Whittier Area Parents' Assn.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 817 (N.L.R.B. 1989)

WHITTIER AREA PARENTS' ASSN.
Whittier Area Parents' Association for the Develop-
mentally Handicapped and AFSCME Social
Service Union, Local 1108, American Federa-
tion of State, County and Municipal Employees,
AFL-CIO. Cases 21-CA-24673, 21-CA-24787,
21-CA-25048, and 21-CA-25527
September 29, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On September 21, 1988, Administrative Law
Judge David G. Heilbrun issued the attached deci-
sion. The General Counsel filed limited exceptions
and a supporting brief, and the Respondent filed
exceptions and a supporting brief as well as a brief
in opposition to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge' s rulings, findings,2
and conclusions and to adopt the recommended
Order as modified.
The judge rejected the General Counsel's con-
tention that a strike commencing on June 11 and
running until June 17, 1986, was caused by the Re-
spondent's unfair labor practices and constituted an
unfair labor practice strike. He found, rather, that
the employees had engaged in an economic strike
and are entitled to reinstatement under the princi-
ples of Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397
U.S. 920 (1969). The Respondent excepts to the
judge's conclusion that the employees engaged in
an economic strike, arguing that the employees
were striking in part in support of a permissive sub-
ject of bargaining and that the strike was therefore
illegal . Hence, the Respondent asserts the employ-
ees are not entitled to reinstatement because they
lost the protection of the Act by engaging in an il-
legal strike.
We agree with the judge that the employees en-
gaged in an economic strike in response to the Re-
' The General Counsel has implicitly excepted to some of the judge's
credibility findings . The Board's established policy is not to overrule an
administrative law judge 's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951) We have carefully examined the record and find no basis for
reversing the findings
2 Even assuming that the General Counsel has established that the Re-
spondent asserted an inability to pay current salaries and benefits in its
bargaining with the Union, there is no violation in refusing to give the
Union the financial information because , as the judge found , the informa-
tion sought either did not exist , was only in the nature of financial specu-
lations, or was privileged.
817
spondent's reductions in wages and other employee
benefits in accordance with its last contract offer
prior to bargaining impasse. The Respondent
walked out of bargaining assertedly because of the
Union's failure to take off the table a proposal that
the Union have a member on the Respondent's
board of directors. We agree with the judge that at
that time the parties had reached impasse on such
key issues as wage levels, management rights,
grievance procedure, language on discipline, union
security, fringe benefits, and matters relating to any
work stoppage. The Respondent declared an im-
passe as of May 1, 1986, but did not implement any
changes until May 27. It was only after the Re-
spondent's implementation of changes that the em-
ployees met in late May and voted to strike.
Union Representative Jim Smith testified that he
told the members at the late May meeting that in
his opinion certain unfair labor practices had been
committed, that there had been bad-faith bargain-
ing, and that the implementation was an unfair
labor practice. Smith stated that he told the em-
ployees what options they had under the imple-
mentation, and that an unfair labor practice strike
was a protected activity, should the Board find that
there were unfair labor practices, and the employ-
ees then voted to strike. While we affirm the
judge's finding that the strike was not an unfair
labor practice strike because we have not found the
Respondent to have committed unfair labor prac-
tices, the strike was clearly motivated by the Re-
spondent's implementation of changes in employee
wages, benefits, and working conditions. As such,
it was an economic strike.
The judge found that nine strikers who made un-
conditional offers to return to their former posi-
tions of employment were not reinstated following
the strike, or were belatedly reinstated. Of the nine,
he found that strikers Browne, Cambron, de los
Santos, and Montgomery were reinstated on vari-
ous dates between September 1986 and August
1987, and that strikers Beltran, East, Flores, and
Montoya were never reinstated even though the
Respondent presented no valid or convincing ex-
planation why the departures of regular or replace-
ment employees were not promptly followed by re-
instatement of waiting former strikers. To remedy
the Respondent's discriminatory failure to reinstate
striking employees, the judge ordered that Browne
and de los Santos be made whole for losses result-
ing from the Respondent's failure to reinstate them
at appropriate times, and that Beltran, East, Flores,
and Montoya be reinstated and also made whole
for such losses. The judge deferred to a separate
compliance proceeding the determination of appro-
priate reinstatement dates for each of the six discri-
296 NLRB No. 102
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
minatees because of the state of the record on this
issue.
The General Counsel has excepted to the judge's
failure to find that the reinstatement of strikers
Cambron, Montgomery, and Stelzer was also un-
lawfully delayed,3 contending that they should be
included in the judge's remedial order as well. Evi-
dence of when regular employees or permanent re-
placements left the Respondent's employ consisted
of a summary of the names and dates of discharges,
resignations, or quits from June 17, 1986, to Octo-
ber 1, 1987, prepared by the Respondent's execu-
tive director at the request of counsel for the Gen-
eral Counsel and offered in evidence by the Gener-
al Counsel. That list shows the earliest departure to
have occurred on December 19, 1986, when Gene-
vieve Stelzer is listed as permanently disabled. Al-
though Stelzer was apparently never reinstated fol-
lowing the strike, and is indeed one subject of the
General Counsel's exception here, there is no spe-
cific evidence as to her alleged disability or rein-
statement in the record other than her inclusion on
this list presented by the General Counsel.4 In the
absence of evidence rebutting the Respondent's list
showing Stelzer to have become disabled prior to
any regular or replacement employee leaving the
bargaining unit, we find that the General Counsel
has failed to establish that Stelzer is entitled to be
made whole for losses resulting from an alleged be-
lated reinstatement.
Likewise, both Cambron and Montgomery were
reinstated prior to the time that a regular or re-
placement employee left the bargaining unit. Ro-
sanna Cambron was reinstated on September 2,
1986,$ and Brian Montgomery on February 9,
1987, although the list introduced into evidence by
the General Counsel shows the first date on which
a regular or replacement employee left the bargain-
ing unit after Stelzer's December 1986 disablement
to be February 16, 1987, subsequent to the time
that both Cambron and Montgomery had been re-
instated. Accordingly, we find no merit to the
General Counsel's assertion that Cambron, Mont-
3 The judge, at one point in his decision , included these three individ-
uals in a list of unremstated or belatedly reinstated strikers However, he
does not make any findings as to which status each had and in his "Anal-
ysis" section does not include any of these individuals in his list of discri-
minatees.
4 The Respondent alleged in its answer to the complaint that Stelzer
was not a striker, was on workers' compensation leave , and because per-
manently disabled to work at Respondent 's facility , found alternative em-
ployment elsewhere and ceased to be an employee of the Respondent
5 The complaint alleges that Cambron was reinstated on September 2,
1986. The Respondent 's answer asserts that Cambron was reinstated on
or about August I. 1986 The judge found Cambron to have been rein-
stated on September 2, 1986, and this is also the date which the Respond-
ent gives for Cambron's reinstatement in its brief in support of excep-
tions
gomery, and Stelzer should have been included in
the judge's remedial order.
Like the judge, we find the state of the record
here does not permit definitive findings on the ap-
propriate dates for striker reinstatements. The Re-
spondent's list shows that employee Martha Miller
left the bargaining unit on February 16, Jose Bal-
denebro left on June 4, and previously reinstated
striker Brian Montgomery left on August 10, and
yet no unreinstated striker was reinstated to any of
these three positions until August 18, 1987, when
Marilyn Browne was reinstated. Further, the only
additional striker to be reinstated was Josefina de
los Santos who was reinstated on August 24, even
though two additional employees left the bargain-
ing unit in September and October 1987: Maureen
Anderson on September 11, and Martha Pizarro on
October 14, 1987. It would thus appear that vacan-
cies existed to reinstate most, if not all, of the four
remaining unreinstated strikers, and that vacancies
also existed to reinstate strikers Browne and de los
Santos long before their actual reinstatements.
However, because the record is not clear whether
Genevieve Stelzer's December 19, 1986 disable-
ment actually provided a vacancy in the bargaining
unit, or what the appropriate order of employee re-
instatements should be, we cannot make findings
on these matters and leave their determination to
the compliance stage of this proceeding. Further,
because we cannot determine which of the unrein-
stated strikers would not yet be entitled to rein-
statement in the event that not enough regular or
replacement employees have left the bargaining
unit to require reinstatement of all, we shall include
all the unreinstated strikers in our remedial Order,
but shall modify the judge's recommended Order
to provide that the Respondent prepare a preferen-
tial hiring list and thereafter recall strikers as jobs
become available.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Whittier Area Parents' Association for
the Developmentally Handicapped, Whittier, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(b).
"(b) Offer Sylvia Beltran, Patricia M. East,
Norma M. Flores, and April M. Montoya immedi-
ate reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, or, if
WHITTIER AREA PARENTS' ASSN.
no such jobs are available , prepare a preferential
hiring list and thereafter recall employees as jobs
become available in accordance with such list, and
before other persons are hired for such jobs."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Make Sylvia Beltran , Patricia M. East,
Norma M. Flores, April M. Montoya, Marilyn S.
Browne, and Josefina de los Santos whole for any
loss of earnings and other benefits suffered as a
result of discrimination against them , in the manner
set forth in the remedy section of the judge's deci-
sion."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discriminate against former eco-
nomic strikers by failing and refusing to make
timely reinstatements after they have uncondition-
ally applied to return to work.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole Sylvia Beltran, Patricia
M. East, Norma M. Flores, April M. Montoya,
Marilyn S . Browne, and Josefina de los Santos by
paying them back wages plus interest, and WE
WILL immediately offer reinstatement , if not al-
ready done , to Sylvia Beltran , Patricia M. East,
Norma M. Flores, and April M. Montoya to their
former or substantially equivalent positions of em-
ployment or, if no such jobs are available, we will
prepare a preferential hiring list and recall them as
819
jobs become available in accordance with such list
and before other persons are hired for such jobs.
WHITTIER AREA PARENTS' ASSOCIA-
TION FOR THE DEVELOPMENTALLY
HANDICAPPED
Robert H. Murray, for the General Counsel.
Kenneth E. Ristau, Jr., of Newport Beach, California, for
the Respondent.
Jim Smith, of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
DAVID G . HEILBRUN , Administrative Law Judge.
These cases were tried at Los Angeles, California , during
six hearing days in November 1987. Various charges, and
one amended charge , on which the proceeding was
based, were filed over the period May 6, 1986, to July 2,
1987, by AFSCME Social Service Union, Local 1108,
American Federation of State, County and Municipal
Employees, AFL-CIO (the Union). A consolidated com-
plaint was issued September 2, 1987 . The primary issues
are whether Whittier Area Parents' Association for the
Developmentally Handicapped (Respondent or
WAPADH) failed and refused to bargain in good faith
with the Union , impermissibly modified terms and condi-
tions of employment of employees in a unit for which
the Union was exclusive collective-bargaining representa-
tive, failed and refused to furnish assertedly necessary
and relevant information requested by the Union, and
failed and refused to accord lawful reinstatement rights
for striking employees, in violation of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act.
On the entire record , including my observation of the
demeanor of witnesses , and after consideration of briefs
filed by the General Counsel and Respondent, as well as
oral summation made on behalf of the Union , I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a nonprofit social service agency, engages
in providing training and education for developmentally
handicapped adults at its facility in Whittier, California,
where it annually derives gross revenues in excess of
$250,000 while purchasing and receiving goods and/or
services valued in excess of $2000 which originated out-
side California. As admitted, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Function
WAPADH operates pursuant to a popularly termed
"Lanterman Act," found as Section 4500, and following,
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of California 's welfare and institutions code . Its object is
to provide life functioning and enrichment services to
the developmentally disabled ; those, for example , having
mental retardation , cerebral palsy, epilepsy , or autism.
Jurisdiction to fund , regulate, monitor , and administer
what is contemplated by this statute reposes in the Cali-
fornia Department of Developmental Services (DDS).
From this there has developed a statewide network of 21
regional centers , each themselves an autonomous, pri-
vate, nonprofit entity which contracts with DDS.
WAPADH, like many comparable institutions , origi-
nates its services as a "vendorized " entity, one which has
applied through a regional center for ultimate approval
of program(s) by DDS. The application requires proof of
current licensing , describes specific program services to
be provided individual clients, and includes the initial
cost statement projected in a range of 9-12 months.
After supportive clearance by a regional center , signify-
ing that the proposed vendorization accords with that re-
gional center's own budget, a "rate letter" will issue
from DDS . This authorizes actual disbursement of funds
at the appropriate future time by an associated regional
center once program (s) come on line by actual client
referral(s) leading to attendance and institutional activity.
WAPADH vendorizes through the East Los Angeles
Regional Center (ELARC), one in which overview wit-
ness Gloria Wong serves as a resource developer, for-
merly having been a case manager with the center.
WAPADH is itself governed by an approximate nine-
member board of directors , all but one of whom are par-
ents of persons benefiting from Lanterman Act services.
A predominant 75 percent of client referrals , and thus
program participants , come from ELARC, with an addi-
tional 10 percent emanating from proximate Orange
County Regional Center and the miscellaneous remain-
der from three other nearby regional centers of the gen-
erally metropolitan Los Angeles area that is involved.
WAPADH originated around 1973, and first vendor-
ized under a program which DDS codes as 101, de-
signed for persons with mastery of most basic self-help
skills and thus requiring only a moderate to minimum
range of supervision . In all practical parlance this
became known as the Adult Activity Center. In 1984
WAPADH extended its services by vendorization under
DDS program code 181, that existed for developmental-
ly disabled persons at the lowest functioning levels with
an expectation of moderate to intensive level supervision
assessed . This program is termed the Adult Development
Center. The two programs involve a 1:6 and 1:4 staff to
client ratio, respectively. Additionally, WAPADH oper-
ates two non-Lanterman Act programs , one at its Russell
House and the other at Newcomb House .' These are in-
dependently funded facilities , utilizing nonbargaining unit
personnel, but an integral part of Respondent's overall
budget as this in turn associates to business and oper-
ational planning.
WAPADH employs an executive director, currently
Stephen L. Boyer who has held the position for 6 years.
He or an incumbent is theoretically assisted by a super-
' At the time of hearing , WAPADH was expecting to close its New-
comb House
vising program coordinator, bookkeeper, and secretary,
plus that the operation employs hourly paid bus drivers.
The Lanterman Act programs, for which the bargaining
unit personnel are employed, also utilize adult education
teachers of the Whittier Union High School District as a
major component of staff supervision extended to and
over individual clients during daily participation in adult
activity center or adult development center experiences.
Boyer estimated the value to WAPADH of these ap-
proximately five "donated" adult education teachers as
$100,000 annually . To an observer the functions carried
out by publicly supplied "teachers" and employee "in-
structors" of varying educational and experience levels
(or their "substitutes") are, for practical purposes, indis-
tinguishable. The job titles of WAPADH staff as com-
prising the Union 's bargaining unit are instructors I, II,
III, IV, and V, the last a community trainer.
The funding for programs 101 and 181 , as authorized
and from time to time modified by rate letters , was cur-
rently $15.91 and $33.64 per client, per day, respectively.
Initial reimbursement is furnished provisionally ; an entity
such as WAPADH being required to submit a cost state-
ment after about 1 year and periodically thereafter.
Actual disbursements are made by the regional center
based on a vendor 's monthly claim . Rate increases may
be sought , and even recommended by a regional center,
but DDS always retains final approving authority.
WAPADH has not received an increase , cost-of-living or
otherwise , in its basic program rates for the 2-year
period preceding this hearing . As a separate dynamic of
its financial processes and controls , WAPADH annually
prepares a "forward -looking" budget . No approval of
this budget is required from either ELARC or DDS.
B. Case Overview
Based on a secret -ballot election conducted in late De-
cember 1985, the Union was promptly certified as exclu-
sive representative for a collective- bargaining unit in
which full-time and part-time instructors and community
trainers comprised the only included employees.
The Union proposed a commencement of collective-
bargaining negotiations by letter dated January 3, 1986,
from Representative Jim Smith to Boyer, in which speci-
fied items of information were also requested. An an-
swering letter dated January 20, 1986, was sent to Smith
from Attorney Kenneth E . Ristau Jr ., identified as WA-
PADH 's retained representative for purpose of the nego-
tiations. This also enclosed information generally respon-
sive to the Union 's requests . Communication ensued be-
tween Smith and Ristau , from which the first negotiation
session looking to an initial contract was mutually agreed
on for March 3, 1986 . Following this Smith transmitted
the Union's complete proposed agreement , and Ristau
delivered a comparably complete counterproposal by Re-
spondent at the scheduled first meeting.2
The parties engaged in another six negotiation sessions
during March and April, following which Ristau de-
clared a bargaining impasse had been reached. In May
2 All dates and named months hereafter are in 1986 unless otherwise
indicated
WHITTIER AREA PARENTS' ASSN.
Respondent implemented numerous changes to existing
terms and conditions of employment, essentially as wage
and benefit reductions . In June a brief strike was called
by the Union, and from this various individuals were not
reinstated , or were belatedly reinstated, on the claimed
basis that Respondent had permanently replaced them on
outset of the strike. Negotiations have been dormant
since mid-1986, and Respondent now functions with re-
vised personnel policies for its employees. Smith
switched employment at around the same time to the
Los Angeles Newspaper Guild, however he continues
supportive activity on behalf of the Union as a carryover
project of its certification.
C. Respective Contract Proposals
1. Introduction
The early contract proposals between the parties arose
out of Respondent 's personnel policies and procedures
manual (personnel manual) of 11 pages, plus another 11
pages of minimum qualifications and job descriptions for
a dozen different positions ranging from executive direc-
tor to transportation coordinator. The personnel manual
covered typical subjects of disciplinary procedure , leave,
benefits, pay practices, termination procedures, and a ru-
dimentary grievance procedure culminating in final deci-
sion by the agency's board of directors at the third step.
Smith attempted insofar as practicable to pick up on
this familiar and established document, by casting certain
of its content into the Union's initial contract proposal.
In turn , Ristau attempted to mirror the Union's format
and sequence of subject matter in Respondent's counter-
proposal on March 3, of which he presented a corrected,
substitute counterproposal at the next negotiation session
on March 11.
The original counterproposal had two defects; (1) es-
sentially duplicative articles 14 and 32 concerning mini-
mum wage rates to be offered by the employer, and (2)
the absence of a supposedly attached appendix A for the
listing of such rates . Article 14 was not affected by the
correction , so in both versions it read:
14.1 The minimum wage rates which shall be ef-
fective during the term of this Agreement are set
forth in Appendix "A," attached hereto and made a
part hereof.
14.2 Changes in rates of pay shall be effective
from the first day of the pay period following any
change which would require a change in rate of
pay.
Article 32 had originally simply read, "Wages shall be as
set forth in Appendix A hereto." The corrected version
deleted duplicative article 32, and resulted in that article
number becoming "Health Insurance," with associated
renumbering of "Period of Agreement" to article 33. Ad-
ditionally this substituted correction of March 11 actual-
ly contained an appendix A, as contemplated by the
phraseology of article 14. In consequence of these com-
positional efforts, the following configuration fairly de-
picts the respective contract subject headings at the gen-
eral commencement of negotiations , excluding oddities of
821
numbering or nonnumbering as to a routine preamble
and recitation of agreement wording by one or both par-
ties.3
Union
1. Recognition
2. Coverage
3. Equal Employment
4. Grievance
Procedure
5. Arbitration
6. Disciplinary
Procedure
7. Payroll
8. Itemized
Deductions
9. Check-off
10. Overtime
11. Wages
12. Vacations
13. Leave of Absence
and Release Time
14. Job Descriptions
15. Eemployee
Medical Plans
16. Holidays
17. Employee Benefit
Plans
18. Alteration of
Agreement
19. Union Security
20. Maintenance Of
Privileges
21. Information To Be
Furnished To The
Union
22. Affirmative
Action
23. Bulletin Boards
24. Seniority
25. Preferential Hiring
26. Union Committee
27. Visitation
28. On-The-Job
Training program
29. Safety And Health
30. Picket Line
31. Wage Reopener
Respondent
2. Recognition
3. Management Rigths
4. Union Representation
5. Grievance Procdure
6. Working Conditions
7. Bulletin Board
8. Definition of Employees
9. Hours of Work
10. Overtime
11. Non-Discrimination
12. Discipline
13. Hiring, Recruitment and
Promotion
14. Wage Rates
15. Basic Principles
16. Performance Evaluations
17. Personnel Files and
Applications
18. Vacation
19. Holidays
20. Sick Leave
21. Leave of Absence
Without Pay
22. Jury Duty
23. Reduction In Forec
24. Bereavement
25. Benefits Dependent
Upon Continued Funding
26. Savings
27. No Work Stoppages
28. Entire Agreement
29. Miscellaneous
30. Safety
31. Seniority
32. Health Insurance
' Respondent 's document , however, began with this cautionary state-
ment.
The following proposals are submitted in tentative contract lan-
guage . It is also the Employer 's position in regard to these proposals
that both parties will reserve the right to add to , subtract from,
change or modify their proposals until such time as a complete
agreement is reached and signed by the parties.
Also, the closing phraseology of Respondent's document , on a page
preceding appendix A (presumably numbered p. 59, but inadvertently
missing from G C Exh 13 in original exhibits to transcript ), stated paren-
thetically, "No retro-only effective from and after date of ratification."
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32. Availability Of 33. Period of Agreement
Agreement
33. Savings Clause
34. Eemployee
Participation In
WAPADH
35. Duration4
2. Description of selected proposals
a. Union's
(1) Article 4 (and 5)-Grievance procedure (and
arbitration)
Advanced the definition ". . . any dispute between the
Employer and the Union or between the Employer and
any employee concerning the effect , interpretation , appli-
cation , claim of breach or violation of this agreement or
any other dispute which may arise between the parties,"
as to be "settled" by a three-step grievance procedure
followed by "the right and authority" to invoke Federal
Mediation and Conciliation Service (FMCS) arbitration
of a "final and binding " nature.
(2) Article 12-Vacations
A tailored proposal for employees at the first step to
earn 10 vacation days per year and an additional day for
each higher step , with an optional pickup of sick days
and enrichment should a holiday occur during the em-
ployee's vacation.
(3) Article 15-Employee medical plans
A proposal for fully paid Kaiser medical coverage, a
fully paid dental plan, and providing an equivalent
amount thereof to an employee choosing alternative
medical and/or dental plans , plus the proposal at this
point for employees to earn 1 sick day per month with
unlimited accumulation.
(4) Article 16-Holidays
A proposal for 8 hours pay on at least 14 specified
days plus 3 "additional personal holidays" and 2 hours
for an election day.
b. Respondent's
(1) Article 3-Management rights
A detailed proposal of two full pages outlining desired
management rights to be retained "solely and exclusive-
ly" by the employer, except as "specifically limited by an
express provision" of any agreement reached.
(2) Article 5-Grievance procedure
Advanced the definition "a claim by an employee or
employees, or the Union, that a specific term of this con-
tract has been violated," to be "handled" by a three-step
4 This subject matter of the Union 's contract proposal contains an ap-
parent inadvertence in 35 4 by its internal reference to a supposedly in-
trinsic "Article 42 (Wage Opener)", presumably a mistakenly entered
copying of a pilot contract document
grievance procedure preceding any "[appeal]" to FMCS
arbitration of a "final and binding " nature on matters
"properly" brought up. Here WAPADH also proposed
that "the power and authority of the arbitrator shall be
strictly limited ," with any decision to be based "solely
on the evidence and arguments presented" if all time
limits had been met , and that the entire contractual arbi-
tration procedure would constitute "the sole and exclu-
sive method for adjustment and settlement between the
parties of any and all grievances."
(3) Article 8-Definition of employees
This proposed categories of full -time employees, regu-
lar part-time employees , other part-time employees, tem-
porary employees and excluded consultants . The regular
full-time employees were to be those who "work 40
hours weekly" upon satisfactory completion of a proba-
tionary period , leading to eligibility for "all applicable
employee benefits." This contrasted to the next category
under which regular part-time employees who "work 30
hours or more, but less than 40 hours weekly" are to be
proportionately eligible for various benefits , and as fur-
ther contrasted by part-time employees working less than
30 hours weekly and temporary employees, who in such
cases "are not eligible for employee benefits " and "do
not receive fringe benefits ," respectively.
(4) Article 12-Discipline
A proposal authorizing discipline, discharge or suspen-
sion if for "just cause ," with a provision for one written
warning notice except in any instance of 22 enumerated
offenses . A redundant component of the proposal read
that all time limits of the grievance and arbitration pro-
cedure for the appealing of "action or . . . determina-
tion" by the employer "are jurisdictional and must be
properly submitted for arbitration."
(5) Article 18-Vacation
A two and one-half page proposal of features and defi-
nitions under which employees would accrue 5 days va-
cation 1 year from their date of hire and an additional
day per year of service up to a total maximum of 10
days, excluding in both instances any part -time employ-
ees while further providing a modified prohibition
against vacation carryover from 1 year to another.
(6) Article 19-Holidays
A proposal with accompanying language as to eligibil-
ity that only full-time employees receive the eight listed
paid holidays.
(7) Article 27-No work stoppages
A tightly written , two-page proposal essentially pro-
hibiting any form of work stoppage , with employee dis-
cipline for the breach thereof reserved to the employer's
"sole discretion." WAPADH proposed a further reserva-
tion of "all appropriate judicial remedies , including . . .
injunctive relief and damages" in terms of the Union's
obligation to "immediately make every reasonable effort
to terminate such [prohibited work stoppage] conduct,"
WHITTIER AREA PARENTS' ASSN.
all in connection with tentative language assuring "no
lockouts" by the employer to the extent within its con-
trol.
3. Selected verbatim proposals
a. Union's
(1) Article 6-Disciplinary procedure
6.1 No list can contain all of the actions that may
prompt disciplinary action . The following lists are
intended to give a guideline and understanding of
the response which WAPADH shall take for these
and similar offenses . All disciplinary action will be
documented in writing and signed by both employ-
ee and supervisor.
TYPES OF OFFENSES
1. Theft from a fellow employee, client, or
WAPADH.
2. Falsification of documents or falsification of re-
quired reports involving an attempt to defraud.
3. Refusal to report work-related accidents in which
injury or property damage occurred.
4. Unauthorized use of WAPADH equipment or
property.
5. Creating , contributing, or failure to report unsafe
working conditions.
6. Malicious destruction or damage to WAPADH
property or the property of a fellow employee or
client.
7. Dealing in drugs or being under the influence of
drugs or alcohol while on the job.
8. Physical assault upon a supervisor , fellow employ-
ee or client.
9. Hindering or interfering negatively with any au-
thorized investigation by a lawful agency.
6.2 No employee shall be discharged , suspended or
disciplined without just and sufficient cause . No dis-
charge , suspension , demotion, reprimand or other form
of discipline shall occur without prior oral and written
warnings and counseling of the employee except in ex-
treme and emergency situations.
6.3 Except in extreme and emergency situations
no employee shall be discharged who has not first
been suspended.
6.4 No employee shall be suspended who has not
first received at least three written warnings.
6.5 No employee shall be required to attend a
meeting with his/her supervisor which the employ-
ee believes has a significant purpose of investigating
facts to support discipline against the employee
unless accompanied by a Union representative.
6.6 No employee shall be discharged without first
having a hearing before a neutral and impartial
third party mutually agreed upon by the Employer
and the Union. The third party shall have the au-
thority to overturn the discharge and to recommend
other less severe discipline . Should the third party
uphold the discharge, the Union will still have the
823
right to full exercise of the grievance and arbitra-
tion provisions of this contract.
(2) Article 10-Overtime (10.1 and 10.4-10.8 only)
10.1 The employee may be asked under certain
circumstances to work more than forty hours in a
week . If the employee is authorized to work beyond
forty hours in any one week, or beyond forty hours
per week on a regular basis, the employee will be
paid overtime at an hourly rate of pay that is com-
parable to 1 1/2 times his normal wage . Employees
who work on paid holidays will be paid double
time.
10.4 Double time, in addition to holiday pay,
shall be paid for all work performed on any of the
following holidays:
New Year's day Mexican Independence Day
Martin Luther King's Columbus Day
Birthday
Lincoln 's Birthday Veteran's Day
Washington's Thanksgiving Day
Birthday
Memorial Day Christmas Eve and Day
July 4th Personal Holidays
Labor Day Election Day - 2 hrs
Admission Day
10.5 The Employer will divide overtime work as
impartially as is practicable among employees by se-
niority.
10.6 Employees who work in excess of their
scheduled hours on any day and/or week shall not
be required to take compulsory time off during their
regularly scheduled working hours.
10.7 Employees may take Compensatory Time
Off (CTO) at the employees request instead of paid
overtime . CTO will occur at the same rate as paid
overtime.
10.8 Employees shall have the right to refuse
overtime and this refusal shall in no way affect their
rights to future overtime.
(3) Article 30-Picket line
30.1 The Employer will not, as a condition of
continued employment , require the employees to
cross any picket line established on or in front of
the premises or at the premises of any other Em-
ployer. The individual or concerted refusal to pass
such a picket line shall not constitute grounds for
discipline , discharge or layoff and is not to be con-
sidered as violating any provision of this contract.
(4) Article 34-Employee participation in
WAPADH
34.1 At least one instructor shall participate in
monthly parent discussion meetings.
34.2 Instructors shall participate in the selection
of classrooms and in the transfer and assignment of
students.
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34.3 One employee , to be designated by the
Union , shall be seated on the WAPADH Board of
Directors.
b. Respondent's
(1) Article 6-Working conditions
6.1 The Employer may utilize supervisors and
other persons not covered by this Agreement to
perform work regularly assigned to employees cov-
ered by this Agreement . Nothing herein restricts or
prevents the Employer in its sole discretion from
contracting out any services and/or functions
and/or work and/or business , regardless of whether
such service, function , work and/or business has or
is being performed by bargaining unit personnel, it
being understood the Employer will not exercise
these rights without a lawful business or economic
purpose.
(2) Article 25-Benefits dependent upon continued
funding
25.1 The Employer is obligated to fund the eco-
nomic portions of this Agreement only so long as it
receives sufficient funding.
25.2 Should the amount of funds available to the
Employer be determined by the Employer to not
permit the Employer to fund the economic provi-
sions of this Agreement , the Employer may, after
giving written notice to the Union , make modifica-
tions to this Agreement. The parties will thereafter
meet to determine what agreement can be reached
concerning such matters , and if agreement is
reached , it will thereafter be implemented subject to
this Article. If no agreement is reached , the con-
tract as initially modified by the Employer will
remain in effect for its duration , subject to Section
25.1 above . The Union may thereafter , by timely
grievance, have an arbitrator determine whether
there was or was not sufficient funding.
25.3 The Employer will not, under the provisions
of this Article, impose disproportionate reductions
on the bargaining unit for any invidious or illegit-
imate purpose
(3) Article 29-Miscellaneous (29.8 only)
29.8 Designated Liaisons The Employer will deal
with the Union through its designated Business
Representative . The Union, its Business Agents,
Stewards , agents and employees represented by the
Union in the bargaining unit will only deal with the
Employer through its designated negotiators and
representatives for the purposes of collective bar-
gaining, and will not attempt to change or modify
wages or working conditions by going around such
Employer designated representatives to the Board
of Directors . Employees in the bargaining unit will
not be on Board committees or the Board , provided
the Employer may request employees to assist such
committees and their work from time to time as de-
termined by the Employer.
D. Summary of Bargaining Sessions and
Related Meeting
1. Introduction
Smith headed the Union 's bargaining team , and was
regularly assisted at sessions by an employee committee.
The committee in attendance each session , with slight ex-
ception , comprised Rosanna Cambron , a habitual note-
taker for the Union , April Montoya , and Patty East.
Each of the three were strikers; Cambron having re-
turned to work on September 2, while Montoya and East
are each alleged to be discriminatees based on a continu-
ing failure and refusal by Respondent to reinstate either
of them to a former position of employment.
Ristau was Smith's counterpart for Respondent, and
these two did vastly the predominant amount of discus-
sion throughout negotiations . Boyer was customarily in
attendance with Ristau as principal employer note -taker.
The WAPADH team was also accompanied at sessions
by Andy Anderson , a parent whose wife was a board of
directors member at the time . Boyer testified that Ander-
son's participating presence was not a "formal . . . ap-
pointment," but instead a typical instance of involvement
by a parent with the time, interest and comprehension to
"keep track" of particular happenings for the board of
directors . Ristau stipulated that Anderson was a "desig-
nated observer," one who arrived with , signed in with,
sat with, and left with the WAPADH team on a regular
basis.
The site of bargaining was a conference room of the
Sierra Education Center, a facility in or near Whittier
and close to Respondent 's premises . As a matter of bar-
gaining mechanics the parties found themselves in dis-
agreement at the very outset . Smith solicited paid time
for his employee committee , and this was refused by
Ristau . The refined explanation was that employee nego-
tiators would be freely released from duties, but would
not receive their pay for time spent in negotiations. With
that given reality, Smith proposed night meetings begin-
ning at around 5 p.m. to 6 p.m. and on weekend days if
necessary. Ristau preferred a much later starting time if
evenings had to be utilized , in order for him to escape
wasteful delay in Southern California metropolitan free-
way traffic proceeding from his Orange County office in
Newport Beach to the negotiation site in far easterly Los
Angeles County.
Soon an 8 p.m. starting time was generally agreed
upon , however the parties then discovered a second area
of disagreement inasmuch as Smith advocated adjourn-
ments at or shortly after 11 p.m., while Ristau wanted to
negotiate much later into the night once he had gotten
there. Smith 's rationale was that his employee committee
faced child care problems and the necessity of working
the next day, while Ristau contended that there appeared
much to cover in bargaining and sessions of only 2-3
hours' duration each were too slow a pace . The upshot
was a pattern closer to Smith 's preference, and over
most of the course of bargaining this was the case. The
final session of April 30 involved special considerations
to be discussed below.
WHITTIER AREA PARENTS' ASSN. 825
2. Session of March 3
a. Union 's version
Smith testified to giving an overview of the Union's
proposal, explaining how he felt it was basically the same
language as the personnel manual wherever possible,
except for predictable subject matter departures like
union security and payroll deductions.
meeting actually applied to discussion held in the course
of both the first and second meetings . Ristau 's principal
recollection pertained to the management-rights clause,
in which he recalled sharp disagreement as to whether
or not the long specification should appear as contractual
language.
4. Session of March 20
b. Respondent 's version
Ristau testified to urging exact adoption of language
from the NLRB certification for the recognition clause,
to explaining that he was advancing a "long-form" man-
agement-rights clause as a traditional preference of em-
ployers, and that the Union 's section 34.3 calling for an
appointment to the WAPADH board of directors was
unacceptable as reflected in his own section 29.8. Ristau
expanded by making further points that his proposals
represented a professional drafting of areas previously in-
adequately stated in the personnel manual , and particu-
larly as they would become subject to arbitral interpreta-
tion , plus that the wage and fringe benefit reductions to
be advanced by WAPADH were a reflection of the cur-
rent general economy and a recent flattening out as to
cost-of-living escalations.
3. Session of March 11
a. Union 's version
This was the date of Smith's first opportunity to
review WAPADH's corrected, substitute proposal. A
tentative understanding was reached regarding recogni-
tional language , but as to management rights Smith re-
sisted that as a subject for the contract . After disdaining
Respondent 's proposed language on union representation,
Smith turned the discussion to grievance and arbitration
procedure with considerable time devoted to the differ-
ences between proposals.
This illustrates the generally methodical approach fol-
lowed by Smith on that date, with further significant dis-
cussion devoted to subjects including discipline, holidays,
leaves of absence, and the proposed work stoppage pro-
hibition . This meeting also opened the subject of eco-
nomics, with Smith objecting to the proposed "cut-
backs" and language of WAPADH's proposed article 25
as a seeming "escape clause . . . to make unilateral
changes." Smith testified that Ristau stated the employ-
er's proposals on economics represented a departure
from their "generous" ways of the past, however upon
inquiry he did not cast the matter in terms of financial
inability to pay . In further discussion of economics Smith
pointed to inadequacies in WAPADH 's health insurance
proposal and their wage schedule , as considerable reduc-
tions from that previously in effect . Smith recalled stat-
ing the Union's proposed increase in wages for the bar-
gaining unit amounted to "around 6 percent or so."
b. Respondent 's version
Ristau generally agrees with Smith 's recollection of
matters covered , differing mainly in the sense that he be-
lieved Smith 's recollection as associated to this second
a. Union 's version
Smith testified that the parties again commenced a
point-by-point examination of their respective proposals,
and made progress toward forging preliminary language
and just how to word article 2. Smith reiterated an ob-
jection to Respondent's article 3 on the grounds that he
believed the labor contract was fundamentally "a state-
ment of employees rights," making it unnecessary and
undesirable that Management Rights be listed, especially
running to a "3-page article" in length . Discussion con-
tinued with considerable time spent on the particulars of
grievance and arbitration procedure , the result being
slight narrowing of respective proposals in this area.
Smith recalled that the extent on discussion on "Article
5" was such that 11 p.m. adjournment time was reached
with only the opportunity for side debate of respective
health insurance proposals being cross-advanced by the
parties . However Smith also testified that shortly before
the meeting ended Anderson had agitatedly made a loud
"outburst," profanely criticizing a union bargaining bul-
letin disseminated on the subject of WAPADH' s funding
sources and apparent ability to offer more generous
terms than were on the table.
b. Respondent 's version
Respondent did not materially contradict the Union's
version of this session.
5. Session of April 1
a. Union 's version
Smith testified that this session picked up with discus-
sion of employer 's article 6, and those following, with
considerable differences appearing on several of the non-
economic subjects . Again an adjournment time of around
11 p.m. intervened at a point when the parties were at
article 12. Smith recalled Ristau urging that negotiations
continue into the night, and that a mediator should be
brought into the situation.
b. Respondent's version
Respondent did not materially contradict the Union's
version of this session.
6. Session of April 7
a. Union 's version
Smith opened this meeting with some modifications re-
specting grievance and arbitration procedure that further
narrowed where the parties stood on that subject. After
this there was discussion on certain noneconomic sub-
jects and considerable time spent with WAPADH's pro-
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posed contractual language on the overall subject of dis-
cipline . Smith recalled vigorously opposing proposed
cutbacks in vacation entitlement and pointing to insuffi-
ciency of the employer 's proposal for holidays. The
meeting ended with a general anticipation that the parties
were working toward a contract of 3 years ' duration. A
list of seven or eight items which Ristau asked be reex-
amined by the Union was accepted for consideration.
b. Respondent 's version
Respondent did not materially contradict the Union's
version of this session.
7. Session of April 18
a. Union's version
The early portion of this meeting was taken up with
discussion of possible health plans and a union combina-
tion proposal covering several subjects . Smith recalled
stating that the matters of union security and payroll de-
duction were quite important to his side and, answering
Ristau 's inquiry , that section 34.3 was still on the table
by the Union. Smith testified that after a lengthy caucus-
ing Ristau advised he was intending to make definite cuts
and modifications in terms and conditions of employment
effective May 1. In conjunction with this he would offer
several revisions to the Employer 's proposal at that
point . These amounted to a reduction in the proposed
probationary period , a slight increase in health insurance
cost contribution and minor changes in noneconomic lan-
guage.
b. Respondent 's version
Respondent did not materially contradict the Union's
version of this session.
8. Parent meeting of April 28
On this date the Union convened an early evening
meeting at the Whittier Community Center . Its purpose
was to inform interested persons, primarily parents, on
the state of negotiations with a question -answer format
moderated by the employee bargaining committee.
Browne and Montoya remembered that 25-30 persons
were in attendance . They were mostly parents, along
with about five instructors other than committee mem-
bers . Anderson was present, and when a parent asked
how long the negotiation process would go on , he spoke
up saying , "It will [would ] all be over by Thursday."
9. Session of April 30
a. Union 's version
Smith testified that he commenced this meeting, one
beginning shortly after 8 p.m. as typically the case, by
announcing that the Union had a significant modification
in that their wage proposal was reduced . This manifested
as dropping from a two-step pay increase for all instruc-
tors to a one-step contractual increase, plus reduction of
the requested 8-percent increase at the top of scale to 5
percent . Numerous subjects were then discussed with
some agreement reached on minor points . One of the
subjects resolved was a probationary period of 90 days
for new employees , and a reduction of the time period
for performance evaluation from 90 to 45 days.
Smith testified that Ristau generally disparaged the
Union's revised positions , and that the parties soon were
in dispute about overall cost of the Union' s economic
package . The WAPADH team claimed this cost was in
the 15-to- 20 percent range , while Smith calculated only
4 to 4-1/2 percent. Numerous scenarios were discussed
respecting how any wage agreement might apply in
practice from the analysis each party had made as to
wage costs.
Several more articles were treated further, and then
Ristau inquired again about Union 34. Smith stated it
was still "on the table," but it would be reconsidered
during a caucus . After further extensive but inconclusive
discussion of health insurance Smith proposed a drop of
article 34 and Union 30, if WAPADH would agree to
payroll deductions and union security as proposed by the
Union. Before this could be considered 11 p.m. was
reached , with Ristau wanting at that point to negotiate
"all night ." Smith declined to do so on long-familiar
grounds of his committee 's needs . On this Ristau again
agitatedly raised the topic of section 34.3. Smith testified
that Ristau loudly demanded it to be dropped as an "ille-
gal" proposal , and that its presence in the negotiations
was driving him to "utter distraction ." Further, Smith
testified that Ristau stated Respondent would not bargain
further so long as 34.3 remained a part of the Union's
proposal , and that under the circumstances Respondent
would implement its proposals. Smith 's refined recollec-
tion that was WAPADH rejected his proposed ex-
change, with Ristau saying that if 34. 3 was still insisted
on there would be no alternative but for the employer
but make its implementation "as of May 1." Smith re-
called the next happening as a walkout from the negotia-
tions by Ristau, Boyer, and Anderson, and that as they
did so he stated aloud in ordinary voice level that the
Union was willing to "negotiate or drop" 34.3 but
wanted some consideration of their own proposals in
return.
b. Respondent 's version
Ristau testified that this meeting commenced in a con-
text of his repeated requests that mediation be brought
into the bargaining . There was an initial exchange of var-
ious proposals , triggering his belief that the Union's re-
casting of its wage package simply returned it to an ex-
isting level which therefore "wasn't much of a cut."
Ristau recalled again raising his concern about the dee-
medly "inappropriate " article 34. 3, and to giving reasons
why Respondent wanted it dropped . A caucus occurred
at that point following which the Union presented a min-
ipackage . Ristau 's testimony as to happenings from that
point onward is:
Q. What happened on that seventh day?
A. Mr. Smith came in and told us that he had a
mini-package for us, and he gave us a proposal
having to do with Union Security , Picket Line
WHITTIER AREA PARENTS' ASSN.
clause , and 34.3. When he gave it, he used the terms
"accept or reject."
My understanding of it at that point was, and I
told him so, that that meant that if we rejected it,
the 34. 3 was still valid in part of his overall propos-
al. And I told him that I wanted them to know that
we rejected their proposal because it did contain
full Union security, and I 'd attempted to discuss
that earlier . He had not wanted to discuss it when I
wanted to give him management 's reasons for why
they didn' t want it, and therefore , his mini -package
was totally unacceptable.
At that point I told him that I wanted them to
drop 34.3 from their overall proposal because it
continued to be a thorn in the side of management,
it was a non-mandatory subject of bargaining, that it
was illegal for them to continue to have it in their
overall package . With that I asked him was he
going to drop it.
Mr. Smith said , "You can't tell me what to do."
My response at that point was to tell him I
couldn't tell him what to do, if he didn' t want to
drop it from that, then he was leaving us no alterna-
tive but to implement , because it appeared we were
at impasse over that item . And I grabbed my note-
book, threw it in the briefcase , and headed for the
door.
At the door, I probably got about three feet out-
side the door. Mr. Anderson and Mr . Boyer were
behind me , and as we sort of spun around going
through the door, Jim Smith said , either , "Hold it,"
or he caught our attention somehow.
I turned around and looking straight through the
door, I see Rosanna . Behind Rosanna is Jim. I don't
know who's behind him , either both or one or the
other members of the committee. I'm standing about
three feet outside the door, just where the light's
coming through. Mr. Boyer's behind me . Mr. An-
derson is beyond him. I don't know if he stayed
right there.
Mr. Smith said something to the effect of, "What
are we going to do? Are you going to negotiate?"
I thought he was reconsidering his position, and
what I said was , "Okay, all you have to do and we
can pick up right where we were-all you have to
do is confirm in writing for us that you're not insist-
ing on this 34.3," or whatever the number is, and I
may have even called it a different number, but the
Board provision . "All you have to do is confirm in
writing that you've withdrawn it. You can do it any
way you want. You can do it now. You can send a
telegram . You can write a letter."
My recollection is he said no. With that, we spun
around on our heels and left.
Q. Did you hear from Mr. Smith after to tell you
that he was not going to insist on 34.3?
A. The answer is no.
Q. Did you receive any communication either
orally or in writing.
A. The answer to that is no.
827
Boyer also testified concerning the final phase of this
meeting , recalling that Smith had stated he would com-
promise 34 . 3 in exchange for an agreement to union se-
curity. During the exact moments of the walkout from
the meeting , Boyer testified that Smith asked for a return
to negotiations and Ristau 's answer was, "When you stop
insisting on 34 . 3 as part of that package, we'd come
back." Boyer denied that Smith said in any way that he
was not fundamentally insisting on 34.3.
E. Negotiation Status by May I
The harvest of bargaining was meanly meager as of
May 1. While some substantive and language accords ex-
isted , the essentials of what each side sought to achieve
lay fallow. The parties had disposed of the preamble,
recitation of agreement , and recognitional language.
Grievance and arbitration time limits plus some partials
in this area were resolved. Language respecting hours of
work and overtime had been tidied up. Equally viewed
subjects like Respondent 's article 11 on nondiscrimina-
tion and the Union's 33.1, saving unaffected contract
provisions from invalidating causes, glided to agreement,
subject always to the threshold caveat of conditionality.
Probationary period was settled , both in terms of "newly
hired" employees and those promoted , with correspond-
ing agreement about how soon a performance evaluation
must issue in association to such probationary status. A
vacation formula , liberalized slightly from Respondent's
opening proposal , was reached and the Employer had
also gone to a ninth holiday . Bereavement time off was
established in rather the same manner as it had existed in
the personnel manual, while safety standards were poised
for contractual status, with other subjects of miscellane-
ous effect appearing mutually satisfactory.
A formidable list of subjects was arrayed against these
various accords . These included:
1. Management rights clause.
2. Establishment of a full -fledged grievance and
arbitration procedure.
3. Matters of union security , or absence thereof.
4. Wages, which could not even be mutually
costed out.
5. Rules of discipline.
6. Seniority.
7. Critical Respondent 's Article 25.
8. Work stoppage/picket line matters.
9. Critical Union 34.3 of its Article 34.
10. Health insurance.
F. Implementation
Boyer testified that Respondent waited a few weeks
following the seemingly foreclosed progress of bargain-
ing that resulted from last meeting on April 30. Then on
May 22 he issued the following memorandum to all rep-
resented employees:
During collective bargaining negotiations,
WAPADH proposed very necessary reductions in
various fringe benefits and salaries for certain em-
ployees in order to maintain our expenditures
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within budget . At the conclusion of our last negoti-
ation session the Union was notified that because of
the positions taken by it , we considered the negotia-
tions to be at impasse . We have not been contacted
by the Union since that date with any indication
that it changed its mind on critical issues, and there-
fore, it is necessary that portions of our economic
proposal be implemented effective with the com-
mencement of the first payroll period after the date
of this letter (May 27, 1986). Implemented are the
portions of our agreement relating to the new salary
scale, sick pay, holiday pay, vacation pay, leaves of
absence, length of instructional day, and personal
leave.
For bargaining unit members , the relevant wage
levels and the above benefits will be those last pro-
posed to the Union.
Similar modifications are implemented at the
same time with regard to the fringe benefits pro-
grams for all nonbargaining unit personnel.
Attached to this memo, you will find current
written policy regarding the above-mentioned
changes as well as a revised salary scale . Addition-
ally, attached is a salary and benefit review for each
employee describing your individual status . Please
note that all instructors will be working a seven (7)
hour day. Many questions and clarifications may be
required . Each employee may direct questions in
writing to Greg Sylvester , Program Coordinator,
and a subsequent meeting will be set up to answer
your questions regarding changes in salary, hours of
work etc.. Your cooperation and understanding
during this time is greatly appreciated.
G. Correspondence After May I
By letter dated May 23 Smith wrote to WAPADH
Chairperson Maria Morales as follows:
A memorandum from Stephen L. Boyer, Execu-
tive Director , was circulated to WAPADH employ-
ees represented by this Union on May 21st, which
stated that various fringe benefits and salaries had to
be reduced "in order to maintain our expenditures
within budget."
Since the letter alleges that WAPADH is unable
to maintain current salaries and benefits within its
budget, I am formally requesting the Board of Di-
rectors forward immediately to the Union a copy of
the actual budget or budgets provided to the state
and/or the regional center . In addition , I request
the budget or budgets adopted by the Board of Di-
rectors, if different . I am requesting the current
year 's budgets and the budgets for the upcoming
fiscal year.
Further, we request to know the source of
monies provided to the law firm of Gibson, Dunn &
Crutcher . We estimate this is now in excess of
$25,000 and climbing daily . Is this money being paid
out of funds that would otherwise go to pay for em-
ployee salaries and fringe benefits? Mr. Paul D.
Carleton, Deputy Director of the Department of
Developmental Services has informed me that the
state pays WAPADH to provide client services and
does not include money for legal services . Please
provide adequate documentation for your answer.
Expecting your prompt reply, I am,
Smith then wrote to Ristau by letter dated May 30
which read:
This letter is to inform you that unless you cease
and desist from committing unfair labor practices
including failure to bargain in good faith and unilat-
erally reducing wages, hours, benefits and working
conditions you leave us no alternative to taking
action in response up to and including an unfair
labor practice strike.
For the good of the program , the clients and our
members we hope you have a change of heart.
Please contact us immediately.
Ristau answered Smith by letter dated June 4 reading:
Previously we discussed your attempts to deal di-
rectly with my client , and maybe I misunderstood,
but I thought that you agreed that for all matters
relevant to the negotiations you would deal with
the designated spokesman of the Employer, specifi-
cally, the undersigned . Therefore I request that you
cease contacting my client directly, and that if you
have any communications relevant to the negotia-
tions, you address them to me.
My client's and my assumption is that any com-
ments or correspondence addressed to them from
you does not pertain to the negotiations . Communi-
cations pertaining to the negotiations must be for-
warded to me.
On June 16 Smith wrote Ristau as follows:
We are still waiting impatiently for the bargain-
ing information requested in the enclosed letter to
Maria Morales dated May 23, 1986.
Consider this request directed officially to you.
On June 24 Ristau wrote back stating there would be a
projected "short fall" in WAPADH 's revenues , and en-
closing a copy of the 1985-1986 budget for the Employ-
er's program . This letter also stated that on operating
budget for 1986-1987 "has not yet been determined."
The next correspondence was Smith 's letter dated Sep-
tember 22 to Ristau which read:
I have previously sent requests to you on June 16th
and to Board Chairperson , Maria Morales, on May
23rd requesting certain bargaining information
which has still not been received . Our Union feels
this information is essential to evaluate your propos-
als relevant to salaries and benefits . Therefore, I am
making the request again for the following informa-
tion:
1) A copy of the actual budget or budgets pro-
vided to the state and/or the regional center.
2) Copies of budgets approved by the state
and/or regional center, if different.
WHITTIER AREA PARENTS' ASSN. 829
3) A copy of the budget or budgets adopted by
the Board of Directors of WAPADH, if different
from numbers one or two , above.
4) The budget item or other source of monies
provided to the law firm of Gibson, Dunn &
Crutcher . Is this money being paid out of funds that
would otherwise go to pay for employee salaries
and fringe benefits? Please provide documentation
with your answer.
Failure to supply the above information promptly
will result in further action on the part of the
Union.
Ristau answered by letter dated September 30 reading:
With regard to your letter dated September 22,
1986, please be advised that we previously respond-
ed to your prior request mentioned in your letter.
With regard to your current request, please be ad-
vised as follows based upon information I have re-
ceived from my client.
1. No budgets are provided to the State and/or
the Regional Center.
2. Because no budgets are submitted to the State,
no budgets are approved by the State or the Re-
gional Center.
3. We previously provided you with a copy of
the Board's budget for July 1985 through June
1986, along with the amended cost estimates for the
period January 1986 through December 1986 to re-
flect changes in the operations , revenues and ex-
penditures . Those documents are the only current
budgetary items being utilized by the Board, al-
though an updated budget to reflect a change in
their fiscal year may be prepared.
4. The fee arrangements and payments to Gibson,
Dunn & Crutcher and any other lawyers are privi-
leged as are any other communications , discussions
and arrangements with a client's law firm. The only
possible exception might be if you could establish
direct and material relevance . If you have such, and
tender it to my client for their consideration , it will
be evaluated . I presume you concur that this is ap-
propriate . Rest assured , we have no interest in
knowing what your fee arrangements are with your
law firm. Not only do you continue to assert the
demand to determine the composition of the Board
but now , apparently , you wish to review and deter-
mine the Employer's arrangements with legal coun-
sel.
or were belatedly reinstated, are Browne , Sylvia Beltran,
Cambron, Josefina de los Santos, East, Norma M. Flores,
Brian B . Montgomery, Montoya, and Genevieve J.
Stelzer . Of this group Browne, Cambron , de los Santos,
and Montgomery were eventually reinstated August 18,
1987, September 2 1986, August 24, 1987, and February
9, 1987, respectively . During the span of the strike Re-
spondent hired Arlene Ankeney, Francis Arrey, Joe Bal-
denebro, Rosa Garcia, Esperanza Gonzalez , Elizabeth
Diane Hoo, Migdalia Lloret, and Stella Ocana on June
13 as permanent replacements for striking employees.
1. Credibility
I credit Ristau and Boyer generally in regard to their
recollection that Smith had never verbalized a willing-
ness to accept cuts in wages or economic terms and con-
ditions of employment , nor wavered from an adamant re-
fusal to envision a management-rights clause in the con-
tract . I believe it is implausible , as Smith claimed, that
Ristau had not "mentioned" the Union 's section 34.3
prior to April 18 , and instead fully credit Ristau's con-
trary impressively accurate-seeming testimony that he
had "specifically" done so as far back as the "first meet-
ing." (Tr. 167, 1099, 1180.) Additionally I credit both
Respondent witnesses in terms of their testimony that
Smith did not announce flexibility respecting 34.3 as the
parties animatedly broke up their session late the evening
of April 30. I generally discredit Smith in these areas,
noting his unimpressive demeanor at critical points and
his suspect vacillations, evasions, and retractions. (Tr.
248-249, 632, 640, 681-682 .) Cambron is not credited in
her attempted corroboration of Smith, for much the
same reason.
J. Analysis
1. Introduction
Section 8(a)(5) of the Act provides that it is an unfair
labor practice for an employer "to refuse to bargain col-
lectively with the representatives of his employees." Sec-
tion 8(d) of the Act defines the duty to bargain collec-
tively as "the performance of the mutual obligation of
the employer and the representative of the employees to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement."
This statutory language was given further meaning by
the partial concurrence in NLRB v. Truitt Mfg. Co., 351
U.S. 149, 154-155 (1956). It observed:
H. Strike and Strike Aftermath
Smith held meetings with employees at various times
following the cessation of bargaining. At a meeting
around late May, convened at the Sierra Education
Center , bargaining unit members voted unanimously to
strike . In consequence of this a strike commenced on
June 11, with picket signs bearing the slogan, "unfair
labor practice strike ." It ran until on or about June 17
when striking employees made personal, unconditional
offers to return to former positions of employment. The
individuals who were not reinstated following that strike,
These sections [8(a)(5) and 8(d)] obligate the parties
to make an honest effort to come to terms; they are
required to try to reach an agreement in good faith.
"Good faith" means more than merely going
through the motions of negotiating ; it is inconsistent
a the predetermined resolve not to budge from an
initial position. But it is not necessarily incompatible
with stubbornness or even with what to an outsider
may seem unreasonableness . A determination of
good faith or of want of good faith normally can
rest only on an inference based upon more or less
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
persuasive manifestations of another's state of mind.
The previous relations of the parties , antecedent
events explaining behavior at the bargaining table,
and the course of negotiations constitute the raw
facts for reaching such a determination.
When the doctrine of impasse becomes an issue after
bargaining, resolution of the point applies the following
Board language of Hi-Way Billboards, Inc., 206 NLRB
22, 23 (1973):
A genuine impasse in negotiations is synonymous
with a deadlock: the parties have discussed a sub-
ject or subjects in good faith, and, despite their best
efforts to achieve agreement with respect to such,
neither party is willing to move from its respective
position.
In Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
the Board identified numerous factors which serve to aid
in determining the existence of an impasse:
Whether a bargain impasse exists is a matter of
judgment . The bargaining history, the good faith of
the parties in negotiations , the length of the negotia-
tions, the importance of the issue or issues as to
which there is a disagreement , the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
2. Holding
From this guidance what I see is a classic case of strict
bargaining by a resolute employer, compounded by radi-
cally divergent perceptions , expectations , and experience
as between the respective chief negotiators . The most
sweeping allegation Respondent faces is that of advanc-
ing and insisting upon proposals of a regressive nature or
which lowered terms and conditions of employment
compared to what existed before advent of the Union.
Actually both parties launched ambitious packages at
the outset of bargaining . The Union added numerous in-
stitutional goals to its contract proposals , in addition to
sweetened economic benefits for represented employees
and favorable language wherever possible . As a seasoned
bargainer, Ristau countered with carefully delineated
reasons for seeking overdue retrenchment of operating
cost exposure and highly useful language configurations
of his own. Cf. Barry-Wehmiller Ca, 271 NLRB 471
(1984). Respondent 's package reflected employer posi-
tioning for a new role as contracting party with respect
to its employees . The magnitude and sweep of disparity
in contract proposals was such that only a prodigious
amount of achievement could have reached agreement,
or hinted that it might soon occur . No such amount of
achievement was remotely realized , and on the contrary
nittering types of concessions , revisions and agreement
only illustrate this fundamental and unbridgeable gap.
The numerous clever phrasings , crosshatchings of lan-
guage, redundancies, plain or compound, language over-
kill and simple verbosity had not been vigorously treat-
ed, nor was there any relenting from the prospect of
rather occasional evening-only meetings . As a matter of
credited evidence Smith was resisting the potential bene-
fits of mediation assistance , and no indication appeared
that he would convert his approach to the bargaining
from the accustomed style of public employment deal-
ings to this essentially private sector employer.
This limited pace of bargaining progress denotes the
futility of expecting that any real hope existed of com-
posing the enormous differences present . See L. W. Le
Fort Co., 290 NLRB 344 (1988), and Atlanta Hilton &
Tower, 271 NLRB 1600 (1984); Cf. Microdot, Inc., 288
NLRB 1015 ( 1988), and Pittsburgh-Des Moines Corp. v.
NLRB, 663 F.2d 956 ( 1981). Both named and unnamed
doctrines were at the root of Respondent 's contractual
objectives . These including a suitable foundation in
grievance and arbitration language to weather recourse
to arbitral authority . Here Ristau literally spoke of the
doctrine contained in Bakery Workers v. Nolde, 430 U.S.
243 (1977), as to arbitral validity, and Boys Markets v.
Retail Clerks, 398 U.S. 235 ( 1970), constraints when an
arbitration clause is sufficiently exclusive as a dispute res-
olution mechanism . Another doctrine embodied in Re-
spondent 's contract proposals was the refinement of
Gulton Electro-Voice, Inc., 266 NLRB 406 (1983), to any
grant of superseniority.
General Counsel argues from the widely accepted El-
kouri writings on arbitration that Respondent attempted
to make many dispute subjects nonarbitrable . This over-
looks first that a proposal is only that, absent a showing
of absolute intransigence , and more importantly the liter-
ature of arbitration cautions that careful wording is re-
warded in the ongoing process of contract administration
between an employer and union.
For example:
It is clear that an arbitrator receives his authority
pursuant to the terms of the collective bargaining
agreement , and arbitration awards that do not
exceed such authority and draw their essence from
the contract will be routinely upheld by the courts
without review on the merits. (Citing Aloha Motors,
Inc. v. Local 142, Longshoremen, 530 F.2d 848 (9th
Cir. 1976).) Proceedings of the Twenty-Ninth Annual
Meeting-National Academy of Arbitrations, 257
(1976).
Also:
He the arbitrator is, as is so often said , a creature
of their contract. The parties have not signed a
blank check when they agree to arbitration . The ar-
bitrator's decisional authority is placed within
bounds . The parties generally set limits on arbitral
authority in the collective agreement . The most
common provision expressly states that the arbitra-
tor "should not add to, subtract from, or vary the
terms of the agreement."
Such contractual restraints on arbitral authority
are frequently referred to by arbitrators in awards
rejecting contentions inviting them to consider mat-
ters outside the collective agreement . A reference
to the contractual limits is not merely a crutch for
an award . Most arbitrators are acutely sensitive to
WHITTIER AREA PARENTS' ASSN.
the fact that it is the agreement which is controlling
and will go with the agreement where its meaning
is unambiguous even though the resulting award ap-
pears to be harsh . Proceedings of the Thirty-Third
Annual Meeting-National Academy of Arbitrations,
65-6 (1980).
The broadly accepted Elkouri tome itself consolidated
several such notions , and teaches the avoidance of con-
tract ambiguity and imprecision . Elkouri & Elkouri, How
Arbitration Works at 296 (3d ed. 1973).
The subject of grievance and arbitration was merely
one of numerous unwelcome proposals here, such as
management rights, tightened personnel practices, and
general cost reductions to better gird for future operating
contengencies . NLRB v. Tomco Communications, 567
F.2d 871, 883 (1978) (and cases cited ); Roman Iron
Works, 275 NLRB 449, 452-453 (1985); Reichhold Chemi-
cals, 277 NLRB 639 ( 1985), and as extensively supple-
mented by 288 NLRB 69 ( 1988). I hold that the declara-
tion of impasse as of May 1 was fully warranted. The
credited evidence is such that no prospect of simultane-
ous agreement existed with respect to key issues of wage
levels, management rights, grievance procedure, lan-
guage on discipline, union security , fringe benefits in-
cluding a health insurance plan for employees , and mat-
ters relating to any work stoppage . The Act does not re-
quire futile negotiations , and the sessions actually ful-
filled gave ample reason to believe that no • useful
progress could be made toward a total agreement absent
the tension of economic pressure between the parties.
See Western Publishing Co., 269 NLRB 355 (1984). An
extreme bargaining context existed in Schwab Foods, 284
NLRB 1055 ( 1987), a case relied upon by General Coun-
sel which is fully distinguishable on its facts. Notably,
the process here was not destined to benefit from media-
tion services because of the Union 's contrary insistence,
and the intractable dispute over 34.3 left any overall
agreement without realistic prospect of success. See
Cook Bros. Enterprises, 288 NLRB 387 (1988); Francis J.
Fisher, Inc., 289 NLRB 815 (1988). I find nothing about
the participation of Anderson to vary these inclinations,
believing first of all that his role did not amount to that
of being Respondent 's agent and that his remark of April
28 ,was no more than a personal comment rooted in his
necessary familiarity with Respondent's strategy . Agency
cannot be generated when the involvement neither pos-
sesses, nor seems to possess , any responsible formulating
role other than to observe.
On the issue of refusal to furnish requested material, I
believe this highlights most visibly the disparity in per-
ception referred to above . Smith obsessively viewed Re-
spondent as a governmental -type entity , and subject to
the rules of that category . As late as his letter dated Sep-
tember 22 Smith was still seeking that which did not
exist ; namely, budget documents beyond that previously
made available when Boyer supplied Montoya with the
1985-1986 data prior to the last meeting between these
parties . Here the heavy public employee union back-
ground that Ristau astutely sensed as an impediment to
progress was most pronouncedly shown . The point is
more than hinted at in the writing of a labor advocate,
831
bemoaning the very factors which Ristau had frequently
advanced before. This referenced passage is excerpted as,
"Even where the ability to pay is not a legitimate inhibi-
tion on reasonable wage increases , it now plays-and
will continue to play-a significant role at most public
sector bargaining tables." Wasserman , Public Sector Bar-
gaining: Union View, 32 N.Y.U. Conf. Lab. 171-78 (1980).
Closely related to this is the observation , "Collective
bargaining in public employment is different from collec-
tive bargaining in private employment " and "appropri-
ateness of collective bargaining practices in the public
sector cannot be judged by analogies to the private
sector." Summers, Public Employee Bargaining: A Political
Perspective, 83 Yale L. J. 1156 (1973-1974).
The law is clear and well settled that an employer, on
request, must provide a union representing its employees
with information that is relevant to it "in carrying out its
statutory duties and responsibilities ." NLRB v. Acme In-
dustrial Co., 385 U.S. 432 at 437 (1967). Here the infor-
mation variously specified by Smith in his requests did
not exist , was only in the nature of financial speculations,
or enjoyed privilege.
I see no benefit in the exercise of examining Respond-
ent's revenue sources, costs , budget projections , or dis-
cretionary business decisions respecting the financial
impact of operations . A claim of inability to pay was
never plainly voiced; the consequence being that no obli-
gation arose to furnish the sort of information typically
supportive of such a claim . Indeed , Respondent actually
obtained a wage survey of rough comparability, showing
its favorable comparison as to pay and benefit practices
in the vicinity. But General Counsel's argument seems to
extend beyond this; saying, incorrectly in my view, that
because employee income and benefits might be im-
proved by new priorities so this must be the case . That is
not the law of Section 8(a)(5), and I decline to enter the
thicket of conjecture and hypothesizing that is suggested
by language in General Counsel's brief to the effect a
"favorable financial situation" could be interpreted from
Respondent 's records and that "competitive pressures"
do not impinge on its operations . It is instead that when
tempered adherence to an economic position is main-
tained it is tested against the adverse party's bargaining
leverage and not a strained or unwarranted interpretation
of the Act.
Having determined that employer unfair labor prac-
tices did not precede this strike by the Union, the result-
ant issue is only that of whether rights of economic strik-
ers were fulfilled under Laidlaw Corp., 171 NLRB 1366
(1968). Respondent operates under a visibly structured
setup in regard to staffing ratios and coverage for normal
client attendance patterns . Early in the strike eight re-
placements were hired permanently as instructors, taken
from the pool of substitutes or from Respondent 's dual-
function employees . I have seen no valid or convincing
explanation why the subsequent departures of regular or
replacement employees were not promptly followed by
reinstatement of waiting former strikers . Allowing for
frictional adjustment , the reinstatement of strikers
Browne and de los Santos was unlawfully delayed, while
Beltran , East, Flores, and Montoya are fully entitled to a
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
remedy for the withholding of their reinstatements. On
the state of this record an appropriate reinstatement date
for each of the six discriminatees is, if necessary, an ap-
propriate matter for a separate compliance proceeding.
CONCLUSIONS OF LAW
1. Whittier Area Parents' Association for the Develop-
mentally Handicapped is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.5
2. AFSCME Social Service Union, Local 1108, Amer-
ican Federation of State, County and Municipal Employ-
ees, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to reinstate striking employ-
ees upon their unconditional application to return to
work, Respondent has discriminated against employees
to discourage union or other protected concerted activi-
ties, and by such conduct has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
REMEDY
Having found the Respondent has engaged in certain
unfair labor practices , I find it necessary to order it to
cease and desist therefrom and take affirmative action de-
signed to effectuate the policies of the Act including the
posting of an appropriate notice . Having found that Re-
spondent unlawfully failed and refused to yet reinstate
Beltran , East , Flores, and Montoya to employment, and
having unlawfully failed and refused to reinstate Browne
and de los Santos to employment at appropriate times
from and after June 17, I shall recommend that Respond-
ent be required to make them each whole for any loss of
earnings they may have suffered as a result of the dis-
crimination against them , and to offer reinstatement to
Beltran , East , Flores, and Montoya, who were discrimi-
nated against as economic strikers . Backpay shall be
computed as set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 ( 1987).6
Disposition
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed7
8 Cf Community Interactions-Bucks County, 288 NLRB 1029 (1988)
6 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U S C. § 6621. Interest accrued before January 1, 1987 (the effective
date of the amendment), shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
° If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the
ORDER
The Respondent, Whittier Area Parents' Association
for the Developmentally Handicapped, Whittier, Califor-
nia, its officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Discriminating against employees by failing and re-
fusing to offer reinstatement to economic strikers to dis-
courage their union or other protected concerted activi-
ties.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in Whittier, California, copies of
the attached notice marked "Appendix."8 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by Respondent's authorized
representative , shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the notices
are not altered , defaced, or covered by any other materi-
al.
(b) Offer Sylvia Beltran , Patricia M. East, Norma M.
Flores, and April M. Montoya immediate reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or any other rights or privileges previous-
ly enjoyed, and make them , along with Marilyn S.
Browne, and Josefina de los Santos, whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them , in the manner set forth in
the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint is dismissed insofar as it alleges violations of the
Act not specifically found.
Board and all objections to them shall be deemed waived for all pur-
poses.
9 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "