Children's Center for Behavioral Development

National Labor Relations Board - Board Decisions

May 15, 2006

347 N.L.R.B. 35 (N.L.R.B. 2006)

CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT
347 NLRB No. 3
35
Children’s Center for Behavioral Development and
Children’s Center Federation of Teachers, Local
4485, IFT/AFT AFL–CIO. Cases 14–CA–27617
and 14–CA–27785
May 15, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On June 28, 2004, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respondent
and the General Counsel filed exceptions, supporting
briefs, and answering briefs. The Respondent filed a re-
ply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, as
modified below, and to adopt the recommended Order as
modified and set forth in full below.2
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by issuing a memorandum to its
employees that assertedly would reasonably tend to chill
their exercise of Section 7 rights. We disagree. On Octo-
ber 23, 2003, the Respondent issued the following
memorandum to its employees:3

1 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(5) of the Act by refusing to provide relevant informa-
tion to the Union. Additionally, no exceptions were filed to the judge’s
dismissal of the complaint allegations that the Respondent violated Sec.
8(a)(1) of the Act by telling employees that it was eliminating the hours
for persons who performed family therapy work because of the Union,
by maintaining a discriminatory policy prohibiting employees from
talking about the Union during working time while allowing them to
talk about other nonwork related matters during working time, and by
telling employees that they would not get a wage increase because of
the employees’ union activities.
2 The General Counsel has excepted to the judge’s failure to include
in the recommended Order a requirement that the Respondent restore
the family therapy hours that it eliminated in violation of Sec. 8(a)(1),
(3), and (5) of the Act, as well as the hours, pay, and corresponding
benefits of other employees that were eliminated in violation of Sec.
8(a)(1) and (5) of the Act. Although we reverse the judge’s finding that
the Respondent violated Sec. 8(a)(3) when it eliminated family therapy
hours for the reasons given below, we otherwise find merit to the Gen-
eral Counsel’s exceptions and will modify the Order and notice to
conform to the language set forth in the modified Order. The Respon-
dent argues that the additional remedies sought by the General Counsel
should be denied because they would impose an undue and unjust bur-
den on the Respondent. The record is undeveloped on this point. The
Respondent is free to raise this remedial issue and to introduce support-
ing evidence at the compliance stage of this proceeding. Lear Siegler,
Inc., 295 NLRB 857 (1989).
3 All dates are in 2003, unless otherwise noted.
I am sure that you know that Children’s Center for Be-
havioral Development is suffering from severe finan-
cial hardship. What many of you may not know is that,
I believe that for months now, the Union has been do-
ing everything in its power to harm Children’s Center
for Behavioral Development. The Union has interfered
with our relationship with the United Way, which af-
fected our funding. Now the Union is trying to arbitrate
grievances on behalf of Eileen Redeker, which has
caused the Children’s Center for Behavioral Develop-
ment to incur costs and legal fees, which it cannot af-
ford. In addition, the Union is now claiming that it has
a contract with CCBD, even though the Union rejected
the Center’s last offer earlier this year and the parties
have not been back to the negotiating table since.
I wanted to make all of you aware of these issues and
ask that you not permit Union issues to distract us from
our mission. It is only by working together that we can
move forward and succeed in these difficult times.
The judge found that the Respondent did not merely
express its opinion in the memo, but rather denigrated the
Union in the eyes of the employees it represented. As
such, the judge found that the Respondent interfered with
the employees’ free exercise of their Section 7 rights and
violated Section 8(a)(1) of the Act. For the following
reasons, we find that the memo is a lawful expression of
the Respondent’s opinion about the Union and does not
violate the Act.
Section 8(c) of the Act “implements the First Amend-
ment” such that “an employer’s free speech right to
communicate his views to his employees is firmly estab-
lished and cannot be infringed by a union or the Board.”
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
It gives employers the right to express their opinions
about union matters, provided such expressions do not
contain any “threat of reprisal or force or promise of
benefit.” Section 8(c); Progressive Electric, 344 NLRB
426, 427 (2005); see also United Technologies Corp.,
274 NLRB 1069, 1074 (1985), enfd. sub nom NLRB v.
Pratt & Whitney, 789 F.2d 129 (2d Cir. 1986) (finding
employer’s communications “criticizing the Union’s
demands and tactics” was protected by Sec. 8(c) because
“employees ought to be fully informed as to all issues
relevant to collective-bargaining negotiations and the
parties’ positions as to those issues”). Thus, an employer
may criticize, disparage, or denigrate a union without
running afoul of Section 8(a)(1), provided that its expres-
sion of opinion does not threaten employees or otherwise
interfere with the Section 7 rights of employees. See
Poly-America, Inc., 328 NLRB 667, 669 (1999), affd. in
part and revd. in part 260 F.3d 465 (5th Cir. 2001) (rely-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
ing on proposition that “[i]t is well settled that Section
8(c) . . . gives employers the right to express their views
about unionization or a particular union as long as those
communications do not threaten reprisals or promise
benefits[,]” the Board finds that employer did not violate
Section 8(a)(1) through its agent’s statements to employ-
ees that the Union was no good, that it had threatened to
burn the plant, and that it would charge up to $300 in
weekly or monthly fees); see also Trailmobile Trailer,
LLC, 343 NLRB 95, 95 (2004) (finding that “flip and
intemperate” remarks intended to make fun of some un-
ion representatives did not violate the Act). . . . . “Argu-
mentation of this type is left routinely to the good sense
of employees.” Optica Lee Borinquen, Inc., 307 NLRB
705, 708–709 (1992), enfd. mem. 991 F.2d 786 (1st Cir.
1993). Although the Board has found that extreme deni-
gration may rise to the level of interference with Section
7 rights, such cases are clearly distinguishable. See, e.g.,
Sheraton Hotel Waterbury, 312 NLRB 304 fn. 3 (1993),
enfd. in relevant part 31 F.3d 79 (2d Cir. 1994) (em-
ployer violated Section 8(a)(1) by accusing the union of
abusing employees at home, and in response hiring po-
lice to patrol its parking lot, thus implying to employees
that their safety in the workplace was at issue, while at
the same time comparing the union to a totalitarian re-
gime that uses abuse and intimidation to quell dissent).
In this case, the Respondent’s memo conveys nothing
more than the Respondent’s negative opinion of the Un-
ion’s actions. The first paragraph of the memo states the
Respondent’s opinion that the Union was attempting to
harm the Respondent. The memo then cites specific ex-
amples of the Union’s conduct that supported the Re-
spondent’s opinion: (1) the Union’s lobbying of United
Way to get involved in the parties’ ongoing collective
bargaining; (2) the arbitration of grievances that result in
legal fees for the Respondent; and (3) the Union’s posi-
tion that the parties had a collective-bargaining agree-
ment. The second paragraph is a mere continuation of the
Respondent’s expressed opinion. It restates the Respon-
dent’s desire to continue its mission despite its disagree-
ment with the Union over the issues stated above. The
memo says that the Respondent wishes to make employ-
ees “aware of these issues.”
Furthermore, the judge’s finding, that the memo inter-
fered with the Union’s right to elevate grievances to arbi-
tration and unfairly blamed the Union for the status of
the parties’ contract negotiations, is belied by a plain
reading of the memo. The memo conveys the Respon-
dent’s unhappiness that the Union’s use of arbitration has
caused the Respondent to incur certain costs. As such, it
amounts to nothing more than the lawful expression of
fact, i.e., arbitration does cost money. Finally, the memo
does not blame the Union for the status of the negotia-
tions, as the judge contends. It simply states the Respon-
dent’s disagreement with the Union’s position that the
parties have a contract. Although the Respondent’s posi-
tion has now been rejected, there is nothing unlawful in
stating a legal position, even if it is later rejected.
As noted above, denigration of the Union is insuffi-
cient to support a finding that the Respondent has vio-
lated the Act unless it is such as to “threaten reprisals or
promise benefits.” Poly-America, Inc., supra, 328 NLRB
at 669. All that the General Counsel has proven here is
that the Respondent expressed an unfavorable opinion
about the Union, its positions, and its actions. In sum, the
memo “did not suggest that the employees’ union activ-
ity was futile, did not reasonably convey any explicit or
implicit threats, and did not constitute harassment that
would reasonably tend to interfere with employees’ Sec-
tion 7 rights.” Trailmobile Trailer, LLC, supra at 95
(footnote omitted).4 As such, the memo is protected by
Section 8(c).
A plain reading of the memo also requires the rejection
of the dissent’s contention that the memo warned em-
ployees that unless they refrained from supporting the
Union, their jobs would be jeopardized. As explained
above, the memo identifies two union activities which
have affected the Respondent financially and for which
the Respondent expended funds which it says it cannot
afford. The memo also states the Respondent’s dis-
agreement with the Union as to whether the parties have
a contract. It then concludes by asking employees not to
be “distracted” in performing their jobs and to keep
“working together.” Making such a request is a far cry
from warning employees that their support for the Union
may jeopardize their continued employment. There sim-
ply is no basis to infer a threat of adverse consequences
from the expression of hope that employees continue to
work together. In sum, the expression of lawful opinion,
combined with a simple request that employees not be
distracted and keep working together, does not amount to
an unlawful threat.
We also find without merit the dissent’s argument that
the Respondent’s violations of Section 8(a)(5) created a
“strong antiunion atmosphere” in which the memo would
be perceived as a threat. In general, we are reluctant to
convert otherwise lawful statements into unlawful threats
simply because of the existence of other violations.
Concededly, there are cases, such as Ryder Transporta-
tion Services, 341 NLRB 761 (2004), and Webco Indus-

4 The dissent contends that Trailmobile is inapposite because it did
not concern a directive to cease supporting the Union. We disagree. As
stated above, there is no such directive in the Respondent’s memo, just
as there was none in Trailmobile.
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 37
tries. v. NLRB, 217 F.3d 1306, 1316 (10th Cir. 2000),
enfg. Webco Industries, 327 NLRB 172 (1998), cited by
the dissent, where ambiguous comments may be per-
ceived as threats because of a pervasively coercive at-
mosphere. But Ryder and Webco are readily distinguish-
able from the present case.
In Ryder, the “strong antiunion atmosphere” was cre-
ated by threats of loss of jobs and benefits, discharges,
suspensions, creating the impression of surveillance, and
solicitation of grievances with implied promise of re-
dress. Within this context of a “strong antiunion atmos-
phere,” the Board found unlawful the respondent’s re-
quest that employees report to management employees
who, in advocating the union, ‘“harrass[ed]’” other em-
ployees. Id. at 761.
In Webco Industries, supra, the Board adopted the
judge’s findings that the respondent violated Section
8(a)(1) by issuing written warnings to two employees
and suspending two employees for engaging in union
solicitation. The record in Webco established that in
cases of nonunion solicitation, the respondent simply
asked employees who violated the no-solicitation rule to
cease doing so, and that no formal action or discipline
was involved. Finding that “[o]nly the union solicitation
was punished without warning and with serious disci-
pline,” the judge further found that the respondent disci-
plined the four employees at issue “to make examples of
the soliciting employees to chill support for the Union[.]”
Id. at 186 (footnote omitted).
It was within the context of these 8(a)(1) violations
that the Board found that Dana Weber, respondent’s
president, unlawfully disparaged the union when she told
employees that the union was responsible for the respon-
dent’s (unlawful) discipline of the four employees. In
finding this violation, the Board held that “[a]lthough an
employer is generally free to make critical comments
about a union that is seeking to organize its employees, it
violates Section 8(a)(1) of the Act when it takes adverse
action against employees and falsely blames its action on
the union.” Id. at 173 (emphasis added). It reasoned that
the respondent was “suggest[ing] to employees that seek-
ing union representation results in damage to their terms
and conditions of employment.” Id. The dissent notes
that the circuit court, in enforcing the Board’s order,
found Weber’s statements unlawful given the “particu-
larly threatening context” in which they were made, i.e.,
the unlawful discipline issued to the four employees.
Webco Industries v. NLRB, 217 F.3d at 1316.
In the present case, by contrast, Respondent’s several
violations of Section 8(a)(5) of the Act hardly demon-
strate the kind of pervasive atmosphere of hostility to
employees’ union activity that was found in Ryder and
Webco, supra. It cannot be said that the Respondent is-
sued its October 23 memo to employees in a “particu-
larly threatening context” or, indeed, in an atmosphere
that was pervasively coercive.5 Accordingly, we find
that the Respondent did not violate Section 8(a)(1) of the
Act by issuing its October 23 memo to employees and
we shall dismiss that part of the complaint.
2. The judge also found that the Respondent violated
Section 8(a)(1) of the Act by maintaining an overbroad
no-solicitation policy. For the following reasons, we dis-
agree with the judge and dismiss that allegation.
The Respondent’s no-solicitation policy reads in rele-
vant part:
Staff should not be permitted to solicit, obtain, accept
or retain services, merchandise, commodities, etc. for
personal gain/profit during working hours. This con-
duct is prohibited in all buildings and on surrounding
grounds.
Citing Lafayette Park Hotel, 326 NLRB 824 (1998),
enfd. mem. 203 F.3d 52 (D.C. Cir. 1999), the judge
found that the policy violated Section 8(a)(1) because it
would reasonably tend to chill employees’ exercise of
their Section 7 rights. Because the rule applies to all
staff, makes no distinction for regular duty hours or
break time, and applies to all of the Respondent’s prop-
erty, the judge found it overbroad. Unstated, but implicit
in the judge’s finding, is that the policy applies to pro-
tected activity. We disagree.
We find that employees would not reasonably believe
that the policy applied to protected concerted activity,
and thus the policy does not violate the Act. By its own
terms, the language in the policy is not directed at pro-
tected concerted activity. The policy states that employ-
ees are not permitted to “solicit, obtain, accept, or retain
services, merchandise, commodities, etc. for personal
gain/profit.” Thus, the policy expressly targets personal
commercial business, rather than concerted protected
activity, and accordingly would not reasonably tend to
chill the exercise of employees’ Section 7 rights. Cf. Wil-
shire at Lakewood, 343 NLRB 141 fn. 2 (2004) (finding
lawful rule prohibiting “rumors and gossip” with a “ma-
licious intent”). We therefore dismiss that portion of the
complaint.

5 In Webco, the court explained that while it continued “to grapple
with distinguishing between an employer’s unprotected threats versus
protected predictions[,]” it recognized that “‘words of disparagement
alone concerning a union or its officials are insufficient for finding a
violation of Section 8(a)(1)’ of the Act. Sears, Roebuck & Co., 305
NLRB 193, 193 (1991).” Webco Industries v. NLRB, 217 F.3d at 1316.
Thus, the Webco decision cited by our dissenting colleague actually
supports our finding that this part of the complaint should be dismissed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
3. The judge found that, in addition to violating Sec-
tion 8(a)(5), the Respondent violated Section 8(a)(3) of
the Act by eliminating the hours for family therapy ser-
vices performed by an employee in retaliation for the
Union’s protected activity. Although we agree, for the
reasons stated by the judge, that the Respondent’s unilat-
eral elimination of family therapy violated Section
8(a)(5), for the following reasons we disagree that the
Respondent’s actions violated Section 8(a)(3) of the Act.
The relevant facts are not in dispute. In June, the par-
ties were still negotiating a successor to the collective-
bargaining agreement that had expired December 31,
2002. Their bargaining relationship, by that point, had
become acrimonious. The main source of contention was
the issue of dues checkoff, which the Respondent sought
to eliminate in the new agreement. On June 12, then-
Union President Eileen Redeker sent a memo to employ-
ees accusing the Respondent of bargaining in bad faith
and of trying to break the Union; she also informed em-
ployees that her own grievance was in arbitration. On
June 19, the executive director of the Respondent, Caro-
lyn Birth, responded by circulating a memo to employees
accusing Redeker of only being interested in getting the
employees to pay for her arbitration.
The parties’ contention over the dues-checkoff issue
also implicated the Respondent’s relationship with the
United Way. The United Way provided funding for the
Respondent’s family therapy services, which were per-
formed by employee Sharon Orr outside her normal
hours. Throughout 2003, the United Way attempted to
get the Respondent to comply with certain United Way
requirements for funding. Specifically, the United Way
required the Respondent to have more United Way
members on its board of directors and to provide them
appropriate training. As of July 1, Birth was attempting
to remedy these deficiencies.
At the end of June, the Union tried to gain some bar-
gaining leverage with the Respondent by seeking support
for its position from the United Way. The Union called
Bill Thurston, a union official on the United Way board
of directors, and informed him that the Respondent was
seeking to eliminate dues checkoff. Thurston, in turn,
contacted other officials with United Way, including
Craig Biehle. Biehle contacted Birth on June 30, and
asked if the Respondent was eliminating dues checkoff.
Biehle provided Birth a copy of the Union’s communica-
tion to United Way. Birth told Biehle that the Respon-
dent was continuing to deduct dues and had no plans to
change.
In early August, the Union informed Biehle that the
Respondent’s latest bargaining position included the
elimination of dues checkoff. Biehle called Birth again,
at which time Birth told him that his inquiries were “in-
appropriate and unprofessional,” and that he was interfer-
ing with the Respondent’s relationship with the Union.
On August 26, the Respondent sent a letter to United
Way terminating their relationship. The Respondent ad-
mits that it terminated its relationship, at least in part, due
to Biehle’s inquiries regarding collective bargaining and
dues checkoff. On August 29, the Respondent eliminated
family therapy hours.
The judge found that the Respondent violated Section
8(a)(3) of the Act by eliminating the employees’ hours
performed for family therapy in retaliation for the Un-
ion’s protected activity. The judge first found that the
General Counsel sustained his initial burden under
Wright Line6 by showing that the Union’s protected ac-
tivity was a motivating factor in the Respondent’s deci-
sion to eliminate the employees’ hours. The judge relied
on the inquiries made by the United Way concerning
dues checkoff, Birth’s knowledge that the Union had
initiated the inquiries, Birth’s annoyance with the Un-
ion’s actions, and the fact that the Respondent’s board
took into consideration these calls when deciding
whether to end its association with United Way. The
judge also stated that Birth had been unhappy about the
June 12 Redeker memo. The judge then found that the
Respondent would not have eliminated the family ther-
apy hours in the absence of the Union’s communications
with the United Way.
Contrary to the judge, we find that the Respondent
eliminated family therapy hours not in response to union
activity, but because it had lawfully terminated its rela-
tionship with the sole source of funding for that therapy,
the United Way. Thus, the Respondent did not violate
Section 8(a)(3) of the Act and we dismiss that part of the
complaint.
It is clear from the record that United Way’s actions in
inserting itself into the collective-bargaining process
spurred the Respondent to act. Birth was displeased by
United Way’s attempt to inject itself into the Respon-
dent’s negotiations with the Union. There is no evidence
that her displeasure was with the employees. Rather, as
the judge found, Birth had become “fairly stiff” with
Biehle as a result of his telephone calls, and Birth made it
clear that “the United Way should not be interfering.”
Significantly, it was United Way’s repeated inquiries on
the dues-checkoff issue, not any Union or employee ac-
tivity, that was the subject of Birth’s report to the Re-
spondent’s board.

6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393 (1983).
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 39
Clearly, the record shows that the Respondent acted in
response to United Way’s actions, which were not pro-
tected by the Act. Contrary to the judge’s finding, Birth’s
irritation with the telephone calls from Biehle, and the
fact that the Respondent’s board gave consideration to
Birth’s irritation with these calls, does not demonstrate
antiunion animus. Rather, it demonstrates displeasure
with the conduct of a third party whose actions are not
protected by the Act. As such, they do not support the
General Counsel’s case in chief.
Concededly, Birth knew that the Union had contacted
United Way and, in a memo 2 months earlier, Birth ex-
pressed displeasure with the Union. However, it is sim-
ply too great a leap to infer from these facts that the deci-
sion to terminate the United Way relationship was moti-
vated by anything other than the Respondent’s displeas-
ure with United Way’s attempt to insert itself into nego-
tiations between the Respondent and the Union.
The dissent contends that because the United Way in-
tervened at the invitation of the Union, the actions of the
United Way cannot be separated from the actions of the
employees; therefore when the Respondent acted against
the United Way it was really retaliating against the em-
ployees’ protected activity. The dissent thus seeks, in
effect, to cloak United Way with the protection of the
Act. We disagree.
In our view, the evidence clearly shows that the Re-
spondent severed its ties to United Way because of its
pique at United Way’s attempted intrusion into the Re-
spondent-Union bargaining process. While United Way’s
intervention may have been sought by the employees, it
was United Way itself that intruded into the bargaining
process, and Respondent’s pique was directed at United
Way’s actions in so doing. In these circumstances, the
manner in which United Way got involved is irrelevant.
The actions of the United Way, a third party, and not a
representative of employees, are not covered by the Act.
We are unwilling to go beyond the plain language of the
Act to find otherwise. The Respondent was therefore free
to respond to the United Way’s interference by severing
its relationship with United Way.
The cases cited by the dissent are clearly distinguish-
able in that they involved employers who retaliated
against employees for having sought third party interven-
tion.7 The employers in those cases did not act against
the third party. Thus, contrary to our dissenting col-
league’s assertions, these cases only underscore the fact

7 See, e.g., Richboro Community Mental Health Council, Inc., 242
NLRB 1267, 1268 (1979) (denying promotion to employee who sent
letter of complaint to third party funding source); Emarco, Inc., 284
NLRB 832, 833 (1987) (denying reinstatement to employees who criti-
cized employer to third party).
that the Act’s protections simply do not extend to the
conduct of a third party when it intervenes in a dispute
between an employer and its employees.
The dissent also argues that the October 23 memo,
which stated that the Union had interfered with the Re-
spondent’s relationship with the United Way, shows that
the Respondent severed its ties to the United Way in re-
taliation against the employees. We disagree. Certainly,
the United Way’s involvement was in response to the
Union’s urging. However, just as clearly, the Respondent
ended its relationship with the United Way in response to
the United Way’s actions. As noted above, the Respon-
dent acted only after it decided that Biehle’s phone calls
had became burdensome, not when it learned that the
employees had contacted the United Way. Further,
Birth’s report to the Respondent’s board expressed dis-
pleasure with the United Way’s actions, not with the Un-
ion’s actions in contacting the United Way.
The Respondent’s memo to employees, coming 2
months after the Respondent ceased doing business with
the United Way, must be viewed against the contempo-
raneous evidence at the time that the Respondent made
its decision. That evidence points solely to the Respon-
dent’s displeasure with the United Way’s acts of interfer-
ence. As explained above, that interference is not pro-
tected by the Act. Accordingly, and contrary to the
judge, we find that the General Counsel has failed to
prove by a preponderance of the evidence that the Re-
spondent’s elimination of the family therapy hours was
motivated, even in part, by its animus towards protected
union activity, and we shall dismiss that part of the com-
plaint.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Children’s Center for Behavioral Develop-
ment, Centreville, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to provide the Union with requested in-
formation relevant to the Union’s performance of its col-
lective-bargaining duties as the exclusive collective-
bargaining representative of the employees.
(b) Refusing to execute and adhere to the terms of an
agreed upon collective-bargaining agreement including
the payment of longevity wage increases.
(c) Unilaterally and without providing notice to or bar-
gaining with the Union, reducing employees’ hours of
work, pay and other benefits and eliminating the hours of
employees who perform family therapy work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
(d) Bypassing the Union and dealing directly with em-
ployees by negotiating a reduction in their hours, pay,
and other benefits.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore the hours of employees whose family ther-
apy hours were eliminated, and restore the hours, pay,
and other benefits of employees that the Respondent
unlawfully reduced.
(b) Execute and adhere to the terms of the agreed upon
collective-bargaining agreement, including the payment
of longevity wage increases retroactive to January 1,
2003.
(c) Make whole any employees, with interest, for any
loss of earnings and other benefits suffered as a result of
the Respondent’s elimination of the hours of employees
who perform family therapy services, the unilateral re-
duction of employees’ hours of work, pay, and other
benefits, and for the failure to execute and adhere to the
terms of the agreed upon collective-bargaining agree-
ment, in the manner set forth in Ogle Protection Ser-
vices, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(d) Provide the Union with the information it requested
on November 19 and December 4, 2003.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Centreville, Illinois copies of the attached
Notice marked “Appendix.”8 Copies of the Notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where Notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent to ensure that the Notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the Notice
to all current employees and former employees employed
by the Respondent at any time since August 29, 2003.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
MEMBER LIEBMAN, dissenting in part.
After its employees successfully sought the help of the
United Way in contract negotiations, the Respondent
ended its relationship with the charity—concededly be-
cause of the charity’s intervention in bargaining—and
then eliminated the family therapy work for which
United Way had been the sole source of funding. Some
weeks later, the Respondent sent employees a memo,
blaming the Union for its financial hardship and warning
employees not to let union issues distract them. Contrary
to the majority, which reverses the judge’s findings, both
measures violated the Act.1 The elimination of family-
therapy-services hours was an obvious reprisal for ap-
proaching the United Way—as the memo, which unlaw-
fully threatened employees for supporting the Union,
made clear.
I. THE 8(A)(1) THREAT
The judge found that the Respondent violated Section
8(a)(1) by issuing a memo on October 23, 2003,2 that
interfered with the Union’s relationship with the employ-
ees by denigrating the Union in the eyes of the employ-
ees. I agree with the judge’s conclusion that the Respon-
dent’s memo was unlawful, based on my view that the
memo constituted a threat of adverse action if the em-
ployees maintained their support for the Union.
The Respondent’s memo, quoted in full by the major-
ity, informs the employees that the Respondent is “suf-
fering from severe financial hardship,” that union activi-
ties are to blame for this situation, and that the employ-
ees’ continued support of these activities will put their
jobs at risk. The memo specifically places the blame for
the Respondent’s “severe financial hardship” on three
union activities: (1) the Union’s effort to enlist the help
of one of its financial supporters (the United Way) in
negotiating a collective-bargaining agreement with the
Respondent; (2) the Union’s arbitration of a grievance on

1 I agree with the majority opinion in all other respects.
2 All dates hereafter are in 2003.
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 41
behalf of employee Eileen Redeker, which allegedly
caused the Respondent to incur unaffordable costs and
legal fees; and (3) the Union’s insistence that it had
reached a contract with the Respondent (as we find it
did). The memo then warns the employees that unless
they “do not permit Union issues to distract” them from
the Respondent’s mission, the Respondent will not suc-
ceed in overcoming its financial difficulties. Thus, the
Respondent clearly implied that unless the employees
refrained from supporting the Union, the Respondent’s
resulting financial difficulties would jeopardize the em-
ployees’ job security.
The statements in the memo must also be viewed
against the background of other unfair labor practices
committed by the Respondent. Thus, as the majority
agrees, during this time the Respondent unlawfully re-
fused to execute and adhere to the terms of an agreed
upon collective-bargaining agreement, failed to pay the
employees longevity wage increases, unilaterally reduced
the employees’ hours of work, pay, and other benefits,
and bypassed the Union and dealt directly with employ-
ees by negotiating a reduction in the employees’ hours,
pay, and other benefits. The memo’s implicit threat
against engaging in union support is reinforced by these
unfair labor practices, which send the clear message that
the Respondent will ignore the Union and act unilaterally
to reduce the employees’ wages and other benefits when-
ever it wishes to address financial difficulties.3
The majority finds that the memo is protected under
Section 8(c), but Section 8(c) protects employer speech
that is free from threats of reprisal or promises of benefit.
When the entire text of the memo is considered, along
with the strong antiunion atmosphere in which it was
delivered, it is clear that the Respondent’s message did
more than express an opinion. Rather, the Respondent
effectively warned the employees to cease supporting the
Union’s actions or risk jeopardizing their job security.4
Accordingly, I would find that the Respondent’s Octo-
ber 23 memo violated Section 8(a)(1) of the Act.

3 See Ryder Transportation Services, 341 NLRB 761 (2004) (em-
ployer’s directives may take on a different meaning when issued in a
“strong antiunion atmosphere” created by the employer). See also
Webco Industries v. NLRB, 217 F.3d 1306, 1316 (10th Cir. 2000) (af-
firming Board’s finding that employer threats were not protected, due
in part to “particularly threatening context”).
4 For these reasons this case is clearly distinguishable from those re-
lied on by the majority. In Trailmobile Trailer, LLC, 343 NLRB 95
(2004), the Board found that “flip and intemperate” remarks intended to
make fun of some union representatives did not violate the Act. That
case did not involve an employer directive to cease supporting the
union upon risk of job loss, as we have here. Nor was such an unlawful
directive present in Optica Lee Borinquen, Inc., 307 NLRB 705, 708–
709 (1992), enfd. mem. 991 F.2d 786 (1st Cir. 1993).
II. THE 8(A)(3) ELIMINATION OF FAMILY THERAPY
SERVICE HOURS
I agree with the judge, that by eliminating family-
therapy hours, the Respondent unlawfully punished the
employees for seeking the United Way’s assistance in
collective-bargaining negotiations.
The relevant facts are not in dispute. During negotia-
tions, the main source of contention between the Re-
spondent and the Union was whether the parties’ contract
would contain a dues-checkoff provision. When the Re-
spondent refused to agree to a dues-checkoff provision,
the Union sought the help of the United Way, which pro-
vided all funding for the Respondent’s family therapy
services. (Understandably it was in the Respondent’s
best interest to maintain a good relationship with the
United Way.)
Based on the Union’s request, United Way official
Craig Biehle contacted Respondent’s executive director,
Carolyn Birth, and asked whether the Respondent was
eliminating dues checkoff from its collective-bargaining
agreement with the Union. Birth falsely told Biehle that
the Respondent had no plans to eliminate that provision
from the contract. After later being informed by the Un-
ion that the Respondent’s bargaining position did indeed
propose eliminating dues checkoff, Biehle again called
Birth and asked whether the Respondent intended to
eliminate dues checkoff. Birth advised Biehle that his
inquiry was inappropriate and unprofessional and that he
was interfering with the Respondent’s relationship with
the Union.
There is no evidence that Biehle or any other represen-
tative of the United Way made any further inquiries
about this matter. Nonetheless, the Respondent termi-
nated its relationship with the United Way, and elimi-
nated all employee work hours covering family therapy
services. The Respondent admits that it terminated its
relationship with the United Way due at least in part to
the United Way’s inquiries about collective-bargaining
negotiations and dues checkoff.
In analyzing a charge of antiunion discrimination un-
der Section 8(a)(3), the Board employs the analytical
framework established in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Under Wright Line, the
General Counsel must prove, by a preponderance of the
evidence, that the employee’s protected conduct was a
motivating factor in the employer’s adverse action. The
General Counsel makes that showing by establishing
that: (1) the employee engaged in protected activity; (2)
the employer knew of that activity; and (3) the employer
demonstrated animus toward that activity. If the General
Counsel makes such a showing, the burden shifts to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
employer “to demonstrate that that same action would
have taken place even in the absence of the protected
conduct.” Webasto Sunroofs, 342 NLRB 1222, 1224–
1225 (2004). Applying this analysis here demonstrates
that the Respondent violated the Act by terminating its
relationship with the United Way and eliminating its em-
ployees’ work hours for family therapy services.
There is no dispute that the Respondent was aware that
the Union had requested the United Way to inquire about
whether the Respondent intended to terminate the dues-
checkoff provision. Such efforts to enlist the support of
third parties concerning a labor dispute between the em-
ployees and their employer are protected activity.5 The
Respondent’s numerous unfair labor practices demon-
strate that the Respondent harbored antiunion animus.
Finally, the Respondent has conceded that it terminated
its relationship with the United Way at least in part be-
cause the United Way contacted it about the parties’ la-
bor negotiations. Because United Way did not act on its
own initiative, its action is inseparable from the employ-
ees’ request for help. Thus, the Respondent cannot show
it would have terminated its relationship with the United
Way and its employees’ family therapy hours even in the
absence of protected activity.
The majority asserts that the Respondent acted not in re-
taliation against employees, but simply in response to the
United Way’s meddling, which was not protected by the
Act. My colleagues thus attempt to divorce the employ-
ees’ approach to the United Way from the United Way’s
intervention. In the majority’s view, the Respondent’s
termination of its relationship with the United Way had
nothing to do with the employees’ request that the United
Way contact the Respondent concerning labor negotia-
tions. But, of course, it had everything to do with it.
The only apparent business reason for the Respondent
to terminate its free funding from the United Way was to
retaliate against its employees for bringing in unwanted
negotiation pressure from an outsider. Importantly, the
Respondent itself made it clear that it did not view the
United Way’s inquiries separate from the employees’
action of requesting that the United Way make the in-
quiries. In its October 23 memo to the employees the
Respondent specifically blamed the Union for the loss of
the United Way funding. Placing the blame on the Un-
ion in this manner served no purpose other than making
sure that employees got the message that they were being
punished.

5 See, e.g., Richboro Community Mental Health Council, Inc., 242
NLRB 1267, 1268 (1979) (finding protected employee’s letter writing
to third party funding source); see also Emarco, Inc., 284 NLRB 832,
833 (1987) (finding protected employee criticisms of employer made to
third party).
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 vio-
lated Federal labor law and has ordered us to post and obey
this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to provide the Children’s Center
Federation of Teachers, Local 4485 (the Union) with
requested information relevant to the Union’s perform-
ance of its collective-bargaining duties as your exclusive
collective-bargaining representative.
WE WILL NOT refuse to execute and adhere to the terms
of an agreed upon collective-bargaining agreement in-
cluding the payment of longevity wage increases.
WE WILL NOT unilaterally and without providing notice
to or bargaining with the Union, reduce employees’
hours of work, pay, and other benefits and eliminate the
hours of employees who perform family therapy work.
WE WILL NOT bypass the Union and deal directly with
you by negotiating a reduction in your hours, pay, and
other benefits.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL restore the hours of employees whose family
therapy hours were eliminated, and restore the hours,
pay, and other benefits of employees that we unlawfully
reduced.
WE WILL execute and adhere to the terms of the agreed
upon collective-bargaining agreement, including the pay-
ment of longevity wage increases retroactive to January
1, 2003.
WE WILL make employees whole for any loss of earn-
ings and other benefits as the result of our elimination of
hours for those persons performing family therapy work,
the unilateral reduction in hours of work, pay, and other
benefits, and our failure to execute the agreed upon col-
lective-bargaining agreement.
WE WILL provide the Union with the information it re-
quested on November 19 and December 4, 2003.
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 43
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT
Christal J. Key, Esq., for the General Counsel.
Andrew J. Martone, Esq. and Michelle M. Gaffney, Esq., of St.
Louis, Missouri, for the Respondent-Employer.
Chris Kolker, Esq., of Belleville, Illinois, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on April 19 through 21, 2004, in St. Louis,
Missouri, pursuant to a consolidated complaint and notice of
hearing in the subject cases (the complaint) issued on April 2,
2004, by the Regional Director for Region 14 of the National
Labor Relations Board (the Board). The underlying charges
were filed on various dates in 20031 and 2004 by Children’s
Center Federation of Teachers, Local 4485, IFT/AFT, AFL–
CIO (the Charging Party or the Union) alleging that Children’s
Center for Behavioral Development (the Respondent, Center, or
Employer) has engaged in certain violations of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer to the complaint denying that
it had committed any violations of the Act.
Issues
The complaint alleges that Respondent engaged in a number
of independent violations of Section 8(a)(1) of the Act includ-
ing informing employees that it was eliminating the hours for
persons who performed family therapy work, maintaining a
discriminatory policy of prohibiting employees from talking
about the Union during working time, issuing a memorandum
that interfered with employees rights to engage in union activi-
ties, the enforcement of an overly broad solicitation rule in its
personnel handbook and informing employees that they would
not get a raise because of the employees’ union activities. Ad-
ditionally, the complaint alleges that the Respondent eliminated
the hours for employees performing family therapy work in
violation of Section 8(a)(1) and (3) of the Act. Lastly, the
compliant alleges that the Respondent violated Section 8(a)(1)
and (5) of the Act by reaching complete agreement on terms
and conditions of employment but refusing to execute a written
collective-bargaining agreement, refusing to provide requested
information necessary and relevant to the Union’s performance
of its duties, unilaterally eliminating the pay, scheduled hours
and other benefits of employees and bypassing the Union and
dealing directly with employees by negotiating a reduction in
their hours and pay.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the business of
educating behaviorally disturbed children and adolescents at its

1 All dates are in 2003, unless otherwise indicated.
facility in Centreville, Illinois, where in conducting its business
operations it derived gross revenues in excess of $250,000 and
purchased and received goods valued in excess of $50,000
directly from points outside the State of Illinois. The Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a not-for-profit center for emotionally
disturbed/behavior disordered children and adolescents ages 5–
21. It focuses on three primary components, a day treatment
program, a residential facility, and an outpatient program. The
day treatment program provides services to students who are
socially and/or emotionally disturbed, learning disabled or
mildly retarded. The residential program provides education
and treatment to juvenile sex offenders while the outpatient
program provides assistance to victims and perpetrators of sex-
ual offenses.
Since about October 7, 1986, the Union has been the desig-
nated exclusive collective-bargaining representative of the unit
and has been recognized as the representative by Respondent.
This recognition has been embodied in successive collective-
bargaining agreements, the most recent contract having expired
by its terms on December 31, 2002 (GC Exh. 2).
The Center is primarily funded by grants from the State of Il-
linois, its various departments including the Department of
Corrections and the Department of Children and Family Ser-
vices, and the Illinois State Board of Education. In December
2002, the Center projected an 18-percent loss in government
funding for 2003 and a yearend deficit of $284,688. This in-
formation was shared with the Union who had requested it in
anticipation of entering into collective-bargaining negotiations
for a successor collective-bargaining agreement.
Negotiations for such an agreement commenced on Decem-
ber 12, 2002. In part, the Center proposed that the dues-check-
off provisions of the agreement be deleted in its entirety.
For a number of years the Center has been an affiliate mem-
ber of the United Way of Greater St. Louis. United Way funds
support the comprehensive family life education program,
which serves children and families in the school-based pro-
gram. In 2002, the Center received $86,058 in order to support
the family therapy program and any overtime or comptime
related to providing services to children or their families that is
nonreimbursable from the state of Illinois.
By letter dated December 26, 2002, the United Way made a
number of comments and recommendations for the Center’s
continued membership in 2003. The United Way panel noted
that the Center had not achieved a board of director member-
ship of 12 individuals that at a minimum was required for
United Way membership standards. In large part due to this
deficiency, the panel recommended that the Center’s member-
ship status be changed for the next 3 years and conditioned
affiliated membership on meeting various criteria including
training sessions for board members and the development and
utilization of an effective committee structure. A detailed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
agenda was set forth that required the Center to meet strict
guidelines during calendar year 2003 in order to continue its
membership in the United Way and be eligible for funding to
support the family therapy program (GC Exh. 5). By letter
dated February 18, the United Way reaffirmed the above-
agenda requirements (GC Exh. 6). On March 18, United Way
Community Investment Associate Craig Biehle spoke to the
executive director of the Center and explained that the panel
would no longer tolerate hearing the Center’s excuse that there
are no board members available in Illinois. Biehle apprised the
executive director that the Center had missed the February 28
deadline of submitting a timeline of scheduled training sessions
and by June 30, the panel expects the Center to submit docu-
mentation that three or more training sessions have taken place,
the content of those sessions and an attendance listing for each
session (GC Exh. 39). By letter dated April 17, the United Way
informed the Center that they would receive $85,757 in 2003 to
support salary expenses of the family life education program
(GC Exhs. 7(a) and (b)).
Collective-bargaining discussions continued between the
parties during the spring and summer of 2003. Since the Center
was unwilling to change its proposal to delete the dues-
checkoff provision from the parties’ agreement, the Union con-
tacted Bill Thurston, the president of the SW Illinois Central
Labor Council who also serves on the board of the United Way.
Thurston, on June 28, made an inquiry to the labor liaison con-
tact at the United Way concerning the status of negotiations at
the Center and specifically his concern about the possible dele-
tion of the dues-checkoff provision in the Center’s collective-
bargaining agreement. Based on this inquiry, Biehle contacted
the executive director on June 30, and again in early August
2003. The executive director informed Biehle that the Center
was still allowing for a payroll dues-checkoff provision and had
no plans to change it (R. Exh. 19). By letter dated August 5,
from the Union to Thurston, it was pointed out that the Center
had not changed their position on deleting the dues-checkoff
provision from the 2003 collective-bargaining agreement (R.
Exh. 16).
By letter dated August 26, the Center informed the United
Way that the board of directors decided to terminate their mem-
bership effective immediately (GC Exh. 10). By letter dated
September 5, the United Way acknowledged the board of direc-
tor’s wishes to terminate its membership and confirmed that
effective immediately all United Way funding would cease (GC
Exh. 11).
At all material times, Marietta Miller served as the union
field services director and chief negotiator, Eileen Redeker held
the position of acting union president, and Atefe Aghahosseini
served as treasurer. For the Respondent, Carolyn Birth holds
the position of executive director and Kenneth Carroll served as
labor-relations consultant and chief negotiator.
B. The 8(a)(1) Allegations
1. The elimination of hours
The General Counsel alleges in paragraph 5(a) of the com-
plaint that about August 25, Birth, at an employee meeting, told
employees that it was eliminating the hours for persons who
performed family therapy work because of the Union.
Birth testified that she called a meeting of all employees on
August 25, to welcome the staff back from summer vacation
and to apprise the employees of the status of funding for the
Center in the upcoming fiscal year.
Birth informed the employees that the Union had sent corre-
spondence to the United Way that might have interfered with
funding decisions and after a complete review of the family
therapy program the board of directors had decided to terminate
its relationship with the United Way. As a result, the United
Way decided to terminate funding for the family therapy pro-
gram at the Center.
Employee Sharon Orr testified that she attended the staff
meeting and heard Birth state that the United Way funding for
the family therapy program was no longer going to be available
because of union interference. Orr’s affidavit given to the
Board on March 5, 2004, addresses Birth’s statement much
differently. She states, that “Birth told us that the United Way
would no longer be providing the Center funding because the
Union had interfered in their relationship.” Birth said that be-
cause the United Way funding had been cut, the Center was
going to have to eliminate the family therapy program and the
positions associated with it.
Employee Mollie Stanley testified that Birth stated at the
August 25 meeting that the family therapy program would be
cut, and that the Union had sent a letter to the United Way that
she believed had caused interference with the financial relation-
ship with the United Way.
Based on the forgoing recitation, and even relying on the
witnesses’ proffered by the General Counsel, it has not been
established that Birth informed employees at the August 25,
staff meeting that the Center was eliminating the hours of per-
sons performing family therapy work because of the Union.
Accordingly, I recommend that paragraph 5(a) of the complaint
be dismissed.
2. The discriminatory policy
The General Counsel alleges in paragraph 5(b) of the com-
plaint that since about August 25, Respondent has maintained a
discriminatory policy prohibiting employees from talking about
the Union during working time while allowing them to talk
about other nonwork-related matters during working time.
Birth testified that no such policy has been maintained and
no employee has been warned or disciplined for talking about
the Union during working time. Birth concedes that a practice
has been in effect at the Center that union business/activities
may only be conducted before or after working hours or during
the lunch period. She also notes, that article IX, section 8 of
the parties’ 2001–2002 collective-bargaining agreement pro-
vides that the Union shall be allowed to conduct meetings at the
Center between the hours of 8 a.m and 4 p.m. with the approval
of the executive director.
Orr testified that during a January 13, 2004 mandatory staff
meeting an employee named Justina asked Birth, “Who are the
Union members and how many are there.” Birth referred
Justina’s question to Union Representative Aghahosseini who
was in attendance at the meeting. Aghahosseini told Justina to
see her after hours because we were not allowed to talk about
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 45
union business during regular work hours. Birth said, “That is
right.”
In her affidavit, Orr stated that she recalled Birth talking
about the Employer’s policy in the staff meeting, and said that
employees are not allowed to talk about the Union during the
workday except during lunch. Birth was talking about the Un-
ion and she kept referring questions to Aghahosseini. Birth told
employees that they could not talk about the Union except be-
fore and after work and at lunch.
Stanley testified that when employees asked questions during
the January 13, 2004 staff meeting, Birth referred them to
Aghahosseini who told the employees she could only talk to
them after hours or during lunch. Birth said, “You are right.”
Aghahosseini testified that no one in management at the
Center ever told her she could not talk about the Union with
employees during work time.
Based on the forgoing testimony of Birth and several em-
ployees, I find that a policy existed at the Center for union
business/activities to be conducted before or after hours or dur-
ing the lunch period. Indeed, it is apparent to me that the Union
acquiesced in this policy and over time it ripened into an estab-
lished practice.2 However, primarily relying on the testimony
of Birth and Union Representative Aghahosseini, I find that no
discriminatory policy existed at the Center that prohibited em-
ployees from talking about the Union during working time
while allowing them to talk about other nonwork-related mat-
ters. Orr’s testimony was inconsistent with her affidavit in
certain key areas and conflicted with that of Aghahosseini. I
believe that both Orr and Stanley confused the established un-
ion business policy with their belief that employees were not
permitted to talk about the Union during working time.
For all of the above reasons, I find that the General Counsel
has not established that the Respondent maintained a discrimi-
natory policy and recommend that paragraph 5(b) of the com-
plaint be dismissed.
3. The October 23 memorandum to employees
The General Counsel alleges in paragraph 5(c) of the com-
plaint that about October 23, Respondent in a memorandum to
all employees, interfered with employees’ rights to engage in
union activities by informing employees that the Union’s proc-
essing of grievances, filing of unfair labor practice charges, and
solicitation of support for a contract was jeopardizing the future
of Respondent’s business.
The October 23 memorandum stated, “I am sure that you
know that Children’s Center For Behavioral Development is
suffering from severe financial hardship. What many of you
may not know is that, I believe that for months now the Union
has been doing everything in its power to harm Children’s Cen-
ter For Behavioral Development. The Union has interfered
with our relationship with the United Way, which affected our
funding. Now the Union is trying to arbitrate grievances on
behalf of Eileen Redeker, which has caused the Children’s
Center For Behavioral Development to incur costs and legal

2 By memorandum dated November 19, 2002, Birth apprised Acting
Union President Redeker that the Union was conducting business and
activities during normal work hours in direct violation of an agreement
between the parties (GC Exh. 22).
fees, which it cannot afford. In addition, the Union is now
claiming that it has a contract with CCBD, even though the
Union rejected the Center’s last offer earlier this year and the
parties have not been back to the negotiating table since. I
wanted to make all of you aware of these issues and ask that
you not permit union issues to distract us from our mission. It
is only by working together that we can move forward and
succeed in these difficult times.”
The Respondent argues that the October 23 memorandum is
not violative of the Act as it is protected by Section 8(c) of the
Act.3
The Board has held that an employer is free to express and
disseminate its views or opinions, as long as such expressions
contain no threat of reprisal or promise of benefit. I find, how-
ever, that in the particular circumstances of this case the Re-
spondent engaged in conduct that, it may reasonably be said,
tends to interfere with the free exercise of employees rights
under the Act. American Freightways Co., 124 NLRB 146,
147 (1959).
It is well settled that the filing of grievances and the Union’s
position in contract negotiations are internal union affairs upon
which an employer is not free to intrude. Viewed in light of
those principles, the Respondent’s memorandum unduly inter-
feres with the right of the Union to elevate grievances to arbitra-
tion and blames the Union for articulating its position as to the
status of the parties’ contract negotiations. Moreover, the memo-
randum attempts to blame the Union for the Center’s financial
hardship and with harming the mission of the Respondent.
Under these circumstances, I find that the Respondent went
beyond merely providing information to its employees or ex-
pressing an opinion, but rather denigrated the Union in the eyes
of Respondent’s employees. By these actions, the Respondent
unlawfully interfered in the relationship between the employees
and their representative in violation of Section 8(a)(1) of the Act.
4. The overly broad work rule
The General Counsel alleges in paragraph 5(d) of the com-
plaint that the Respondent has maintained an overly broad work
rule in its personnel handbook.
The Board’s standard for analyzing workplace rules like
these is set out in Lafayette Park Hotel, 326 NLRB 824, 825
(1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), as follows:
In determining whether the mere maintenance of rules such as
those at issue here violates Section 8(a)(1), the appropriate in-
quiry is whether the rules would reasonably tend to chill em-
ployees in the exercise of their Section 7 rights. Where the
rules are likely to have a chilling effect on Section 7 rights,
the Board may conclude that their maintenance is an unfair
labor practice, even absent evidence of enforcement.
The rule provides:

3 Sec. 8(c) states: “The expressing of any views, argument, or opin-
ion, or the dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of the Act, if such expression con-
tains no threat or reprisal or force or promise of benefit.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
The intent of this policy is to openly communicate the Cen-
ter’s standards of conduct regarding solicitation.
Staff should not be permitted to solicit, obtain, accept or retain
services, merchandise, commodities, etc. for personal
gain/profit during working hours. This conduct is prohibited
in all buildings and on surrounding grounds.
Violation of this policy may result in immediate disciplinary
action, up to and including termination of employment.
The Respondent argues that the Union agreed to the above
policy when it negotiated the language during discussions that
took place on December 12, 1995 (R. Exh. 25, item 34).
Contrary to the Respondent’s argument, the Board has held
in the case of Lafayette Park Hotel, that some Section 7 activity
can be contravened in rules promulgated by an employer. In
this regard, the rule in the subject case is not limited to outside
contractors or visitors to the Center but specifically applies to
incumbent staff and prohibits them from soliciting in all build-
ings and on surrounding grounds. It makes no allowances for
whether an employee is on or off duty, or whether an employee
is on break, or engaged in solicitation before or after regular
duty hours and does not exclude from its coverage the cafeteria
or parking areas. The mere existence of an overly broad rule
tends to restrain and interfere with employees’ rights under the
Act even if the rule is not enforced.
Accordingly, I find that the Respondent’s maintenance of
this rule in its personnel handbook is a violation of Section
8(a)(1) of the Act.
5. The withholding of a wage increase
The General Counsel alleges in paragraph 5(e) of the com-
plaint that about January 13, 2004, Birth told employees that
they would not get a raise because of the employees’ union
activities.
Union Representative Aghahosseini attended the January 13,
2004, meeting. She testified that Birth apprised the employees
that it could not afford to give them a wage increase in 2004,
primarily because excessive legal costs exceeded the budget
including two cases that the Union was involved in. Agha-
hosseini stated, however, that Birth did not attribute the failure
to give the wage increase to the Union.
Orr testified that Birth had crunched the numbers in order to
give employees a wage increase in 2004 but because legal costs
were exceptionally high no raise could be given. According to
Orr, Birth also told the employees that part of the high legal
costs included grievances filed by the Union and their request
for names, addresses, and telephone numbers of the Center,
staff that she considered confidential. Orr’s affidavit, however,
given a little over 45 days before her testimony did not mention
legal fees or specific cases filed by the Union.
Stanley testified that Birth informed the employees at the
meeting about the Center’s troubled financial status and the
inability to give employees a 3-percent wage increase due to
legal costs of approximately $40,000. Birth also told the em-
ployees that the Union had filed charges about employee’s duty
hours being reduced and had also requested the employees
names, addresses and telephone numbers that she considered
confidential.
Birth testified that she opened the staff meeting by informing
employees of good news in that their health insurance costs
would not be increased for 2004. She then apprised the em-
ployees that they would not be receiving a wage increase in
2004 due in part to unexpected excessive legal costs and other
financial hardships including a reduction in fund raising, the
closing of a wing of the facility that caused a reduction in reve-
nues and increased costs associated with supplies and the pur-
chase of new computers. Birth also told the employees that
part of the increased legal costs was attributed to union griev-
ances, unfair labor practice charges and requests for informa-
tion that had been filed with the Center.
Based on the above recitation, and particularly noting the
admission of Union Representative Aghahosseini that Birth did
not attribute the failure to give a wage increase to the Union, I
find that the General Counsel has not sustained its burden of
proof. Indeed, it is apparent to me that Birth, when informing
employees at the staff meeting that no wage increase would be
given in 2004, discussed a number of reasons for this decision.
In this regard, the mention of union grievances and charges was
just one reason among others that contributed to excessive legal
and other costs that precluded giving a wage increase to em-
ployees in 2004.
Accordingly, I recommend that paragraph 5(e) of the com-
plaint be dismissed.
C. The 8(a)(1) and (3) Allegations
The General Counsel alleges in paragraph 6 of the complaint
that about August 29, Respondent eliminated the hours for
employees performing family therapy services because its em-
ployees formed, joined, and assisted the Union and engaged in
concerted activities, and to discourage employees from engag-
ing in these activities.
In Wright Line, 251 NLRB 1083 (1980), enfd., 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General Counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer decision. On such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321
NLRB 278 fn. 12 (1996), the Board restated the test as follows.
The General Counsel has the burden to persuade that antiunion
sentiment was a substantial or motivating factor in the chal-
lenged employer decision. The burden of persuasion then shifts
to the employer to prove its affirmative defense that it would
have taken the same action even if the employee had not en-
gaged in protected activity.
The Respondent argues that the management-rights clause of
the parties’ 2002 contract gives them the right to eliminate the
family therapy program. In this regard, the Center opines that
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 47
since they have the inherent right to establish hours of work,
the management-rights clause gives them the unfettered right to
change or eliminate employee’s hours of work including those
employees who are performing family therapy services. Thus,
the Respondent opines that the elimination of the hours for
employees performing family therapy services was based on
provisions in the parties’ collective-bargaining agreement and
was in no way related to the employees’ union activities.
Birth acknowledges that the family therapy program has
been in effect at the Center for approximately 8 years. Previ-
ously, a full-time employee was assigned those responsibilities
as much of the duties required meeting with students and fami-
lies after regular work hours. Since the Center was unsuccess-
ful in hiring another therapist to perform these duties upon the
departure of the full-time employee, it was decided that two
therapists presently on the staff would be permitted to work
outside their normal duty hours to perform the responsibilities
of the position. In January 2002, Orr added the duties of the
family therapy position and worked outside her regularly
scheduled hours to perform the work. The United Way pro-
vided the funding for this position. Orr continued to perform
the family therapy duties throughout 2002 and was joined in
this endeavor when employee and fellow therapist Eileen Re-
deker4 was assigned the same duties in the spring of 2002.
While Redeker ceased performing the duties at the end of 2002,
Orr continued to perform the work during 2003 up until the
Center terminated its relationship with the United Way and
eliminated her hours in August 2003.
Birth testified that she received a number of letters from the
United Way in 2002 and 2003 that informed the Center that
unless certain membership requirements were satisfied, the loss
of their membership and funding was in jeopardy (GC Exh. 5,
6, 7, and 8). She further acknowledged that during the summer
of 2003, Biehle inquired about the status of the Union at the
Center and specifically asked about the dues-checkoff provision
in the parties’ negotiations. Biehle apprised Birth that he was
privy to a facsimile transmission that made an inquiry about
these issues and the United Way was checking with her so as to
be able to respond to the inquiry. At Birth’s request, the docu-
ment was provided to her. Birth informed Biehle that it was
inappropriate and unprofessional for him to contact the Center
about its relationship with the Union. Further, Birth suggested
to Biehle that he needed to discontinue these communications
and inquiries about the Union, as there was nothing in the exist-
ing agreement between the Center and the United Way that
required information of this nature to be shared. According to
Biehle, Birth became “fairly stiff” during their July and August
2003 telephone conversations and made it very clear that the
United Way should not be interfering in the relationship be-
tween the Center and its Union.
Birth conceded that the board of directors independently made
the decision to terminate their business relationship with the
United Way, in part, because of the inquiries that Biehle had
made concerning the status of negotiations and in particular the
issue of dues checkoff. It is noted that although Birth apprised

4 Redeker served as acting union president from April 2001 to Sep-
tember 2003.
Biehle that the Center was continuing to adhere to the dues-
checkoff provisions of the contract during negotiations, no men-
tion was made of the Center’s ongoing contract proposal to
eliminate the dues-checkoff provision from the parties’ successor
collective-bargaining agreement. By letter dated August 26, the
president of the Center’s board of director’s notified the United
Way that the Board had voted to terminate its membership with
the United Way effective immediately (GC Exh. 10).5
For the following reasons, I find that the General Counsel
has made a strong showing that the Respondent was motivated
by protected concerted activity or antiunion considerations in
eliminating the hours for persons performing family therapy
work.
First, I note the telephone conversations that Birth had with
Biehle wherein she became irritated with inquiries the United
Way was making concerning ongoing collective-bargaining
negotiations at the Center and in particular the status of the
dues-checkoff provision in the successor collective-bargaining
agreement. Second, as admitted by Birth, the board of directors
in making their decision to eliminate the hours for persons per-
forming family therapy work, took into consideration the tele-
phone inquiries made by the United Way about union negotia-
tions and the dues-checkoff provision. Third, Birth was aware
prior to the Center’s decision to terminate its relationship with
the United Way, that the Union had initiated an inquiry with the
United Way, both orally and in writing, regarding the Center’s
contract proposal to eliminate the dues-checkoff provision (R.
Exhs. 16 and 19). Fourth, Birth obtained a copy of a June 12,
memorandum to union members that was critical of the Cen-
ter’s position to delete the dues-checkoff provision from the
collective-bargaining agreement (R. Exh. 10). By memoran-
dum dated June 19, while normally not commenting on union
affairs, Birth replied to the Union’s memorandum noting that it
contained both false information and unfair attacks on the Cen-
ter and its volunteer board of directors (R. Exh. 9).
The Respondent asserts that the management-rights clause
privileged its decision to eliminate the hours for persons who
performed family therapy work. Likewise, the Center argues that
because they had not met membership requirements imposed by
the United Way it was in their best interests to proceed in another
direction and that was one of the reasons it decided to terminate
its relationship with the United Way. Birth further testified that
the family therapy program was difficult to monitor, she had
received complaints from parents about the program including
negative comments about Redeker’s job performance, and these
were also factors that the Board considered when reaching their
decision to terminate the United Way relationship. I reject these
reasons as pretextual and an afterthought to buttress its reasons
for terminating its business relationship with the United Way and
thereafter eliminating the hours for persons performing family
therapy work. In this regard, Birth admitted that Redeker did no
family therapy counseling during the entire year of 2003, there-

5 The letter stated in pertinent part: We agree with and appreciate the
recommendations made by the panel pertaining to the Board. However,
we feel that we as a Board would be of more service to the agency if we
established internal priorities and timelines for completion of the rec-
ommendations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
fore any complaints about her performance would have arisen in
2002. Thus, as it concerned Redeker, the issues impacting her
performance were to remote in time to the Board’s decision to
eliminate the United Way funding in late August 2003. Like-
wise, the complaints by parents about the program occurred in
2002, a period of time removed from the August 2003 decision of
the board of directors to terminate the family therapy program.
Rather, I find that the Union’s correspondence in June 2003
to all employees about the status of ongoing negotiations and
the repeated telephone inquiries undertaken by Biehle during
the summer of 2003 on behalf of the United Way about ongo-
ing union activities at the Center, were the real reasons that the
board of directors relied upon in deciding to terminate its rela-
tionship with the United Way. With respect to Respondent’s
assertion that the program was difficult to monitor, I note dur-
ing the litigation that it expressed no problems with the pro-
gram for the preceding 8 years of its existence.
Therefore, I conclude that the same action in eliminating the
hours for those persons performing family therapy work would
not have taken place but for the Union’s inquiries into the status
of negotiations and in particular the Center’s proposed elimina-
tion of the dues-checkoff provision in the successor collective-
bargaining agreement. I also note that the family therapy ser-
vices program was completely funded by the United Way and
therefore, did not negatively impact the Center’s finite financial
situation.
Accordingly, I find that the Respondent violated Section
8(a)(1) and (3) of the Act when it eliminated the hours for em-
ployees performing family therapy services as alleged by the
General Counsel in paragraph 6 of the complaint.
D. The 8(a)(1) and (5) Violations
1. Did the parties reach a collective-bargaining agreement
a. The facts
The General Counsel alleges in paragraph 8 of the complaint
that about September 16, the Union and Respondent reached
complete agreement on terms and conditions of employment.
Thereafter, the Union requested that Respondent execute a
written contract containing the agreement reached by the par-
ties but the Respondent declined to do so. Since about Septem-
ber 18, in failing to adhere to the agreement, the Respondent
has refused to grant employees retroactive longevity wage in-
creases.
By memorandum dated October 31, 2002, the Union notified
the Respondent of its intention to negotiate a successor collec-
tive-bargaining agreement (GC Exh. 23).
By letter dated November 19, 2002, Carroll acknowledged
the Union’s request to negotiate a new agreement, apprised
them that he represented the Center and requested that the Un-
ion contact him to schedule a date for a meeting (GC Exh. 24).
The parties met on December 12, 2002, for their first face-to-
face negotiation meeting. Miller, Redeker, and Aghahosseini
represented the Union while Carroll served as the chief and
only negotiator for Respondent. Carroll presented the Union
with the Center’s bargaining proposals that in pertinent part
proposed the elimination of the dues-checkoff provision and no
wage increase for calendar year 2003 due to the troubled finan-
cial condition of the Respondent as explained by Carroll during
the meeting (GC Exh. 27). The Union gave their proposals to
the Respondent and also requested that the dues that were being
checked off be sent to a post office box.
By letter dated December 18, 2002, the Respondent set out
the final and best offer of the board of directors to complete the
negotiation process (GC Exh. 29(a)). Attached to this letter
was a copy of the Respondent’s proposals that had been given
to the Union at their initial meeting on December 12, 2002.
The Respondent rejected a number of the proposals that the
Union had previously submitted but agreed to the union pro-
posal for a 1-year agreement effective from January 1 to De-
cember 31. The Respondent still maintained its position that
the dues-checkoff provision in any successor agreement should
be eliminated in its entirety.
By letter dated March 20, the Union informed Carroll that it was
willing to enter into a new collective-bargaining agreement with
certain enumerated changes but it still insisted on a dues-checkoff
provision as a condition of final agreement (GC Exh. 30).
By letter dated March 31, Carroll responded to the Union’s
March 20 letter. In pertinent part, Carroll indicated agreement
on a number of union proposals including Holidays, movement
on the pay scale based on years of service, computation of
overtime and a 1-year agreement effective January 1. The Cen-
ter, however, did not agree to the Union’s request to continue
dues checkoff and stood firmly on its proposal to eliminate in
its entirety the dues-checkoff provision (GC Exh. 31).
The parties next met for their second face-to-face negotiation
session with a Federal mediator on May 6. The same individu-
als that attended the prior meeting represented their respective
constituencies. Carroll testified that he informed the Federal
mediator that the Center would not sign a new agreement that
contained a dues-checkoff provision but acknowledged that the
parties had agreed upon all other outstanding matters for a new
collective-bargaining agreement.
By letter dated September 16, the Union revised their posi-
tion and agreed to accept the Center’s final agreement as out-
lined in their March 31 letter. Thus, the Union was willing to
execute a collective-bargaining agreement that did not contain a
dues-checkoff provision (GC Exh. 32(a) and (b)).
By letter dated September 18, Carroll informed the Union
that the March 31 offer is no longer on the table due in part to
the Center’s worsened financial position. Therefore, the Center
will not enter into a collective-bargaining agreement as pro-
posed by the Union but will continue negotiations if the Union
is interested in doing so (GC Exh. 33).
By letter dated September 29, the Union informed Carroll
that it could find no evidence of the Center’s offer ever being
rescinded or any information that puts a time limit or expiration
date on their offer (GC Exh. 34).
b. Discussion
The Center argues that they did not execute a written collec-
tive-bargaining agreement because the Union conditioned their
offer of acceptance on retroactivity of the agreement to January
1, and due to the Center’s troublesome financial condition that
worsened during the course of negotiations.
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 49
I reject these arguments for the following reasons. First,
Carroll’s March 31 letter to the Union states that the Center
would agree to a 1-year agreement effective January 1. He
confirmed this position when he informed the Federal mediator
on May 6, that all provisions for a new collective-bargaining
agreement were agreed upon with the exception of a dues-
checkoff provision. Second, the Respondent never informed
the Union of a suspense date for the March 31 contract offer to
be rescinded. Likewise, the Center never orally or in writing
informed the Union that the March 31 contract offer was with-
drawn or would only be open for a set period of time. The West
Co., 333 NLRB 1314 (2001). Third, at the outset of negotia-
tions Carroll informed the Union that the Center’s financial
predicament was precarious and it was anticipated that it would
run a deficit of $284,688. In August 2003, after the auditors
completed their review of the 2003 fiscal year report (fiscal
year ended June 30, 2003), it was determined that the Center
lost $214,623 (R. Exh. 22). Thus, contrary to the predictions in
December 2002, the actual loss was not as severe as initially
projected. Therefore, to reject the previously agreed-upon col-
lective-bargaining agreement in September 2003, based on the
Center’s worsening financial condition that actually improved
during the course of negotiations, does not withstand scrutiny.
Indeed, Carroll never mentioned the Center’s troublesome fi-
nancial condition after the initial face-to-face meeting as an
impediment to reaching a collective-bargaining agreement.
Thus, the Respondent is estopped from making such an after
the fact argument as a defense to rejecting the agreement.
Likewise, contrary to its argument in brief, the Respondent has
failed to establish an economic exigency justifying its refusal to
execute the agreement.
Finally, I find that the passage of time between the offer and
acceptance was not a circumstance that would have led both
parties to reasonably believe that the Respondent had with-
drawn its offer. See Worrell Newspapers, 232 NLRB 402,
406–407 (1977) (6 months between offer and acceptance;
Teamsters Local 688 v. NLRB, 756 F.2d 659, 662 (8th Cir.
1985) (offer viable where time period between offer and accep-
tance was “five or more months” and no negotiations or com-
munications occurred during that period).
For all of the above reasons, I find that an agreement in prin-
cipal was reached when the Union accepted the Center’s March
31 contract proposal on September 16. Therefore, it was in-
cumbent on the Respondent to execute a written agreement
incorporating the terms and conditions of employment agreed
to by the parties. Since the Respondent did not execute the
agreement reached with the Union, it must make employees
whole and grant them retroactive longevity wage increases.
Torrington-Extend-A-Care Employees Assn. v. NLRB, 17 F.3d
580 (2d Cir. 1994) (refusal to sign a written memorandum of
the agreement is a per se refusal to bargain).
Under these circumstances, I find that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act as alleged by the Gen-
eral Counsel in paragraph 8 of the complaint.
2. The refusal to provide information
a. The facts
By letter dated November 19, in preparation for collective-
bargaining negotiations, the Union requested that the Respon-
dent provide the following information.
1. The names, home addresses, and home telephone numbers
of all Center employees in the bargaining unit.
2. The names, job titles and work schedules/hours of Center
employees in the bargaining unit.
Since the Union did not receive a response from the Center,
it faxed a second request for the same information on Decem-
ber 4.
By letter dated December 9, the Respondent replied to the
Union’s request for information. It provided certain informa-
tion but only included information for those employees with
last names beginning with the letters A through L, and did not
provide any information for those employees in the bargaining
unit whose last names started with the letter M and subsequent
letters of the alphabet. Moreover, the Respondent omitted the
telephone numbers and addresses of the bargaining unit em-
ployees indicating that the employees requested the Center to
do this and also informed the Union that the information was
not being provided due to confidentiality concerns and that the
Union already possessed the information.
b. Discussion
The obligation under Section 8(a)(1) and (5) of the Act on
the part of an employer to supply the statutory bargaining agent
with relevant and necessary information for contract negotia-
tions is well and long established. NLRB v Truitt Mfg. Co., 351
U.S. 149 (1956). The Board has previously directed an em-
ployer to furnish the union with the names and home addresses
of employees in the bargaining unit. Magma Cooper Co., 208
NLRB 329 (1974). Indeed, the Board has also found requests
for this same information to be presumptively relevant. Supe-
rior Protection, Inc., 341 NLRB 267, 269 (2004).
Although the Respondent argues that when the Union re-
ceived the information on December 9, it should have notified
it that the information for bargaining unit employees whose last
names began with the letter M and thereafter was not provided,
I am of the opinion that this burden should fall on the Respon-
dent. Thus, it is incumbent upon an employer to verify that it
has fully complied with a request for information submitted by
the exclusive representative of its employees. Likewise, con-
trary to the Center’s argument that bargaining unit employees
requested them to withhold such information, Birth testified
that only 4 or 5 of 51 bargaining unit employees ever requested
that there home addresses and telephone numbers be kept con-
fidential.
In regard to the Respondent’s confidentiality defense, the
Respondent never informed the Union in advance about such
concerns nor did it come forward with some offer to accommo-
date both its concerns and the Union’s legitimate need for the
information. Here, the Respondent made no offer to release the
information conditionally or by placing any restrictions on the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD50
use of the information. Pennsylvania Power, 301 NLRB 1104
(1991).
For all of the above reasons, since the Respondent did not
provide presumptively relevant information to the Union and
made no effort to bargain to accommodate the Union’s interest
in seeking relevant information, it violated Section 8(a)(1) and
(5) of the Act.
Therefore, I conclude that the General Counsel sustained the
allegations alleged in paragraph 9 of the complaint.
3. The unilateral change in conditions of employment
a. The facts
By memorandum dated August 20, Birth announced an
agencywide meeting would be held on August 25 in the day
treatment program gymnasium. Birth reviewed the Center’s
troubled financial situation explaining to the employees that
funds were cut from a number of sources and projected in-
creases in the residential population did not occur. Birth an-
nounced that certain family therapy and other services were
going to have to be suspended as of August 29, as United Way
funds were in question and probably would cease. Effective
August 29, the Center eliminated the hours of persons who
were performing family therapy services. Birth admitted that
although Redeker attended the August 25 meeting, the Union
was not notified in advance that the hours of persons who were
performing these services would be cut nor did the Center en-
gage in negotiations over the elimination of these hours.
Before the August 25 meeting took place, Birth had dis-
cussed the Center’s financial status with their chief accountant,
James Schmersahl, who was completing the audit work for the
fiscal year that ended June 30. Schmersahl discerned that the
Center had incurred a loss of $214,623 during the prior fiscal
year and advised Birth that cuts must be made to reduce ex-
penses. Since the highest expenses at the Center were incurred
by personnel costs, it was decided that this was the area that
had to be cut. Schmersahl advised that approximately a 5-
percent cut in expenses had to be undertaken. He also con-
curred in the Center’s decision to terminate its relationship with
the United Way as the costs associated with the family therapy
program absorbed the majority of the funding.
On October 27, the board of directors met to discuss the rec-
ommendation of its accountants to reduce expenses by cutting
employee hours and other benefits. The Board agreed that this
was a prudent approach to solving their financial crisis. Ac-
cordingly, Birth determined that individual meetings with em-
ployees were necessary to independently explain the rationale
of the board of directors concerning this difficult decision.
On October 29, Birth met with the custodian and cooks in
her office and explained the financial crisis of the Center. She
discussed the State of Illinois budget constraints, proposed cuts
in funding from the Governor’s office and additional social
service cuts in funding. Due to these cuts, she apprised the
employees that in order to reduce personnel expenses, their
hours of work would have to be reduced effective November 9
(GC Exhs. 13 and 14(a)). Birth admitted that the Union was
not notified in advance of this meeting or any other meeting of
employees in which the reduction of hours and benefits were
discussed nor were they given an opportunity to negotiate on
behalf of these employees.
On October 30, Birth held another meeting with additional
employees and addressed the same subjects as discussed above.
Additionally, Birth apprised these employees that this action
was being taken to avoid layoffs and that certain paperwork
would be prepared to effectuate the change in their reduction of
work hours.
On November 18, Birth met with the program aides and ad-
dressed the same subjects as discussed above. Birth informed
these employees that their hours of work and other benefits
would be reduced effective December 1 (GC Exh. 14(b)).
On various dates in November 2003, Birth met individually
or in a group with a number of employees and witnessed their
signatures on a “Salary Action Authorization Form” that offi-
cially documented the rate of pay before and after the reduction
in their hours of work (GC Exh. 15(a) through (l)). For those
employees who did not sign in her presence, Birth instructed
them to proceed to the office and sign the forms. It is noted
that two employees did not sign the forms but their hours of
work were nevertheless reduced. Birth admitted that the Union
was not notified in advance of these meetings nor before the
forms were signed by the employees. Therefore, no negotia-
tions with the Union occurred regarding the reductions in em-
ployees work hours.
b. Discussion
The General Counsel alleges in paragraph 10 of the complaint
that Respondent unilaterally eliminated the pay and hours of the
family therapists and unilaterally decreased the sick leave, per-
sonal days and vacation days of custodians, cooks and program
aides without notice to or negotiations with the Union.6
The Respondent defends its actions in reducing the hours of
work, pay, and other benefits of employees based on the fact
that these matters are covered under its May 2002 policy man-
ual that was negotiated with the Union (R. Exh. 7). Thus, the
Center argues that the reduction-in-force provisions govern the
reduction in hours and since the Union previously negotiated
this provision, it has waived its right to negotiate.7
I reject this argument for a number of reasons. First, the fur-
lough of an employee contemplates either the temporary or
permanent removal from the Center’s employment rolls. No
further salary, vacation, sick, or personal leave benefits accrue
to an employee who is furloughed. The facts in the subject case
do not establish that employees were furloughed. Indeed, Birth
admitted that those employees who incurred a reduction in

6 On the first day of the hearing, the General Counsel amended the
complaint to exclude paras. 10(b) and (d) involving the VOCED coor-
dinator, clinic records employee and secretaries
7 The reduction-in-force provision states: “The Board of Directors,
based on the recommendation of the Executive Director, will issue the
furlough notice to the determined employee. This notice will state that
due to the drop in our average daily enrollment, the employee will need
to be furloughed. However, if within year, our census increases back to
our average daily projection, the employee will be called to return to
work in order of seniority. Recommendation of the employee to be
furloughed will be based upon the needs of the Center and administra-
tive recommendation.”
CHILDREN’S CENTER FOR BEHAVIORAL DEVELOPMENT 51
hours, pay, and other benefits were not removed from the Cen-
ter’s employment rolls, are still gainfully employed, and no
paperwork was prepared showing that these employees were
placed in a furlough status.
Second, the Board has held the obligation to refrain from
unilaterally changing terms and conditions of employment con-
tinues after contract expiration and until good-faith bargaining
results in an impasse. Paperworkers v. NLRB, 981 F.2d 861
(6th Cir. 1992). Both Carroll and Birth admitted that the terms
and conditions of the 2002 collective-bargaining agreement
remained in full force and effect during bargaining for a suc-
cessor agreement. Indeed, there is no dispute that any bargain-
ing took place prior to the Respondent’s unilateral reduction of
its employees’ hours of work, pay, and other benefits.
Third, reference to article III of the 2002 collective-
bargaining agreement (GC Exh. 2—Management Rights) estab-
lishes that “[t]he parties agree that the Board may amend the
Policies and Procedures Manual at anytime during the course of
this Agreement, but must negotiate with the Union on any
changes that pertain to wages, hours, and terms and conditions
of employment.” Contained in this manual are references to
“Hours of Work” and “Vacation, Sick and Personal Leave
Benefits” (R. Exh. 5, pp. 6, 11, 12, and 16). Thus, I find that
the Center pursuant to its collective-bargaining agreement had
an obligation to negotiate with the Union prior to its unilateral
action of reducing the hours of work, pay, and other benefits of
its employees.
Based on the forgoing, I find that the Respondent violated
Section 8(a)(1) and (5) of the Act when it unilaterally reduced
the hours of work, pay, and other benefits of its employees
without notice or bargaining with the Union. Therefore, the
allegations set forth in paragraphs 10(a), (c), and (e) of the
complaint are sustained.
4. The bypass of the Union
The General Counsel alleges in paragraph 11 of the com-
plaint that on various occasions between November 7 and 18,
Respondent, by Birth, at its facility bypassed the Union and
dealt directly with its employees by negotiating a reduction in
their hours and pay.
Based on the above discussion and particularly noting that
Birth met independently with a number of bargaining unit em-
ployees, without notice to or negotiations with the Union, when
she apprised them of a reduction in their hours, pay, and other
benefits and subsequently was present when a number of these
employees signed the “Salary Action Authorization Form,” I
find that the Respondent dealt directly with its employees in
violation of Section 8(a)(1) and (5) of the Act. Therefore, the
allegations in paragraph 11 of the complaint are sustained. See
John Geer Chevrolet Co., 262 NLRB 256, 264–265 (1982)
(direct dealing found where employer faced with financial
problems had employees sign a form approving a unilateral
reduction in hours).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by distributing a memo-
randum to employees that interfered with their rights to engage
in union activities and by maintaining an overly broad solicita-
tion rule in its personnel handbook.
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act by eliminating
the hours for employees performing family therapy services.
5. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by refusing to
execute a contract after agreeing on terms and conditions of
employment, by refusing to grant employees retroactive lon-
gevity wage increases, by refusing to furnish the Union with
necessary and relevant information, by unilaterally eliminating
the hours, pay, and other benefits of its employees and by by-
passing the Union when it dealt directly with its employees in
negotiating a reduction in their hours, pay, and other benefits.
6. Respondent did not engage in unfair labor practices within
the meaning of Section 8(a)(1) of the Act when it told employ-
ees that it was eliminating the hours of persons who performed
family therapy work because of the Union, by maintaining a
discriminatory policy prohibiting employees from talking about
the Union during working time and by informing employees
that they would not get a raise because of their union activities.
7. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Since the Respondent refused to bargain with the Union and
failed to execute a written collective-bargaining agreement that
provided for employees retroactive longevity wage increases
and unilaterally eliminated the hours, pay, and other benefits of
bargaining unit employees, I shall order it to cease and desist
from engaging in such conduct, to bargain on request with the
Union about these matters, and to execute the parties’ 2003
collective-bargaining agreement. I shall further order the Re-
spondent to make whole any employee for any loss of earnings
and other benefits suffered as a result of the elimination of their
hours for persons who performed family therapy work, the
reduction in their working hours, pay, and other benefits and
not receiving their duly owed retroactive longevity wage in-
creases. Backpay shall be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be
computed in the manner set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]