks could be taken so long as it was conducive to run-
ning the clinic. Kowal ultimately ended discussion of this
subject b\ saying that the question of whether the emplo,-
ees should have 45 minutes or 60 minutes for their breaks is
an economic issue which should be deferred."
Also at this meeting. there was discussion about job de-
scriptions. Leon Koxal stated that the Company \would not
provide the Ulnion with job descriptions because the ('om-
pany did not desire job descriptions to be included in the
contract. Megrian responded that the Union did not wish
to incorporate the job descriptions in the contract.
lMarch I:. Kowal repeated for the benefit of Small, who
had not attended the February 9 meeting. the Board proce-
Ilitl.ll l 111. i I l ctlleettln lie ( onl pall \ had siuhlllitted .i liige ;tid
mmoe oiiiplied .,ork, ceek p op al hih ;iliOvn thel tIiilg plO'\lde,
thait [he ictltr uorktcck for [ ll-tliic iheortlit id g nccoiluo l il.] cOItiic-
lrs, ilil ce S CInCitI.C .1ix. (R 4). hlerl atc ( onipiux prailtc is,
to 'tl~ier 4-dtaN cemplce, ix eill %d.i x einplo,. fitil-tLillc elnploC-
cc, t icl t ic ( oitipitix itttildrec tiN, propoal ind lbllitled t he po-
i"l ']' l - bsc
PRETERM IN. i3
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dures available to resolve whether the challenged classifica-
tions should be included or excluded from the unit. The
Union indicated it was willing to exclude the maintenance
person from the unit.
The Company's recognition clause proposes to exclude
from the unit part-time employees who work less than 20
hours per week. At this meeting the Company offered to
reduce this figure to 16 hours per week. The Union indi-
cated that it was willing to consider 12 hours per week as
the cutoff figure.
There was discussion of the probationary period. The
Union was willing to accept a 90-day probationary period
provided that the probationary employees receive employ-
ee benefits after 30 days of employment and be subject to
the union-security clause requiring membership in the
Union within 30 days. This was not accepted. The Com-
pany's proposal regarding probationary employees was
more complex than appears on the surface. The counselors,
which were the only classifications included in the unit
pursuant to Respondent's proposed recognition clause, had
to serve a training period, and therefore as trainees they
were excluded from the unit, as defined by the Company,
while they were serving their probationary period. In the
posture of the Company's recognition clause (GC4), its
probationary period clause (GC-5) (both of which were
submitted at the same meeting on February 2) had little
meaning and led to discussion which was without point
until such time as Respondent was willing to agree to a
broader unit than is reflected by its proposed recognition
clause.
The Company offered to include in the unit full-time
nurses aides and autoclave technicians IS if the Union
would exclude all challenged positions and trainees who
have worked less than 90 days. There was no agreement on
this proposal.
There was discussion of the Company's workweek pro-
posal, but neither party receded from the position taken at
the February 9 meeting. The Company again suggested
that discussion of paid breaktime be deferred because it
was an economic issue.
The Union again asked for job descriptions.17
Eileen Wachs, one of the Union's negotiating committee,
complained about the fact that Leon Kowal referred to the
members of the negotiating committee as girls instead of as
4 the training period for AB and (iYN counsehors s 90 da.Is It aIs
somewhat less for telephone counseliors
l' Alihough utoclave technicians are nol referred t in the cernificatIni
the parlies deemed them to he nurses aides.
Diane Richards testified that we agreed at that meeting March I ) th
the hargaining unit ,%as eslahlished, except for those people ' hose job fell
within the challenged categor. I find thi, tesiimon incorreci. II io 1oled
Ihal the ( mpan 's pr clice during the neegotiitions as to subil It s 1lo-
posals and revised proposals i writing. hut the nl w ritten proposal uh-
mitted bh the (ompnln? with respect to the reogliition clause was the olne
submilted on ehruar, 2
17 Richards testified Ihat the t nl'on requested the obh descriptiolns ind lie
(iompany's response was thau thes would be furnished. Megrian tesiified
Ihal in response to the request for job descriptions Leon Koyal said thal the
employees could get them from their supermsisors and "he knew that Beiss
Neale hld the job descriptions anid Ilhat we had tinlet Aid thai she had
gotten them from her superlsort . Mr. Sull said io Mr. Koai. the
union has requested the ob descriptions it the ahle. We uould like soll to
proside them to us a the tabile"
women and said the committee felt that the use of the term
"girls" was insulting and demeaning. Kowal apologized
and explained that he did not intend anything uncompli-
mentary by the use of the term.
March 8: At the opening of the meeting, Betsy Neale
read a statement relating to International Women's Day.
The statement ended with a sentence admonishing Leon
Kowal for using the word "girls" when referring to female
members of the negotiating committee, because the com-
mittee considered the term diminutive and disrespectful.
According to Richards, Leon Kowal became "very angry
and said that [he] resented the fact they had formalized
their request into a written document." A union newsletter
described Leon Kowal as having "exploded in a character-
istic temper tantrum." (GC-63.) 18
There followed discussion about the recognition clause,
including an exchange of views regarding part-time em-
ployees and the challenged positions. Leon Kowal made
the statement that the Company would make no economic
proposals until it knew who was in the bargaining unit, that
is, until an agreement was reached regarding the recogni-
tion clause.
There was further discussion of the Union's request for
statistics as to the number of employees who had been
terminated after having worked more than 30 days but less
than 90 days. This was in connection with the Company's
insistence on a 90-day probationary period. According to
Leon Kowal, "I didn't see why we should give it (the re-
quested information) to them." Also, Kowal informed the
Union that they were not entitled to a job description for
the position of receptionist because, as a challenged classi-
fication, "[i]t was outside of the bargaining unit."
At this meeting Small requested the assistance of the
Federal Mediation and Conciliation Service, because the
negotiations were being interrupted by angry outbursts and
very little progress had been made. He cited as an example
that the parties had not even agreed upon a recognition
clause. The Company rejected the suggestion.
On March 8, following the negotiating session, in a tele-
phone conversation with Diane Richards, Small said that
by continuing to use the word "girls" in referring to the
negotiating committee Leon Kowal was creating hostility
and was making it impossible to proceed with the negotia-
tions, that both sides wanted a contract. that the Union
was not seeking to destroy "your organization," and that
"you might want to consider getting another lawyer."
On March 29, the Company filed a charge of unfair la-
bor practices against the Union-Case I-CB-
3243-alleging that the Union had violated Section
8(b)( I )(B) and 8(b)(3) by restraining and coercing the Em-
plover in the selection of its representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances and by refusing to meet and negotiate a
collective-bargaining agreement with the Employer's desig-
nated representative. By letter dated May 11, 1976, the
Employer was notified by the Regional Director that a
complaint would not issue in the matter. The Employer
I L.eol Koual has a volatile temperament and during the negotiations
[requentlll engaged In angr) outbursl. Also, on occasion, he and Small ex-
cha.ngcd in1sls,,
PRETER1. INC. 665
appealed this decision. which was denied by letter dated
June 17, 1976.
While the charges were pending the (Company refused to
meet with the Union.
June 8. 976. There was further discussion of the recog-
nition clause. The union representatives informed Leon
Kowal that they would no longer discuss an' classifica-
tions specifically included in the unit certified by the
Board. The discussion at this meeting then centered about
the challenged positions.' The parties also discussed the
probationary period clause. To the Union's proposal that it
would accept a 90-day probationary period provided the
union-securit clause would apply to probationary employ-
ees and benefits for probationary employees would begin
after 30 days. Kowal responded that benefits for proba-
tionary employees was an economic issue and should not
then be discussed. At this meeting. also, in connection with
the parties' discussion of a recognition clause. Kowal stat-
ed that he was not going to submit any economic proposals
until he knew who was in the unit fr which he was bar-
gaining.2
At this meeting the Company submitted a proposed
management-rights clause (GC 18). as follows:
Except where such rights, powers and authorith are
specifically relinquished. abridged, or limited b the
provisions of this contract, the Employer has and will
continue to retain, whether exercised or not, all of the
rights, powers and authorit5 heretofore had by it, and
except where such rights, powers and authority are
specifically relinquished,. abridged or limited bh: the
provisions of this contract, it shall have the sole and
unquestioned right, responsibility and prerogative of
management of the affairs of the Employer and direc-
tion of the working forces, including but not limited to
the following:
A. To determine the care, maintenance and opera-
tion of the equipment and property used for and on
behalf of the purposes of the Employer.
B. To establish or continue policies, practices and
procedures for the conduct of the EmploNer business
and, from time to time, to change. add, or abolish such
policies, practices or procedures.
C. To discontinue processes or operations or to dis-
continue their performance b employees.
D. To select and to determine the number and
types of employees required to perform the Emploc-
er s operations.
E. To employ, transfer, promote or demote employ-
ees, or to lay off. terminate or otherwise relieve em-
ployees from dutN for lack of work, changes in type of
service or other legitimate reasons when it shall be in
the best interests of the Employer.
L eon Kowal esttfied that a. of ane 8 there u.s no dltigr'. llcn lt 'o 11I
regard ti tihe ompositin of Ihe recognlzed i11ni c.crp fr tIhe 1h.llcncd
plslllon. tI his tesinlonN is Inc'orretl A\ IhI aT date, he ( 1ill',ins h1.1d nit
Stuhlblll ed in writing an\ Ch.li it, or i ...lllIfChIIn of it1 lrlll1,ll Ict. OgllilllO
clausc. and the (ompan' it n ill tc d rrll ll e c itltg.litl,li t l l.t .lttlJ it
agreemeni I nclude all part-lime enipl, c'. and lil lee, in thl ite oCt tllli
unit
t iane Richard denied tIhi ll Small' , tc tiitt11\1 thi Ku.ll i.ld hie
U, ould not st1 tie Ckollt 11111t 1 ?1 S uill the 11 i ih. ligili 111 II t ,ftleitll i .Nd,
resoh ed I d nt redit Rlt lir, i Il lli rinl[th
F. To prescribe. modify and enforce reasonable
rules and regulations for the maintenance of discipline
and for the performance of work in accordance with
the requirements of the Employer. provided such rules
and regulations are made known in a reasonable man-
ner to the employees affected b them.
G. To insure that related duties connected with
clinic operations, whether enumerated in job descrip-
tion or not, shall be performed by employees.
11. To establish contracts or subcontracts for clinic
operations.
1. To provide such services to the community as
prescribed by the Clinic to modifv or withdraw said
services at the discretion of the Clinic.
J. All work customarily performed by the employ-
ees of the bargaining unit shall be continued to be so
performed unless in the sole judgment of the Em-
ployer. it can be done more economicallN or expedi-
tiouslv otherwise.
K. The above rights, responsibilities and preroga-
tives are not subject to review or determination in any
grievance or arbitration proceeding. but the manner of
the exercise of such rights may be subject to the griev-
ance procedure described in this contract.
In addition to assigning to the Company in general lan-
guage the broad and unquestioned prerogative of man-
agement of the affairs of the Employer and direction of the
working forces," it also. among other things, assigns to the
Fmploer the unrestricted and unlimited right to transfer.
demote. or terminate employees when the Employer deems
it in its best interest, the unilateral right to prescribe rules
and regulations, and the unilateral right to subcontract unit
work, all of which are not subject to review under the
grievance and arbitration clauses. The net effect of the
('ompanL's management rights proposal would be to ren-
der almost meaningless the tlnion's status as representative
of the (Company's employees. For the Emploer to present
so extreme a management rights clause was knowingly to
invite disagreement, and although later modified, it con-
sciously served to impede and delay agreement.
The Uinion at this meeting submitted a maternitv leave
proposal. Among other things. it provided that a pregnant
emplo'ee will he permitted to work until the expected date
of delivers. provided her physician certifies that she is able
to work. This proposal caused considerable discussion
which was concentrated upon the question of whether
abortion counselors should be permitted to work after thes
become visibly pregnant. The Union's position was that it
would be discriminatory to deny an abortion counselor the
right to work if she was physically able, even though visibl
pregnant, although it suggested that the abortion counselor
could be given the option of accepting another assignment.
June 14. At this meeting agreement was reached with
respect to seeral clauses. The Company accepted the
Union's visitation clause (art. V. GC 3). The Company
also accepted the Union's proposed no-discrimination
clause (art. IV. ('C3) in exchange for the Union's accep-
tance of the Company's bulletin board clause (GC 16).
Also, some of the differences with respect to the Com-
pan)'s proposed seniorit, clause (G( 5) were resolved. al-
PRETERM. INC. 
666 I)EDCISIONS OF NAI [ONAL LABOR RELATIONS BOARD
though the parties still were apart in regard to the proha-
tionary period provision, At this meeting the Union stated
that probationary employees. after 30 days of employment,
should have the benefit of a grievance procedure, but Kow-
al did not then wish to discuss anv benefits for probation-
ary employees on the grounds that such subject was an
economic issue which should he deferred.
Other subjects discussed at this meeting included the
maternity leave clause, the volunteers clause. and the work-
week clause.
According to Leon Kowal. the subject of job descrip-
tions again arose, and he told the Union's bargaining conm-
mittee that a member of the committee had picked up the
job descriptions from the desk of Personnel Director Cum-
mings and "anybody who wants that job description ust
go to your supervisors, you can have all you want."
June 21. There was discussion of the Company's work-
week proposal, volunteers clause, management rights
clause, and challenged positions. When the union represen-
tatives suggested that the parties discuss economic issues,
Leon Kowal responded that the ('ompany would not give
any economic proposals until it knew for whom it was bar-
gaining.
June 28: No progress was made toward resolving an' of
the contract issues. Elliott Small threatened that he would
serve a strike notice upon the Employer and would shut
down the clinic.
July 12: Prior to this meeting, the Union had solicited
employees to attend the negotiations. When Leon Kowal.
Harold Kowal. Diane Richards, and Jane Levin entered
the room where the negotiations were to take place, there
were II employees present, plus Megrian and Small. Kow-
al asked who the people were, and Small responded that
they, were members of the negotiating committee. Leon
Kowal replied that he would not negotiate with a mob, and
the company representatives left.
On July 15, Leon Kowal wrote a letter to the Union
protesting the Union's tactics in connection with the nego-
tiations and efforts to embarrass Jane Levin (R 6). On July
27, Megrian telephoned Leon Kowal in order to discuss
another meeting. In this conversation Kowal stated that
the Union would have to limit the number of persons on its
negotiating committee. When Megrian replied that she
could not agree to that. Kowal said. "'Hell with you." and
hung up.
After July 12, the Company received a 30 days' notice of
the existence of a dispute. which was dated July 9. Ihereaf-
ter Leon Kowal contacted the Federal Mediation and ('on-
ciliation Service, which arranged for the next bargaining
session.
August 16:. This meeting and all later meetings were held
at the offices of the Federal Mediation and C'onciliation
Service. Present at the meeting, in addition to the represen-
tatives of the Company and the Union, were Federal Medi-
ators John Martin and Gerry Gomez. One or both were
present at all later meetings.
At the outset of the meeting, in response to the request
of the mediators. Megrian listed the subjects which had
already' been agreed to and the areas of disagreement. Ihe
subjects of agreement as described to the mediators were:
(I) bulletin board and union visitation rights: (2) seniority
in accordance with the Employer's proposal (GC-5), ex-
cept that no agreement had been reached with regard to
the probationary period, promotions, and the use of the
word "attempt" in connection with the layoff proposal: (3)
a no-discrimination clause: (4) the Company's proposed
arbitration clause: and (5) paid meetings (GC--12). There
were approximately 27 areas of disagreement listed.
The following agreements were reached at this meeting:
(I) with minor modification, the Company accepted the
Union's discharge and penalties clause (art. XXI, GC-3).
which gives the Employer the right to discharge. suspend,
or discipline any employee for cause; (2) with minor modi-
fication the C'ompany accepted the Union's proposed no-
strike and no-lockout clause (art. XXII. GC 3) and (3) the
parties agreed that the Company would continue its pres-
ent policies for life insurance and disability insurance for
its employees.
TIhe Union requested the Company to show it the poli-
cies for life and disability insurance and to provide infor-
mation regarding the employees' required contributions to
the Company's health insurance program, and again re-
quested job descriptions. The Company promised to give
the IUnion the requested information.
'Ihere also was discussion of the C'ompany's workweek
proposal, the probationary period, and union security. In
regard to union security, the Union was asking for a full
union shop. Leon Kowal responded that there would be no
form of union security at the clinic. He also raised the
question as to why the Union was insisting upon union
security when in the contract it had recently negotiated
with a similar institution in the area, Charles Circle, Inc.,
there was no provision for union security.
-Augu.tlr 9.- No agreements were reached at this meeting.
Subjects discussed were: use of volunteers by the Compa-
ny, the Company's workweek proposal, management
rights the U!nion submitted a counterproposal (GC-22) to
the C(ompany's clause a past practices clause, bereave-
ment pay. jury duty pay. and union security. In explaining
the ('ompany's opposition to union security. Leon Kowal
said that the Clinic believed in the principle of a woman's
right to choose and that principle carried over to union
security: namely. that a woman had the right to choose
whether or not to join the Union.
A4ngurst 25 The C'ompany presented a new version of a
management rights clause, which was accepted by the
Union. Agreement was reached with respect to paragraph
B of the Company's workweek proposal GC I1). The
clause was amended to provide that changes in employees'
work schedules would be for business reasons only. Thus.
only paragraph C of the Company's workweek proposal
was still in dispute.
'There was further discussion of maternity leave. The
Company submitted jury duty and bereavement pay claus-
es. (i(' 25. 26) These clauses reflected current company
practices. However, no agreement was reached, because
under the terms of the ('ompany's proposals part-time em-
ployees were excluded from participation in these benefits.
In that connection Leon Kowal stated that the Company
was in the process of revising its program of benefits for
part-time employees and would discuss the subject with the
Union at another time.
PRET:ERM. INC. 667
Elliott Small requested the C'ompany to submit ecolnol-
ic proposals. but Leon Kowal responded that the ('ompan>
would not make an\ economic proposals until the Board
issued its decision in the pending unit clarification pro-
ceeding.
September h . Agreement was reached on a ur dutt!
clause. The clause provides that the CompanN's existing
practices would be continued for full-time employees and
that part-time employees would receive no monetar\ bene-
fits hut would be guaranteed their jobs after comIpleiing
jury duty. There was further discussion of bereavement
pay, the probationar? period, and maternity leave.
The CompanN gave the Union a booklet describing the
Company's Blue ('ross.'Blue Shield coverage. The nilon
requested information regarding the respective comlpanl
and employee contributions to the plan. L.eon Kowal re-
plied that it was half and half and that he did not have the
exact figures hut would obtain them. Megrian again asked
for job descriptions, and Leon Kowal responded that the
Union was playing games because theN already had the obh
descriptions.
September 27 1976: ' The ('ompan presented a materni-
ty leave proposal ((C 29). which was accepted bh the
Union. In effect, the ('ompan\ acceded to the I ;nion's de-
mand that pregnant abortion counselors would be permit-
ted to work as long as they were phvsically able.
The principal, and a heated, subject of discussion at this
meeting was union security. In addition to comments bh
the union representatives. three employee members of the
negotiating committee, L.ucv Matson. Kathleen Kelly. and
Jean Williams. spoke in strong terms about the subject.
and one of the employees said that a majorits of the bar-
gaining unit believed that union securit\ was the most im-
portant issue in the negotiations. Small suggested that per-
haps a form of modified union shop would be more
acceptable to the ('ompany. hut l.eon Kowal's response
was that an, form of union security was a form of compul-
sion. Leon Kowal inquired whether there would he no con-
tract unless the Company agreed to union securit. to
which Small replied that the Union is not frozen on the
issue. The Union made a request for economic proposals.
but Leon Kowal's reply was that the Company was not
then prepared to discuss economics.
October 8. Harold Kowal informed the Union's negoti-
ating committee that the Clinic had received the [Union's
10-day strike notice and that in his opinion it was illegal.
During a caucus the union committee prepared another
strike notice setting 6 a.m. on October 19 as the time and
date for the strike. The notice was telegraphed to the ('lin-
ic, and copies were delivered to the mediators and to Ha-
rold and Leon Kowal. Elliott Small inquired whether Pre-
term had any proposals to make. Harold Kowal responded
by inquiring what was the purpose of further proposals and
negotiations when there was going to be a strike anywa.
Small responded that the Union was not frozen on all
issue, that there were many issues open. and the parties
should continue to negotiate. However the meeting closed
without any bargaining taking place. Ieon Kowal in-
formed the Union's negotiating committee that he and his
associate had to return to the clinic in order to make plans
for the strike.
Octo,/er 14. The parties were kept apart at this meeting.
mediator John Martin serving as h cmmunications link
with each side. The onl\ subject considered during this
session Aas union secUrit,, lhe union representatives sug!-
gested a form of modified union shop hut were informed
bh the mediator that there would he no fa*orahle response
from l.eon and Harold Kowal. According to l.eon Kowal.
before the meeting concluded, Elliott Smnail suggested that
at the next session the parties discuss the following suh-
jects: volunteers, 'aes, health henefits. and pro rata bene-
fits for part-time workers: and Mediator NMartin suggested.
"l.ee when ou come back for the next meeting will ou
see if ou can reply to what he Small] is talking ahouit"
Octod/er 15: he Co(mpany agreed to continue its current
emplo ees' life insurance progrm. although the (onlpan?
h;d not directll adised the Union's negotiating committee
what the program was. here was brief discussion of union
securit` with Small stating that the Union aanted a modi-
fied union shop and Harold Kowal responding that the
('ompan}'s position had not changed. Small again request-
ed the (Cormpan' to make economic proposals. Harold
Kowal answered that the Union should put its proposals
on the table and the C'ompan then would respond. Megri-
an pointed out that the I 'nion's economic proposals had
been submitted in December 1975. Then, at the request of
the mediator. Megrian listed the issues still outstanding.
Harold Kowal inquired if the parties had come to an inm-
passe. and Illiott Small responded that the l:nion was not
frozen Con as issue. Before the meeting concluded. Media-
tor Martin suggested that at the next meeting. which was
scheduled for October 18. the Compan\ respond t as
malln of the outstanding union proposals as it could.-
Oclo/ber /I.- This was the last negotiating session prior to
the strike. which commenced the next mornin,. Leon
Kowal informed the I 'nion's committee that the ('onpa n
would not agree to submit the outstanding issues for arhi-
iration as had been proposed b' the Iinion at a prior meet-
ing. Ieon Kowal inquired if the Union would withdraw its
request for a union-securitN provision alnd wouldl accept
the ('ompan y's volunteers clause. Tile Itnion declined.
The ('ompany presented the following four proposals in
writing:
I. A clause entitled "Discharge and Discipline" (((C
31). 'The ('ompanN withdrew this proposal after it was
pointed out that a "discharge and penalties" clause had
been agreed to at the August 16 meeting. The proposal
l Ih, t ib l g ics.1, 'i l C rs . c lsldc.ablc j111'cu-ol, l O[ c\r.llltls ,I hb
IL'C I' 111 lll ll ll Ii CCe K,- a:l nillkdll tilk ic i r .rk ilb lt 51
5.,,lsii i1ii t Iv.'i ,. c lt h i rill it lit. 11h Icd \csordilng It}, I ¢tmi k o h,.,l. Iis.
cialllrk . 1rl .,, I C Ill ri ,,l i ,1 tihrc.il h\ i:lislil Snll ll i hc tI l lli
t.1 I d 1lls l fCith.l 1 i, istiClIlCl[i Sll li t o iC .li Sl"lli i,is- g(lilg 5 .,Ik t-l
,ilo -ritc g'Cll , [- mxJ 1 rl luatC [te r llpzr.[ll 4ltl[ .. [he ('il l ll 111\ AL-
~.> ltlllr~ '1, \ Ill `11 II, k 11"' M, ae lll , l C 11 .cl/l1t'.'cloil utlih . 11 111t0l
1d C,, cI is 11.1i 11a1 itlj tl ii lldteti the h.lr.;liiaii ll ll i. sl . sMitii 1, illtc
d1.1il .i, 1,i I)l.ci1 RlChiriTx' ilt n s ,Jr e I et s' .lrls ill llsh l.s i nl .I I t h'lI
Irl lC .J;.ii I i scllo \C(.Trdllli 1h5 M\ grl.rfll. ftlrlh c r ICsl l ll 1CiVi\ lr id
llc .d tOI1lUl lt U,\JICIIh r I COT1 Ko.,~;tl]'- rTmalrk .11.1,tl rfil llg Io nCCohalc-l.l
u 'tll I I[111:1il 11 iis C. d .i 1 ll.lS 1 I1 lhC n il rCl rllSt. ll s ii I ll . l b\ I ll llc I
,r lilt stl ills[i ltMI·C Itistillc II h S I \ t iril. CI Mls lI sr ,l) the reltl.1i
1>1r t'f.1l. ti ller llC I .l i l. .lls t ,1 .Osi l I r tlu- , iji I'm
11hel I lln'. Jht' .Ikfc~kC Ib thail H}lC ':tl¢~ c lhcrc lilcr ti1cl 1. r 11et.>l, l
[11.11 ' [Ji.x L I.lc[ ,tf~hJ *~rl %~all J11 sitlxt][ltt .1l's
PRETRM lNC* (7
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submitted and withdrawn at this meeting would have given
the Company greater latitude in regard to the discipline
and discharge of employees than the clause which had
been agreed to.
2. A holidays clause (GC-32). This clause provided for
the same number of paid holidays as the Company
was
then giving its employees. The Union found the proposed
clause objectionable for several reasons. First, it cut back
on current employee benefits in that. contrarD to existing
practice, the proposed clause would deny employees
holi-
day pay for holidays that fall during scheduled vacations.
Second, it gave the Clinic the right, exercisable at
the
Clinic's sole discretion, to close on other than the named
holidays or for any period of time with or without pay
to
the employees. This would preclude the Union's
repre-
senting the employees in connection with any plan on
the
part of the Company temporarily to halt operations. Final-
ly, the Company's proposal ignored the Union's request
to
exchange two of the current holidays for holidays to
be
celebrated on International Women's Day and Martin Lu-
ther King's birthday.
3. Overtime pay (GC 33). The provision submitted
by
the Company proposed premium pay at 1-1/2 times
the
employee's regular rate for work performed in excess of 40
hours in a scheduled workweek and that "an employee will
be expected to (work overtime) unless she is excused for
good cause." The Union objected because the clause
did
not treat the problem of GYN counselors who regularly
were scheduled to work only 37-1/2 hours.
4. Abortion counselors' and GYN counselors' work-
week (GC34). At the February 9 meeting the Company
had submitted an abortion counselors' and GYN counse-
lors' workweek proposal (GC I 1). That proposal contained
three paragraphs. Paragraph A was agreed to at the Febru-
ary 9 meeting and paragraph B. after modification,
was
agreed to at the August 25 meeting. Paragraph C of the
February 9 proposal, which reduced the employees'
off-
duty time with pay from 60 minutes per day to 45 minutes
per day, had been the subject of discussion at several
meet-
ings. The workweek proposal submitted on October
18
contained seven paragraphs instead of the original three.
The first paragraph in both proposals is identical. The sec-
ond paragraph of the February 9 proposal, which, as modi-
fied, had been agreed to on August 25, was rewritten in
the
October 18 proposal in such fashion as to repudiate the
agreement reached on August 25.22 The Union objected
to
the Company's workweek proposal as submitted on Octo-
ber 18 on a number of grounds: (a) Whereas under estab-
lished company policy full-time employees are considered
to be those who work 4 days or a minimum of 32 hours
per
week, the proposal states: "The work day for regular
full-
time employees shall consist of eight (8) hours. The work
On ()t cehruary 9. :hen he ('orpan\ suhlitted its
initial workeek po-
posal (i( ' II). the lUnion objected to par;gra;ph
B anid suggeted thit lI
include language th ch;langes in work schedules would
not be aid I lhl-
ltraril., capriciously. or in baid faith, the ('ornpanll
did not accept ll e
ion's Iltodificatio n. tlwicser. ai the ugust 25 lieetiig the piities
Ictcd
Ihat insteaCd of the mntdif' i g language prlpose , h thte t nitn the prs is on1
include a clause that changes in work schedules would he m1tide
for huslitess
reasons olls I hi, agreenlellt is coinlplete s Ic ieoted
ill Ilhe (' llllpan\ 's () to-
ber 18 proposal
week for regular full-time employees shall consist of five
work days within the period Monday through Saturday, of
forty (40) hours' duration." The effect of this proposal was
to eliminate from the definition of full-time employee those
employees who had been working only 4 days per week.
This change is of considerable significance, in that employ-
ees who continued working only 4 days per week would
cease to be full-time employees and thus would lose vari-
ous benefits which the Company granted its full-time em-
ployees but not its part-time employees. (b) Other sections
of the Company's proposal gave the Company much great-
er latitude in connection with making schedule changes
than the parties had previously agreed to at the August
25
meeting. (c) The Company's proposal gives employees
45
minutes of off-duty time with pay during each 8-hour day,
which represents a cutback in existing practices, because
employees who work an 8-hour day receive 1 hour of off-
duty time with pay. (d) The October 18 proposal provides:
"Part-time workers employed up to five (5) hours per day
shall receive fifteen (15) minute rest break." This represents
a cutback in current practices in that employees who work
up to 4 hours per day presently receive a 15-minute rest
break.
Elliott Small's response was to inform the Company's
negotiators that the union bargaining committee was angry
at these proposals. He explained that on the day before a
proposed strike all the Company brought to the bargaining
table were proposals which already had been agreed to,
which reflected cutbacks in present benefits, and which
demonstrated a complete lack of interest in responding to
the Union's demands. He asked whether the Company had
any further proposals to make, and Leon Kowal responded
that it had not.
During the meeting the Company proposed that it would
continue its current practices in regard to personal days
off.,
The nature of the proposals made by the Company at
the October 18 meeting reflects no serious effort to avoid a
strike. The proposals did not deal in a conciliatory fashion
with any of the more significant unresolved issues. Al-
though more than a year and a half had elapsed since the
representation election during which time the employees
had received no general increase in wages, the Company at
this meeting made no offer to improve the employees' wag-
es even to the extent of meeting in part the attenuation of
their earnings because of inflation. The Company's atti-
tude is reflected by the comment Leon Kowal made at the
I.Leotn Koi al testified with respect to
the ('oimpan 's position at the
()ctobel I miteetii as foll, I lid I want to
make . .a concession to
licreel .Ie abe the au ser Is nol. I was tiot
read to make a conces-
1Otll o11 that da. on ages h gi in hint n increased orffer. But I did
aree on that date t continue all of the mlajor benefits
that we had. because
at's uat a1;1 tilll asked ne to do. tie said there as some question
about
ullelhcl Ac wanted to do thtll. and I said there's no question
in mN mind at
all. &na d 1 uill do that on the IXth and I did t . No, I wa sn't prepared
to lake a colncessionll 1it that la bh giing him ain offer
increasing the
iUages. ltouser. cinriar, to Kow(al's leoltnim)n. proposals
submitted bh
the (oipn on October IX as ell .is proposals submitted
by the ('ompa-
11 iill p'l s 1iU ego1tatlltllg sessolns represented cutbacks
in existing emplo -
cc hbcnelfit \N proposal made h\ the ('ompain\
at an, session up to and
clldllgi O(ctober 18 represented an offer to increase
stages or an improe-
IIcllt i1 tlls bhenefit f ec1noIltic sallue such is holida, pay.
aca;tin pan.
teil\ ciietlt pil. etc
.
.A
PRETERM, INC. 669
meeting that he questioned the purpose of further negotia-
tions because the parties' disagreement with respect to
union security would result in a strike anyhowu.2 4
At one point during the meeting. Leon Kowal stated that
the Clinic had the right to permanently replace employees
who go on strike, that they would be replaced, that the
Clinic was not going to close its doors because of a strike.
and that the employees were grown women and should be
ready, to accept the consequences of their actions.
In accordance with the Union's notice to the Company.
a strike commenced the next morning. October 19.
November 17: This was the first meeting after the begin-
ning of the strike. A few understandings were reached. The
subject of union security was discussed, but without an'
resolution of the question. Leon Kowal insisted that the
Clinic wanted an open shop and that even an agency shop
was unacceptable, as it constituted a form of compulsion
because it compelled employees to pay for services not
wanted. Kowal asked if the Union was prepared to with-
draw its union-security demand. Small responded that in
the context of an entire agreement the Union was not in-
flexible. However, agreement was reached on a union dues
checkoff provision.
The Company offered a 5-percent across-the-board wage
increase not a particularly generous offer. as the cost of
living had risen 9.6 percent since the representation peti-
tion was filed in April of the previous year, during which
time the employees had received no general increase. The
Union countered with a demand for a 10-percent wage
increase. No agreement was reached on this issue.
The Company proposed that newly hired counselors re-
ceive an increase of $12.50 after 45 days and an additional
increase of $12.50 after 90 days instead of a single $25
increase at the end of 90 days. This proposal was accepted.
as was the Company's bereavement pay proposal f I day for
part-time employees and 3 days for full-time employees.
The Company also offered to eliminate the 10-month
waiting period before part-time employees would accrue
credit toward vacations. This proposal was accepted.
There was discussion but no agreement with respect to a
sick leave clause, although the Union accepted the Com-
pany's proposal that part-time employees would receive a
pro rata amount of sick leave. The Company also proposed
to continue its present practices with respect to leaves of
absence and to continue its present health and disability
insurance programs.
The Union stated that it would withdraw its departmen-
tal demands if the changes instituted by Deborah Fein-
bloom, the newly hired coordinator of the abortion coun-
seling program, were retained. There was no agreement on
this proposal. Other subjects. including holidays, the term
of the contract, and probationary employees. were dis-
cussed.
November 19: The parties agreed on a recognition clause
which would define the bargaining unit to be the same as
the unit certified by the Board. Several other subjects were
discussed without any agreement being reached.
'4 Sm.ll responded 1o hi) rcnuirk that i lt I ill.n ..l I1. it frlzi A11 .111
ISeu
December 8. The meeting was brief and no agreements
were reached.
Januar 24, 1977. This was the last meeting between the
parties prior to the hearing in these proceedings. Agree-
ment on one minor item was reached. According to Leon
Kowal. "'We agreed that if a holiday fell within a person's
vacation time. they would have the extra day. Which, I
think, was the practice anyway. But we weren't sure at the
moment. We agreed to it anyway." No understandings
were reached with respect to any of the other subjects that
were discussed at this meeting.
3. Requests for information
The complaint in paragraph 13(d) alleges:
Respondent has refused to give information which
the Union requested, regarding the job classifications
of unit employees since April 14. 1976: the contribu-
tions made by employees and Respondent under the
Blue Cross 'Blue Shield health plan since September 8.
1976: and life and disability insurance policies since
April 14. 1976: and the names of all employees and
their wages and the base salary for job classifications
since October 18, 1976.
The Union's requests for the foregoing information were
made orally at various negotiating sessions.25 The informa-
tion was furnished the Union in writing on November 26.
However, there is an issue as to whether the Company' had
delayed unduly long in providing the information.
a. Job descriptions: There is no dispute that at negotiat-
ing sessions prior and subsequent to April 14 the Union
had requested the employees' job descriptions. The parties
had had discussions as to the use to which such job de-
scriptions would be put. Leon Kowal objected to their in-
clusion in the contract. Megrian explained to him that "the
members of the negotiating committee would like to review
the job descriptions [in relation to the departmental de-
mands]. That they were not to be part of the contract."
Respondent contends that the job descriptions were first
given to the Union in March, while General Counsel's wit-
nesses deny this. Jane Cummings. Respondent's personnel
assistant, testified that sometime in February or March
Betss Neale asked her for the job descriptions for the em-
ploees in the bargaining unit. Cummings told Neale that
the; would be copied and would be left on Cummings'
desk for Neale. After obtaining approval from Mrs. Rich-
ards. Cummings made copies of the job descriptions and
left them on her desk for Neale. The next day she asked
Betsy Neale whether Neale had taken the job descriptions
and Neale replied that she had. Betsy Neale contradicted
Cummings. According to Neale, she merely asked Cum-
mings for the job description of her job, which was abor-
tion counselor, and Cummings responded that "she would
get back to me." but she never did. Neale ultimately oh-
\eigrl.n tstlietd tha t . rlitlen request fr }oh lde.cripli. had heen
Illa.il and xl i l t lie ifried hi f lt ct IllI 'I dema.nd Ililcd it the
( lii ol I)c,..ciher 5, 197'. '. hiuh in the first pgc. headed "AB I)t-
M .\[DS" anelde tne I read ".ohde,,rtptmwi. dutls,.alares. ene
fil ll defined I do not conlidcr ihi, Itei on t page purportedlk Iihitng
I tilm.-t ,hi-bcll g l nlu g d eu llldx for ai iglnic iepar.lllent i i adtqu;lte ,or
untll~del ld.lbc rquest or v ob dextrlpltln, of All eplo~.e, ir the unit
PRETERM. INC.
670 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
tained the particular job description from her immediate
supervisor, Lois Schiappa.
Jane Cummings testified only briefly at the hearing. Her
testimony was not directly impeached. However, in a mate-
rial respect her testimony differs from the testimony of
Leon Kowal. Cummings testified that Kowal never asked
her whether she had given Neale the job descriptions
Kowal, on the other hand, testified in detail concerning a
conversation with JaneCummings about thejobdescriptions.
According to Leon Kowal, at the June 14 meeting, the subject
of delivery of the job descriptions was again raised. "So at
that point I looked at them, realizing we had had three or four
discussions about them ... I said, 'I want to go out and talk
to Miss Cummings myself.' And I did... . went out to see
Jane Cummings, who I had been told had given this job
description to I think it was Betsy Neale. I said 'Jane, please
tell me the story myself,' and she did. .... Then I went back
to the bargaining table and said, 'You people have them.' "
The record does not indicate an reason, tactical or
otherwise, why the Union would continue to press the
Company for copies of job descriptions after it alread had
them.2 As I find that Betsy Neale was a credible witness.
that the collateral evidence tends to support Neale's testi-
mony that she never received job descriptions for the entire
unit, rather than Cummings' contradictory testimony. I
find, contrary to Respondent, that it did not provide the
Union with the requested job descriptions prior to Novem-
ber 26. As the job descriptions requested by the Union
were relevant and reasonably necessary for the proper per-
formance of its duties as representative. Respondent's de-
lay, which I find was unreasonably long, in providing the
Union with the job descriptions constituted a failure to
discharge its collective-bargaining obligations and there-
fore a violation of Section 8{a)(5) and (I ).2
b. Blue Cross/Blue Shield contributions: Megrian testi-
fied that at the September 8. 1976. bargaining session,
when the Company provided the Union with booklets de-
scribing the Company's Blue ('ross/Blue Shield plan, she
"asked him what the Employer's contribution was and
what the employee's contribution was. He said it was half
and half and he didn't have the exact figures, but that he
would get them." Megrian further testified that at the No-
vember 17 bargaining session the Company "gave us insur-
ance figures on Blue Cross,'Blue Shield."
The nature of the alleged violation is uncertain. On Sep-
tember 8. the Union was given copies of the Compan's
"( uniling Itihed that I)iane RiLh. id, had checked "ith hle is o
helhel she had given the joh declipiolllS tio Ielt, Necile
I.eon Ko al tesified thal i one of he haririlig ,s soni .n . chn M\cl -
ri:n a;gain asked hini for copies of the lob descriptions. "I .laid I,,t lc -lA'l
plalillng ; a ga. e ith lme. iso dol l l ar otnd, ai d a t ione poli. shc pliltc d
her fill ET at ile: he said t1 te going Io gil' the m to IllC on thi s table. ,ii'l
lihke tiha.t." AteCidiiIg 1to Mcgrianll. "I ccal a onlle of the M1Arch ilcl1i1i1n
lell Koal. whcn c e isked fl ob dxecliltionl. 1. al dl hl1 Ui .xtt lIe
pla\ing .imes and thai theN had hcen picked lip h l onie Aii lie Ilcgotllliic
menihbcr . . lhia e arc le.d lad thei . I reniclihetT Floll Slill
telling I on Koiaw l thai xve did not haxe thcli. ii li he did not krln, .ahoul
aln emiploee picking themCi up. anld thati c had Icqllusted liel ll t Ithe
bargaining lable and e did expectl It recci:c theii." I crcdit Mci,iii II
re% lrd to this Incident
-' RI.dc, ,ll Iand ( hirdct ( 4J, 1 RB 130)4 ( 1 9( )
Blue (Cross'Blue Shield plans and was informed that con-
tributions were on a half-and-half basis. 'here is no evi-
dence that on that date or thereafter, prior to November
17. the Union indicated to the Company that it wanted
more information. The theory of the complaint is that the
Union wanted not only the relative contributions but the
exact dollar-and-cents contributions by the employees and
the Clinic. As prior to November 17 the Union had not
clearly asked for such information, I find that General
Counsel has not proved the allegation that Respondent un-
lawfully has refused to give the Union information regard-
ing "the contributions made by employees and Respondent
under the Blue (rossBlue Shield health plan since Sep-
tember 8. 1976."
c. Life and disability insurance policies: According to
Megrian, the only time a request for such policies was
made was at the December 29. 1975. negotiating session.
That meeting was devoted to the review of the Union's
contract proposals. The request for the insurance policies
was haphazardly made during discussions of other sub-
jects, and Megrian's testimony is less that she distinctly
remembers the request having been made than that 'it's a
standard procedure that we would request that information
at a first bargaining session." The request for these policies
was not renewed at any later session, and at the August 16
meeting the parties agreed that the Clinic's existing life and
disability insurance policies would be continued. Thus, the
failure of Respondent to provide the Union with these poli-
cies did not impede negotiations. In view of the facts that
the request for these policies was casually made on Decem-
ber 29. 1975, that it was not thereafter renewed, and that
the failure of the Company to provide the Union with cop-
ies of its life and disability insurance policies did not im-
pede negotiations. I find that Respondent's failure to do so
does not constitute a violation of the Act.
d. Wage information: At the October 18 bargaining ses-
sion, which was the last meeting before the strike, the
Union requested the names of the employees in the various
job classifications and their wages and base salaries. This
information was furnished on November 26. There is no
evidence that this delay impeded negotiations or that the 5
or 6 weeks between the date on which the request was
made and the date on which the information was furnished
in the circumstances was an unreasonably long time. Ac-
cordingly. I find that Respondent has not violated the Act
in regard to the alleged delay in furnishing this informa-
tion.
4. Applicable principles
When, as here. "the employer engaged in a lengthy series
of bargaining conferences, which got nowhere." the ques-
tion is "whether it is to be inferred from the totality of the
emploser's conduct that he went through the motions of
negotiation as an elaborate pretense with no sincere desire
to reach an agreement if possible, or that it bargained in
good faith but was unable to arrive at an acceptable agree-
ment with the Union.
" ' In resolving this question. ac-
24 I RWid l P rime % 'flacnd/lrnt ( 20/5ini 5 f 2d 131, 134
1I ( i 19SI3. ct dled 46 t 5 887.
PRETERM. IN(C 671
count must be taken of the obvious "tension hetween the
principle that the parties need not contract on any specific
terms and a practical enforcement of the principle that
the\ are bound to deal with each other in a serious attempt
to resolve differences and reach a common ground." ''
While the statutory collective-bargaining process does
not guarantee "the friendly adjustment of industrial dis-
putes arising out of differences as to wages. hours, or other
working conditions," it does require that the parties to
the negotiations "confer in good faith" with an intention of
reaching an agreement. if agreement is possible.3 2 More
than plodding mechanically through the forms of collective
bargaining and "a willingness to enter upon a sterile dis-
cussion of union-management differences" are necessars
to satisfy this stricture of the Act. The performance of the
duty to bargain dictates that the parties negotiate in a man-
ner which lends itself to the real possibilitN of reaching an
accord . There is a duty on both sides to engage in negoti-
ations with a "sincere purpose to find a basis of agreement
'4 "IT]he employer is obliged to make me' reason-
able effort in ome direction to compose his differences
with the Union. if 8(a)(5) is to be read as imposing an
substantial obligation at all." As was observed in
N.L..R.B. v. Herman Sausage t Co.. s.pra, "bad faith is pro-
hibited though done with sophistication and finesse. ('oln-
sequently, to sit at a bargaining table, or to sit almost for-
ever, or to make concessions here and there, could be the
very means by which to conceal a purposeful strateg to
make bargaining futile or fail." '
Similarly, to employ negotiating tactics that will interfere
with an agreement being reached within a reasonable pe-
riod of time also evidences an absence of good faith. Pro-
longing negotiations generally serves to undermine a
union's strength, as it leaves the employees frustrated by
the union's lack of success and allows turnover to deprixe
the union of many of its initial supporters. By such strategy
an employer may hope not only to avoid entering into an
agreement with his employees' collective-bargaining repre-
sentative but also, through an erosion of its mnitority, to
avoid having to deal with the union at all. Such employer
may invite or even provoke a strike anticipating that the
strike will be ineffective, that the union leaders among his
employees will be replaced and removed from his work
force, and that ultimately the union will be repudiated by
the replacements and the nonstriking emploees.
5. Recapitulation
Although Respondent's bargaining positions and pro-
N 1. R B X Inilra t' 4 '11¢ II tlti rI,, Ii i, /P I / I,
,inal, iranc , ( /, 3 [I t 47. 477 8 '1li(, )
Nalilonal labol Relatihons A, S, ]
(Colleciic harg.aining -presupp c .i a1,1iCuc to car.,lic L1lllllc d.1 c-
nlellt. to entr inlo ; co leltis halrtlllll inv ltr,ilt I I B h r1iBtort
41,' l tll ll l/ t ,H a tI [ 1 11}l , 4- I
L. R B s ,4A,, 'ial ,I l llol / tuwaiu , is. 341 t s 39' 4 '2 4 t-i
Ih(2)19611.
A u u-uw Rth II t'- l ( .n/pru in. il " , 1. R B, 430 F. 2d '11 '11 IliI
( ir 1970)
27S i 2d 22 22l'1h t l u i i e(
posals. individually considered might not he unlawful,. the
totalit of its dealings with the inion from the inception of
negotiations on December I, 1975. through the last bar-
gaining session. held on January 24, 1977. establishes that
the ( ompan refused to bargain collectively in good faith
with the U.nion as its employees' certified representative. In
particular. I rely upon the following:
a;. Some of the proposals submitted by Respondent were
unnecessarily complex. some were phrased to attenuate the
employees' statutory rights. and some purported to dimin-
ish existing benefits. Because such proposals caused unpro-
ducti,.e discussion, they impeded the progress of the nego-
tiations even in the instances where the', were redrafted. as
in the case of the management-rights clause. or where they
were withdrawn, as in the case of the recognition clause.
b. In several important instances. such as with its volun-
teers clause and with respect to union security, Respondent
was inflexible and demonstrated no willingness to consider
an conlpromlise.
'
c. Respondent's bargaining methods served to reduce
the probahility that the parties would reach an agreement.
D)espite more than I ear of negotiations. the Clinic at no
time egae the U nion a comprehensive! contract draft. With
onll limited exceptions. it submitted its proposals usually
in writing. one at a time. and in no particular order. There
was no structure within which to contain the negotiations.
Instead, the selection of subjects for discussion was hap-
hazard. which prevented the negotiations from gathering
direction nd momentum. Excessive bargaining time uas
devoted to relativel! minor topics. and because the subjects
for discussion were raised bh Respondent singls and not in
context of an overall contract draft. the opportunity for
compromise by trading off one proposal for another was
severel limited. Even Respondent lost sight of where it
was heading. because at the October 18 meeting, when pre-
sumablv it was seeking to forestall an impending strike, it
submitted as a new proposal ia clause coering a subject
which had been agreed upon months earlier. Respondent's
unwillingness to use the contract draft submitted b the
Union on December 5. 1975., as a working model from
which to negotiate. its failure to prepare a contract draft of
its own for such purpose, and its practice of submitting
unassembled proposals one at time were bound to and
did cause confusion and delay in the negotiations.
d. While there is no requirement that collective-bargain-
ing negotiators be cordial. Respondent's principal negotia-
tor. I.eon Kowal. was undul, bellicose. He engaged in fre-
quent loud arguments with the Ulnion's negotiators. Often
instead of seeking to resolve a problem he expanded the
scope of the dispute. As an example. despite the many re-
quests by the Union for copies of the job descriptions, in-
stead of arranging for them to be delivered (whether or not
Leon Kowal himself may have believed that the nion
already had obtained such copies), he engaged in several
arguments with the union representatives about whether or
not they already had the job descriptions and did not fur-
nish them to the Union until November 26. months after
the' first were requested.
c , Is 11 lic t he t [,Llul} i1 t , -'-C IC Ir lll .uillli l h d s 1lll t rCqi Ic llc
11ik 1? .f LI cO I .ion It t1cI 1 1111C Clll h pl ari t! , h r etpil\c to prrll.l-
. . ..
PRETRM. INC
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. Respondent grasped almost any excuse that presented
itself to postpone negotiations. Thus, because the Compa-
ny had filed unfair labor practice charges against the
Union, it refused to bargain from March 8 through June 8.
while the charges were pending and before they were dis-
missed. Also. On July 12, because I I employees were in
attendance at the negotiating session. Respondent's negoti-
ators refused to meet. On October 8, Respondent's negotia-
tors, Leon and Harold Kowal, terminated the meeting
abruptly on the grounds that their client had received a
strike notice and they had to depart to discuss the matter
with their client.
f. Although a desire to resolve noneconomic issues be-
fore dealing with wages and costly fringe benefits is an
acceptable collective-bargaining tactic, Respondent carried
this approach to an extreme. During more than 10 months
of negotiations between December 1, 1975, and the strike
on October 19, 1976, Respondent refused to discuss wages
or any other benefits having an economic cost-other than
to agree to continue certan existing fringe benefits. More-
over, as of October 18, immediately prior to the strike, the
only understandings that had been reached were with re-
spect to less important contract clauses, and the parties
were still far apart on material noneconomic issues in-
cluding the recognition clause, as the Company had not Net
agreed to accept the Board's description of the appropriate
unit, even after the decision in the unit clarification pro-
ceeding. Nevertheless, Respondent persisted in its refusal
to discuss economics. By thus removing from the bargain-
ing arena a fundamental term of employment, the Compa-
ny limited the flexibility of the negotiations and narrowed
the range of possible compromise.
g. Respondent's conduct on October 18, the last bar-
gaining session before the strike, not only reflected an ab-
sence f any desire to arrive at an agreement with the
Union but in effect challenged the Union to undertake the
strike.
Although Respondent's obdurate negotiating tactics
were somewhat ameliorated after the strike began and the
unfair labor practice charges in these proceedings were
filed, they did not change sufficiently to indicate any sin-
cere interest in reaching an agreement or even in terminat-
ing the strike.
Illustrative of Respondent's bargaining intransigence
and obstructive tactics, which served to prolong the negoti-
ations and to impede a successful conclusion thereof, are
the following:
a. Recognition and refusal to bargain about economnic issues
On February 2. Respondent submitted a proposal defin-
ing the recognized unit as including only full-time AB,
GYN, and telephone counselors and excluding all other
classifications. By this proposal Respondent reasserted the
position it had advanced in the representation proceeding
but which was rejected by the Regional Director in the
Decision issued in that case. The recognition clause in its
various facets was a recurrent subject of discussion during
the negotiations. Not until November 19 almost I year
after negotiations had begun did Respondent agree to ac-
cept the unit as certified by the Board.'
8
Respondent used the disagreement regarding the recog-
nition clause as an excuse for refusing to discuss wages.
Part of the disagreement stemmed from Respondent's re-
luctance to accept the Board's decision that trainees and
part-time employees are included in the bargaining unit.
Part of the disagreement arose from the fact that the initial
decision in the representation case left undetermined the
inclusion or exclusion of four challenged classifications, a
matter that was not resolved until the decision in the unit
clarification proceeding on September 8. However, not
more than eight employees were within the challenged clas-
sifications.3 Thus, Respondent's assertions at various
times during the negotiations that it could not make a wage
proposal until it knew for whom it was bargaining essen-
tially were specious, because the challenged positions in-
volved only a relatively small proportion of the unit-and
after September 8. when the Board issued its unit clarifica-
tion decision, even that excuse disappeared.
40 A request to
modify a unit certified by the Board, although not neces-
sarily unlawful, is not a mandatory subject of bargaining.
Therefore, the Company was not entitled to hold "negotia-
tions hostage to a demand for a nonmandatory subject." to
wit, modification of the certified collective-bargaining unit
to exclude classifications objected to by Respondent.
4 '
As of November 17 almost I year after negotiations
began the Company had refused to discuss wages or any
other subject involving a direct cost-related employee ben-
efit (other than those few instances where it agreed to con-
tinue existing benefits) until all noneconomic issues had
been resolved. Such fragmentation of negotiations limited
the flexibility of the bargaining process, as it precluded
trading economic proposals for noneconomic proposals,
which is a customary avenue of compromise. While it was
permissible for Reapondent to place noneconomic items
ahead of economic items on the bargaining agenda, to per-
sist, as Respondent did, for many months after the Union
had requested discussion of wages in its refusal to talk
about economic matters, particularly in the context of its
rigid positions with respect to its proposed volunteers
No .rilten proposal refliecntig the parties' agreement regarding the rec
o.itio cilalusle vu as drafted. According to Ieon Kio a1. on No cnmber 19. "I
s.id lii xtc hld frgtten aholut the bargaining unit, Ah., don't we agree to
t;lie the har;laiig unit :I it uas certified in he clarification decision?" 1 he
t lt i" .i ffirrlall e response con titutes the agreement It is far fronm clear
tha b tIe ehinge Respondent hd iabaindoned It position steadfatl
1 .lllt.lll ed throtlgihout the letltli.ilis to ecludCe l-allnees al d prt-til e
cTplc. u.oTkli less th;lIn i en number of hours per teek frollt the
ICoTicll/d ullit, , Lhich claslflications re withit the approprlae unit ceri-
ied h the Board.
s\ f (cto her 18. Resp ond c e lsed 33 .abortion counselors.
(iYN *oulselors. telephone lroori counselors, I urses ide. 2 auloclae
techlilltialr.s 2 adlulttinu officers. I mnaintenance employee. I medical chart
l nli ctiplocee. Ind I receptionlist Ihus. as of that date, there ere five
emulos.ee i the iahllenged clasificati,lsn
4A palrt-time e plo eel and tr;aices were specificall included in the
.1pproplriale collecti e-bh rgaiing ulit cot ered bh the B oard's Mas 19. 1975.
terfihcl *io Respondent hald tno legal right to insist that the nion agree to
their c\CIumot . a pretequimte to disctlslin f wa[es and thel ecotlotlltic
4 1t,, xlallaolat I a'ianll et ()[)tilltnu ;rtleatnerat , letl/ 542. 542 4, 542 H
l,,/ ( witl H,'-c i. 2 16 Nl RB 408. 411 t 1975) enfd 532 1 2d 90)
3d ( ir. 1
9
76). cert denied 429 S5 1172 (19771: see also ewa!/ '. 1 imlcd
1t ... lslh. .. A l -. I . I r.S Itamid (,lar, Ir ). 221 NRB 56. 660, f.
21 I 1It17SI
- - -- - - - __ __
PRETERM. INC 673
clause and union security and of its haphazard, uncorrelat-
ed way of raising noneconomic issues for discussion, neces-
sarily prolonged negotiations and interfered with the possi-
bility of an agreement being reached.4 2 These factors
suggest that Respondent's purpose was to delay or even to
avoid reaching an agreement.
b. Union securirt
The Union's initial contract draft proposed a union shop
with the condition that new employees would be required
to join the Union within 30 days. Although the Compan
was made aware of the fact that the members of the bar-
gaining committee deemed union security important to the
negotiations, it categorically refused to consider any such
provision. Respondent's alleged reason was that the Clinic
believed in the principle of a woman's right to choose and
a woman had the right to choose whether or not to join the
Union. When the Union sought to accommodate Respon-
dent's objections by suggesting that some form of modified
union shop would be acceptable, such as an agency shop.
Respondent would not discuss any such compromise, as-
serting that that too was a form of compulsion. Respon-
dent in its brief explains that "[t]he emploser's refusal to
accept Union shop proposal was based on philosophical
opposition to placing any form of compulsion upon its em-
ployees." Thus, the Company admits that it entered into
negotiations with its mind sealed against anyN compromise
in regard to union security, and it unwaveringly main-
tained this obdurate position throughout the entire course
of the negotiations. While the Act "does not compel either
party to agree to a proposal or require the making of a
concession," it does impose an affirmative obligation to
"confer in good faith." To engage in negotiations with a
fixed. preconceived, and unshakable intention of refusing
to bargain about a subject relating to wages, hours, or any
other term or condition of employment is to reject. to that
extent, the principle of collective bargaining as prescribed
by the Act. Accordingly, Respondent's refusal to discuss
union shop or any modified form thereof based upon its
alleged "philosophical opposition" thereto constitutes ei-
dence of a refusal to "confer in good faith" within the
meaning of the Act.44
In ts hrief the (oilnpain airges that Repolndelrlt rltllIl.tllic t l Ilo
rllking a. pro psal fr an ireased ,iaLe u. hbecause f lls coilcril .h aboil
the forls (40) to fift, (5( deparimenial priposils still in the thbe ini.x
of which were eonomnic in nature " Ihs irlllentl 1i ill-f.1uicded D)itltli
the I10 miontri between the incerptin of neirLiiols arid the strike ke e
Ias alrntlot no dlscu sslon abhout these hlelct.
i' rd,l tliid ( ,pratoll. 212 N RB 9S) (I 7 4: K ,l l.S t 1,li
(hi,rlc ( , . 14h NliRB 13(!4. I10 ( 64) Acord . R B R, ,, A
Pr'nt, t, % ( , mlpa
See Q)uieen tcarl Rii .tlli.rt ( rf rp d p ) a tnd/,-d. /Qh / I R .
s(% } 2d 4013 (9th ( ir 19771. r,,ia % tihlnulaitiot ( , tnl int 233 \ RB
1126( (1977): 4miero i Pr Sli tenl. 232 NlRB 41 tl977} Respo.dcnil
alleged ioncern aboul "placing an form Of plllslltin pon istplos-
ee," u uld appeair to he disingenuolus in lihit of it cndtict drin i lie
entire course if the negoliatllols t-roln the ili.eptl o rof til IICItloll[tioll
until the strike, more than 10 month, liter. Respondenl iade no 1.an
Ingful cItcessioll talds s.atl f.ing a.it iof is enlplo.ecs' harE.llllii de-
sire,: nesertheles. it would he us heliee that its philosophltl olierC1li
about tile nelfare of its em pl,ees imp elled it to refuse I lis11c u1s the suhloci
of tinion sh p \pi frun tile Illsilelt t of Ill aLCled isti.flIIIIoIi ot
c. a,hmaemenl rlhts
On June 8. Respondent submitted an elaborate manage-
ment-rights clause, which if accepted would have excluded
the Union from participation in decisions affecting impor-
tant conditions of emplon ment. Some months later, on Au-
gust 25. the Company submitted a more moderate clause.
which was adopted. It was not unlawful for Respondent to
propose an extremely broad management rights clause
However. an experienced industrial relations attornev like
Leon Kowal knew that it was unlikely that such a clause
would be accepted and probably anticipated that it would
result in unproductive discussion, that is. unproductive
from the point of view of reaching a complete agreement.
which is another indicium that Respondent's bargaining
approach was directed toward protracting the negotiations.
d. I 'olunteer.s
At the Februar 2 meeting, Respondent submitted a
clause granting the Clinic the right to use volunteers. The
Union had no objection to the proposal, pro\vided that the
right was limited so that volunteers would not be used to
displace bargaining unit employees. Respondent main-
tained that volunteers had never been used to replace regu-
lar employees and that the Company had no intention of
doing so in the future. While there appeared to be no dis-
agreement in principle. nevertheless, despite length\ and
repeated discussions about the subject. Respondent would
not agree to modify the language of the volunteers clause
as originally drafted. The only objection advanced b Leon
Kowal for the Company's refusal to incorporate language
that would alla) the Union's fears was that disputes re-
garding the use of volunteers could lead to an excessive
number of arbitrations. This explanation lacks credibility.
An experienced labor relations attorney like Leon Kowal
could readily have drafted a volunteers clause which would
have satisfied the Union's fears about the use of volunteers
refisil iTi neeLilte hbouitl uliloit ecurits. Ith .llced "philo splllc;i" bas;i
flr I p'l ' 1 lso 1i auLllt. I lie ructure if the Ac.t contempl ates Ihat, tle
iep2eailse h lt ehosen b h te ttaormll of the cnmplosces in n appropria.lte
111it1 i\ le C..1lJs. e cllcte huiCuai"n reprcenlll.tixe for all Ih eplo-
ce, ii lite im 11 nlil t ludini, toile emiplo)e\ cs , o opposed tie selectil I of the
reprei.illml;ite B eaetllit I neeotllitiias th C (onlpar\ abetted as the
Li rtllres i Io do thle co ipullsoll upon the elplo ees i Ito opposed the
I nlo It aicpl tlie reprrelltlltOin of he nion and Io s.ork tinder the
'uhites ;tied otlCt Irl llod .ltllllins if entplolnc t hllhch might he ieo0-
tcd for henil hI 1he t mln lo acede to an agenc shop ilause uotld
irse lC II1\ ii lth .ddtollli.t tompulsion" upon such dissident eliplox-
ecs t le tril rasoll fr Responiderit', Lii.nant reftlll cot sider mli [orut
if unlioi securit pr'b.ilhl o ls, ii in it, ciltc ertl foir ts enlplo.ees hbilt in its
lhope tlal 'i holu unllt eritN thIere ni1-tla he All tttCllIltOI I f lie
I llnsl suipprirl d
1
lutlhlll.[ C LI S i , i ts r111illit\ \ihoiu h It 1 11t[ utillslus
fil for .in elmpl-ser ti ohbj.t iI a coritract pro,,islion beause it illittt
strenglhlen the I nliorl ', all chnletir Io 1t empl.ees. I , iliIperili-lth le tO
aid\aIncc "plaltenlx i]i'poI,ti ble Ultiflt- t l oll, f r a hli.atolmln Pl0o 1, ,,
(1u*l 11lIu Rh;:I,;nr, ( ,,t ,1, ) i II,... . x N I R tt it/at at
4t B id itLt tle iploer prieclides meainlrgful neotiaotions tlt re-
srpect to ile jli et
Suheqluent Ito he lrkc.. i the \Nlseilber 17 meeting. the ( ortipin\
Iteed o accep tle I tlun' ds checkoff proposal hile .I prollon fo
chekoff f LInI ln dues i s if d, I i\.l ge to the I l ton. it i n11 of tile imrne
lilttire us 1a 1 tlltil-.eiUs. Cille iand the fact that Respondent ulltielals e
after il0 Iltiths ,f h iitrlll[ ,, ii u reCd to tIhe heckoff f linlst dues does
inot eClUse Its reluial Iio leiCoe l.thtc t i h unl s cI] t CiCLrl it1 stln frm11
PRETRM. INC
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to replace bargaining unit employees and still ha\e given to
the employer the necessary flexibility to expand its use of
volunteers as the volume of its work expanded. he refusal
of Respondent to consider phrasing some limitation upon
the language of its volunteers clause to achieve an objective
which was not in dispute is another indicium of Respon-
dent's reluctance to arrive at a mutually acceptable collec-
tive-bargaining agreement.
e. October 18 tneetin'
Of particular significance in this case is Respondent's
conduct at the October 18 meeting. A strike was scheduled
to begin the next morning. On October 15. the mediator
had suggested to Leon Kowal that at the next scheduled
meeting, on October 18, the Company should respond to as
many of the outstanding Union proposals as it could. 'Ihe
object, of course, was to see whether the strike could be
averted. Up to this point in the negotiations, the ('olnpanN
had made no wage offer. On October 18, it still made no
wage offer. Moreover, it made no offer to compromise on
any of the significant noneconomic subjects in dispute be-
tween the parties. This alone would indicate a lack of inter-
est on Respondent's part in forestalling the strike. How-
ever, the Company did more. It submitted four proposals
which could only have been intended to exacerbate the
differences between the parties. The Company proposed a
discharge and discipline clause, which it withdrew when it
was pointed out that agreement on the subject had been
reached months earlier. It proposed a holidays clause
which ignored the UInion's request to switch two holida\s.
which cut back on existing benefits in that it denied holi-
day pay for holidays that occur during an employee's vaca-
tion, and which further provided that the ('ompan? had
the right to close at any other time without pay to the
employees. It proposed an overtime pay clause which, as
required by the wage and hours law, provided for overtime
pay at one-and-a-half times the regular rate for work per-
formed in excess of 40 hours per week but which also con-
tained a proviso that overtime work was mandator. I.ast-
ly. it submitted a workweek proposal for AB and (iYN
counselors which repudiated an agreement reached on Au-
gust 25 with respect to scheduling work and which repre-
sented a substantial cutback in existing practices in that it
redefined the term "full-time employee" to mean an em-
ployee who works 40 hours per week. which meant that the
14 counselors who were then working 4 days per week
would lose their status and benefits as full-time employees.
and in that it reduced paid breaktime for employees. Pro-
posals such as these made after 10 months of bargaining
and on the eve of a scheduled strike served to make a
mockery of the negotiations and to challenge the Union to
go forward with the strike. 4s Respondent's conduct in this
*.Alithough the Suprcen ( ouirt held In N I.R B n i8 l a, o id,
[Ini'l I ,iol. I / ( /() t (,] 477 ')(lH lll t i t tl .:liJ s;i s I, n t V21\I H , -
e2,d Io approoe or dlsalppro., ( I[ llllgClild t'CC ll)11C ,c,,lp01n, llld ;t1-
tholugh the (turl rcclgtil/es iht the stuIlluie CoI)IICt piLt illtl [ I'l C[' CC0
nomi1 i ALIrfie. ilthitnlg thelein Stllggestl thit Il tldilll ll no f cllll tl.It
deiheTi cls caIcila.ted i promor e 1 st rike I, heoni d th l 1 .ioaid' polc.ls It
would i02m rcfasonable 11i f lat Swhei ,1c 1pdt1 ti tilhe h.itrl.iil 1iikcs
liation hich hais ait ork stoppacl. its at loal o1e of it. ohl]eil'.. s it.i orlidlC
last meeting before the strike was the very antithesis of its
statutory obligation to engage in negotiations with a "seri-
ous intent to adjust differences and reach an acceptable
common ground."
6. Conclusions
Respondent did not confer in good faith with the Union.
Ihe ('ompany's attendance at 25 bargaining sessions was a
diversion, a mere pretense at engaging in negotiations with
the Union. The Company's purpose was to make the nego-
tiations a fruitless waste of time, to discourage the employ-
ees in their expectations that they would achieve improve-
ments in the terms and conditions of their employment
through the representation of the Union. and ultimately to
free itself of the need to deal with the Union at all. I find.
as alleged in the complaint, that the Company has violated
Section 8(a)(I) and (5) of the Act.
The record amply demonstrates, and I find, that the
strike which began on October 19 was, if not entirely, at
least in part the result of the employees' frustration at the
lack of progress in the negotiations, which I have found
was due to Respondent's unlawful refusal to bargain in
good faith. I find further that as Respondent has continued
in its refusal to discharge its statutory obligations to bar-
gain collectively with the nion in good faith. it has been
prolonging the strike.
D. Interrogation and Threats
On October 7. after the Company had received its first
10-day strike notice from the Union. Diane Richards in-
structed the supervisors to ask the employees whether they
would work during the strike. According to Deborah Fein-
bloom. Richards' instructions to the supervisors were not
to harass the employees and to assume that employees who
refused to answer were not going to work. Yvonne Sulli-
van, coordinator of medical records and telephone counse-
lors, testified that she separately questioned I 1I employees
who worked under her supervision as to whether they were
planning to report for work on the first day of the strike
and whether they were planning to remain all day, and
explained to them that the reason for the questions was for
scheduling purposes. Nine of the employees answered
either es or no. There is conflict between the testimony of
Yvonne Sullivan and that of employees Ann Wax and
Joan I.evine as to what occurred during their respective
conversations with Sullivan on October 7. An affidavit fur-
nished to a Board investigator by Yvonne Sullivan on No-
vember 5 substantially corroborates the testimony of Ann
I, 1IIlLt_:11o 1t l s.liltlto! I)tlrp,)es .a1nd rels ;i purpoICse llcilnisitenl with
.,r i-1 iltml h.llHrVil1111t
"
Qtl II.C ilth i Plpr a l1 1. i ll it/ 55 r) l i t Irfi('rnalloll-
11 tl[,,eJ l i a ,d /l iit I/rA-r I t/1ditt. ,4-1' . (I1) /I hAi .t'it laes Pipe and
/im l , ( / 1 R . 442 1 2d 742. 747 D(. ( itr. 1971)
\ ' R . r 1ltl o l ' 4 's I ti llllpti l I '' i 1 /rd'-l l l11 A ( r Te
t[ ( / ./ I t S. 477, 484 ( 1960). Se Amc r') at(t S iot ( tImfrpaml ,!
tIliiiutf/ ' S i R B. 424 1 2 l( II 1 l (th (ti. 197( ): 1 R . v A it
h ./,11 i /- 1(. 449 I 2d 1333. 335 lSt ( tr 971. ert denied 401S t:.S
1065 1972): S n 4t't[i72l , tlfa s h ( a Su;til[ ( C r[illllll rtp. N L R B, 363
I 2 h( l3 th ( rit 1961), fr the proposition thalt wilhdra al h ll eniploer
.1 o..litl.[lt pliopsals itkti tlt d . o}' baote d t h d' ill carier hlrgain-
1iit s,.tlh. Ithoiut rood cis, e s I deltc of :1t Hak Iof ood-faiih bareain-
ie 1 11' li21'plsc.,1
PRETERM. IN(. 675
Wax and Joan evine. Accordingl. I find that when Wax
and Levine refused to respond directl' to Sullivan's quts-
tions she told them, "If you refuse to answer the question.
I'll have to assume ou're not comin to work and are
therefore putting your job in jeopards'
FIive das later, on October 12. Respondent circulateld a
questionnaire among its employees to determine whether
or not they would report for work during the strike anid in
the accompanying explanator_ memorandun stated:
Mr. Small also chared Preterni with ha\xinL commrnit-
ted an unfair labor practice hb making inquiries con-
cerning our intentions of reporting to sork on Octo-
ber 19. 1976. We are assured e can inquire of our
employees as to their intentions of coming to work at
the beginning of the strike. Our purpose in asking 'sou
is to make it possible to schedule incoming patients
and have employees availableto take care of them. We
want to assure you that ou are free to make your own
decision. No reprisals will be taken against ou what-
ever our decision ma, be.
If ou refuse to answer. we will not knowN whetOher
you will be working and will therefore have to schcd-
ule a replacement.
The purpose of Section 8(g) is to give health care instiitl-
tions sufficient advance notice of impending strikes to ena-
ble them to make arrangements for the continuit of pa-
tient care. "It was this sensitivit\ to the need for continuits
of patient care that led the ('onlnlittee to adopt amend-
ments with regard to notice requirements and other proce-
dures related to potential strikes and picketing."'' 4 In rec-
ognition of such congressional concern. I a of the
opinion that the strict safeguards enunciated in Johnnic\
Poullrv ('o., and John Bilop Poulr ( o., 146 NNI RB 771).
775 (1964), should be relaxed in the case of a health care
institution. I find that Yvonne Sullivan b asking Ann Wa\
and Joan Levine whether thes planned to work during the
threatened strike, in the circumstances described, did not
engage in unlawful interrogation. However. I agree with
General ('ounsel that Sullivan went beyond the needs of
the situation by threatening the emplosees that if thex
didn't report for work they would be putting their jobs in
jeopardy. Furthermore. these threats were repeated on Oc-
tober 18 when Leon Kowal informed the Union's negotiat-
ing committee that emplosees ho go on strike will be
permanently replaced. As the strike 'was an unfair labor
practice strike. such communication was "a significant mis-
representation and constituted an unfair labor practice. 4'
Accordingl'. I find that the threats made by Sullivan and
Leon Kowal that employees who went on strike placed
their jobs in jeopardy or would he permanently replaced
constituted violations of the Act.4 "
St J,,h,,' I...tfa .l ni . Sn h., . M nis, . I,n \ I R / 1 / ' ' I 1
13h8 Ith ( ff 1977
4 (thnu t,,> Rt ,,,swt I (.qp , n,,, n ) 1l 1 ,.,1 lm n ' I A' 1 i()
I 2d 4()1 (91l ( It " ') tAscrd tlu,I,,A lr0nA R./, a I ,s,, p .t.t
t: - . ,,n/ K, I t/,,, I bib N R 346 3 1 0 (tl 197
()n O t),tl [ I). l ,mc R liltrds t.rot nnI-pac cu t* t nplpicN -
iltte iIc id
I Is I 1tI (F I i I I \ \R tiOR iR(II'IS PO
(()1MMFR( I
Ihe actl ities of the Respondent set forth in section III.
abhoe. occurring in connection with Respondent's opera-
tions described in section 1. above, have a close. intillmate,
and substantial relatiotnship to trade. traffic. and com-
merce among the several States and tend to lead to labor
disputes burdeningi and obstructing commerce and the free
flow of commerce.
1H Rilt )
Hla ing found that the (Compan} has engaged in unfair
labor practices. I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
I has e found that the Company has refused to) bargain
collectivel in good faith with the llnion as the representa-
tive. duln certified b the Board. of an appropriate collec-
tie-bargaining unit of its emploxees. In order to insure
that these emploees will have the opportunit\ to en jo the
full benefits that maN he derived from their selection of a
bargaining agent ats contemplated the Act, I recoin-
mend thilat the initial ear of certification be deemed to
hegin on the date that the C(ompans commences to bargain
il good faith with the L:nion as the recognized representa-
tive of the employees in the appropriate unit. See iMar-Jac
Poull r ( n'p(lanl. Inc.. 13(6 N LRB 785 (1962); (CorMlneorc
()omfla mll (d i a Lmar IltteL 140 NLRB 226. 229 (1962).
enifd. 328 F.2d 600 (th (r. 1964). cert. denied 379 U.S.
817 ( 11964): Burnett ( t)ntructl (n / imian . 149 N LRB
1419. 1421 ( 1964). enfd. 350 F.2d 57 (10th Cir. 1965).
I also hase found that the strike. which began on Octo-
her 19 and which was still in progress on the dates of the
hearitg in these cases. was caused and has been prolonged
bh Respondent's unfair labor practices. Accordingl. I
shall recommend tha;t. upon application for reinstateienlt.
Respondent shall reinstate to their former job or. if those
jobhs no longer exist. to substanitiall equisa lent positions,
without impairment of their seniority or other rights and
privileges. all those emplo yees who participated in the
strike and who have not alreads been reinstated. dismiss-
ing, if necessar,. an_ persons hired as replacements onil or
after October 19. If. after such dismissals, there are insuffi-
cient positions renmaining for all the striking employees
Ii, ih 1 C' .Ctt .1 I rikc .t1 P ic r IIt I ni l IlC 1 V r lt' ( SI I ie e . . 1
OML lti. I'en t ie All',.ts. e are perrilitted to hire perit.ailent rc
pJ.lllCrlls a, c Xe I ll lkn. . r\ cff-.rt It) do .o \,e 'aill pr-&le
PL [C1 pi11 tll OllI to[ ,l c ll o ce. , III ) ls ll l s o sn rk a, 11 e s l I. r .11 oI
1tl nI -ns5 \id illit; 'C s1 1 ti il\ [ie ie rdl .s ,, t l l h i .i.I l,
, I 1 , 'I tit,11. 11l
lie t il. t t lill I ei }1.lrl h. P.i I l l-'nlp1 1 ill cls t , r il tlI I',f h il t.!iC
pic li.llllCtl rc t¢l.lse U it Ill l l.lt p i iCe .triker, It,t nel. at the tit Ict
etillt x *.,i eIlln] ., 1)-dli strikc otic had tnot c hiCl cr,cd lhe lis,-
5LI]M o t -i [O %k1l1 I1 n Clpfo I¢r 11 k u 11 1 l' ¢11 lls ( 0J Ilk uMJ1kC .'. puel k
h tlDlt'llt.t S nsinl llI [ h I e t C [lljis Il lI i [.ltt I tt . 1 i t lk t l. kc s'. scl C
)cctl.ol It J . fjr rill f . tmrliri th \*e there Th he A strike t ;Olid hC
Il cx oollXC ' t' tle ( Jil' s U11 1; l tlifl lahor p llatics J 1is 1 lotedl that Miilll;l
ist1iJ atiiv (,pl, 1[i I ll . ll earilt lietiC l it ( Iillpi \ it t .IIC th ls ll1[leS]o \ till
\1",' S \.s 1.rinlilk. I fint Il./ i tIc taititletll Il t Oc ()alh I leticr tlit
"It ,il iitil td i, lic l tirirneCti rq].¥CItic ti[i .,ind tIc till iilkike e\
~t r[ , ,, ,' '.,. 10J, 11t11 II.12\
PRTERM. INC.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who desire reinstatement, the available positions shall be
distributed among them, without discrimination because of
their union membership, activities, or participation in the
strike, in accordance with seniority or other nondiscrimina-
tory practices as theretofore were applied by the Company
in the conduct of its business. Those strikers for whom no
employment is immediately available after such distribu-
tion shall be placed on a preferential hiring list with priori-
ty determined among them by seniority or by such other
nondiscriminatory practices as theretofore were applied by
the Company in the conduct of its business, and thereafter,
in accordance with such system, they shall be offered rein-
statement as positions become available and before other
persons are hired for such work. I shall also recommend
that Respondent make the striking employees whole for
any loss of earnings they may have suffered or may suffer
by reason of Respondent's refusal. if any, to reinstate
them. by payment to each of a sum of money equal to that
which she normally would have earned during the period
from 5 days after the date on which she applied. or shall
apply, for reinstatement to the date of Respondent's offer
of reinstatement to her, absent a lawful justification for
Respondent's failure to make such offer. Backpay shall he
computed on the basis of calendar quarters, in accordance
with the method prescribed in F: W. Woolworth (Compatn.
90 NLRB 289 (1950). with interest computed thereon in the
manner prescribed in Florida Steel Corporation, 231 NL.RB
651 (1977). 5' )
For the reasons set forth in M. F.A. Milling C(ompan. 170
NLRB 1079 (1968), enfd. 463 F.2d 953 (D.C. Cir. 1972). 1
shall recommend that the Respondent reimburse the em-
ployee-members of the union negotiating committee for
the wages lost, if any. while attending past negotiating ses-
sions, with interest thereon at the rate of 7 percent per
annum.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
Conclusions of Law
1. By failing and refusing to bargain in good faith with
the Union as the collective-bargaining representative of the
Company's employees in the appropriate unit described
below with respect to rates of pay. wages, hours of employ-
ment, and other terms and conditions of employment, the
Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act. 51
2. By the foregoing conduct and by threats to perma-
nently replace employees who engaged in a lawful strike in
protest of Respondent's unfair labor practices, the Compa-
ny also has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7
and has thereby engaged in unfair labor practices within
the meaning of Section 8(a)( ) of the Act.
See, generall. /s, P1'u0sytth I/tlaLng ( ,, 138 N I.RB 71 ( t19621
As the initil charge n these proceedings ;sf biled lon Oclth ber 14. the
unfair labol practices herein found date onls from April 14 llo.ccl tlhe
conduct of Respondent described ahobe .ntedalting April 14 u.ai ielc;ant
and wils used to shed lighi uponl alld Ito explai the ir;ln;lcti.lll. oct. ttlilml
thereafter
3. The strike of Respondent's employees which began
on October 19 was caused and has been prolonged by Re-
spondent's unfair labor practices herein found.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in these proceedings.
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 5'
The Respondent. Preterm, Inc., Brookline, Massachu-
setts, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with District 1199
Mass. National Union of Hospital and Health Care Em-
ployees, a Division of RWDSU/AFL-CIO. as the exclu-
sive collective-bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time counselors. tele-
phone counselors, the abortion coordinator, nurses
aides, supervisor of the telephone room, pap clinic
coordinator, medical chart clerks, admitting officers,
receptionists. including the first floor receptionist and
medical center manager. maintenance employee, and
trainees, employed at the Employer's Brookline, Mas-
sachusetts, location, but excluding bookkeeping em-
ployees. administrative assistant, administrative secre-
tary, medical director's secretary, all other
coordinators, counselor training assistants, and evalu-
ators. student interns, registered nurses, licensed prac-
tical nurses, physicians, physicians' assistants, guards.
and supervisors as defined in the Act.
(b) Failing or refusing to furnish the Union, with rea-
sonable promptness, information duly requested by it con-
cerning employees' wages, hours. or terms or conditions of
employment that is relevant to the Union's collective-bar-
gaining duties, including the administration of any subsist-
ing contract.
(c) Threatening to replace permanently employees who
engage in a strike in protest of Respondent's unfair labor
practices.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. ake the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon their application, offer immediate and full re-
instatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges previ-
ously enjoyed, to all employees of Respondent who partici-
In tile cenlt nil exceptiolTs re filed ias pro.ided h Sec. 10246 of the
Rules lnld Regulailuls of Ihe N; atiinal .abhor Relations Board the findings.
iinclislon. , and T;lid ecolend d ed Ord r herein shall.i a prosided in Sec
1102 48 of the Rules nd Reculaltion. bhe ;adpted hb the Board and become
It, ti1ll
~
illg. ltt Cus.nl. .,anid O( der. i.nd ;ill ohccliolls IheCreto shall be
deciledl ai,,t ed for ill purp-..cs
PRETERM INC. 677
pated in the strike which began on October 19. 1976. and
who have not already been reinstated. dismissing. if neces-
sary, any persons hired as replacements by Respondent on
or after October 19. 1976. If sufficient jobs are not avail-
able for these employees. the, shall be placed on a prefer-
ential hiring list in accordance with their seniorit' or other
nondiscriminatory practices theretofore utilized hb' the
CompanN, and they shall he offered employment before
any other persons are hired. Respondent shall also make
whole these employees for anN loss of earnings thes mani
suffer by reason of Respondent's refusal. if anyv, to rein-
state them in accordance with the terms of tis recomn-
mended Order, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request. make available to the
Board or its agents. for examination and copying, all pas-
roll records, social security payment records. timecards.
personnel records and reports. and all other records neces-
sary to analyze the amount of backpaN due under the terms
of this recommended Order.
(c) Upon request, bargain collectively concerning rates
of pay,. wages, hours of employment, and other terms and
conditions of employment with District 1199 Mass. Na-
tional Union of Hospital and Health Care Employees. a
Division of RWDSU AFL-CIO, as the exclusive collec-
tive-bargaining representative of all the employees in the
appropriate unit described above and if an agreement is
reached. embody it in a signed contract. The certification
'ear shall extend I year from the date such new bargaining
negotiations begins.
(d) Make whole each employee-member of the negotiat-
ine committee of the Union for earnings lost while attend-
ing past bargaining sessions, with interest thereon at the
rate of 7 percent per annulm.
(e) Post at its place of business in Brookline. Massachu-
setts. copies of the attached notice marked "Appendix." '
Copies of said notice, on forms provided by the Regional
Director for Region , after being duly signed b Respon-
dent's representative, shall be posted by Respondent imme-
diately upon receipt thereof, and he maintained by it for 60
consecutive days thereafter, in conspicuous places. includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered. defaced, or cov ered
hb' an', other material.
(f) Notif' the Regional [)irector for Region . in rit-
ing. within 20 daN s from the date of this Order. what steps
Respondent has taken to complN herewith.
'II the elil thli thil ()rdeir i, enforced h\ .a udi cnn of .1 t niled
C.s11- ( IOtil Of \ppI cs [hi torlJ II th . tlt. ' c1llld d i 1'1 ,,,t' h() Order
(of ht' .liohal Ihor Rclamtio , Boaird" hahl citd "P, l ci-ed PurxliI1l I
.Ilud1.1d nl l if [Ile t 1nlcd 5s ljlA t llt 4f -\prcls i lf, wrtlo ,t OlTdI (It Ilt'
\.ait.al Il'ol RcKlmon, Board"
PRETERM. INC. 77