Fire Fighters

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 401 (N.L.R.B. 1991)

401
304 NLRB No. 47
FIRE FIGHTERS
1 We agree with the judge’s dismissal of the complaint allegation that the
Respondent violated Sec. 8(a)(3) of the Act by issuing a verbal warning to
employee Cheryl Gannon. His analysis is consistent with Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
We correct three inadvertent errors of the judge, none of which affect the
conclusions reached in this case. First, Vincent Bollon, the Respondent’s sec-
retary-treasurer, testified he met with bargaining unit secretaries on December
22, 1988, not on December 16. Second, on December 23, 1988, Gannon did
not place her memo to Bollon on his desk; she gave it to Bollon’s secretary.
Finally, the second sentence of Bollon’s memo of December 23, 1988, set out
at p. 17 of the judge’s decision, should read, ‘‘It is clear that there are irrecon-
cilable differences in the parties’ positions and that we have reached an im-
passe on significant and material provisions of the contract.’’
2 All dates are in the period from August 1988 through August 1989, unless
otherwise specified.
3 Although the parties and the judge have used the term ‘‘reimplementa-
tion,’’ the changes that the Respondent had put into effect soon after its initial
implementation of its December 23 ‘‘contract’’ were not rescinded in the in-
terim. The Respondent’s action in September was a ‘‘reimplementation’’ in the
sense that it was a restatement of intent to impose all the terms of the Decem-
ber 23 ‘‘contract,’’ including those that had been in effect since the original
implementation.
International Association of Fire Fighters, AFL–
CIO–CLC and Office & Professional Employ-
ees International Union, Local 2 and William
Shoehigh. Cases 5–CA–20244, 5–CA–20466, and
5–CA–20325
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On December 11, 1990, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an
answering brief to the Respondent’s exceptions. The
Charging Party Union filed cross-exceptions and a sup-
porting brief. The Respondent filed an answering brief
to the Charging Party Union’s cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.
I. BACKGROUND
The Respondent is alleged to have violated Section
8(a)(5) of the Act by unilaterally implementing, in the
absence of an impasse, its ‘‘final offer’’—containing
terms and conditions inconsistent with its prior bar-
gaining offers—without affording the Union an oppor-
tunity to negotiate. The facts, provided in detail in the
judge’s decision, may be summarized as follows. In
September 1988,2 the parties began negotiations for a
successor contract to their 1986–1988 collective-bar-
gaining agreement. The parties exchanged written pro-
posals and met in six sessions from September 27
through December 20. The two principal negotiators—
Cheryl Gannon for the Union and Vincent Bollon for
the Respondent—also met in several ‘‘side-bar’’ meet-
ings during that period. By the conclusion of the De-
cember 20 session, the parties, over the 3 months of
good-faith bargaining, had reached tentative agreement
on some issues but remained apart on others.
On December 20, the parties agreed to meet again
on December 23. However, on that Friday morning
Gannon delivered a memo to Bollon’s office informing
him that because of certain actions of the Respondent
the previous day the Union was ‘‘forced to reassess its
position’’ on one outstanding issue—the proper salary
levels for certain unit positions. Gannon’s memo fur-
ther stated that because she was unable, due to the up-
coming holiday season, to contact the Union’s presi-
dent for guidance, the Union was ‘‘forced to postpone
negotiations’’ until after January 3.
Within an hour of receiving Gannon’s memo, Bollon
gave her a 17-page document entitled ‘‘Agreement’’
with a covering memo stating that, because Gannon
had unilaterally ‘‘cancelled’’ that day’s scheduled
meeting, it was clear that no further progress was
being made and that a bargaining impasse had been
reached. Accordingly, Bollon stated, the Respondent
would ‘‘implement immediately the attached contract’’
to be effective at the close of business on Tuesday,
December 27, the first workday following the impend-
ing holiday weekend. The next contact between the
parties occurred on January 8, when the Union accused
the Respondent of unilaterally implementing changes
in terms and conditions of employment in the absence
of an impasse. The Respondent answered by reassert-
ing its claim of a December impasse, but it stated that
it was willing to resume negotiations. The Union
agreed with this proposal but stated that by entering
into further negotiations it was not waiving its position
on impasse.
The parties resumed negotiations on March 15, and
eight sessions were held between that date and April
20. Following some settlement efforts during the sum-
mer, the Respondent, on September 18, 1989, reimple-
mented the contract of the previous December 27.3
The Respondent argued that it did not violate the
Act. It contended: (1) that impasse had been reached
on December 20, and the contract implemented on De-
cember 27 was consistent with its ‘‘final offer’’ of De-
cember 23; (2) that by failing to respond before De-
cember 27 to the December 23 assertion of impasse
and the ‘‘final offer,’’ the Union waived its bargaining
rights under Section 8(a)(5); and (3) that even if the
Respondent had violated the Act in December, its li-
ability was tolled as of September 18, 1989, because
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The judge found significant changes with respect to the following issues:
the number of annual wage increases, grade structures for various unit posi-
tions, policy on floating holidays and unused compensatory time; the inclusion
of a zipper clause, and a COLA for employee Alan Beer. The Respondent
does not except to these findings as to the differences between its position on
December 20 and the terms contained in the contract presented with the De-
cember 23 memorandum. In its exceptions the Respondent repeats its earlier
contention that the terms implemented on December 27 were identical to those
presented on December 23. That fact, however, is neither relevant nor in dis-
pute.
5 Thus we find it unnecessary to pass on the judge’s impasse finding.
6 In doing so, we find it unnecessary to pass on the judge’s finding that,
because the memo and attached ‘‘contract’’ did not constitute an offer to bar-
gain and thus a request to bargain would have been futile, the Union did not
waive its right to protest the implemented contract.
the parties had reached a good-faith impasse as of that
date.
The judge found that the parties arrived at a bargain-
ing impasse on December 23, because the Union, sum-
marily and without valid reason, broke off negotiations
without proposing another date for renewal of negotia-
tions. In his view, the Union’s reasons for abruptly
cancelling the session were for the purpose of delay at
a critical stage in the negotiations and thus pretextual.
Nevertheless, he found that the ‘‘contract’’ attached to
the Respondent’s December 23 memorandum did not
constitute a bargaining offer but was instead a notice
of intent to implement the document. Therefore, ac-
cording to the judge, the Union did not waive its right
to protest the implemented contract by not commu-
nicating with the Respondent until January 8. The
judge found that any such request would have been fu-
tile in view of the Respondent’s stated intent. In con-
cluding that the Respondent violated Section 8(a)(5),
the judge found that the terms and conditions an-
nounced on December 23 and implemented on Decem-
ber 27 were not reasonably comprehended within the
Respondent’s last preimpasse proposals as they stood
on December 20.4
As to the effect of the renewed 1989 negotiations on
the December violation, the judge found that the Re-
spondent did not bargain in good faith to a genuine
impasse and thus remained in violation of Section
8(a)(5). Accordingly, the judge rejected the Respond-
ent’s contingent defense and found that the period for
which the make-whole remedy is appropriate did not
terminate in September 1989.
II. THE DECEMBER 1988 VIOLATION
We agree, for the following reasons, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing terms and conditions of em-
ployment on December 27, whether or not an impasse
had been reached.5 If, as the judge found, the parties
reached impasse on December 23 upon the Union’s an-
nouncement of cancellation of the session scheduled
for that date, the Respondent’s memorandum of that
date was transmitted after the impasse. Hence, the Re-
spondent could only implement the last preimpasse
offer of December 20. See Storer Communications,
294 NLRB 1056, 1093 (1989), and cases cited therein.
We agree with the judge that the terms and conditions
of employment announced as a fait accompli on De-
cember 23 and unilaterally implemented on December
27 were clearly inconsistent with the Respondent’s last
true offer to the Union which had been presented on
December 20.
The Respondent argues, however, that even in the
absence of impasse, it was free to implement the
‘‘contract’’ attached to the December 23 memorandum.
The Respondent contends that the Union waived its
right to complain about the Respondent’s December 27
unilateral implementation of the new terms and condi-
tions of employment contained in the ‘‘contract’’ by
failing to request bargaining after notice of the Re-
spondent’s intent to implement that ‘‘contract’’ in its
December 23 memorandum. We reject that conten-
tion.6
In Bottom Line Enterprises, 302 NLRB 373, 374
(1991), the Board reiterated the general rule that the
defense of waiver is not available to an employer dur-
ing the course of negotiations for a labor agreement to
succeed an expired one:
[W]hen . . . the parties are engaged in negotia-
tions, an employer’s obligation to refrain from
unilateral changes extends beyond the mere duty
to give notice and an opportunity to bargain; it
encompasses a duty to refrain from implementa-
tion at all, unless and until an overall impasse has
been reached on bargaining for the agreement as
a whole. [Emphasis in original.]
Neither of the two limited exceptions to this rule
recognized by the Board and discussed in Bottom
Line—continual avoidance or delay in bargaining by
the other party and economic exigencies—apply in this
case. First, in light of the parties’ productive bargain-
ing from September 27 through December 20, the
Union’s request to postpone the session scheduled for
December 23 until immediately after the holiday sea-
son does not, of itself, constitute evidence of bargain-
ing intransigence sufficient to justify the Respondent’s
unilateral changes implemented on December 27. Sec-
ondly, the Respondent does not contend, and we do
not find, that any circumstances existed which would
require implementation at the time the Respondent
took such action. Accordingly, inasmuch as the Re-
spondent’s waiver argument assumes that the parties
were not at impasse before implementation, we con-
clude that the Respondent’s conduct was unlawful, as
found.
III. THE 1989 BARGAINING
The Respondent excepts to the judge’s make-whole
remedy, including restoration of the status quo ante. It
403FIRE FIGHTERS
7 The Respondent’s reliance on NLRB v. Cauthorne Trucking, 691 F.2d
1023 (D.C. Cir. 1982), is therefore not well founded. In Cauthorne the court
held that an employer’s liability for remedying unlawful unilateral changes of
employment conditions (if the changes do not violate an existing collective-
bargaining agreement) should be tolled by a subsequent agreement or impasse
reached through good-faith bargaining. Here, as the judge found, there was no
such good-faith bargaining. The Respondent’s intransigence in response to the
Union’s suggested modifications of the unlawfully implemented terms and
conditions and the Union’s effort to get undisputed matters reduced to writing
was ‘‘inconsistent with [a party’s] duty to seek an agreement.’’ Id. at 1026
fn. 5.
contends that, even assuming arguendo it had unlaw-
fully implemented changes in December, its liability
was tolled as of September 18, 1989, because the par-
ties resumed bargaining on this contract in March
1989, and, it argues, they eventually reached impasse
on September 18. We adopt the judge’s conclusion, for
the reasons set forth by him in section III, D, of his
decision, that the Respondent did not, during 1989,
bargain in good faith to a genuine impasse.7 Therefore,
his recommended remedy is warranted.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 7.
‘‘7. By unilaterally implementing changes in wages
and other terms and conditions of employment which
are substantially and significantly different from its
prior contract proposals, the Employer has failed or re-
fused to bargain collectively with the Union as the ex-
clusive representative of the employees in the above
described appropriate unit and thus has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inter-
national Association of Fire Fighters, AFL–CIO–CLC,
Washington, D.C., its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) failing or refusing to bargain collectively in
good faith with the Union as the exclusive representa-
tive of the employees in the following appropriate unit
by unilaterally implementing changes in wages and
other terms and conditions of employment which are
substantially and significantly different from its prior
contract proposals:
All office employees employed by the Employer,
including those employees who are normally as-
signed to work less than five (5) full days each
week; excluding those employees whose work is
of a supervisory nature as defined by the NLRB,
and the Secretary to the President and the Sec-
retary to the Secretary-Treasurer and those em-
ployees not covered by the jurisdiction of the
OPEIU.’’
2. Delete paragraph 1(d) and reletter the subsequent
paragraph accordingly.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or otherwise discriminate
against employees because they discuss or concertedly
complain about their supervision, work assignments, or
other terms and conditions of employment, or claim
rights under a collective-bargaining contract, or other-
wise engage in union or concerted activities for the
purpose of mutual aid and protection with respect to
wages, hours, or other terms and conditions of employ-
ment.
WE WILL NOT threaten you with discharge, office
closure, or other reprisal because you engage in union
or other protected concerted activities.
WE WILL NOT fail or refuse to bargain collectively
in good faith with Office & Professional Employees
International Union, Local 2 as the exclusive represent-
ative of our employees in the following appropriate
unit by unilaterally implementing changes in wages
and other terms and conditions of employment which
are substantially and significantly different from our
previous contract proposals:
All office employees employed by the Employer,
including those employees who are normally as-
signed to work less than five (5) full days each
week; excluding those employees whose work is
of a supervisory nature as defined by the NLRB,
and the Secretary to the President and the Sec-
retary to the Secretary-Treasurer and those em-
ployees not covered by the jurisdiction of the
OPEIU.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of rights guaran-
teed you by Section 7 of the Act.
WE WILL offer William Shoehigh immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By a ruling and Order dated June 19, 1990, I directed that the official tran-
script of proceedings be corrected in certain respects. In addition, I am further
directing that the transcript be corrected as follows:
loss of earnings and other benefits suffered as a result
of the discrimination against him, with interest.
WE WILL rescind our notice of resolution of our ex-
ecutive board which we posted on or about May 16,
1989.
WE WILL, on request, bargain collectively with
Local 2 as the exclusive representative of our employ-
ees in the appropriate unit described above, with re-
gard to rates of pay, hours of employment, and other
terms and conditions of employment and, if an under-
standing is reached, embody it in a signed agreement.
WE WILL, if requested by Local 2, restore the sala-
ries of the health and safety assistants to a Grade 9
level, and reimburse Alan Beer, Joe Vita, and any
other employees who have held or presently hold such
positions,for our failure to pay them at such level, with
interest.
WE WILL, if requested by Local 2, restore the prac-
tice of permitting carryover of accumulated floating
holidays and unused compensatory time, pursuant to
the side letters of May 6, 1987, and compensate em-
ployees who were required to cash out accumulated
floating holidays or unused compensatory time, with
interest.
WE WILL, if requested by Local 2, rescind our self-
designated ‘‘contract,’’ or any specific provision or
provisions of such ‘‘contract’’ which differ from the
terms and conditions in effect under the 1986–1988
contract, and maintain such terms and conditions under
the 1986–1988 contract unless and until changed in ac-
cordance with the law.
INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, AFL–CIO–CLC
James P. Lewis, Esq. and Sherrie Trede Black, Esq., for the
General Counsel.
Joseph Reyna, Esq. and Erick Genser, Esq., of Washington,
D.C., for the Respondent.
Beth Slavet, Esq., of Washington, D.C., for the Charging
Party Union.
John Coyle, Esq., of Washington, D.C., for the Individual
Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Washington, D.C., on November
29 and 30 and December 1 and 11 through 15, 1989, January
16 through 19, February 5, 6, and 7, and March 20, 1990.
The charge in Case 5–CA–20244 and the charge and amend-
ed charge in Case 5–CA–20466 were filed respectively on
February 8, May 19, and June 21, 1989, by Office and Pro-
fessional Employees International Union, Local 2, AFL–CIO
(the Union). The charge in Case 5–CA–20325 was filed on
March 22, 1989, by William Shoehigh, an individual. The
consolidated complaints, which issued on March 24, April
26, and June 30, 1989, allege in sum that International Asso-
ciation of Fire Fighters, AFL–CIO–CLC (the Employer or
Respondent), violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. The gravamen of the consoli-
dated complaints is that the Employer allegedly: (1) unilater-
ally implemented its ‘‘final offer’’ without affording the
Union, the bargaining representative of a unit of its employ-
ees, an opportunity to negotiate concerning the offer, and
without a valid impasse in bargaining; (2) unilaterally imple-
mented changed terms and conditions of employment prior to
impasse, which were inconsistent with the Employer’s prior
proposals; (3) discriminatorily terminated employee William
Shoehigh because of his union and concerted activities; (4)
discriminatorily issued a verbal warning to employee Cheryl
Gannon because of her union and concerted activities; and
(5) threatened its employees with reprisal because of their
union and concerted activities. The Employer by its answers
to the respective complaints denies the commission of the al-
leged unfair labor practices. The Employer further asserts by
way of affirmative defense that: (1) the Employer and the
Union bargained to impasse; (2) the Union’s actions after the
Employer’s declaration of impasse constituted a waiver of
the Employer’s duty to bargain; and (3) the Employer and
the Union subsequently resumed bargaining and bargained to
impasse before reimplementation of the Employer’s final
offer. All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to argue orally, and to file
briefs.
On the entire record1 and from my observations of the de-
meanor of the witnesses, and having considered the argu-
ments of counsel and the briefs submitted by the parties, I
make the following
Page Line From To
539 12 Corp IV
2888 5, 11, 12, 16 D B
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer, a labor organization, is an unincorporated
association with an office and place of business in the Dis-
trict of Columbia. The Employer is engaged in the business
of representing employees in collective bargaining with var-
ious employers located throughout the United States. In the
operation of its business the Employer annually collects dues
and initiation fees in excess of $50,000 from its local unions
located outside the District of Columbia. The Employer ad-
mits, and I so find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
405FIRE FIGHTERS
2 All dates herein are for the period of August 25, 1988, through August
24, 1989, unless otherwise indicated.
II. THE LABOR ORGANIZATION AND THE BARGAINING
UNIT INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. Since about 1960 the Union has
been the designated and recognized exclusive collective-bar-
gaining representative of the Employer’s employees in the
following unit:
All office employees employed by the Employer, in-
cluding those employees who are normally assigned to
work less than five (5) full days each week; excluding
those employees whose work is of a supervisory nature
as defined by the NLRB, and the Secretary to the Presi-
dent and the Secretary to the Secretary-Treasurer and
those employees not covered by the jurisdiction of the
OPEIU.
The Employer contends that four confidential secretaries
presently in the unit should be excluded, and asserts that on
April 20, 1989, it filed a unit clarification petition requesting
the Board to exclude those employees. I have not been in-
formed that the Board has ruled on the petition. In the
present proceeding the Employer did not present any evi-
dence in support of its assertion that the secretaries should
be excluded. I find that the above described unit constitutes
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 1988 Negotiations, and the Alleged
Unlawful Changes
The Employer and the Union have been parties to a series
of collective-bargaining contracts. The most recent contract
was effective by its terms from October 16, 1986, to October
16, 1988, although the parties did not actually reach final and
full agreement on a contract until October 16, 1987. On Sep-
tember 27, 1988, the parties commenced negotiations for a
new contract.2 Employer Secretary-Treasurer Vincent Bollon
was the Employer’s chief negotiator. Bollon was accom-
panied by Glenn Berger, his administrative assistant, and by
Bollon’s secretary, Elaine Duffy. Bollon assigned Duffy to
take notes of the negotiating sessions. The Union’s negotiat-
ing team initially consisted of Union Staff Representative
Kathleen Kocan-Moore and four unit employees: Cheryl
Gannon, Alan Beer, Marie Grimes, and Marian Hoepfl. Gan-
non, the Union’s chief shop steward, was the Union’s chief
negotiator. The parties met in six sessions; specifically on
September 27 and 28, October 28, and December 8, 14, and
20. Bollon and Gannon also met privately in so-called ‘‘side-
bar’’ meetings. Because of illness, Kocan-Moore did not at-
tend the December sessions. At the December 8 session Gan-
non informed the Employer that she had authority to nego-
tiate without Kocan-Moore being present. In Kocan-Moore’s
absence, the Union’s negotiating team consisted entirely of
unit employees.
On August 26, about 1 month before the first negotiating
session, the Union presented its contract proposals to the
Employer. The Union proposed a 2-year contract, effective
October 1, 1988, to September 30, 1990, with annual wage
increases of 2 percent (the first effective as of October 1) in
addition to COLA as provided in the existing contract. The
Union also proposed ‘‘An Employee Pension Plan with bene-
fits equivalent to those of the Staff Representatives Pension
Plan in effect as of January 1, 1988.’’ These proposals (wage
increases and improved pension plan) reflected the unit em-
ployees’ desire to attain parity with the Employer’s staff rep-
resentative employees, who were represented for collective-
bargaining purposes by their own labor organization. The
Union understood that the Employer and the staff representa-
tives had negotiated a 2-year contract which provided for a
5-percent wage increase. The staff representatives were also
covered by a pension plan which was more favorable than
that covering the unit employees in some respects, including
a lower retirement age. The Employer and the staff rep-
resentatives’ union also negotiated 5-year vesting, although
this was not legally required until July 1, 1989. By law, as
of that date, a pension plan had to provide either 5-year vest-
ing or 3- to 7-year vesting at a lower rate. (The prior require-
ment, governing the present unit plan, was 10-year vesting.)
The Union also proposed greater longevity increases. The
current contract provided for increases of 1 percent and 2
percent, respectively, after 10 and 15 years of service. The
Union now proposed increases of 1, 3, and 5 percent respec-
tively after 5, 10, and 15 years of service. The Union pro-
posed 18 days of annual leave after 3 years, instead of 5
years of service. The Union also proposed that employees be
paid 50 percent of unused sick leave upon retirement and 25
percent upon termination or layoff, instead of 20 percent and
10 percent respectively under the current contract.
The Union also presented proposals on job classification
and job upgrade. The Union submitted a package proposal:
(1) to reclassify the position of legislative assistant II (cur-
rently held by Cheryl Gannon) from Grade 6 to Grade 8; (2)
a side letter agreement upgrading Michele Dove and Gary
Sherman from research assistant II (Grade 6) to research ana-
lyst (Grade 8); and (3) to reclassify the positions of safety
and health specialist (OSHA research assistants) currently
held respectively by Alan Beer and Joe Vita, to Grade 8,
with a side letter maintaining Beer and Vita at Grade 9
wages as long as they held those positions. The status of
Beer and Vita had been a point of contention between the
Employer and the Union. The Employer believed they were
overpaid. The Employer previously tried to reclassify their
status from a Grade 9 to a Grade 8A, which would be at a
midpoint between a Grade 8 and a Grade 9. An arbitrator re-
stored their salaries to Grade 9. In August 1987 the Em-
ployer again cut their salary. By an exchange of correspond-
ence which was incorporated into the 1986–1988 contract,
the parties agreed that the positions would be paid at a Grade
9 rate for the duration of the contract, without prejudice to
their respective positions as to the proper grade, which would
be negotiated for the next contract. In the current negotia-
tions, the Union also submitted a package proposal on job
upgrade, proposing side letters (1) upgrading Marion Hoepfl
from accountant II (Grade 6) to accountant III (Grade 8) and
(2) upgrading Jean Rhyne from secretary III (Grade 6) to
secretary IV (Grade 7). (The evidence indicates that when
dealing with the terms and conditions of employees by name
rather than category, the parties utilized side letters instead
of the text of the contract.)
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the parties’ first negotiating session (September 27) the
Employer presented its counterproposals. The Employer, like
the Union, had its agenda of goals. Secretary-Treasurer
Bollon testified that the Employer’s goals were in sum: (1)
a zipper clause; (2) restoring the salary of the OSHA re-
search assistants to a level in balance with other research as-
sistants; (3) placing reasonable limits on steward and other
union time; (4) assurance of a full day’s work; and (5) con-
form the contract with those prevailing among other union
employers in the Washington, D.C. area. Bollon testified that
with respect to a zipper clause, the Employer was concerned
about the side letters which were incorporated into the 1986–
1988 contract. On September 27 the Employer submitted
four written proposals. The first concerned attendance at
work. The 1986–1988 contract (sec. 8.01) provided for a 32-
1/2 hour workweek (9 a.m. to 4:30 p.m., Monday through
Friday, with a 1-hour unpaid lunch. The Employer proposed
that: ‘‘Employees shall be compensated only for time they
have actually worked or for time taken in the form of ap-
proved leave with pay.’’ The second proposal revised the
language of the contract provision on steward time (sec.
11.08) to require prior supervisory approval. The third pro-
posal was a zipper clause (proposed sec. 25.01). The fourth
proposal (proposed sec. 27.01) captioned ‘‘Non-involvement
in IAFF Internal matters,’’ provided in sum that employees
must remain neutral with respect to the Employer’s elections,
other political matters and organizational activities. The par-
ties explained their proposals and answered questions. They
discussed the Company’s proposed zipper clause, although
the witnesses differ as to what was said. Union negotiators
Gannon and Beer and company negotiators Bollon and
Berger testified concerning the negotiations. Gannon testified
that Bollon said he didn’t want side letters. Gannon said that
the Union was concerned because they didn’t know how
such a clause might be applied, and asked what past prac-
tices the Employer wanted to end. Bollon said he would
check and let them know. Gannon testified that Kocan-
Moore did not comment on the proposal. Alan Beer corrobo-
rated Gannon’s testimony concerning what she said. Bollon
testified in sum as follows: Kocan-Moore said there was no
way the Union would agree to a zipper clause. At this or a
subsequent session, Bollon said he would withdraw the pro-
posal if all issues were addressed. By ‘‘issues,’’ Bollon was
referring to the side letters in the 1986–1988 contract. Bollon
said he wanted no side letters. Gannon said that the issues
could be addressed in the contract. Berger testified in sum
as follows: At the September 27 session Moore said the
Union would not agree to a zipper clause. Gannon said they
could address individual practices in the contract. Bollon said
he did not want side letters.
In order to place the matter of the proposed zipper clause
in proper perspective, it is necessary to consider the side let-
ters to which Bollon referred. Four side letters, each dated
May 6, 1987, were annexed to the contract. The first dealt
with the matter of ‘‘floating holidays,’’ a practice which was
discontinued as of January 1, 1987, in accordance with the
1986–1988 contract. The side letter provided that notwith-
standing the contract, the unit employees could carry forward
their accumulated floating holidays without restriction. The
side letter indicated that 15 unit employees had accumulated
floating holiday time, ranging from a fraction of 1 day to
slightly over 11 days. Another side letter concerned accumu-
lated unused compensatory time as of the date of signing of
the contract. The contract itself did not permit carrying over
of such time from year to year. The side letter permitted time
accumulated prior to signing of the contract, to be carried
forward without restriction. As of the current negotiations,
this side letter was significant as to one employee. The side
letter named three employees with prior accumulated com-
pensatory time. One was now retired, and a second had accu-
mulated about one-third of a day. Only Susan Sopourn had
significant accumulated time. The matters of accumulated
floating holidays and accumulated compensatory time, be-
came issues in the negotiations. A third side letter was a
clarification and minor revision of contractual provisions on
sick and annual leave, which so far as indicated by the
present record, was no longer an issue between the parties.
The fourth side letter concerned the pay of employee Fran
Kidwell, who has since retired. Therefore, as Bollon himself
indicated in his testimony, the matter was moot. As indi-
cated, there was an exchange of letters when the parties fi-
nally agreed to a contract, which dealt among other matters
with the OSHA research assistants. The parties also agreed
that: (1) the Union would withdraw pending unfair labor
practice charges; (2) the Union would not picket the Em-
ployer or its functions during the existence of the contract;
and (3) the parties agreed to delete from the arbitration
clause of the contract, a provision that the arbitrator ‘‘shall
have no authority to add to or delete or modify any terms
or provisions’’ of the contract. Bollon indicated in his testi-
mony that he did not regard this exchange of letters as ‘‘side
letters,’’ and the language of the letters also so indicates. The
parties made clear in their correspondence that they would
negotiate the grade of the OSHA research assistants upon ex-
piration of the contract, and the Union made clear that it
would not again agree to a picketing ban. The parties did in-
dicate that the deletion from the arbitration clause was in-
tended as an actual contract revision, and so further indicated
in the current negotiations. In sum, the only ‘‘side letters’’
which presented issues in the negotiations, were those per-
taining to accumulated floating holidays and accumulated un-
used compensatory time.
At the September 27 session, the parties also discussed
ground rules for the negotiations. They decided that although
they could make tentative agreements, no agreements were
final until they reached a complete contract. The parties next
met on September 28. The Employer presented a counter-
proposal on longevity increases and classifications of assist-
ants. The Employer proposed to continue the current longev-
ity increases. The Employer proposed, with respect to six as-
sistant positions (one legislative, two research, one education,
and two health and safety) that they be set at Grade 7, Step
1, that after 1 year they be set at Grade 7A (midpoint be-
tween Grades 7 and 8), Step 1, and after 2 years be set at
Grade 8, Step 1. The parties made some tentative agree-
ments. The parties agreed on a 2-year contract and continu-
ation of COLA. The Employer accepted the Union’s proposal
on payout of unused sick leave, and the Union accepted the
Employer’s proposed language on steward time. The Union
withdrew its proposal for a side letter on Dove and Sherman,
opting to leave their status to a pending grievance proceed-
ing. The Union said it would prepare alternative language on
a noninvolvement clause. The Company subsequently with-
drew its proposal. Bollon testified that it did so because the
407FIRE FIGHTERS
3 The proposed clause stated that: ‘‘The provisions written herein shall be
the entire Agreement between the parties and will supercede all prior agree-
ments, understandings or practices of any kind between the parties and shall
govern their entire relationship and shall be the sole source of all rights or
claims which may be asserted in arbitration hereunder or otherwise.’’ The
clause would replace a contract clause stating that: ‘‘The signing of this
Agreement shall not act in any manner to reduce or abrogate any employee
benefits in effect at the time of the signing of this Agreement.’’
language involved was too cumbersome. The Union ques-
tioned the Employer about its proposed language on attend-
ance. Bollon said the problem was tardiness. The Union said
it would present alternative language on tardiness beyond 30
minutes. The Employer rejected the Union’s proposals on
general wage increases, pension improvements, increased an-
nual leave, and upgrades for Hoepfl and Rhyne. The parties
discussed but failed to reach an agreement on grade levels
for the assistants. Again the witnesses differed as to what
was said about the Employer’s proposed zipper clause. Gan-
non and Beer testified that Bollon withdrew the proposal.
Bollon and Berger testified in sum, that Bollon said he
would withdraw the proposal if all other contract issues were
resolved.
I credit the testimony of Bollon and Berger that Kocan-
Moore said the Union would not agree to a zipper clause.
As a professional union representative, she was well aware
of organized labor’s antipathy toward such provisions. Alan
Beer testified that the Union had a strong policy against zip-
per clauses. The Employer’s proposed clause contained strict
limiting language.3 Therefore, it is not surprising that the
proposal would set off alarm bells in her mind. However, I
credit Gannon and Beer as to the balance of the discussion,
and specifically, their testimony that Bollon withdrew the
proposal on September 28. At the hearing the Employer prof-
fered through Bollon’s testimony, alleged minutes of the ne-
gotiating sessions taken by Elaine Duffy. I rejected the offer,
finding that testimony by Duffy was necessary to authen-
ticate the alleged minutes. Nevertheless the Employer never
produced Duffy as a witness, and offered no explanation for
its failure to do so. The Employer subsequently used the al-
leged minutes for the ostensible purpose of refreshing
Bollon’s recollection. However, Bollon’s demeanor on the
witness stand demonstrated that he was using the alleged
minutes as a script rather than a means of refreshing his
recollection. Bollon studied the alleged minutes in careful de-
tail, and even asked to reread them. In these circumstances,
Bollon’s testimony, insofar as he purported to use the alleged
minutes to refresh his recollection, has no evidentiary value,
except insofar as such testimony constituted admissions, or
concerned undisputed facts. However, the General Counsel
proffered in evidence certain handwritten papers purporting
to be notes taken at negotiating sessions. Bollon identified
two of these as being in his writing. One, dated December
8, purported to contain a review of the status of various pro-
posals. The paper contained the notation ‘‘25-01 WD By
M.’’ I find that this notation constitutes an acknowledgement
by Bollon that management had withdrawn the proposed zip-
per clause. Beer’s notes and Gannon’s notations indicate that
Bollon withdrew the proposal on September 28. The pur-
ported minutes of Duffy fail to indicate any discussion of a
zipper clause on or after September 28. This evidence further
tends to corroborate the testimony of Gannon and Beer. If,
as testified by Bollon, the Employer wanted a zipper clause
in order to do away with side letters, then the clause was
practically unnecessary. The only side letters at issue were
those dealing with accumulated floating holidays and accu-
mulated unused compensatory time. These matters could be
and were in fact taken up in the negotiations. I find that
Bollon came to this realization, and withdrew the zipper
clause proposal.
On September 28 Bollon and Gannon met in a side bar
discussion. Gannon testified that they discussed several
issues, including the status of the OSHA research assistants.
She testified that they agreed on the concept of a freeze in
resolving that matter, i.e., to freeze or ‘‘red circle’’ their sal-
aries until they reached a grade level agreed upon by the par-
ties. Alan Beer testified that when Gannon returned from the
side bar, she reported that the Union was willing to freeze
Beer and Vita’s salaries until they reached a Grade 8A level,
and the Company proposed to freeze their salaries until they
reached a Grade 8 level. However Beer did not indicate that
Gannon said this in the presence of the company negotiators.
Bollon testified that Gannon proposed red circling Beer and
Vita until they reached a midpoint between Grades 8 and 9,
i.e., a Grade 8A. Bollon initially testified that he said he
would look into it, but subsequently testified that he rejected
both the red circling of Beer and Vita and the Union’s pro-
posal to reclassify the other assistants to a Grade 8, adding
that they could deal with Beer and Vita in a side bar arrange-
ment when they had a complete contract. Bollon further testi-
fied that they discussed lateral transfers. Gannon expressed
concern that as a result of the Employer’s recent reorganiza-
tion (following the election of Alfred Whitehead as president
and Bollon as secretary-treasurer), which involved transfer of
secretaries, the Employer might use this opportunity to up-
grade favored secretaries after the parties negotiated a con-
tract. Bollon testified that he said this was not true, and the
Employer would give a letter stating that it would not up-
grade secretaries during the contract term. Bollon testified
that the matter of transfers came up at the negotiating ses-
sion, when they discussed Barbara Volel’s transfer. Bollon
testified that Gannon said transfers were acceptable if there
were no salary reductions. Gannon, in her testimony, did not
indicate they discussed lateral transfers at this side bar. In
view of the inconsistencies in Bollon’s testimony, I would be
inclined to credit Gannon’s version of the side bar. However,
as resolution of this question depends upon consideration of
subsequent developments, I shall defer such resolution at this
point.
The parties did not meet again until October 28. This was
the first of two lengthy delays in the negotiations. There
were also no negotiating sessions between October 28 and
December 7. Bollon testified that the parties scheduled 11 or
12 sessions, but held only 6, that he cancelled 1, but that
other sessions were cancelled because of Kocan-Moore’s
other commitments, and later because of her illness. Gannon
testified that the parties were unable to meet between Sep-
tember 28 and October 28 because Kocan-Moore was busy
and Bollon still lived in New York. Bollon testified that he
moved on October 29, although prior to the move he had a
temporary residence in Washington and operated out of the
Employer’s Washington office. Kocan-Moore did not testify,
although she was present at the beginning of this hearing. I
find that the delay in negotiations during the period from
September 28 to December 7 was caused principally by
Kocan-Moore’s unavailability, particularly after October 28.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In this regard I note that Bollon and Gannon were able to
meet in side bar in November, which indicates their avail-
ability for negotiations.
The Union presented counterproposals at the October 28
session. The Union dropped its proposal for a longevity in-
crease at 5 years’ service, but otherwise adhered to its pro-
posals on general wage increases (2 percent annually) and
longevity increases. The Union proposed that the legislative,
education, and 2 research assistants be classified at Grade 8,
24 months (the highest step in a grade), and that new em-
ployees in these positions would begin at Grade 8, Step 1.
The Union thereby sought more than in its original proposal.
The Union proposed in sum that the OSHA research assist-
ants’ salaries be frozen until they reached the level Grade
8A, 24 months, and that Grade 8A would become the Grade
for those positions. The Union adhered to its proposal on
Jean Rhyne, but proposed with respect to Marian Hoepfl,
that she would be upgraded to accountant III, which would
be reduced from a Grade 8 to Grade 7 position. The Union
proposed a new section 14.05 dealing with transfers:
Section 14.05 No bargaining unit employee shall be
upgraded to a higher job classification unless mutually
agreed upon by the Employer and the Union. No bar-
gaining unit employee shall be demoted or suffer a
wage reduction unless the demotion is the result of dis-
ciplinary action in accordance with the provisions of
Article VII of this agreement.
The Union also proposed a new section 8.02 dealing with at-
tendance:
Section 8.02 Any employee who arrives unexcused
between 9:00–9:30 am shall be permitted to make up
such time. Any employee who arrives unexcused after
9:30 am shall not be compensated for such time not in
attendance from 9:30 am until the employee’s arrival.
Under severe weather conditions (e.g. snow, etc), the
Employer shall grant leave to employees in accordance
with Federal government policy and conditions (e.g. of-
fice closing, liberal leave waiving 24-hour requirement,
lateness, etc.).
Gannon testified in sum as follows with respect to the Oc-
tober 28 session: The Company rejected all union proposals
except a 15-year longevity increase. Kocan-Moore questioned
why the Employer proposed to reduce the OSHA research
assistants from Grade 9 to Grade 7, although 2 years before
the Employer took the position that they should be classified
at Grade 8A. Bollon said that the side bar did not come into
play until disposition of all other items. The Employer pro-
posed, with respect to the Union’s proposal on attendance, to
change ‘‘9:30’’ to ‘‘9:15.’’ They discussed the second sen-
tence of that proposal (severe weather policy) but reached no
agreement. They again discussed the fact that Barbara Volel,
upon her transfer, had been demoted from a secretary IV to
a secretary III. Bollon said she was no longer performing
functions which warranted the higher rate. (The matter was
eventually grieved to arbitration, and by award dated May
11, 1989, the grievance was denied). Alan Beer testified in
sum as follows: After a caucus, the Employer rejected the
Union’s wage increase proposal. The Employer rejected the
proposed section 14.05, on the ground that upgrades and
downgrades were matters of ‘‘management prerogative.’’ The
Employer also rejected the proposed section 8.02, arguing
that there should be no compensation for tardiness of more
than 15 minutes. Bollon said he was not familiar with the
Government’s snow policy, and suggested that the parties de-
velop a policy through their joint standing committee.
Kocan-Moore protested the proposed cut in salaries for the
OSHA research assistants. Bollon ‘‘alluded to’’ the side bar
of September 28, saying that there was a way to deal with
Beer and Vita. He said the proposal to reduce the OSHA re-
search assistants from Grade 9 to Grade 7 did not reflect a
change in job titles or duties. The parties discussed the pro-
posals on Rhyne and Hoepfl and the Volel transfer. Bollon
said there would be no upgrades of executive secretaries.
Bollon was the only company witness to testify concerning
the October 28 session. He did not purport to give a com-
plete account of the session. Bollon testified in sum as fol-
lows: He provided the Union with a copy of the Employer’s
Employee Assistance Program (‘‘EAP’’) dealing with stress
and substance abuse. They discussed the parties’ proposals
and the classifications of Rhyne, Hoepfl, and Volel. With re-
spect to the Union’s proposed section 8.02, the Employer
proposed a cutoff time of 9:15 a.m., and that the joint com-
mittee develop an inclement weather policy. There was no
agreement. The Employer rejected the Union’s proposal on
classifications, but Bollon asserted that (as he told Gannon
in side bar) they could deal with Beer and Vita when they
had a complete agreement. The Employer rejected the first
sentence of the Union’s proposed section 14.05, but proposed
that none of the secretaries to the assistants (assistant to the
president, executive assistant to the president, and assistant
to the secretary-treasurer) be upgraded for the life of the con-
tract. However, Bollon rejected the Union’s proposal to up-
grade Rhyne (secretary to his assistant) because the Union
had proposed that none of the assistants’ secretaries would
be upgraded for the life of the contract. (Bollon thereby con-
tradicted himself, as he indicated that the Employer, not the
Union, made this proposal.) With respect to Hoepfl, Bollon
said he would provide the Union with the pertinent job de-
scriptions. Bollon’s testimony concerning the October 28 ses-
sion did not directly contradict the versions of Gannon and
Beer. I find that the testimony of Gannon, Beer, and Bollon
together reflects the substance of the October 28 session.
By a memorandum dated November 3 to Bollon, concern-
ing ‘‘COLA adjustments for VITA and Beer,’’ Gannon stat-
ed as follows:
This is to confirm that Local 2, OPEIU and the IAFF
have agreed that the IAFF will withhold COLA adjust-
ments due to employees Joe Vita and Alan Beer on Oc-
tober 1, 1988, pending an agreement on the collective
bargaining agreement which includes a wage freeze for
Vita and Beer. If the parties fail to reach an agreement
providing for a wage freeze for Beer and Vita, the
IAFF will pay the COLA adjustment retroactively to
October 1, 1988.
Please let me know if this memorandum accurately
reflects our agreement.
Bollon did not reply to the memorandum. He testified that
the memorandum reflected their agreement in side bar dis-
cussion. Bollon further testified that he had two side bar con-
409FIRE FIGHTERS
ferences with Gannon between October 28 and December 8.
Bollon testified in sum as follows concerning the con-
ferences: He proposed, in light of the fact that Beer was a
longtime employee, that Beer be frozen at his present salary
(at a Grade 9 level) until Grade 8 reached his salary. Vita
would be frozen at a Grade 8A level (i.e., take a pay cut)
until Grade 8 reached his salary. The Employer would con-
sider these arrangements if the parties agreed on a total pack-
age. Gannon and Bollon agreed to COLA for Beer and Vita
until the issue was resolved (if so, this would be contrary to
the agreement indicated in Gannon’s November 3 memo).
They also discussed Bollon’s statement that the Employer
would not upgrade any of the secretaries to the assistants
during the life of the contract. Gannon proposed removing
the category of secretary IV from the contract. Bollon said
he would consider the proposal. At the second side bar con-
ference he rejected the proposal, saying that this would dead
end the secretary IIIs. Gannon said she was getting heat
about the matter and Bollon proposed that he talk to the sec-
retaries, explaining that the Employer, not the Union, pro-
posed no upgrading during the contract. Gannon did not tes-
tify concerning these side bar conferences. Under the 1986–
1988 contract, COLA increases were due as of October 1,
and they were paid beginning October 27, retroactive to Oc-
tober 1. Given the confused and contradictory testimony on
the three side bar discussions (September 28 and the two dis-
cussions between October 28 and December 28) concerning
the OSHA research assistants, I find that Gannon’s Novem-
ber 3 memo is the best evidence of what was said and agreed
upon by the parties concerning this matter. In sum, the par-
ties agreed that the Employer would withhold COLA adjust-
ments to Beer pending further negotiations, but they agreed
on nothing else. The parties’ subsequent conduct tends to
confirm this arrangement. Beer did not receive COLA adjust-
ments until December 27, when the Employer implemented
its alleged final offer, and prior to December 27 the Union
did not object. The parties did not rule out the concept of
a wage freeze. However, Gannon’s memo also indicates that
they did not agree that a wage freeze would be an element
of any contract. (The significance of the memorandum will
be further discussed at a later point in this decision.) I credit
Bollon’s testimony concerning the parties’ discussion of the
secretaries to the assistants.
The parties next met in negotiations on December 8. Beer,
Gannon, and Bollon testified concerning this session. The
Employer proposed a new contract provision (sec. 6.08) stat-
ing as follows:
Section 6.08. Notwithstanding any other provision con-
tained in this Article VI, or in this Agreement, the Em-
ployer shall at all times have the sole right and discre-
tion to laterally transfer bargaining unit employees from
their present position to other equivalent positions in
the same grade covered by this Agreement. The af-
fected employees shall not suffer a reduction in salary
because of such transfer.
Beer testified in sum as follows: The parties discussed the
proposed section 6.08, including the meaning of ‘‘equiva-
lent’’ positions. The Employer said it was now considering
an across-the-board wage increase, and proposed a 3-percent
longevity increase at 15 years instead of the present 2 per-
cent. The Employer agreed to no downgrading of employees
except for just cause, but said it had not prepared any lan-
guage on downgrades. Bollon again said he could deal with
the OSHA assistants as discussed in side bar. The parties dis-
cussed pensions, and the Union accused the Employer of
running a caste system. They discussed snow policy, and
Bollon said that the joint committee would meet to work out
a policy. Bollon said that he did not regard the proposed lan-
guage on tardiness (9:30 a.m. vs. 9:15 a.m.) to be a problem,
because few employees showed up late after 9:15 a.m. Gan-
non testified in sum as follows: Bollon said the Employer
was now considering a general wage increase, and agreed to
a longevity increase. He said that if the Union struck the first
sentence of its proposed section 14.05 (on upgrades) the Em-
ployer would agree to the second sentence (on demotion or
wage reduction). Bollon requested the Union to name a new
trustee for the pension plan. Bollon testified in sum as fol-
lows: The parties discussed the Employer’s proposed section
6.08 on lateral transfers. Bollon answered the Union’s ques-
tions and defended the merits of the proposal. Bollon argued
that the Union’s proposals to upgrade Rhyne and Hoepfl
without any bidding process, were inconsistent with other
union proposals. Bollon gave the Union the pertinent job de-
scriptions on Hoepfl. He rejected the Union’s proposal to up-
grade Hoepfl, arguing that her job responsibilities and duties
did not increase much. The parties again discussed wages,
pensions, and the assistants. The Union rejected the Employ-
er’s proposal for a 3-percent longevity increase at 15 years.
The Union again argued for a general wage increase, point-
ing to the increase negotiated by the staff representatives’
union. Bollon said that if the parties came up with a ‘‘com-
plete package,’’ they could deal with the issues of wages and
the assistants ‘‘as per some side bar discussions.’’ There is
no direct conflict between the versions of the three witnesses.
I find, with one qualification, that their testimony together
reflects the substance of the December 8 session. I do not
credit Bollon’s assertion that he said that wages could be re-
solved in accordance with a side bar discussion. The evi-
dence fails to indicate that Bollon and Gannon discussed or
reached an understanding on the matter of wages, in any side
bar meeting. Bollon’s testimony in this regard was based on
the purported minutes taken by Elaine Duffy, which osten-
sibly refreshed Bollon’s recollection. As previously dis-
cussed, such testimony has no evidentiary value. As indi-
cated by the testimony of Beer, Gannon, and Bollon, the par-
ties failed to reach any tentative agreements at the December
8 session. (Bollon testified that the parties agreed on prior
approval of steward time. In fact, the parties agreed on this
and other matters at their second session on September 28.)
The parties next met in negotiations on December 14. The
Union presented a package proposal captioned ‘‘Memoran-
dum of Agreement.’’ The Union proposed that upon em-
ployer acceptance of this memorandum, all remaining pro-
posals of the parties, not previously agreed upon, would be
withdrawn. All provisions of the 1986–1988 contract not
modified or replaced by new provisions would remain in ef-
fect. The Union proposed specific changes. With respect to
attendance (hours of work-overtime), the Union proposed
under section 8.02, that any employee who arrived late be-
tween 9 a.m. and 9:15 a.m. would be permitted to make up
such time, but any employee who arrived after 9:15 a.m.
would not be permitted to make up late time. The Joint
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Labor Management Committee would develop an Inclement
Weather Policy which upon mutual agreement would be in-
corporated into the contract. This proposal in sum met the
Employer’s verbal counterproposal of October 28 to the
Union’s then proposed section 8.02. The Union adhered to
its outstanding proposal of 2-percent annual wage increases.
The Union proposed longevity increases of 1 percent after 10
years and 3 percent after 15 years, thereby meeting the Em-
ployer’s verbal counterproposal of December 8. With respect
to the assistants, the Union proposed that the incumbent leg-
islative and research assistants be upgraded to Grade 8, max-
imum step, and that employees hired into the positions of
legislative, research, education, political action, or OSHA re-
search assistant after October 1 would begin at Grade 8, Step
1. The Union proposed (as part of the contract) that Alan
Beer would be frozen at his present rate (Grade 9) until he
reached the maximum step of Grade 8A, and Joseph Vita
would be reduced to Grade 8A, 18 month step, but would
receive all increases retroactive to October 1, including the
COLA increase of that date. (Grade 8A would be set at the
midpoint between Grades 8 and 9, as the 1986–1988 contract
did not contain a Grade 8A.) These proposals included con-
cessions from the Union’s October 28 proposal, under which
OSHA research assistants would be set at Grade 8A, and
both Beer and Vita would be frozen at Grade 9 until they
reached the level of Grade 8A, 24 months. The Union also
proposed a revision of its October 28 proposal on upgrades
(sec. 14.05, first sentence). The Union proposed that the Em-
ployer would not upgrade unit positions or employees ‘‘un-
less the procedures for consideration of upgrades adopted by
the IAFF Executive Board at its January 12–15, 1988 meet-
ing (Summary of minutes page 10), have been complied
with.’’ The Union also proposed improvements in the pen-
sion plan, specifically, to reduce the retirement age and add
a cost-of-living adjustment. This was a concession from the
Union’s initial proposal, in that the Union now proposed im-
provements which fell short of parity with the staff represent-
atives contract. The Union adhered to its October 28 pro-
posal on Marian Hoepfl and accountant III. The Employer
did not submit any written proposals.
At the December 14 session the Employer orally proposed
a 1-percent general wage increase. Alan Beer testified in sum
as follows: The Employer also proposed to freeze Beer at his
present salary until it reached the maximum level of a Grade
8, and to freeze Vita at Grade 8A until it reached the maxi-
mum level of Grade 8. Bollon did not refer to these propos-
als as a final offer. However when Gannon returned to the
bargaining table from a side bar conference with Bollon, she
said that the Employer would present the proposal on the
OSHA research assistants as a final offer. The Employer ad-
hered to its September 28 proposal for three-step annual up-
grading (Grades 7, 7A, and 8) for the other assistants. The
Employer rejected the Union’s revised proposal on upgrades
(sec. 14.05, first sentence), with the second sentence, on
downgrades, remaining on the table. (The Employer agreed
to the second sentence on December 8.) The Employer also
rejected the proposed pension improvements. Bollon said that
5-year vesting was mandated by law and therefore not nego-
tiable. Gannon suggested they await a meeting with a pen-
sion consultant (then scheduled for January 1989) because
she thought the law provided for either 5- or 7-year vesting.
Bollon insisted that the matter was not negotiable. Gannon
testified in sum as follows: The Union presented its com-
prehensive package proposal. The Employer adhered to its
position on the assistants, and the parties adhered to their re-
spective positions on lateral transfers, with the Employer re-
jecting the Union’s proposed language on upgrades. Bollon
said he was not prepared to discuss changes in the pension
plan until he met with pension consultants and actuaries. He
said he was scheduled to meet with them the following
week. Gannon suggested that they postpone negotiations on
the pension plan until after the meeting. Bollon said that the
pension plan had nothing to do with the negotiations, and the
only change he would make was one required by law, name-
ly, a change to 5-year vesting. Gannon disagreed, explaining
(and correctly so) that the law provided either for 5-year
vesting or vesting over a period of 3 to 7 years. Bollon in-
sisted there was only 5-year vesting, and that this would be
done as of July 1, 1989. Bollon requested a side bar meeting
with Gannon. He told Gannon he would put the Employer’s
wage offer on the table, but this would be a final offer.
When they returned to the table, Bollon offered the 1-percent
wage increase and the proposal on Beer and Vita as de-
scribed above, as part of an agreement, but did not refer to
these as a final offer. Bollon said he had a way of dealing
with wages and the OSHA research assistants when they got
closer to an agreement. Bollon asked for a copy of the Gov-
ernment’s snow policy, and Gannon said she would get one.
Bollon testified in sum as follows: After the Union presented
its package proposal, the parties reviewed their positions.
The Union rejected the Employer’s December 8 proposal on
lateral transfers (sec. 6.08). The Employer rejected the
Union’s proposal on upgrading, on the ground that this was
a matter of employer prerogative. The second sentence of the
Union’s proposed section 14.05 (demotion or wage reduc-
tion) remained on the table. Bollon testified that it was his
understanding that the employer executive board policy did
not require negotiations with the Union. On pensions, the
Employer rejected the Union’s proposal for pension plan im-
provements. Bollon said that the Employer ‘‘was not pre-
pared to make any pension improvements at this time until
we had the whole issue of pension straightened out within
the International.’’ Gannon inquired about a pension commit-
tee meeting which was scheduled for the following week.
Bollon said that the meeting was simply for the purpose of
receiving financial reports, and was unrelated to the negotia-
tions. Bollon said that the law required 5-year vesting (as of
July 1, 1989), and that he would not negotiate vesting.
Bollon later learned that the law provided for alternative 3-
to 7-year vesting. Bollon admitted that the Employer nego-
tiated 5-year vesting with the staff representatives union, to
begin 1 year earlier than required by law. Gannon said that
there was alternative 3- to 7-year vesting, but did not pro-
pose that alternative. However, Gannon said that the Union
wanted 5-year vesting language in the contract. On the mat-
ter of attendance (Union’s proposed sec. 8.02), the parties
agreed on 9:15 a.m. as the cutoff time. The Employer was
still awaiting receipt of the Federal guidelines on inclement
weather. The Employer did not receive those guidelines any
time in 1988, and the Joint Labor Management Committee
did not meet during 1988. Bollon testified that he did not
know whether the parties reached tentative agreement on in-
clement weather policy. Neither Bollon nor the other wit-
nesses explained why the Employer was still interested in the
411FIRE FIGHTERS
Government guidelines, in view of the fact that the Union’s
December 14 proposal concurred with the Employer’s verbal
counterproposal of October 28, that an inclement weather
policy be developed by the Joint Committee.
Bollon further testified in sum as follows: The Union
dropped its proposal to upgrade Jean Rhyne. (As the Union’s
package proposal made no reference to Rhyne, it follows that
this was true.) However, the parties remained in disagree-
ment on an upgrade for Hoepfl. On wages, the Union still
proposed annual increases of 2 percent, although the parties
reached tentative agreement on longevity increases. Bollon
and Gannon had a side bar meeting. Bollon told Gannon he
would put a ‘‘final’’ offer on wages and assistants on the
table, and reiterated his position that there would be no up-
grading of secretaries to executive assistants during the life
of the contract. When the parties returned to the table, Bollon
proposed, as part of a complete agreement, a 1-percent wage
increase, a freeze on the salaries of Beer and Vita (as de-
scribed above in Beer’s testimony), and grade progression for
the other assistants as provided in the Employer’s September
28 proposal. Bollon did not, at the table, describe this as a
final proposal. Bollon argued that the assistants were doing
similar work and should be at the same level. Each party re-
jected the other’s proposals, and there was no agreement on
wages or the assistants’ grades.
I find that the testimony of Beer, Gannon, and Bollon to-
gether reflects the substance of the December 14 negotiating
session. With regard to the pension plan, I find that the Em-
ployer refused to negotiate over vesting. However, the Em-
ployer did not refuse to negotiate over other pension plan im-
provements. Rather the testimony indicates that the Employer
took the position that it was unwilling to agree to increased
pension plan benefits at this time.
Bollon proposed that the parties meet again on December
16. The Union said they would get back on this, but they
did not. The parties next met on December 20. In the mean-
time, on December 16, the Union presented Bollon with a
written request for information concerning overtime pay-
ments and out-of-classification payments since September 1,
to secretaries in the bargaining unit. Bollon testified that on
December 16 he met with three secretaries (including Jean
Rhyne) to check out information he had compiled in re-
sponse to the request. Bollon further testified that he told the
secretaries it was the Employer’s position, not the Union’s,
that there would be no upgrading during the life of the con-
tract. Bollon was the only witness to testify concerning this
conversation. The requested information was furnished to the
Union on December 22.
As matters turned out, the December 20 bargaining session
was the parties’ last session before the alleged unlawful im-
plementation of the Employer’s ‘‘final offer’’ of December
23. Alan Beer testified in sum as follows: The Union re-
jected the Employer’s proposals on general wage increase,
grade levels of assistants, and wage freeze for Beer and Vita.
The Employer adhered to its position on these matters. The
Employer said it was rescinding the side letters on accumu-
lated floating holiday and unused compensatory time. The
Employer proposed that the employees could use or cash out
the accumulated time. (This was the first time since the Em-
ployer withdrew its proposed zipper clause, that the parties
discussed these matters.) The parties did not reach agree-
ment. Beyond these matters there was little substantive dis-
cussion. The Union asked whether the deletion of the restric-
tion on an arbitrator’s authority was still operative. Bollon
said he would get back to Gannon on this. The Union asked
about a response to its information request on December 16.
The Employer said it was working on it. The Employer re-
quested that they meet on December 22. Gannon said she
needed authorization to meet without a staff representative,
although she had previously informed the Employer that she
had full authority to negotiate in the absence of Kocan-
Moore. The parties agreed to meet on December 23. The
Employer said it would not continue negotiations into 1989.
Gannon said she would take the Employer’s package pro-
posal to a vote by the unit employees. The employees were
scheduled to meet on December 22. Gannon testified in sum
as follows: The Union rejected the Employer’s December 14
proposal, arguing that the Employer wanted more conces-
sions. Gannon summarized the positions of the parties.
Bollon said the Employer stood on its position on wage
freezes for Beer and Vita. As testified by Beer, they dis-
cussed the arbitration clause and the Union’s request for in-
formation. Bollon again said that pensions were not a bar-
gaining issue, and the Employer would implement 5-year
vesting as required by law. Gannon said the Employer would
issue a directive for employees to use or cash out accumu-
lated floating holiday and compensatory time by the end of
1989. They discussed the matter. Gannon accused the Em-
ployer of reneging on their prior agreement, i.e., that there
would be no more accrual, but existing accrual would be
grandfathered. After a caucus, Bollon said the Employer was
withdrawing its proposal on floating holidays, but adhered to
its position on compensatory time. Gannon said she would
take what they had on the table to the unit for a vote. Gan-
non proposed that they meet on January 4, 1989. Bollon said
he would not bargain into the next year, and proposed De-
cember 22. Gannon said she would have to check with the
Union. They agreed on December 23. Gannon initially testi-
fied that the meeting was contingent on the Union receiving
the requested information, but subsequently testified that she
did not recall any arrangement. (As indicated, the Employer
furnished the information on December 22.) Marie Grimes
(as indicated, a member of the Union’s negotiating team) tes-
tified concerning the parties’ discussion of the next session.
Grimes testified that the Employer wanted to meet on De-
cember 22, that Gannon said they could not because of the
unit meeting scheduled for that date, but the Union agreed
to meet on December 23, ‘‘contingent upon our request for
information.’’ Bollon testified that the parties discussed the
side letters. Gannon said the Employer kept asking for
takebacks. Bollon said he stated from the beginning there
would be no side letters, and that the Employer’s auditors
said the Employer was carrying too much accumulated time
on its books. Bollon said that to conclude a contract, he
would withdraw the proposal on floating holidays. The bal-
ance of Bollon’s testimony followed his alleged refreshing of
recollection after reading the purported minutes of Elaine
Duffy. Bollon testified in sum as follows: The Employer ad-
hered to its positions on assistants’ grade levels and red cir-
cling of Beer and Vita. Gannon said she would take the pro-
posals to the unit for a vote. She said she could not justify
a contract with a (substantial) raise for herself and only a 1-
percent increase for everyone else. Bollon did not say pen-
sions were not a subject for bargaining. Bollon said he would
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not bargain into 1989. (Bollon admitted that the parties had
not discussed floating holidays and accumulated compen-
satory time since their first session.) The parties did not
reach any agreements at the December 20 session. Adminis-
trative Assistant Glem Berger, who was also present at the
December 20 session, testified in sum as follows: In response
to Gannon’s question, Bollon said that if the deletion on the
limitation of the arbitrator’s authority was part of the 1986–
1988 contract, the deletion would remain. The parties’ re-
viewed their positions. The parties remained apart on wages,
assistants’ grade levels, pensions, and accumulated floating
holiday and compensatory time. The Union also rejected the
Employer’s proposal on lateral transfers. There was no
movement by the parties. The parties argued over accumu-
lated floating holidays and compensatory time. The Employer
rejected the Union’s pension plan proposal to lower the re-
tirement age. Berger testified that the zipper clause was ‘‘still
there . . . in our mind,’’ but admitted that nothing was said
about the clause at the December 20 session. The Employer
said it did not want to continue negotiations into next year,
and the parties agreed to meet on December 23.
I credit Gannon’s testimony that the Employer, after a cau-
cus, withdrew its proposal to rescind the side letter on float-
ing holidays. Although Gannon was the only witness to so
testify, Bollon’s personal notes, the purported minutes taken
by Duffy, and Beer’s minutes of the negotiations, all indicate
that the proposal was withdrawn. Bollon’s notes contain the
entry ‘‘W/D floating holiday.’’ With regard to scheduling of
the next session, I find that Gannon refused to meet on De-
cember 22 because she ostensibly lacked authority to meet
on that date, but unconditionally agreed to meet on Decem-
ber 23. Alan Beer so testified, and his minutes so indicate.
Gannon also admitted that she said she would have to check
with the Union. In all other respects discussed above, I find
that the testimony of the four witnesses together reflects the
substance of what was said at the December 20 session.
Bollon testified that on December 20 he concluded that
since the beginning of negotiations there had not been much
movement on the issues of wages, pensions and assistants’
salaries. He met with Employer President Alfred Whitehead,
Executive Assistant to the President Harold Shaitberger, and
Employer Counsel Joseph Reyna. Bollon proposed, and
Whitehead concurred, that they prepare a ‘‘final, amended
offer’’ to the Union for submission at the December 23 bar-
gaining session, and that if no agreement was reached at that
meeting, the parties would be at impasse. On December 22
Bollon and Reyna prepared this proposal. Also on December
22 the unit employees held their meeting. Gannon and Beer
testified in sum as follows: Eighteen of twenty-five unit em-
ployees were present. Gannon reported on the negotiations.
The secretaries, including Jean Rhyne, complained that the
Union agreed to take secretary IV out of the contract, and
to prevent employees from getting upgrades or promotions,
during the contract term. Rhyne also complained that the
Union withdrew its proposal for her upgrade, that the em-
ployees learned all this from the Employer, and that she was
sick and tired of learning about the negotiations from man-
agement instead of the Union. Another employee also com-
plained privately to Gannon in a similar vein. Gannon ex-
plained the Union’s position, and in particular that the Union
wanted to make sure that the contractual seniority and bid-
ding procedure provisions were followed. She explained that
it was the Employer who proposed no upgrades during the
life of the contract. The employees rejected the Employer’s
proposals, and voted to return to the negotiating table. The
next morning (December 23) Gannon told Beer that the Em-
ployer was trying to disrupt the unit, that in view of what
Rhyne said they had to reconsider their position on the sec-
retaries, and that Gannon needed directions from Union
President Donald Haines, but was unable to reach him. Gan-
non told Beer to prepare a memo postponing the December
23 bargaining session, which he did. Marie Grimes, who also
testified concerning the December 22 meeting, testified that
Rhyne said she would withdraw her request for an upgrade
in view of the Employer’s position (as described by Gan-
non), but the next morning told Grimes that she had changed
her mind. Grimes reported this to Gannon, who then said she
would cancel the bargaining session in order to talk to
Haines.
On the morning of December 23, Gannon placed a memo
on Bollon’s desk, the text of which read as follows:
As we discussed yesterday, certain IAFF officials
have been meeting with OPEIU bargaining unit mem-
bers stipulating that upgrades for their positions were
being halted due to OPEIU Local 2’s positions at the
bargaining table.
Today, I learned that the number of IAFF officials
engaging in such practices is more widespread than
originally discussed with you. As a result of this action
and the strong sentiments echoed at the bargaining unit
meeting held yesterday, OPEIU Local 2 is forced to re-
assess its position on the proper salary levels for certain
secretarial positions.
Due to the holiday season, I have been unable to
reach the President of OPEIU Local 2 to discuss the
matter and formulate a position. Since I will not be able
to meet with the Local 2 President until next week, I
am forced to postpone negotiations scheduled for today.
Furthermore, in light of these developments, the holiday
season and the need for OPEIU Local 2 to possibly
modify its bargaining position, you should be aware
that Local 2 will be unable to meet for further negotia-
tions until after January 3, 1988.
Upon receiving Gannon’s memo, Bollon, together with At-
torney Reyna, prepared on reply memo, attached a 17-page
document captioned ‘‘Agreement,’’ and within an hour deliv-
ered the document to Gannon. Bollon also delivered a copy
to Alan Beer. Both employees were at work. The text of
Bollon’s memo was as follows:
In view of the fact that you have unilaterally can-
celled our latest negotiating session, it is apparent from
the long course of negotiations that neither party is
making any further progress toward a resolution of this
collective bargaining agreement. It is clear that there
are irreconcilable differences in the parties’ positions of
the contract. Therefore, the International Association of
Fire Fighters shall implement immediately the attached
contract the terms of which shall be effective the close
of business Tuesday, December 27, 1988.
With respect to your December 23, 1988 memo con-
cerning alleged contacts between IAFF officials and
bargaining unit members, I must strenuously deny that
413FIRE FIGHTERS
4 In its May 24 letter to the employees, the Employer listed what it de-
scribed as ‘‘improved Union benefits’’ under the implemented ‘‘contract.’’
Under the heading ‘‘Downgrade and Lateral transfer,’’ the Employer stated
that ‘‘one secretary would have been ‘red circled’ so there would be no reduc-
tion in salary.’’ The implemented ‘‘contract’’ did not indicate any red circling
of a secretarial salary, and no direct evidence was presented that anyone’s sal-
ary was red circled, other than Beer and Vita. The Employer may have re-
ferred to Barbara Volel who was reduced from a secretary IV to a secretary
III. Volel filed a grievance, and on May 11, 1989, an arbitrator denied the
grievance. I am not persuaded that General Counsel has proven a violation rel-
evant to the subject matter of the complaint, i.e., the unilateral changes imple-
mented by the Employer on or about December 27.
IAFF officials have ever interfered with the negotiation
process between OPEIU and its members. The IAFF
has not sought to bypass OPEIU or undermine its posi-
tion as the exclusive bargaining representative of its
OPEIU Local 2 members.
The attached ‘‘contract’’ took the form of a complete col-
lective-bargaining contract, including recognition, union se-
curity, checkoff and grievance and binding arbitration provi-
sions, albeit without signature or other agreement by the par-
ties. The document included, with changes, the terms and
provisions of the expired contract. As tentatively agreed by
the parties, the document purported to be effective for 2
years (October 1, 1988, through September 30, 1990) and the
Employer’s proposed section 11.08 on steward time. The
Employer’s proposal on noninvolvement previously with-
drawn, was not included. The document included the Em-
ployer’s proposed section 6.08 (presented on December 8) on
lateral transfers. As indicated, the Union rejected, and the
Employer never withdrew the proposal. The document re-
tained the 1986–1988 contract language in section 14.05,
concerning changes in job classifications. (As discussed, the
Employer had rejected the first sentence of the Union’s pro-
posed sec. 14.05, but tentatively agreed to the second sen-
tence on demotions and wage reduction.) The document also
contained the following section 8.01A on attendance:
Section 8.01A. Any employee who arrives between
9:00 a.m. and 9:15 a.m. shall be permitted to make up
such time. Any employee who arrives after 9:15 a.m.
shall not be compensated from such time not in attend-
ance from 9:00 a.m. until the employee’s arrival. The
employer shall develop a policy with the Labor Man-
agement Committee concerning severe weather condi-
tions (until such policy is developed, the Federal Gov-
ernment guidelines shall be used).
The first sentence had been tentatively agreed upon at the
December 14 session. The second part, including the portion
in parentheses, had never been proposed in that form by ei-
ther party. Rather the second part was an amalgam of the
Union’s proposal to use the Federal guidelines and the Em-
ployer’s proposal that the joint committee develop a policy.
The document carried over the prior termination of floating
holidays and accumulated unused compensatory time, but did
not include the side letters dealing with these matters, or any
other side letters. Therefore the effect of this ‘‘contract’’
would be to eliminate the side letters on accumulated floating
holidays and unused compensatory time, although on Decem-
ber 20, the Employer withdrew its proposal to rescind the
side letter on floating holidays. The document also provided
for payment of 50 percent of unused sick leave upon retire-
ment and 20 percent upon termination. As indicated, the Em-
ployer had tentatively agreed upon 50 and 25 percent respec-
tively. Bollon testified that the 20-percent figure was a typo-
graphical error, and was corrected in actual practice. The
limitation on an arbitrator’s authority (sec. 13.01, Step 4) re-
mained deleted.
On wages, the document provided for longevity increases
as tentatively agreed by the parties. The document provided
salary scales for each of 2 years (effective October 1, 1988,
and October 1, 1989, respectively). These scales provided for
1-percent general wage increases in each year of the contract,
although in negotiations the Employer proposed only one in-
crease of 1 percent. (By a letter to the employees dated May
24, 1989, the Employer informed them they would be receiv-
ing a 1-percent increase effective October 1, 1989.) The doc-
ument provided for COLA as tentatively agreed by the par-
ties. However, the ‘‘contract’’ wage rates failed to include
the COLA increase as part of the basis for the 1-percent in-
crease, although the COLA increase would take effect first.
Bollon testified that this was a mistake which later had to
be corrected. The document contained the same language as
the 1986–1988 contract with respect to pension plan, in sum,
that the existing plan would remain in effect. The document
also contained the Company’s proposed zipper clause (with-
drawn on September 28) in place of the former continuation
of benefits language. Bollon testified that the Employer in-
cluded the zipper clause because no agreement was reached,
the Employer was not able to address all issues, and the Em-
ployer did not want side letters. As the Employer eliminated
side letters in the ‘‘contract,’’ including those pertaining to
accumulated floating holidays and compensatory time, which
were the only side letters really in issue, Bollon’s assertion
makes no sense.
The document also deviated from the Company’s last offer
concerning the grade levels of assistants. The document fixed
the salaries of the legislative, research, education, and OSHA
assistants at Grade 8. At the time (December 23) the only
assistants on the Employer’s payroll were Research Assistant
Michele Dove, Legislative Assistant Cheryl Gannon, and
OSHA Assistants Beer and Vita. The Employer, upon imple-
menting the ‘‘contract,’’ reduced Beer from Grade 9, 24
months to Grade 8, 24 months, and Vita from Grade 9, 18
months to Grade 8, 18 months. These actions substantially
reduced their pay. Beer’s weekly pay dropped from $883.55
to $700.42, and Vita’s from $841.54 to $671.20. Beer never
received COLA for the period from October 1 to December
27. (The record does not indicate whether Vita received
COLA for this period.) The Employer never proposed in the
negotiations, that the assistant’s salaries be uniformly fixed
at Grade 8. As indicated, the Employer throughout the nego-
tiations proposed a 2-year progression period from Grade 7
to 7A to 8. The Employer’s last offer with respect to Beer
and Vita, submitted on December 14, was that Beer would
be frozen at his present salary until it reached the maximum
level of a Grade 8, and Vita would be frozen at Grade 8A
until his salary reached the maximum level of Grade 8. Also
as indicated, the parties, in accordance with Gannon’s No-
vember 3 memo, agreed that if they failed to reach agree-
ment on a wage freeze, Beer and Vita would receive COLA
pay retroactive to October 1. Bollon testified that the Em-
ployer set all of the assistants at Grade 8 ‘‘because we want-
ed to be able to be fair and equitable to the employees.’’4
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In light of Bollon’s testimony to this effect, the Employer’s assertion in
its May 24, 1989 letter to employees, that the side letter on floating holidays
remained in effect, was false. In a position letter to the Board’s Regional Of-
fice, Employer counsel stated that the Employer eliminated carryover of float-
ing holiday pay.
Neither the 1986 contract nor the Company’s new ‘‘con-
tract’’ contained any wage scale for a political action assist-
ant. This was a newly created position. In mid-December the
Employer interviewed alleged discriminatee William
Shoehigh for the position. Employer Director of Government
Affairs Frederick Nesbitt told Shoehigh that his salary level
was being negotiated. On December 28 the Employer hired
Shoehigh at a Grade 8. The parties did not in their negotia-
tions discuss a salary level for this position. Bollon testified
that the Employer made a typographical error by failing to
include the political action and public relations assistants
under the contract scale for Grade 8. The new ‘‘contract’’
also deleted or revised certain job titles which were con-
tained in the 1986–1988 contract. None of these changes
were discussed in the negotiations. In 1989 the Employer
filled the positions of education assistant and research assist-
ant at Grade level 8.
Cheryl Gannon testified that upon receiving Bollon’s
memo and the attached document, she met with the other
members of the Union’s negotiating committee. They did not
know what to do. On December 27 she contacted Union
President Donald Haines, who said they would have to con-
tact the Union’s attorney and filed an unfair labor practice
charge. (The Employer’s offices were open and Gannon was
at work on December 27.) There was no contact between the
Union and the Employer concerning the matter until January
8, 1989. After December 27 the Employer implemented the
new wage rates, grade levels, and attendance policy (9:15
cutoff time). The Employer also informed the unit employees
that accumulated floating holiday time would be cashed out
by the end of 1989, and accumulated unused compensatory
time by September 30, 1990.5 Bollon testified that when the
Employer’s executive board met on January 8, he presented
a report on the negotiations and the current situation. The ex-
ecutive board gave Bollon ‘‘a vote of confidence,’’ although
it did not, as such, approve the new ‘‘contract.’’ In Decem-
ber the Union knew that the executive board was scheduled
to meet in January. By hand-delivered letter dated January 8
to Employer President Whitehead, Union President Haines
accused the Employer of unilaterally implementing changes
in terms and conditions of employment, although there was
no impasse. By letter dated January 18, Bollon responded in
sum that there was an impasse, but the Employer was willing
to negotiate. By letter dated February 14, Haines asserted
that without waiving its position, the Union was also pre-
pared to negotiate. The parties then discussed dates for re-
sumed negotiations.
B. Analysis and Tentative Concluding Findings
Concerning Alleged Violations of the Employer’s
Bargaining Obligations
As a general rule, an employer is permitted to make uni-
lateral changes in terms and conditions of employment when
there is an impasse in negotiations regarding the subject mat-
ter or matters in question, i.e., when despite their best efforts
to achieve agreement with respect to such matters, neither
party is willing to move from its respective position. Hi-Way
Billboards, Inc., 206 NLRB 22, 23 (1973), revd. on other
grounds 500 F.2d 181 (5th Cir. 1974). However, such
changes must be reasonably comprehended within the em-
ployer’s preimpasse proposals. Whether an impasse exists is
a matter of judgment. The relevant factors in making that
judgment include the bargaining history, the good faith of the
parties in negotiations, the importance of the issue or issues
as to which there is disagreement, and the contemporaneous
understanding of the parties as to the state of negotiations.
Taft Broadcasting Co., 163 NLRB 475, 478 (1967), affd. sub
nom. American Federation of Television & Radio Artists v.
NLRB, 395 F.2d 622 (D.C. Cir. 1968).
The complaint does not allege that the Employer engaged
in bad faith or ‘‘surface bargaining’’ in the 1988 negotia-
tions. Rather, the General Counsel contends that the Em-
ployer unlawfully implemented its self-styled ‘‘contract’’ be-
cause (1) as of December 23 there was no impasse in bar-
gaining, (2) even assuming that the Employer’s December 23
communication to the Union constituted a final offer, the
Employer did not afford the Union an opportunity to bargain
concerning the Employer’s ‘‘contract,’’ and (3) the changes
implemented by the Employer were inconsistent with the
Employer’s proposals prior to December 23.
I reject General Counsel’s first argument. On December 23
the parties reached an impasse because the Union, summarily
and without valid reason, broke off negotiations without even
proposing a date for renewal of the negotiations. By the end
of the December 20 session the parties had discussed and ex-
plored their respective opposing positions on the issues be-
tween them. They were making some progress, but were still
apart on certain issues which one or both of them regarded
as important. The Employer believed that they were ap-
proaching an impasse, but was willing to go through another
bargaining session. The Employer prepared the ‘‘contract’’
document as a ‘‘final, amended offer’’ to present to the
Union at the December 23 session. The fact that the Com-
pany prepared this document in advance of the session, does
not mean that the Company would refuse to negotiate at that
session. Both sides prepared written proposals before bar-
gaining sessions. The document included some concessions
to the Union, e.g., the assistants other than the OSHA re-
search assistants would immediately be moved up from
Grade 6 to Grade 8. If the parties met as scheduled on De-
cember 23, the document might have afforded a basis for
further movement toward agreement. Gannon’s ostensible
reason for abruptly cancelling the session, namely, that she
needed instructions from Union President Haines, was false,
or at least inadequate. Gannon had assured the Employer that
they could bargain without Staff Representative Kocan-
Moore, because Gannon and her committee had full authority
to negotiate a contract. If Gannon needed instructions from
Haines, then she misrepresented her authority and thereby
acted in bad faith. If Gannon needed instructions from
Haines, then Haines should have been available at this criti-
cal stage of the negotiations. The Union knew that the Em-
ployer did not wish to bargain into 1989. Haines was not
presented as a General Counsel witness, although the Em-
ployer called him concerning another allegation, and he did
not corroborate Gannon’s testimony that he was unavailable
during this period of time.
The Union did have another problem. Although the parties
had been meeting for nearly 3 months (with delays due
415FIRE FIGHTERS
mainly to Kocan-Moore’s absences), the Union’s negotiating
committee failed to keep the unit employees fully informed
of the progress of the negotiations, and the committee also
failed to keep informed of the employees’ views concerning
the negotiations. As the negotiations progressed, some em-
ployees began to suspect that Chief Negotiator Gannon
would be the principal beneficiary of any agreed upon con-
tract. Both sides were in agreement that sooner or later, the
position should be upgraded. The unit employees aired their
complaints at the unit meeting on December 22. The com-
plaints, which centered on union withdrawal of its proposal
to upgrade Rhyne, could have been resolved at the meeting.
Instead, the Union used these complaints as a lever to tell
the Employer, after nearly 3 months of negotiations, that the
Union wanted to reevaluate its bargaining positions.
I find that the reasons advanced by Gannon for cancelling
the December 23 session were a pretext. The Union wanted
to delay further negotiations until after the Employer’s exec-
utive board meeting scheduled for January 8. By December
20 the Union knew that negotiations were approaching an
impasse, and that the Union was nowhere near its desired
goal of attaining parity with the staff representatives’ union.
Therefore the Union wished to resort to a method which had
worked in the past, namely, to go beyond the bargaining
table and appeal to the Employer’s international or local
leadership or membership. At the time the 1986–1988 con-
tract was negotiated, John Gannon (no relation to Cheryl)
was Employer president. Alfred Whitehead was secretary-
treasurer, and in charge of labor relations. By appealing to
John Gannon, the Union was able to get more favorable
terms than it could at the bargaining table. In September
1988 the Employer changed leadership. Whitehead became
president and Vincent Bollon became secretary-treasurer.
Whitehead designated Bollon as chief negotiator. Whitehead
was determined that history would not repeat itself. Thus
Whitehead testified that he told Cheryl Gannon that ‘‘I won’t
have done to [Bollon] what was done to me,’’ namely, that
in Whitehead’s view, the two Gannons had undermined his
position as the person in charge of labor relations. Through-
out the first half of 1989 the Union sought to press its case
before the Employer’s international and local leadership and
membership. These were legitimate labor relations tactics.
However, they did not constitute legitimate grounds for can-
celling a bargaining session and delaying further sessions,
particularly at a critical stage in the negotiations.
However, I find merit in the General Counsel’s second and
third arguments. The Employer’s December 23 memo and at-
tached ‘‘contract’’ was not a bargaining offer, but a notice
of intent to implement the document. The Employer did not
say that it would implement the document unless the Union
requested further bargaining. Rather, the Employer asserted
that because the Union cancelled the December 23 session,
and ‘‘we have reached an impasse,’’ the Employer ‘‘shall
implement immediately the attached contract,’’ the terms to
be effective at the close of business on December 27. There-
fore the Union did not waive its right to protest the imple-
mented contract by failing to request bargaining or otherwise
failing to communicate with the Employer prior to January
8. In view of the Employer’s stated intent, such a request
would have been futile. However, the Union’s silence is fur-
ther evidence that the Union intentionally sought to delay re-
sumption of negotiations until after the executive board
meeting.
If the Employer had implemented proposed charges within
its bargaining proposals as they stood on December 20, I
would be inclined to dismiss this case. However, the Em-
ployer did not, and the Employer thereby violated the Act by
implementing changed terms and conditions of employment
which were not ‘‘reasonably comprehended within the em-
ployer’s pre-impasse proposals.’’ The Employer implemented
two annual 1-percent general wage increases, although in the
negotiations it proposed only one such increase. The Em-
ployer, by its own admission, changed the grade structure for
assistants in a manner never previously proposed by the Em-
ployer. Specifically, the Employer placed all assistants at the
level of a Grade 8, thereby substantially lowering the salaries
of the OSHA research assistants while increasing the salary
levels of other assistants. The Employer also unilaterally set
grade levels for assistants whose status had not been dis-
cussed and whose positions were not even listed in the im-
plemented ‘‘contract.’’ The Employer acted unilaterally by
failing to give Beer COLA for the period October 1 to De-
cember 27, notwithstanding the memorandum agreement of
the parties that Beer and Vita would receive COLA, retro-
active to October 1, if the parties failed to reach agreement
on a wage freeze. The Employer also unilaterally struck the
side letter on floating holidays, and required cashing of accu-
mulated floating holiday time by the end of 1989, notwith-
standing that the Employer withdrew its proposal in this re-
gard. As indicated, this change affected some 15 unit em-
ployees. The Employer also unilaterally included a zipper
clause in its implemented ‘‘contract,’’ notwithstanding that
the Company unequivocally withdrew this proposal on Sep-
tember 28, and there was no subsequent discussion of the
matter. This was not some theoretical provision which had
no potential impact on the unit employees’ terms and condi-
tions of employment. The Employer ostensibly initially pro-
posed a zipper clause in order to eliminate side letters. Aside
from this clause, the implemented ‘‘contract’’ did eliminate
all side letters. However, the zipper clause had broader im-
port. For example, (as will be discussed), during the renewed
negotiations in 1989 the Employer and the Union discussed
an Employee Assistance Program (to deal with alcohol and
drug problems), and an alleged unilateral change in the em-
ployee dress code. The 1986–1988 contract was silent on
both matters. If the continuation of benefits clause were still
in effect, the Employer could not change any existing prac-
tices without first giving the Union notice and an opportunity
to bargain. However, under the zipper clause the Employer
might well argue that both matters fell within the area of
management rights. It is also immaterial, to the merits of the
case, whether the Employer’s unilateral actions gave benefits
or took away benefits from the unit employees. The Employ-
er’s ‘‘contract’’ provisions on wage increases, grade levels,
and attendance, if presented as proposals for bargaining,
might well have generated movement toward agreement in
these areas. In sum, the Employer unilaterally implemented
substantially and significant changes in terms and conditions
of employment, which were inconsistent with its prior pro-
posals, without affording the Union an opportunity to bargain
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I do not agree with General Counsel’s arguments (Br. 16) that the Em-
ployer acted unlawfully by failing to implement the second sentence of the
Union’s proposed sec. 14.05 (downgrading) upon which there was tentative
agreement. The Employer simply carried over the existing language of sec.
14.05 of the 1986 contract. The Act prohibits an employer from making unilat-
eral changes, but does not require the Employer to implement changes upon
which there has been only tentative agreement. Moreover, both sentences were
at least arguably parts of the same proposal, and there was no agreement on
the first portion of the Union’s proposed sec. 14.05.
concerning those changes. The Employer thereby violated
Section 8(a)(5) and (1) of the Act.6
However this is not the end of the inquiry. The Employer
contends by way of affirmative defense that the parties re-
sumed bargaining on March 15, 1989, and bargained to im-
passe on or before reimplementation of the ‘‘contract’’ on
September 18, 1989. The Employer argues that therefore
even if there were a violation in December 1988, liability
should be tolled as of September 18, 1989. In order to evalu-
ate this defense, I shall at this point proceed to consider the
renewed negotiations which took place in 1989.
C. The 1989 Negotiations
The parties resumed negotiations on March 15. Bollon and
Gannon remained as the chief negotiators. In mid-August
1989 Gannon quit her employment, and Beer took over as
chief union negotiator. Bollon, Gannon, and Beer testified
concerning the negotiations. At the March 15 session the
Union presented several documents. The Union proposed a
revised section 14.05 which read as follows:
Section 14.05 Any position upgraded by the Employer
shall be subject to job posting in accordance with Arti-
cle VI of this Agreement, except that the provisions of
Section 6.04 of this Agreement [on probationary period]
will not apply when the incumbent employee (i.e. em-
ployee who held the position prior to proposed up-
grade) is the successful bidder for the upgraded posi-
tion. Until such time as a successful bidder is selected,
the proposed upgraded position will not be declared va-
cant, but will be retained by the incumbent employee.
No bargaining unit employee shall be demoted or suffer
a wage reduction unless the demotion is the result of
disciplinary action in accordance with the provision of
Article VII of this Agreement.
The Union also submitted a proposed section 6.08 which
stated as follows:
Section 6.08 Notwithstanding any other provision con-
tained in this Article VI, or in this Agreement, the Em-
ployer shall at all times have the sole right and discre-
tion to laterally transfer bargaining unit employees from
their present position to other positions having the same
job title in the same grade classification as specified in
Appendix A. Any effected employee shall not suffer a
reduction in salary, including overtime compensation
and out-of-classification pay as a result of such transfer.
In addition, a lateral transfer shall not be allowed if the
effect would be that the employee will have fewer pro-
motional opportunities in the new position.
The Union also presented a draft proposal on an Employee
Assistance Program (‘‘EAP’’), captioned ‘‘Alcohol-Drugs.’’
The Union also submitted a written presentation in support
of its proposal to upgrade Marion Hoepfl. The Union argued
in sum that upgrading was warranted because Hoepfl’s ‘‘job
duties have increased dramatically.’’ Beer testified that this
presentation was based on information given by the Em-
ployer in response to the Union’s December 16 request for
information. At the March 15 session the Union also submit-
ted a written request for a copy of the current pension plan,
and any other written materials given to the trustees at their
last meeting. The Employer did not present any proposals.
With regard to the March 15 meeting, Bollon testified in
sum as follows: The Employer rejected the Union’s proposed
section 6.08 and all but the last sentence of section 14.05 as
impinging on management rights. Bollon said that the Em-
ployer would meet with the Union if an employee were to
be upgraded. The last sentence of section 14.05 remained on
the table. On EAP, Bollon noted that the proposal contained
a prohibition on use of employer funds for consumption of
alcohol, and pointed out that alcoholic beverages were served
at retirement parties. They discussed Federal funding of
EAP. The parties discussed the Union’s proposal to upgrade
Hoepfl. Bollon said he would get back on it. With regard to
pensions, the parties discussed 5-year vesting and the trust-
ees’ meeting. The parties did not discuss the pending unfair
labor practice charge or implemented ‘‘contract.’’ There were
no agreements. Beer testified in sum as follows: Bollon ad-
mitted that he previously agreed to the last sentence of the
Union’s proposed section 14.05, which was left out of the
implemented contract, but said he would deny it. Bollon said
that the Union’s EAP proposal was too restrictive. Beer ar-
gued that the Union’s writeup on Hoepfl reflected her in-
creased duties. The Employer did not respond. On pensions,
Bollon said that the Employer would provide documentation
on 5-year vesting. Gannon testified in sum as follows: The
Employer said it would review and respond later to the
Union’s proposed sections 6.08 and 14.05 and EAP. The
Union expressed concern about upgrades without bidding and
reduction of Barbara Volel’s pay. The Union said that em-
ployers who received Federal grant monies were required to
establish an EAP. I credit Gannon’s testimony that the Em-
ployer said it would respond later to the Union’s proposed
sections 6.08 and 14.05. Bollon’s testimony that he rejected
the proposals is, as will be discussed, inconsistent with the
position he took at the third renewed bargaining session on
March 17. In other respects I find that the testimony of
Bollon, Beer, and Gannon together reflects the substance of
what was said at the March 15 session.
At the next session on March 16, the Union submitted an
additional and more detailed request for information concern-
ing the pension plan. Bollon testified in sum as follows: He
again rejected the Union’s proposed sections 6.08 and 14.05.
They discussed upgrades and promotions. The Union wanted
posting. On EAP, the parties discussed developing a policy
through their joint occupational health and safety committee,
and they arranged to do so. They discussed amendments to
the pension plan, including one which made the Union’s ob-
server a trustee. The 1986 contract and the implemented
‘‘contract’’ provided for a union appointed trustee (sec.
15.01). Bollon said there had to be 5-year vesting as of July.
Beer testified in sum as follows: The Union unsuccessfully
sought specific responses to its proposals. Bollon said that he
preferred that the contract refer to an EAP without spelling
out the program, and that he was not prepared to respond to
417FIRE FIGHTERS
certain union proposals. The parties recessed to afford the
Employer an opportunity to review the Union’s proposals.
During the recess Elaine Duffy of the employer team in-
formed the Union that the Employer was cancelling the bal-
ance of the session. Gannon testified in sum as follows: They
discussed EAP. They agreed that a policy should be devel-
oped. The Employer wanted to do this separately from the
negotiations. They agreed that the contract should refer to a
policy when it was developed. The Employer said it would
obtain copies of EAPs from other labor organizations. The
Employer said it wanted a complete package proposal from
the Union before responding to any specific union proposals.
As discussed with respect to the March 15 session, I do not
credit Bollon’s testimony that he rejected the Union’s pro-
posed sections 6.08 and 14.05. I also find that the Employer
did not request a complete package proposal from the Union
at this session. (Both Bollon and Beer testified that this oc-
curred at the March 17 session.) In other respects I find that
the testimony of Bollon, Beer and Gannon together reflects
the substance of what was said and done at the March 16
session.
The parties next met on March 17. The Union presented
three written proposals. The Union proposed a new section
18.02, a picket line clause. This provided in sum that em-
ployees would not be required to cross a picket line, and
would not lose wages or benefits by reason of such refusal.
The Union also proposed (in sec. 9.04) that accumulated
floating holidays could be carried forward without restriction.
The Union further proposed that the political action assistant
be paid at the same rate as the legislative, education, and re-
search assistants. Bollon testified in sum as follows: At this
or the next session (March 22) he gave the Union the re-
quested pension information. Bollon asked the Union for a
complete package, in order for the Employer to meet the
issues. The Union said they wanted to first address non-
economic issues. The parties reviewed the status of negotia-
tions. The Union said that anything in the implemented
‘‘contract’’ on which there was no counterproposal, was re-
jected. They discussed the implementation date. Bollon said
it was December 27. On floating holidays, the Union said
they had a tentative agreement. The Employer counter-
proposed that employees could use or cash out accumulated
floating holiday time by the end of 1989. (Bollon initially
testified that he proposed use or cashout by the end of 1990,
but subsequently admitted that the proposal was to the end
of 1989.) There was no agreement. The Employer said it
would consider the proposed picket line clause. The Em-
ployer agreed to the proposal on political action assistant, ex-
plaining that the omission in the implemented ‘‘contract’’
was inadvertent. The parties discussed 5- or 7-year vesting
and amendments to the pension plan. Bollon agreed to 5-year
vesting, saying that it should have been in the contract. Gan-
non said they could reach a contract notwithstanding the un-
fair labor practice charge. Beer testified in sum as follows:
The Union presented its request for more detailed informa-
tion on pensions. (The request was dated March 16.) The
Employer had already responded to the first request (of
March 15). The Union said it was abandoning its request for
parity with the staff representatives union, and would agree
to 5-year vesting, with documentation, and a union trustee
(the plan did not contain a space for signature by a union
trustee). On floating holidays, the Union questioned why the
Employer had gone back to its previous position. Bollon said
that the Employer’s position on that and several other items
changed between December 20 and 23. Bollon referred to an
auditor’s report on liability by reason of accumulated floating
holiday pay. The parties reached tentative agreement on the
Union’s proposal concerning political action assistant’s sal-
ary. The Employer wanted a package proposal from the
Union. The Union preferred to deal first with noneconomic
issues. The Union reviewed the status of negotiations, and
said it would present a new counterproposal on Rhyne. The
Employer said that tentative agreements as of December 20
remained. Gannon testified in sum as follows: On floating
holidays, Bollon said the Employer backed down from its
former position because the auditors wanted to reduce out-
standing liability. Bollon admitted that the Employer had the
auditor’s report in December, but asserted this was only a
preliminary draft, adding that ‘‘I reevaluated my position on
a lot of things on December 23rd.’’ The Employer did not
respond to the Union’s proposed picket line clause. The par-
ties tentatively agreed on the political action assistant pro-
posal. The Union said it was abandoning all proposals to im-
prove the pension plan, but wanted language on 5-year vest-
ing. Bollon said this was not needed, because 5-year vesting
was required by law. The Employer asked to break early be-
cause it was St. Patrick’s Day, and the Union agreed.
As testified by Bollon, on March 17 he asked the Union
for a package proposal in order to enable the Employer to
meet the issues. Therefore, it is unlikely that on March 15
and 16 he would have categorically rejected the Union’s pro-
posed sections 6.08 and 14.05. Therefore as indicated, I cred-
ited Beer’s testimony that Bollon did not respond to the mer-
its of these proposals. I also credit Gannon’s testimony that
Bollon declined to document 5-year vesting. As indicated, I
find that the Union requested detailed pension information at
the March 16 session. In other respects I find that the testi-
mony of Bollon, Beer, and Gannon together reflects the sub-
stance of what was said at the March 17 session.
The parties next met on March 22. The Union proposed
that if one of the secretary IIIs were upgraded, then all three
would be upgraded. The Union also proposed a memoran-
dum of agreement on the pension plan. The memorandum
provided in sum that the parties agreed to amend the plan
to provide for 5-year vesting and a union trustee, effective
no later than July 1, 1989. The Union also proposed that
their contract should provide for a 1-percent wage increase
effective October 1, 1989, on top of COLA adjustments.
Bollon testified in sum as follows: They discussed the
Union’s proposal on secretarial upgrades. Bollon questioned
how the proposal would impact on the pending unfair labor
practice charge and two pending arbitration proceedings (in-
cluding Volel’s). He said the proposal would have been easi-
er to implement if presented before December 17, but in
light of implementation of the ‘‘contract,’’ he did not know
how it would affect the unfair labor practice case. Bollon
suggested that if an arbitration award favored the Union, the
Employer would have to upgrade the other two secretaries.
Bollon said he would look into the matter, but counter-
proposed that none of the secretaries to the executive assist-
ants be upgraded for the life of the contract. On pensions,
he said he would check how long it would take to amend
the plan. Bollon said the proposed memorandum of under-
standing was ‘‘housekeeping’’ because the law required 5-
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
year vesting and the trustee was approved, although neither
item was documented. He said he would take care of it. On
EAP, Bollon said he was setting up meetings. He again re-
quested a package proposal, and the Union said they would
get back to him. Beer testified in sum as follows: On sec-
retarial upgrades, Bollon said the Union’s proposal would
have been easy to agree to if presented prior to ‘‘contract’’
implementation, but he did not know how it would impact
on the pending unfair labor practice case and arbitrations,
and would check. Bollon proposed that no one would be up-
graded. The Union said that since the Employer wanted an
economic proposal, the Union would agree to the 1-percent
general increase. On the Union’s pension proposal, Bollon
said he would have to check with the Employer’s pension
consultant. Bollon offered no explanation for the absence of
a space for signature by a union trustee on the plan. Bollon
described the concessions made by the staff representatives’
union to get improved pension benefits. On EAP, the Union
furnished Bollon with sample documents. Bollon said he was
trying to set up a meeting and learn about other labor organi-
zations’ EAP programs. Gannon in her testimony substan-
tially corroborated portions of the testimony of Bollon and
Beer. She also testified that Bollon said it might take months
to revise the pension plan. I find that the testimony of the
three witnesses together reflects the substance of what tran-
spired at the March 22 session.
The parties next met on March 23. This was a short ses-
sion. Bollon testified in sum as follows: They discussed sec-
retarial upgrades and pensions. Bollon said the Union’s pro-
posal on upgrades was not workable, in view of the pending
arbitration proceedings. He preferred the Employer’s counter-
proposal for no upgrades. (Eventually the Employer prevailed
on the Volel grievance and the Union withdrew the second
grievance.) The Union inquired about contacting the Employ-
er’s actuary, and asked whether the provision for a union
trustee would be in the trust agreement or the contract.
Bollon gave the actuary’s name, and said that section 8.02
of the trust agreement dealt with trustees, and the Employer
would make any necessary amendments. Bollon said they
were close to an agreement, but was referring to the matter
of a union trustee for the pension plan. Beer testified in sum
as follows: On secretaries, Bollon said that the Union’s pro-
posal would force an upgrade of all the secretaries if the ar-
bitrator ruled in favor of Volel. The Union said this was not
true because the proposal dealt only with Employer deter-
minations. Moreover the arbitrator would not upgrade Volel,
but only restore her salary. However, the Union said it would
rewrite its proposal to meet the Employer’s concern. The
Union and the Employer agreed that the secretaries seemed
to feel that the Union was preventing them from getting up-
grades. On pensions, Bollon said that the matter of the union
trustee could be handled by amending the contract rather
than the trust plan. Gannon said: ‘‘Well, it looks like I’m
doing a slow waltz to impasse and you’re trying to do a jit-
terbug to impasse.’’ Bollon said he felt they were close to
an agreement although (in the Union’s view) the Employer
had not responded directly to the Union’s proposals. Gannon
testified in sum as follows: Bollon rejected the Union’s pro-
posed memorandum of agreement on the pension plan, say-
ing he would just amend the plan. He said it was not nec-
essary to amend the trust agreement. He said he was waiting
to hear from the Employer’s pension consultant, who knew
that Michelle Dove was a trustee. Bollon said the Employer
would amend the plan when the Employer responded to the
Union’s package proposal. I find that the testimony of the
three witnesses together reflects what was said at the March
23 session. However, I credit Bollon’s explanation that when
he said they were close to an agreement, he was referring to
the matter of a union trustee for the pension plan. Even at
this point, the fifth session of renewed negotiations, the par-
ties had not discussed some issues which divided them; and
the Employer was still awaiting a package proposal from the
Union. In these circumstances, it is unlikely that Bollon
would opine that they were close to total agreement. I find
that Gannon’s remark about impasse reflected her appraisal
of the course of negotiations. The Union was dealing inten-
sively with one or a few issues at a time, while the Employer
was generally taking a negative approach, i.e, rejecting or ig-
noring union proposals, without significantly moving from its
prior positions.
The parties next met on March 27. The Union presented
four written proposals. The first provided that the classifica-
tions of legislative, political action, public relations, research,
and education assistants would be set at Grade 8, with length
of service credit for the legislative and research assistants.
The second was a proposed memorandum of agreement
which reduced to writing the Union’s proposal that if one
secretary to an executive assistant was upgraded, then all
three would be upgraded. The third provided in sum that the
parties agreed the salary levels for the OSHA research assist-
ants would be at least equivalent to those for any other pro-
fessional unit position related to occupational safety and
health, and the Employer would not employ any such profes-
sional at a higher grade level without the Union’s agreement.
The fourth provided that accumulated unused compensatory
time could be carried forward without restriction. The Em-
ployer also presented four written proposals. The first pur-
ported to amend section 14.01 of the implemented ‘‘con-
tract,’’ on wage increase, by providing that the October 1,
1989, 1-percent wage increase would be on top of COLA ad-
justments. The second was a proposed memorandum of
agreement which provided that the pension plan would be
amended to provide for 5-year vesting, and the appointment
of a union trustee would be reflected in section 8.02 of the
trust agreement and (as it was) in section 15.01 of the collec-
tive-bargaining contract. The third was a proposed memoran-
dum of agreement which provided that the secretaries to the
executive assistants would not be upgraded to secretary IV
during the life of the contract. The fourth provided for use
or cashout of accumulated unused compensatory time by the
end of contract term (September 30, 1990).
Bollon testified in sum as follows concerning the March
27 session: The Union presented its proposals and the parties
reviewed their positions. They did not agree on a 1-percent
general wage increase. At a later session (April 20) they
agreed that the wage increase would be on top of COLA.
The Employer rejected the Union’s proposal on professional
assistants’ grade level, on the ground that this was already
done in the implemented ‘‘contract.’’ (The ‘‘contract,’’ un-
like the Union’s proposal, did not refer to the political action
and public relations assistants or to length of service credit.)
The Employer rejected the Union’s proposal on secretarial
upgrades, and adhered to its counterproposal for no upgrades.
There was no agreement. There was no agreement on the
419FIRE FIGHTERS
pension plan. Bollon said it would take about 2 weeks to
amend the plan. The parties discussed whether the contract
or the plan should be changed. The Employer rejected the
Union’s proposal on the OSHA research assistants, because
of a pending unit clarification proceeding (Case 5–UC–280)
involving the Company’s HAZMAT personnel. They were
working under a government grant, and the Employer con-
tended they were not part of the bargaining unit. The Board’s
Regional Director ruled otherwise, and at the time of the
present hearing the matter was pending on appeal to the
Board. There was no agreement on accumulated compen-
satory time. On the OSHA research assistants, the Union said
it was adhering to its proposal of December 14, and the Em-
ployer adhered to the implemented pay level. The parties re-
jected each other’s proposed section 6.08 (on transfers), and
the Employer rejected all but the last sentence of the Union’s
proposed section 14.05, leaving the last sentence on the
table. The Employer rejected the Union’s proposed picket
line clause and proposal to upgrade Rhyne, and said it would
correct the error on sick leave. The parties discussed the ef-
fect of a negotiated contract on the unfair labor practice case.
Beer testified in sum as follows: The Union said that its
proposals constituted a complete package. The Union con-
ceded to the Employer on all matters except those covered
by union proposals. However, the Union told Bollon that
matters not covered by its proposals were rejected. The par-
ties reviewed the implemented ‘‘contract,’’ and agreed on
those matters upon which there had been tentative agreement.
The Union presented its proposals on wages in order to offer
the Employer a complete package. On calculation of wage
increase, the Employer agreed to calculate the wage increase
on top of COLA, but never corrected the salary figures in
schedule B to the implemented ‘‘contract.’’ The Union’s pro-
posal on length of service credit would move Gannon and
Dove from Grade 6, 24 months to Grade 8, 24 months in-
stead of Grade 8, 6 months. This would accord with existing
but unwritten policy. The Employer rejected the Union’s pro-
posal on the ground that it was already doing this. The
Union’s proposal on secretarial upgrades was a revision of
its earlier proposal. The Employer rejected all of the Union’s
proposals, and late in the afternoon presented its counter-
proposals as described above. The Employer said that it was
already implementing its counterproposal on accumulated
compensatory time. Bollon said it would take 2 weeks to
amend the pension plan to provide for 5-year vesting, but re-
stated his view that it was not necessary to amend the plan
to provide for 5-year vesting or a union trustee. Bollon asked
whether the Union rejected the zipper clause, but the Union
did not respond. The Union asked about changes in job titles
for the OSHA assistants and the impact of EAP on sick
leave. Bollon said he owed the Union a response on section
14.05. Gannon, in her testimony, corroborated portions of the
testimony of Bollon and Beer. However, she testified that
Bollon said he could not respond to the Union’s proposal on
OSHA research assistants until the outcome of the unit clari-
fication case.
I find that the testimony of Bollon and Beer together re-
flects the substance of what transpired at the March 27 ses-
sion. The evidence indicates that each side was conducting
the negotiations with an eye to the pending unfair labor prac-
tice litigation. The Union did not, as requested by the Em-
ployer, present a package proposal. The Union presented in-
dividual proposals which together with its outstanding pro-
posals and prior tentative agreements, purported to constitute
a package proposal. However, the Union was ambiguous
about whether it accepted or rejected the Employer’s position
on matters which were not the subject of a specific union
proposal. The parties went through an item by item review
of their positions, and to this extent clarified the situation.
However, the Union did not at this time (or until April 20)
make clear its position on a general wage increase. The
Union declined to comment on the zipper clause. The parties
failed to agree on pension plan language, although the Em-
ployer’s proposal gave the Union what it wanted. The parties
were in agreement on grade levels and length of service
credit for the professional assistants other than the OSHA as-
sistants, but the Employer refused to reduce their agreement
to writing. The Employer’s excuse was that it was already
implementing these practices, although the grade levels of
two assistants and length of service credit were not even
written into the Company’s implemented ‘‘contract.’’ It is
evident that both sides wished to preserve their positions in
the litigation. The Union wished to show that there was
much left to negotiate, and the Employer sought to show that
there was nothing left to negotiate.
The parties next met in negotiations on April 19. They
spent most of the time discussing peripheral issues, and little
was accomplished. Bollon testified in sum as follows: The
Union asked why it was not informed that the Employer
transferred Marie Grimes to the public relations office.
Bollon answered that the Employer needed an experienced
person. The Union also questioned the Employer’s dress
code, specifically, that the Employer announced that male
employees were required to wear ties through the summer.
They discussed accumulated compensatory time. Bollon re-
ported that he obtained an amendment to the pension plan for
President Whitehead’s signature. The Union said they were
still awaiting Employer proposals on EAP and section 14.05.
Bollon admitted that he owed this. However, he asserted that
the Employer gave all its counterproposals on March 27, and
was awaiting the Union’s responses. Beer testified in sum as
follows: Bollon did not bring any written material with him,
and he did not have a response on section 14.05. Bollon said
he was not sure whether Grimes’ transfer was temporary or
permanent, and he would get back to the Union on this, and
also on the change in dress code. The Union said the dress
code was a mandatory subject of bargaining. Bollon said he
would give the Union the amended pension language. Gan-
non in her testimony corroborated portions of the testimony
of Bollon and Beer. She also testified that Bollon said the
Grimes transfer was not a part of the negotiations. I find that
the testimony of the three witnesses together reflects the sub-
stance of the April 19 session.
The parties next met on April 20. The Employer presented
a signed amendment to the pension trust plan, and a pro-
posed contract clause (sec. 15.01) incorporating by reference
the amended plan providing for a union trustee. The clause
did not specifically refer to 5-year vesting. The Employer did
not present any language on either section 14.05 or EAP.
The Union presented contract language on an EAP and the
text of a proposed EAP. The Union also presented a two-
paragraph proposal on authorization of overtime compensa-
tion, and later in the session, a revision of the proposal. (As
will be discussed, authorization of overtime compensation
420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
developed as an issue in connection with the alleged unlaw-
ful discharge of William Shoehigh on March 21.) Bollon tes-
tified in sum as follows: He still owed the Union a response
on section 14.05 and EAP. He did not recall whether they
agreed on the pension plan language. He did not recall owing
anymore information on the Grimes transfer. He told the
Union he found no record of the Employer ever meeting with
the Union on dress codes. There were no remaining outstand-
ing information requests. However, the Union inquired about
pension payment formula, and Bollon said he would check.
The parties discussed the Union’s proposal on overtime com-
pensation. The Union revised its proposal but there was still
no agreement. The parties also discussed the Union’s EAP
proposal. The parties had already made progress in their joint
committee. They agreed on a contractor and that the Em-
ployer would bear the costs. However there was no agree-
ment on the Union’s proposal at this session. The Union an-
nounced that it was accepting a 1-percent general wage in-
crease and the Employer’s inclement weather provision, and
withdrawing all prior pension proposals. The parties re-
mained apart on the salaries of the OSHA research assistants
and accumulated floating holiday and compensatory time.
They had also not reached complete agreement on pensions.
The Employer continued to reject all but the last sentence of
the Union’s proposed section 14.05. Beer testified in sum as
follows: The Employer presented its amended pension plan,
which was made effective retroactive to December 27, 1988.
The Employer rejected all but the last sentence of the
Union’s proposed section 14.05, but still had no proposal of
its own. The Union submitted its proposal on overtime au-
thorization (which it amended on the basis of Bollon’s com-
ments) because of problems and the need for clarification.
Each side presented proposed forms for this purpose, and
they discussed the matter. There was not much discussion on
the Union’s EAP proposal. Bollon said the Employer would
not revoke the new dress code, asserting that the parties
never bargained over dress code. The parties tentatively
agreed to meet next on May 1, but they did not. Gannon tes-
tified in sum as follows: Bollon presented a copy of the
signed amended pension plan. He said that now the plan was
amended to provide for 5-year vesting, and therefore contract
language was unnecessary. Bollon rejected all but the last
sentence of the Union’s proposed section 14.05, but said the
Employer would think about it. They agreed to meet next on
May 1, but the Employer cancelled that session. I find that
the testimony of Bollon, Beer, and Gannon together reflects
the substance of what transpired at the April 20 session.
The parties did not meet again in ‘‘negotiations’’ until Au-
gust 1. They corresponded in May and early June. The Union
proposed mediation, the Employer proposed binding arbitra-
tion, and the Union counterproposed qualified interest arbi-
tration. There was no agreement. In July the parties engaged
in discussions for the purpose of settling the unfair labor
practice case. The parties met in further negotiations on Au-
gust 1 and 8. At the August 1 session the Union presented
a package, including a proposal on contract term which origi-
nated in the settlement discussions. There was no agreement.
Upon consideration of the testimony, I find that the August
1 and 8 sessions were so enmeshed with the July settlement
discussions as to constitute a continuation of those discus-
sions. I find that for the purposes of this case, the April 20
session should be viewed as the last negotiating session.
By letter dated September 18, 1989, the Employer in-
formed the Union that it was reimplementing the imple-
mented ‘‘contract’’ of December 27, 1988. The new imple-
mented ‘‘contract’’ followed the text of the former docu-
ment, with some changes. Specifically, the new document
corrected the payout on accumulated sick leave for termi-
nated or laid-off employees from 20 to 25 percent, expressly
provided for a 1-percent wage increase on top of COLA
(without actually correcting salary figures), added classifica-
tions of political action assistant and public relations assistant
at Grade 8 (without entering their salary scale), and incor-
porated the Employer’s proposed section 15.01 of April 20,
on the pension plan. There were no other changes.
D. Concluding Findings Concerning the Effect of
Renewed Negotiations on the December Violations
‘‘Unilateral action by an employer without prior discussion
with the union does amount to a refusal to negotiate about
the affected conditions of employment under negotiation, and
must of necessity obstruct bargaining, contrary to the con-
gressional policy.’’ NLRB v. Katz, 369 U.S. 736, 747 (1962).
In Lehigh Portland Cement Co., 286 NLRB 1366 fn. 5
(1987), the Board held that the respondent therein ‘‘seriously
undermined the Union’s bargaining position by unlawfully
implementing its proposals and maintaining the terms and
conditions in these proposals during subsequent bargaining
with the Union. Further negotiations in this context could not
erase the effects of the violation.’’ However in NLRB v.
Cauthorne Trucking, 691 F.2d 1023, 1026 (D.C. Cir. 1982),
the court held ‘‘that where an employer and a union have
bargained in good faith, despite the employer’s prior unilat-
eral changes in wages or conditions of employment, the em-
ployer’s ongoing liability for the unlawful unilateral changes
terminates on the date when the parties execute a new agree-
ment or reach a lawful impasse.’’ Some Board decisions in-
dicate that although ‘‘a make-whole order restoring the status
quo ante is the normal remedy where an employer has made
unlawful unilateral changes in its employees’ terms and con-
ditions of employment,’’ there may be circumstances under
which it is appropriate to toll the remedy. Storer Commu-
nications, 294 NLRB 1056 at 1057 (1989); Southwest Forest
Industries, 278 NLRB 228 (1986), enfd. 841 F.2d 270 (9th
Cir. 1988). The common denominator for all these cases is
that at the very least (although there may be other requisite
conditions) the remedy cannot be tolled unless and until the
parties reach agreement on a new contract or bargain in good
faith to an impasse.
Applying the foregoing principles to the facts of the
present case, I find that the Employer did not bargain in
good faith to a genuine impasse, and therefore that a continu-
ing remedy is warranted. I make this finding because (1) the
Employer’s unremedied unilateral changes were of such a se-
rious and substantial nature as to undermine the Union’s bar-
gaining position, and (2) the Employer’s course of conduct
in the resumed negotiations indicated that it was so wedded
to the terms and conditions of its own implemented ‘‘con-
tract’’ as to preclude meaningful good-faith bargaining. In
sum, the Employer approached the resumed negotiations with
a closed mind, determined that the negotiations could only
substantially result in the Union’s rubber stamp approval of
the implemented ‘‘contract.’’ With regard to the first factor,
the Employer, after holding fast to its position on the grade
421FIRE FIGHTERS
levels of assistants, proceeded to unilaterally cut the OSHA
research assistants’ salaries below the Employer’s last offer,
while giving the other assistants the Grade 8 sought by the
Union. The Employer thereby divided the Union’s bargaining
strength by altering the status quo so as to satisfy some as-
sistants while making deep cuts in the pay of others. The
Employer also stole the Union’s thunder on the matter of a
general pay increase. After steadfastly refusing to agree to
any general pay increase other than COLA, the Employer, to-
ward the end of the 1988 negotiations, proposed a 1-percent
general increase. However, the implemented ‘‘contract’’ pro-
vided for two such increases, which if offered in the negotia-
tions might have generated movement toward agreement.
With regard to the second factor, the Employer refused to
negotiate even tentative agreements with the Union on mat-
ters not in dispute. The implemented ‘‘contract’’ did not set
grade levels for the political action and public relations as-
sistants, or provide for length of service credit. The parties
were in agreement on these matters. Nevertheless the Em-
ployer refused to reduce their agreement to writing, prefer-
ring instead to unilaterally amend its own ‘‘contract,’’ or uni-
laterally follow its own practice. The Employer in effect
bootstrapped its refusal to bargain over the matter of a dress
code, by relying on its own unilaterally imposed zipper
clause. The Employer refused to bargain on the ground that
the parties did not previously bargain concerning dress code.
In the absence of a zipper clause, this would not be a valid
position. Dress code was a term or condition of employment,
and therefore a matter subject to negotiation. The Employer
never responded to the Union’s detailed presentation on an
upgrade for Hoepfl, and never proposed alternative language
on section 14.03 (upgrades), although it acknowledged an
obligation to do so. The Employer also used the pending un-
fair labor practice proceeding as an excuse to avoid agree-
ment on secretarial upgrades. The Employer’s course of con-
duct demonstrates that it regarded the December 27 unilater-
ally imposed ‘‘contract’’ as an accomplished fact, and was
unwilling to negotiate any significant changes in that docu-
ment. Insofar as the Employer was willing to accept changes,
the Employer in most instances chose to do so unilaterally.
Therefore I adhere to my finding that the Employer violated
Section 8(a)(5) and (1) of the Act, and I find that the Em-
ployer remained in violation of the Act.
E. Discharge of William Shoehigh
The complaint in Case 5–CA–20325 alleges that on or
about March 20, Employer director of governmental affairs
Frederick Nesbitt threatened employees with unspecified re-
prisals because they spoke on behalf of the Union’s shop
steward (Cheryl Gannon). The complaint further alleges that
on or about March 20 employee William Shoehigh
concertedly complained to the Employer regarding the
wages, hours and working conditions of its employees, and
that on or about March 21 the Employer terminated
Shoehigh because of that complaint, because he joined, sup-
ported or assisted the Union, and to discourage employees
from engaging in protected concerted activity.
Upon becoming president in September 1988, Alfred
Whitehead reorganized the Employer’s administrative oper-
ations. Whitehead appointed Harold Shaitburger to the newly
created position of executive assistant to the president. In
that position Shaitburger reported directly to Whitehead, and
had overall responsibility for several departments, including
the department of governmental affairs. The Employer’s
membership consists mainly of career firefighters and emer-
gency service personnel. Most are employed by State and
local governments, although some work for the Federal gov-
ernment or in the private sector. Because of the nature of its
representation, the Employer has a vital interest in legisla-
tion, at the various levels of government and in political and
informational activity, on its own and together with other
groups within and outside of the labor movement, to protect
its members’ interests and achieve its legislative goals. In
furtherance of these goals the governmental affairs depart-
ment plays a key role. Shaitburger previously headed the de-
partment. On October 28 the Employer appointed Frederick
Nesbitt to head the department, and he commenced work on
November 14. He was subsequently given the title of legisla-
tive director. Nesbitt did not previously work for the Em-
ployer. Secretary-Treasurer Bollon did not have direct line
responsibility for the governmental affairs department. How-
ever, Bollon did have overall responsibility for personal mat-
ters and labor relations. He was responsible for dealing with
employee grievances under the contract, and was sometimes
involved in employee discipline, suspension, and termination.
When Nesbitt took over the governmental affairs department,
there were three other positions in the department (all bar-
gaining unit positions). However, two were vacant. Cheryl
Gannon had served as legislative assistant since September
1985. She was union shop steward and as indicated, became
the Union’s chief negotiator in December 1988. The posi-
tions of political action assistant and secretary were vacant.
On December 28 the positions were filled. William Shoehigh
commenced working as political action assistant and Tom
Derkas as secretary (a nonprofessional, clerical position). The
department now consisted of four persons, only one of whom
(Gannon) had prior experience with the Employer.
The 1986–1988 collective-bargaining contract provided
that: ‘‘The probationary period for new permanent employees
shall be seventy (70) working days at the expiration of which
the employee shall be placed on the employment rolls on a
permanent basis provided the work of the new employee is
satisfactory to the Employer.’’ The union-security clause pro-
vided that employees would become union members after
their probationary period. These provisions were carried over
into the implemented ‘‘contract’’ of December 27. The con-
tractual 70-day probationary period for William Shoehigh
would have ended on Friday, April 7 (calculation excludes
weekends and holidays). The Employer notified Shoehigh of
his termination on March 21, the 57th working day of his
employment. Shoehigh did not become a permanent em-
ployee or union member prior to his discharge.
The work of the three professionals in the governmental
affairs department (Nesbitt, Gannon, and Shoehigh) over-
lapped, and in many respects each complemented that of the
others. Their respective job titles provided only a partial indi-
cation of their respective areas of responsibility. Shortly after
Shoehigh and Derkas reported to work, Nesbitt summoned
the department employees and distributed a memo which
purported to delineate the respective areas of responsibility
of Gannon and Shoehigh. The memo indicated as follows:
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DEPARTMENT OF GOVERNMENTAL AFFAIRS
AND POLITICAL ACTION INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS
LEGISLATIVE ASSISTANT—Cheryl Gannon
Legislative Fact Sheets—Write and Update
Draft Testimony
Draft Letters Requesting Legislative Information
Federal Regulations
Contacts with Hill Staff on Issues
Provide Technical Assistance to Hill
Work with Fire Service Caucus
Legislative Letter—Issues
Federal Update—Issues
Congressional Monitor—Hearings, Information
Congressional Record—Bills, Speeches
Legislative Articles for Journal
POLITICAL ASSISTANT—Bill Shoehigh
Legislative and Political Training Materials
Grass Roots Organization
Voting Record
Contacts with Grass Roots
Contact with Labor and LAC Program
Candidate and Campaign Evaluations
PAC Direct Mail—FIREPAC
Fund Raisers
Assist Candidates
Help Locals get Politically Involved
Survey Political Publications
Legislative Letter—Political Information
Federal Update—Political Information
Political Articles for Journal
As will be discussed, the memo was silent or vague as to
several areas. The question of the respective functions of
Nesbitt, Gannon, and Shoehigh is a key element in the Gen-
eral Counsel’s contention that the Employer discriminatorily
discharged Shoehigh.
Cheryl Gannon testified in sum as follows: As legislative
staff assistant, her principal duties were to track legislation
of interest to the Employer, attend hearings and meetings on
Capitol Hill, draft testimony and correspondence to members
of Congress, draft legislative alerts to firefighters in the field,
and prepare legislative briefing materials. In November,
Nesbitt asked her about her duties (which she described) and
her likes and dislikes. Gannon answered that she liked going
out, specifically, to hearings and meetings on Capitol Hill,
and meeting with other lobbying groups, and did not want
to be tied to research. However, she did not care for attend-
ing political fundraisers. Nesbitt said the department would
expand its activities. He asked why no one was regularly at-
tending the Monday morning AFL–CIO lobbyists’ meetings.
Gannon answered that the department had been shorthanded,
and sometimes no one was available. Also former President
Gannon and Shaitburger felt that the meetings did not suffi-
ciently address the concerns of Fire Fighters or public em-
ployees in general. Nesbitt responded that the problem was
that Fire Fighters had not been team players, but he would
change this. In 1985, Gannon had an argument with another
AFL–CIO lobbyist. However, the matter was adjusted, and
Gannon attended the next weekly meeting. When Nesbitt
presented her with the outline of job responsibilities, Gannon
commented that the outline was incomplete. Specifically, her
indicated duties did not include work on the Employer’s leg-
islative conference (scheduled for March 1 through 3), at-
tending meetings with outside coalition groups, and cor-
respondence to members of Congress on legislative issues.
(The legislative conference is attended by Fire Fighters from
all parts of the nation, and is the major event of the year for
the governmental affairs department, which arranges and
conducts the conference.) Nesbitt responded that the memo
was simply a general guideline. Gannon noted that the memo
indicated she and Shoehigh would each do the writing in
their respective areas.
Gannon further testified in sum as follows: After Shoehigh
began work, he attended meetings of the Congressional Fire
Service Caucus, although Shaitburger had told her this was
her job. Also, Nesbitt began taking calls from Capitol Hill,
although Gannon previously performed this function. Nesbitt
took such calls even when he was not knowledgeable about
the matters involved. After Gannon introduced Nesbitt to Hill
Staff personnel, Nesbitt would take over dealing with them,
leaving out Gannon. Either Nesbitt or Shoehigh would attend
the AFL–CIO lobbyist meetings and other lobbyist meetings.
Nesbitt also went with Shoehigh to political meetings. Gan-
non found that she was relegated to doing mainly writing and
research. In December, before Shoehigh came on the job,
Gannon complained to Shaitburger that Nesbitt was taking
over the lobbying. She said that if her job was to consist of
writing and research, she preferred to transfer to the research
department where she could do really substantive work.
Shaitburger assured Gannon that Nesbitt was learning the
work, she should give him time, Shaitburger would talk to
him, and Gannon would not be a ‘‘desk jockey.’’ A few
weeks later Gannon told Nesbitt that she wanted to keep
working on Capitol Hill. Nesbitt assured her that there was
enough work on the Hill for both of them. However, nothing
changed.
Gannon further testified in sum as follows: Beginning
about February 1 she spoke several times to Shoehigh about
her problems. She mentioned that Nesbitt took her off an
AFL–CIO Long Term Health Care Coalition meeting (going
in her place), and that her written work was circulated in the
department for review, although Shoehigh’s was not. She
also mentioned the AFL–CIO lobbyist meetings. Shoehigh
said she was poorly treated, and suggested that she talk to
Nesbitt, which she did. Nesbitt told her that he wanted
Shoehigh to meet the lobbyists. Later he said that Gannon
said she didn’t like attending the lobbyists’ meetings. Gan-
non said this was not true, and repeated her prior expla-
nation. Nesbitt said he would reconsider, but continued to as-
sign Shoehigh to the lobbyists’ meetings, although Shoehigh
was not familiar with the legislative issues. In mid-February
Gannon told Shoehigh she thought she was being phased out,
and would talk to Secretary-Treasurer Bollon. Shoehigh said
he would back her up, and not be a pawn in any effort to
phase her out. Gannon went to see Bollon and expressed her
complaints. She also said that Nesbitt said she spent too
much time on union business. Gannon also complained that
Nesbitt told her to remove the union logo which she placed
on her office correspondence. Bollon responded that he un-
derstood Gannon did good work, and he did not think she
was being phased out. However, he would check. He also
thought a policy should be developed concerning the logo.
423FIRE FIGHTERS
Bollon asked if she minded if he spoke to Shoehigh. Gannon
had no objection.
Gannon further testified in sum as follows: The legislative
conference, for which the department was primarily respon-
sible, took place as scheduled from March 1 through 3. On
the last day Nesbitt told the department employees how well
the conference went. He said he got compliments from Fire
Fighter members, that it was the best conference ever, and
that he was particularly pleased with the new employees
Shoehigh and Derkas. Gannon never heard Nesbitt criticize
Shoehigh, although he sometimes questioned Derkas as to
why he was behind in filing. Gannon was on vacation during
the week of March 6. The following week Bollon told her
he spoke to Whitehead, who had spoken to Shaitburger. He
said they denied that Gannon’s work was changed. They said
that Gannon didn’t go to the AFL–CIO lobbyists’ meetings
because she said she didn’t like them. Shaitburger said he
had no bad feelings toward Gannon. Bollon said he would
present the matter of the union logo to the joint labor man-
agement committee. At about 4 p.m. on Friday, March 17,
Shaitburger summoned Gannon to a meeting at which
Nesbitt and Shoehigh were present. Shaitburger said he un-
derstood that Gannon and Shoehigh each went to see Bollon
and expressed concerns about job functions and the way
work was handled in the office. Shaitburger asked Gannon
to repeat her complaints, which she summarized. Shoehigh
then spoke up. He said he was assigned legislative work
within Gannon’s area of responsibility, which made him feel
uncomfortable, and that there was a lot of tension in the of-
fice. Nesbitt took notes, and was visibly angry. He said that
Gannon’s accusations were untrue, and that he permitted
Gannon to go to the Family and Medical League Coalition
Meeting. Nesbitt asked that Gannon and Shoehigh meet with
him on Monday, March 20, and they did at about 11 a.m.
that day. Nesbitt asked the employees to each give their
complaints. Gannon again talked about work taken away
from her and gave examples. Shoehigh again said there was
tension in the office, and that Nesbitt was hostile to Gannon
because of her union activities. Nesbitt, who again took
notes, denied the last accusation. That evening Shoehigh told
Gannon that he met with Nesbitt. The next morning (March
21), Nesbitt went to Employer Counsel Reyna’s office and
Gannon went to see Bollon. Gannon said she thought she or
both she and Shoehigh were about to be discharged because
of their complaints. Bollon said he would check it out. The
next morning (March 22) Bollon summoned Gannon to his
office. By this time Shoehigh had been discharged. Bollon
said he spoke to Shaitburger and Reyna, and ‘‘they swore to
me up and down that it was his work performance and noth-
ing else.’’ Bollon added: ‘‘Cheryl, you know that is bullshit,
and I know it is bullshit, but there is nothing I can do about
it, and I feel bad about it.’’ Gannon said she would file a
charge. No grievances were filed concerning the employees’
complaints or Shoehigh’s discharge.
William Shoehigh came to the Employer with a back-
ground of national political involvement, experience, and
contacts. Shoehigh testified in sum as follows: He was inter-
viewed by Nesbitt, Shaitburger, Bollon, and Whitehead, hired
by Whitehead on December 14, and commenced work on
December 28. Nesbitt explained that as political action assist-
ant he would be involved in such functions as political action
training for the membership, grassroots lobbying, attending
political functions, and coordinating PAC development.
Nesbitt expected Shoehigh to show initiative, attend fund-
raisers and other political functions, and make himself known
as a Fire Fighters’ representative. The position was set at
Grade 8, and Shoehigh could anticipate overtime compensa-
tion, as he would be required to attend fundraisers and other
afterhours events. The position was subject to a 70-day pro-
bationary period. When Shoehigh began work, the emphasis
was on preparation for the March 1–3 legislative conference.
This included preparation of literature and an agenda, arrang-
ing speakers and handling the logistics. About January 10
Nesbitt transferred the work of preparing legislative fact
sheets from Gannon to Shoehigh. About the same time
Shoehigh began accompanying Nesbitt to the AFL–CIO lob-
byists’ meetings, at which legislative matters were discussed.
In preparation for the legislative conference, the department
prepared a handbook entitled ‘‘Political Action.’’ Gannon
prepared the initial draft, Shoehigh rewrote the draft, and
Nesbitt made the final review. Initially, work on ‘‘Capitol
Alert,’’ the department’s weekly bulletin, was divided, with
Gannon doing legislative articles and Shoehigh the political
articles. However, Nesbitt began giving Shoehigh legislative
assignments. On several occasions Nesbitt asked whether
Gannon was out on union business again. Gannon was in
fact frequently away when involved in negotiations and
grievances. In March, about the time that contract negotia-
tions resumed, Nesbitt commented that he was finding it dif-
ficult to manage a union shop.
Shoehigh further testified in sum as follows: In January
and February he and Gannon discussed the shifting of work
from her to him, specifically, the legislative fact sheets and
the AFL–CIO lobbyists’ meetings. They agreed that the work
belonged in Gannon’s job description. Gannon expressed
concern that her job was being phased out. They also talked
about the union logo. In late January she said she was going
to see Shaitburger, and if that didn’t work she would talk to
Bollon. Gannon met with Bollon in mid-February, and re-
ported that Bollon wanted to see Shoehigh. Shoehigh agreed
to meet Bollon after the legislative conference, and told Gan-
non he would discuss her concerns with Bollon. On March
10 Shoehigh met with Bollon, who asked about Gannon’s
concerns. Shoehigh explained about work being shifted away
from Gannon to him, Nesbitt’s remarks concerning Gannon’s
union activity, and the prohibition against the union logo.
Shoehigh also used the opportunity to present his own prob-
lem which he had not discussed with Gannon, specifically,
the matter of overtime compensation. Shoehigh presented a
memo entitled ‘‘Outstanding Overtime Obligations,’’ in
which he expressed his desire to come to an understanding
and develop a consistent policy concerning overtime com-
pensation. The memo purported to list 15 functions which
Shoehigh attended past working hours, including 6 which he
was specifically assigned to cover. The memo did not spe-
cifically request compensation for any or all of these func-
tions. Shoehigh had previously spoken to Nesbitt about over-
time. Nesbitt said he thought Shoehigh attended these func-
tions for professional development, and not to accrue over-
time. Shoehigh disagreed. At their March 10 meeting Bollon
said he would talk to Nesbitt.
Shoehigh further testified in sum as follows: At about 9
a.m. on March 17 Shaitburger summoned Shoehigh to his of-
fice. Shaitburger said Shoehigh made a mistake by seeing
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bollon first, that Shoehigh should have come to Shaitburger
first and kept the matter within the department. He said
Shoehigh was a good employee and shouldn’t get off on the
wrong foot. He said he would talk to Gannon and Shoehigh.
That afternoon Shaitburger met with Nesbitt, Gannon, and
Shoehigh. Shaitburger asked the employees’ concerns about
how the department was managed. Gannon asserted that
work was being shifted away from her, Shoehigh was doing
her duties, and reported snide remarks about her absences on
union business, and she felt threatened. Nesbitt denied the al-
legations. The problem was not resolved. Shaitburger told
Nesbitt to meet with the employees on March 20, and
Shaitburger would follow up with them that day. Nesbitt met
with the employees on the morning of March 20. Gannon
and Nesbitt reargued their positions. Nesbitt said that
Shoehigh was editor of ‘‘Capitol Alert,’’ although he never
previously said this. Shoehigh opined that there was an un-
dercurrent of hostility from Nesbitt toward Gannon, appar-
ently because of her union activity. Nesbitt angrily denied
the accusation. At about 2 p.m. Nesbitt met alone with
Shoehigh. Nesbitt took notes. Nesbitt said he was very upset
that Shoehigh saw Bollon, that Shoehigh got Nesbitt in hot
water with President Whitehead, who was ready to clean
house and take the place down brick by brick. Shoehigh dis-
cussed the hostility toward Gannon and said he thought he
was a pawn in a bigger scheme, and there was some hidden
agenda. Nesbitt replied that if there was a hidden agenda or
scheme, it was not Shoehigh’s business to worry about it. He
said that Shoehigh was putting himself in jeopardy by de-
fending Gannon. Shoehigh said he was not comfortable with
the situation and would not participate in it. Nesbitt re-
sponded that it was obvious they were going to have rela-
tional problems, he was not sure what action he would take,
and Shoehigh was becoming a clockwatcher, specifically,
that he should be more flexible about overtime. Nesbitt said
he thought he had professionals in the department, ‘‘not
fll monkeys.’’ This was the first time that Nesbitt criti-
cized Shoehigh’s work performance. Previously, Nesbitt
complimented Shoehigh’s performance, and after the legisla-
tive conference Whitehead and Shaitburger complimented the
entire department. After the meeting Shoehigh told Gannon
he thought he would be terminated. The next day (March 21)
Shoehigh saw Nesbitt go to Attorney Reyna’s office with his
notes. At about noon Nesbitt summoned Shoehigh. Nesbitt
announced that based on his review of Shoehigh’s perform-
ance over the 60 days, he would not extend Shoehigh’s pro-
bationary period. Shoehigh was terminated effective at the
end of the day. Nesbitt stated that Shoehigh was a clock-
watcher, there was a lack of quantity and quality of work
done on time, Shoehigh showed lack of leadership in the de-
partment, and he did not keep Nesbitt abreast of his where-
abouts at all times. Shoehigh argued this was not the real
reason, that he was terminated for defending Gannon.
Shoehigh demanded a written statement of the reasons for his
termination. At this point Shoehigh took 2 hours of medical
leave. He returned at 4:30 p.m. to get his paycheck. When
he returned Nesbitt handed him a letter, the text of which
stated as follows:
This is formal notice that I have decided not to con-
tinue your employment beyond the end of your proba-
tionary period. The decision is based on my observation
over the past sixty days of your work performance. The
sole basis for not continuing your employment is your
work performance and no other reason.
This discontinuation of your employment is effective
the close of business today. In order to permit you a
reasonable opportunity to seek other employment, you
will receive two weeks’ salary in lieu of severance pay.
Any accumulated vacation pay will be paid to you on
a pro rata basis.
Legislative Director Nesbitt testified in sum as follows:
When he began Shaitburger explained the functions of the
governmental affairs department. At the time the department
included Gannon as legislative assistant and Gil Udell as po-
litical assistant. Udell was about to become an outside con-
sultant. The secretary position was vacant. Shaitburger said
there should be distinctions between the duties of the two as-
sistants. President Whitehead told Nesbitt that he wanted him
to establish a presence on Capitol Hill and in the labor
movement, and to educate the membership politically and
legislatively. Nesbitt was directly responsible to Whitehead
and Shaitburger. Bollon was not in the chain of command.
Shaitburger told Nesbitt that there was a 60-day review pe-
riod for new employees. At that point, if not kept on, the
employee would be given 2 weeks’ notice. To Nesbitt’s
knowledge, this policy was first applied to Shoehigh. Nesbitt
asked Gannon and Udell to prepare resumes of their respec-
tive duties, and he discussed Gannon’s work with her. She
said she lobbied on Capital Hill, drafted testimony and re-
sponses to Hill inquiries, initiated legislative ideas, and
worked on the legislative conference. This concurred with
Nesbitt’s idea of the duties of a legislative assistant. Gannon
said the work she liked best was Hill contacts and initiating
legislation. She did not like evening political fundraisers and
political work. She also did not like the Monday morning
AFL–CIO lobbyist meetings, because they were not impor-
tant, and she had a personal run-in with one lobbyist. This
was acceptable to Nesbitt, because her dislikes came under
the work of the political assistant. Nesbitt had attended the
AFL–CIO lobbyist meetings as representative of another
labor organization. The Employer usually was not present.
Nesbitt sometimes saw Udell at the meetings but never Gan-
non. The item ‘‘Contact with Labor and LAC program’’
under the political assistants’ duties, included the lobbyists’
meetings.
Nesbitt further testified in sum as follows: When he inter-
viewed and considered Shoehigh for the political action as-
sistant position, he was impressed by Shoehigh’s Labor and
political connections. Nesbitt told Shoehigh there was a 70-
day probationary period, at the end of which he would have
to join the Union, that he would be evaluated at the end of
60 days, and if rejected would be given 2 weeks to find an-
other job. When Shoehigh was hired Nesbitt reviewed the re-
spective duties of the two assistants with them. There was
some overlap of functions. Preparation for the legislative
conference had priority. Nesbitt initially testified that he did
not recall any discussion of the AFL–CIO lobbyists’ meet-
ings, but subsequently testified that he said that Shoehigh
would substitute for him at the meetings. No meetings were
scheduled until January 23, as the meetings were not con-
ducted when Congress was not in session. Gannon did not
object to Nesbitt’s assignment of functions. Nesbitt asked
425FIRE FIGHTERS
Gannon for her contacts on Capitol Hill, and to set up meet-
ings for him with them. This was important, because Nesbitt
was primarily responsible for representing the Employer’s
legislative interests on Capitol Hill. Nesbitt also had to de-
cide which fundraisers to attend. Usually either he or
Shaitburger would attend. However Nesbitt told Shoehigh
that he needed to be available for evening fundraisers, and
would be compensated for his attendance, although there
would not be many such events. In fact, he never assigned
Shoehigh to a fundraising event. Under Employer practice,
Nesbitt must request presidential authorization for overtime
assignments. Overtime was authorized for Shoehigh only
during the legislative conference and on March 8. Nesbitt
also gave Shoehigh certain specific assignments. He told
Shoehigh to develop a grassroots lobbying manual, and give
Nesbitt an outline. The current manual needed to be revised
and updated. Nesbitt also told Shoehigh to develop ideas for
a political action manual and for FIREPAC (political action
fundraising). Shoehigh was also to prepare for the legislative
conference, which took priority over the other assignments.
They also discussed ‘‘Capitol Alert,’’ the department’s week-
ly bulletin. Gannon would write on legislative issues, and
Shoehigh would write the political articles and edit the entire
publication. In connection with the conference, Nesbitt as-
signed Shoehigh to do the conference book, entitled ‘‘Politi-
cal Action,’’ line up speakers and make a presentation on
FIREPAC. Nesbitt told Shoehigh to revise Gannon’s writeup
for ‘‘Political Action,’’ because it was too long and should
have addressed issues rather than specific bills. Shoehigh did
this assignment, and Nesbitt edited his work. Shoehigh did
not do original research for ‘‘Political Action.’’ Rather,
Nesbitt gave him documents with which to work. On Feb-
ruary 22 or 23 Nesbitt instructed Shoehigh to send congratu-
latory letters to the new chair and vice chair of the Demo-
cratic National Committee (DNC). Nesbitt regarded this as a
priority matter, because the Employer did not back the new
chair’s election. Shoehigh never carried out this assignment.
About March 1 Nesbitt told Gannon to do some research on
new IRS rules concerning pensions. He assigned Gannon be-
cause she had expertise in this area. Nesbitt subsequently
learned that Shoehigh was doing the research. Nesbitt asked
why. Shoehigh said that Gannon was too busy. Nesbitt said
it wasn’t his responsibility, and he wasn’t doing the work
Nesbitt gave him, specifically the grassroots lobbying and
political action manuals, ideas about FIREPAC, and the let-
ters to the new DNC chair and vice chair. Nesbitt again as-
signed Gannon to do the work. Gannon was on vacation the
week of March 6, engaged in negotiations the following
week, and completed the assignment on March 27, which
took about 90 minutes.
Nesbitt further testified in sum as follows: During the sec-
ond week of February Gannon questioned why only Nesbitt
and Shoehigh were attending the AFL–CIO lobbyists’ meet-
ings. She said they were now more important and she wanted
to attend. Nesbitt reminded her she said she didn’t like going
to the meetings. He saw no reason to change the practice.
Gannon disagreed. With regard to the union logo, Nesbitt
made a notation on a letter dated February 17, prepared by
Gannon for his signature, that the logo should not be placed
on any more letters. Nesbitt questioned whether the logo
should be placed on correspondence to Capitol Hill. Bollon
said there was no policy, but he would ask the joint labor-
management committee to formulate a policy. Thereafter
there was no problem. Nesbitt heard nothing further about
Gannon’s alleged complaints until March 17. On that date
Shaitburger told him that Shoehigh saw Bollon concerning
organization, duties, and management in the governmental
affairs department, although Bollon was not responsible for
such matters. Shaitburger said they had a problem and should
talk with the employees. At about 4:15 p.m. that day
Shaitburger met with Nesbitt, Gannon, and Shoehigh. They
discussed difficulties with the job descriptions, and
Shaitburger mentioned that Gannon had spoken to Bollon
about work taken away from her and dissatisfaction concern-
ing how the department was run. Gannon reiterated her dis-
agreement about the AFL–CIO lobbyists’ meetings, but was
unable to give any other specifics. Nesbitt questioned why
Gannon gave Shoehigh her work if she had nothing to do,
asserting that she was arguing both ways. Gannon did not
answer. Shoehigh said he agreed with Gannon about the lob-
byists’ meetings, and that he took some of her work because
she didn’t have time to do it. They again discussed job re-
sponsibilities, but did not reach any resolution. Shaitburger
said that Nesbitt, Gannon, and Shoehigh should meet on
March 20, which they did (that morning). Nesbitt again
asked Gannon for specific complaints, Gannon mentioned the
AFL–CIO lobbyists’ meetings, and Shoehigh again agreed
with her. Nesbitt went over the job descriptions and made
some small changes. Nesbitt initially testified that Gannon
and Shoehigh did not indicate any other problems. However
he testified that they discussed ‘‘Capitol Alert.’’ Nesbitt told
them that the legislative and political assistants each write
their respective articles, but the political assistant edits the
bulletin. Nesbitt mentioned the assignment on pension rules.
He said the person given an assignment should do it, and if
unable, should come to Nesbitt. Nesbitt said that Shoehigh
did not do assigned work (as described above), and did work
for which he was not qualified. They agreed to work to-
gether. Shoehigh did not say there was an undercurrent of
hostility. However, he said that Nesbitt was frustrated with
Gannon’s absences for union activity. Nesbitt disagreed. He
said the problem was that Gannon would be away without
letting him know where she was, work was not getting done,
and when he looked for her, he would be told that she was
in negotiations or on a grievance or arbitration. Nesbitt found
this frustrating. About March 1 he spoke to Bollon about the
problem. Bollon said he would speak to Gannon. They ar-
ranged for Gannon to give advance notice and request per-
mission to be absent. This arrangement proved satisfactory.
Gannon would enter her commitments on the office calendar.
Nesbitt initially testified that Gannon did not previously
make such entries. However, upon being shown the office
calendar, Nesbitt admitted that Gannon sometimes made en-
tries of her union commitments. The March 20 meeting
lasted from about 10 a.m. to 12:45 p.m. Shoehigh rushed out
of the office, and Nesbitt remained to cover the office. De-
partmental policy required that during during office hours at
least one person should remain to take calls. However
Nesbitt admitted that he did not know what arrangements
had been made among the three staff employees concerning
their lunchbreaks.
Nesbitt further testified in sum as follows: At about 2:30
p.m. on March 20 he met privately with Shoehigh to discuss
his job performance. He said that Shoehigh should have told
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him he spoke to Bollon, because Bollon did not have respon-
sibility for the department. Shoehigh said he did not want to
breach confidentiality. Nesbitt again referred to assignments
not performed by Shoehigh. Nesbitt said that overall he was
not satisfied with Nesbitt’s performance. Shoehigh again
mentioned the AFL–CIO lobbyists’ meetings. Nesbitt said his
decision stood. Shoehigh again mentioned Nesbitt’s alleged
frustration with Gannon’s union activity, and Nesbitt restated
his position. Nesbitt said that Shoehigh was taking too much
time on ‘‘Capitol Alert.’’ When Nesbitt referred to
Shoehigh’s obligation to edit the bulletin, Shoehigh said he
could not tell a peer what to do and would not edit Gannon’s
work, because she did not get to edit his work. Nesbitt said
they were both professionals and their job responsibilities
were clear. When Shoehigh repeated his position, Nesbitt re-
torted that he hired professionals, not monkeys. Nesbitt re-
minded Shoehigh that he had to be flexible on fundraising
events. Nesbitt said that Shoehigh failed to initiate new
ideas, and seemed to be a ‘‘clockwatcher’’ because he left
the office at 4:30, the end of the contractual workday (al-
though Gannon and Derkas also did so), and ran out of the
office at 12:45 p.m., after the staff meeting that day. Nesbitt
did not say that President Whitehead was angry, or make the
remark attributed to him by Shoehigh, and nothing was said
about a hidden agenda or Shoehigh being used as a pawn.
The meeting ended between 3:30 and 4 p.m. That evening
Nesbitt spoke to Shaitburger, who was in Florida with
Whitehead and Bollon. Nesbitt summarized his meeting with
Shoehigh and Gannon, saying they had ‘‘cleared the air’’ and
worked out some misunderstandings. Nesbitt initially testified
that Shaitburger simply said ‘‘Fine,’’ he was pleased that ev-
erything was ironed out, and there was no further discussion.
However, Nesbitt subsequently testified that Shaitburger ‘‘re-
minded’’ him that March 21 was Shoehigh’s 60th day, and
that Nesbitt had to make a recommendation and decision.
Nesbitt did not, in his testimony, explain how Nesbitt, who
was in Florida, happened to know Shoehigh’s 60th day of
employment (actually, as indicated, it was his 57th day), or
why Shaitburger did not also mention Derkas, who began his
employment on the same day as Shoehigh. The next morning
(March 21), at about 9:15 a.m., Nesbitt telephoned Florida
and spoke to Shaitburger. Nesbitt recommended that
Shoehigh be terminated that day. Nesbitt gave a litany of
reasons. He said that Shoehigh did not complete assignments,
did unassigned work, did not keep Nesbitt informed of his
Capitol Hill activities, he did not assume leadership (refer-
ring to ‘‘Capitol Alert’’), did not initiate ideas, and his over-
all work was unsatisfactory. Nesbitt said that Derkas’ per-
formance was satisfactory and recommended he be contin-
ued. Shaitburger said he would talk to Whitehead. About one
hour later Shaitburger called back. He said that Whitehead
concurred in the recommendations, and that Shoehigh should
not be continued past probation. At about 1 p.m. Nesbitt
summoned Shoehigh to his office. Nesbitt said he reviewed
Shoehigh’s performance, and that it was unsatisfactory (as
detailed above). Nesbitt initially testified that he said
Shoehigh ‘‘was being terminated effective today.’’ He subse-
quently testified that he said Shoehigh would not continue
past the 70-day probationary period, and planned to discuss
this, but Shoehigh stormed out of the office. As indicated,
Nesbitt testified that Employer policy provided for a 60-day
review, with 2 weeks’ notice if the employee was not kept
on. However, at another point Nesbitt testified that he was
not sure how Secretary-Treasurer Bollon handled the 2
weeks. Nesbitt further testified that Shoehigh became angry.
He accused Nesbitt of getting at Gannon through him, said
he would not be used, threatened to use his contacts to de-
stroy the Employer’s reputation, and walked out, saying ‘‘I’ll
see you in court.’’ Shoehigh returned about 2:30 p.m., and
demanded a 2-hour medical leave slip. Nesbitt complied.
Shoehigh also demanded to be given a termination letter
when he returned at 4:30 p.m. Nesbitt agreed, and did so.
Because of Shoehigh’s threats, he made the termination ef-
fective as of that day. Thereafter Nesbitt informed Tom
Derkas that his work was satisfactory, and if this continued
he would become a permanent employee after his 70-day
probationary period. Nesbitt sent a memo to Bollon, rec-
ommending that Derkas’ employment be continued, although
as indicated, the Employer contends that Bollon was not in
the department’s line of supervisory authority.
Nesbitt’s professed dissatisfaction with Shoehigh’s work
performance was a sham. On March 17 Shoehigh accom-
panied Nesbitt to a luncheon meeting with an outside con-
tractor, to discuss fundraising ideas for FIREPAC. Nesbitt
testified that he brought Shoehigh along to ‘‘get him in-
volved in fundraising.’’ In short, as of noontime on March
17, prior to the meeting in Shaitburger’s office, Nesbitt an-
ticipated that Shoehigh would not only stay on, but would
assume increased responsibilities. Throughout the short dura-
tion of Shoehigh’s employment, Nesbitt did in fact give
Shoehigh ever increasing responsibilities. Indeed this was a
principal source of Gannon’s complaints, i.e., that Nesbitt
gave Shoehigh assignments which encroached upon Gan-
non’s area of legislative responsibility. Although Shoehigh
was a new employee and Gannon worked in the department
for over 3 years, Nesbitt assigned Shoehigh to edit ‘‘Capitol
Alert.’’ Gannon was on leave during the week of March 6
and engaged in negotiations the following week. This meant
that Shoehigh was solely responsible for final preparation of
the March 10 and 17 issues, including legislative articles, al-
though Nesbitt insisted (in connection with research on IRS
pension rules), that Shoehigh was not qualified to deal with
such matters. In these circumstances, it bordered on the friv-
olous for Nesbitt to assert (as he did) that Shoehigh took too
long on ‘‘Capitol Alert,’’ and this constituted grounds for
termination. The issues went out on time, and Nesbitt did not
claim otherwise. It is undisputed that during most of
Shoehigh’s employment, preparation for and conduct of the
legislative conference had top priority. It is also undisputed
that at the conclusion of the conference Nesbitt praised all
his staff, including Shoehigh for their work. If Nesbitt was
serious in making an overall ‘‘60 day’’ appraisal of
Shoehigh’s performance, even if on balance it were negative,
then it is probable that Nesbitt would have qualified his ap-
praisals, e.g., by saying ‘‘you did a good job on the legisla-
tive conference, but’’ Nesbitt’s one-sided diatribe against
Shoehigh tends to indicate that Nesbitt was trying to build
a case against Shoehigh rather than make a constructive eval-
uation. Nesbitt’s emphasis on long-term, low priority projects
also indicates that he was grasping at straws. Shoehigh’s
busy schedule during his brief tenure left little time for such
projects. By memo dated December 21 to President White-
head, Nesbitt described the grass roots lobbying and political
action manuals and fundraising plans as ‘‘long term goals’’
427FIRE FIGHTERS
7 The Employer, through Nesbitt’s testimony, also injected another after-the-
fact rationalization for Shoehigh’s discharge. According to Nesbitt, Shoehigh
sent a letter to the Department of Transportation which misstated the Employ-
er’s interpretation of certain legislation. In fact, Cheryl Gannon prepared the
letter, but was never criticized by the Employer for doing so.
which ‘‘will either be accomplished or well under way with-
in the year.’’ Shoehigh’s successor, David Billy, commenced
work in late April. By January 16, 1990, Nesbitt had decided
to combine the two manuals, but the document still was not
complete. Nesbitt testified that he never set deadlines on ei-
ther the manuals or the DNC letters. Moreover, Nesbitt ad-
mitted that Shoehigh was actively engaged in developing
ideas for fundraising and political action. As indicated,
Nesbitt and Shoehigh attended a meeting on March 17 for
the purpose of developing fundraising ideas. On March 9
Nesbitt and Shoehigh attended an AFL–CIO conference on
grassroots lobbying.
Some of Nesbitt’s criticisms were inconsistent and con-
sequently illogical. Nesbitt argued on one hand that Shoehigh
was a clockwatcher who showed no initiative, and on the
other that Shoehigh failed to keep him informed of his Cap-
itol Hill activities. As indicated, Nesbitt admitted that
Shoehigh left the office at the same time as the other depart-
ment employees, i.e. at the end of the contractual workday.
If Shoehigh failed to keep Nesbitt informed of his Capitol
Hill activities, this would indicate that Shoehigh exercised
initiative by attending functions after working hours. Nesbitt
in his testimony did not indicate where he got the idea that
Shoehigh failed to keep him informed of his Capitol Hill ac-
tivities. Nesbitt testified that he did not see Shoehigh’s memo
on overtime until Bollon showed it to him on March 24 or
25 (after Shoehigh’s discharge) and did not examine it until
about April 1. It is undisputed that Shoehigh gave Bollon a
copy of the memo when they met on March 10, and that
Bollon spoke to Whitehead and Shaitburger about the over-
time problem. As indicated, the memo was addressed to
Nesbitt and Bollon. If Nesbitt were credited, it would follow
that the memo played no part in Nesbitt’s alleged perform-
ance evaluation and recommendation to terminate Shoehigh.
Nevertheless the Employer, through Nesbitt’s testimony,
went to great lengths to show that Shoehigh’s memo was un-
justified. The Employer’s effort was unsuccessful. The evi-
dence demonstrated that at most there was misunderstanding
as to when and where Shoehigh was expected to represent
the Employer at afterhours functions. The General Counsel
presented strong evidence that Nesbitt specifically assigned
Shoehigh to attend certain functions for which he was not
given overtime compensation. One such function was a train-
ing session by Legi-Slate on-line services on January 18.
Shoehigh testified that this was a training demonstration
which was scheduled for 2 hours from 4:30 p.m. to 6:30
p.m., that he left the office at 4:15 p.m. to attend the func-
tion, and Nesbitt was informed of these facts. Nesbitt testi-
fied that he understood that Shoehigh would simply stop by
Legi-Slate on his way home to pick up some information,
and if he knew there would be a 2-hour session, he would
have told Shoehigh to attend during the day. The office cal-
endar indicated a ‘‘training/demo’’ for 4:15. Office calendar
entries had to be approved by Nesbitt. A ‘‘training/demo’’
plainly connotes something more than stopping by to pick up
papers. Then Department Secretary Derkas (he quit in Octo-
ber 1989) testified that they discussed the training session at
a weekly calendar meeting of the department staff, and
Nesbitt directed that the session be entered on the calendar.
Derkas further testified that Nesbitt assigned Shoehigh to at-
tend several of the functions listed in Shoehigh’s memo. I
credit Shoehigh and Derkas. Moreover, it is immaterial for
the purpose of Shoehigh’s case, whether Shoehigh was in
fact entitled to overtime compensation for the events in ques-
tion. The 1986–1988 contract provided for overtime com-
pensation, and the provisions were carried over into the Em-
ployer’s self-implemented ‘‘contract.’’ Shoehigh did not even
demand specific overtime compensation. Rather, he simply
asked for an understanding and policy for determining his
compensation rights. By his memo, Shoehigh invoked an ar-
guable, good-faith contract right, whether that right was
based on the 1986–1988 contract, which remained in effect
by operation of law, or the Employer’s December 27 ‘‘con-
tract.’’ Therefore, Shoehigh engaged in protected union and
concerted activity under the Act. NLRB v. City Disposal Sys-
tems, 465 U.S. 822 (1984); see also Pennsylvania Electric
Co., 289 NLRB 1200, 1211–1212 (1988). I do not credit
Nesbitt’s assertion that he did not know about the memo
until after Shoehigh’s discharge. As indicated, the memo was
addressed to Nesbitt, and Bollon, Whitehead, and Shaitburger
all knew about the memo. Even if Shoehigh did not person-
ally hand the memo to Nesbitt, it is unlikely that Bollon,
Whitehead, and Shaitburger would all have failed to mention
it to Nesbitt. As previously discussed, some of Nesbitt’s criti-
cisms are incomprehensible, unless he was referring to the
memo. I find that when Nesbitt accused Shoehigh of being
a clockwatcher and failing to keep him informed of
Shoehigh’s Capitol Hill activities, he was referring to
Shoehigh’s action in presenting the memo.7
However, this is not the end of the inquiry. In order to re-
solve other issues in connection with Shoehigh’s termination,
it is necessary to consider the testimony of other Employer
officials, including those involved in the events leading to
the termination. Bollon testified in sum as follows: In mid-
February Gannon came to see him. She was distraught. She
felt her duties were being transferred to other employees. She
mentioned the AFL–CIO lobbyists’ meetings and also men-
tioned the union logo. Gannon added that Nesbitt was harder
on female employees, and mentioned an incident involving
Michelle Dove. Bollon, who was familiar with the incident,
disagreed. Gannon said she was getting less responsibility.
She said she spoke to Shaitburger, but he wasn’t helping her.
She asked Bollon to look into it, and he agreed to do so.
Bollon spoke to Shaitburger about the logo, and about find-
ing another job for Gannon. Shaitburger said he had already
looked elsewhere. Bollon recommended that the Labor-Man-
agement Committee develop a policy on the logo. Bollon did
not make any followup on these matters. In March Shoehigh
requested to meet with him, and they did on March 10.
Shoehigh said that Gannon recommended their meeting.
Shoehigh discussed the union logo, the AFL–CIO lobbyists’
meetings, and Shoehigh reviewing Gannon’s work. Shoehigh
also presented his memo on overtime, which occupied most
of their discussion. Bollon said he was already dealing with
the logo matter, and was looking into the AFL–CIO lobby-
ists’ meetings. Bollon marked those events to which
Shoehigh said he was assigned after office hours, and said
he would check on it. He did not say that Shoehigh acted
improperly by talking to him about overtime. That same day
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bollon spoke to Whitehead about the overtime matter. With-
in a week Bollon ‘‘probably’’ also spoke to Shaitburger
about the overtime matter. On March 20 Bollon was in Fort
Lauderdale, Florida, with Whitehead and Shaitburger. He
overheard part of a conversation about Shoehigh’s 60-day
evaluation. Bollon returned to his office about noon on
March 21. Gannon said she thought she and Shoehigh would
be terminated. Bollon said he would check. Two days later
Bollon told her that Shoehigh was not terminated for the rea-
sons she believed. Bollon did not make the remarks attrib-
uted to him by Gannon. He was not involved in the decision
to terminate Shoehigh.
Executive Assistant Shaitburger testified in sum as fol-
lows: In January or February Gannon spoke to him about de-
partment assignments. She was concerned that she was doing
more writing, her duties were more rigid, and she was spend-
ing less time on Capitol Hill. Shaitburger initially testified
that he did not recall Gannon saying that her job was being
phased out, but subsequently testified that in December Gan-
non did express such concern. On March 10 President White-
head asked him if he knew that Shoehigh saw Bollon, and
whether Shaitburger authorized overtime for Shoehigh.
Shaitburger answered no to both questions (only Whitehead
or Bollon could authorize overtime). Whitehead told
Shaitburger to find out the situation from Bollon. Whitehead
also referred to work assignments. Whitehead was not upset,
but he was concerned about the overtime. On March 13
Shaitburger talked to Bollon, who said that Shoehigh dis-
cussed his overtime request, and also expressed concern
about Nesbitt’s manner of assigning work and directing the
department. Shoehigh said that Gannon should have gone to
the AFL–CIO lobbyists’ meetings, and Nesbitt should have
permitted the union logo on correspondence. Bollon showed
him Shoehigh’s overtime memo. Shaitburger said he was
concerned because all of these matters should have come to
his attention first. Shaitburger initially testified that Bollon
did not mention that Gannon saw him, and that he learned
this later. However, Shaitburger subsequently admitted that
he learned in February that Gannon spoke to Bollon about
the AFL–CIO lobbyists’ meetings and the union logo. As in-
dicated, Bollon also testified that he spoke to Bollon in Feb-
ruary about his conversation with Gannon. In light of
Shaitburger’s admission, it is evident that until March 13,
Shaitburger showed no concern about deviations from the
chain of command.
Shaitburger initially testified that he did not recall meeting
alone with Shoehigh. However, he subsequently admitted
that he did meet alone with Shoehigh on March 17.
Shaitburger further testified in sum as follows: He asked why
Shoehigh saw Bollon. Shoehigh outlined the problems con-
cerning distribution of work and assignment to the lobbyists’
meetings. Shaitburger said he wanted to meet with the de-
partment. He indicated that Shoehigh should not have gone
to Bollon, but he did not make the alleged remark about
Shoehigh getting off on the wrong foot. Shaitburger informed
Nesbitt of the meeting, and at 4 p.m. Shaitburger met with
the department. He expressed concern that Shoehigh went to
Bollon over matters of work assignment or whether the job
was done right. Shoehigh should have come to Shaitburger,
although Bollon was authorized to deal with contractual
grievances. Shaitburger asked the employees about their con-
cerns. Shoehigh explained that Nesbitt did not correctly as-
sign work, and referred to the lobbyists’ meetings.
Shaitburger said he understood Gannon didn’t like those
meetings. Gannon said she agreed with Shoehigh that the
work was not assigned correctly, and she was not happy with
changes in her job. Nesbitt disagreed with the employees.
They did not discuss Shoehigh’s overtime claim. Shaitburger
told them to meet on Monday (March 20). Shaitburger told
President Shoehigh about the meeting. That evening
Shaitburger telephoned Nesbitt at home. He emphasized the
importance of another meeting to get the matter cleared up.
He said he was not happy about a professional disregarding
the chain of command. He asked: ‘‘Isn’t Bill’s probationary
evaluation due?’’ Nesbitt answered that it was due on Tues-
day (March 21). Shaitburger told Nesbitt not to let it slide.
(As indicated, Nesbitt testified that Shaitburger reminded him
on March 20 that Shoehigh’s evaluation was due.) Nesbitt
did not at this or any previous time indicate that he was dis-
satisfied with Shoehigh’s work.
Shaitburger further testified in sum as follows: On the
morning of March 20 he left for Fort Lauderdale with White-
head and Bollon. That afternoon he called Nesbitt, who said
he met with the employees and was now meeting with
Shoehigh. Shaitburger called back about an hour later.
Nesbitt said the morning meeting did not go well. Nothing
was resolved and the employees’ positions were unchanged.
Shaitburger said he hoped it would work out. Nesbitt then
said that he met individually with Shoehigh for a 60-day
evaluation. Nesbitt reported he told Shoehigh he was not
pleased with Shoehigh’s activities, that he did not keep
Nesbitt informed of his whereabouts and activities (referring
specifically to events in the overtime memo, that he took on
work not assigned, and did not complete assigned work.
(Shaitburger thereby contradicted Nesbitt’s assertion that he
was unaware of the memo.) Nesbitt said he would sleep on
it, but was inclined to recommend against keeping Shoehigh
beyond his probationary period. Shaitburger said he would
check with Whitehead. That evening Shaitburger reported his
conversation to Whitehead and Bollon. Whitehead said: ‘‘Do
whatever you have to do.’’ On March 21 at about 8:30 a.m.,
Shaitburger telephoned Nesbitt and asked his decision.
Nesbitt said he would not continue Shoehigh beyond the pro-
bationary period. Shaitburger told Nesbitt he had such au-
thority from President Whitehead, and he should inform
Shoehigh he would get 2 weeks’ severance pay and a letter
of recommendation. Shaitburger and his colleagues returned
to Washington, arriving at the Employer’s office about 1
p.m. Nesbitt reported Shoehigh’s outburst (as described by
Nesbitt in his testimony). Shaitburger told Nesbitt to take
care of the necessary paperwork and send a memo to Presi-
dent Whitehead informing him of his actions.
President Whitehead testified in sum as follows: About
March 10 Bollon asked him who authorized the disputed
overtime for Shoehigh. Whitehead said he didn’t know,
would check with Shaitburger and would pay the overtime
if authorized by Nesbitt (although only Whitehead and
Bollon had authority to approve overtime). Whitehead
checked and learned that Nesbitt did not authorize the over-
time. They did not discuss any other matters concerning
Shoehigh. On March 20, when Whitehead, Bollon, and
Shaitburger were in Fort Lauderdale, Shaitburger told White-
head they had a problem with Shoehigh, that he was ‘‘not
cutting the mustard.’’ Shaitburger said something about
429FIRE FIGHTERS
Shoehigh doing unauthorized assignments and not getting
back to Nesbitt ‘‘on some other issues.’’ Whitehead said if
so, they should get rid of him. However, they should check
with Attorney Reyna, write it up properly, and give Shoehigh
2 weeks’ severance pay if necessary. He said if Nesbitt
agreed, ‘‘it’s a done deal.’’
The versions of Shaitburger and Whitehead concerning
Shoehigh’s discharge, present some problems. As indicated,
Nesbitt testified that he made the decision to terminate
Shoehigh, subject to executive approval. Shaitburger, in his
narrative also testified that Nesbitt made the decision. How-
ever, when Shaitburger initially testified as an adverse wit-
ness for the General Counsel, he testified that he made the
decision to terminate Shoehigh, based on Nesbitt’s rec-
ommendation. Whitehead testified that he made the decision,
based on Shaitburger’s recommendation, and if Nesbitt
agreed, it was a done deal. By memo dated March 22 to
Whitehead, Nesbitt stated: ‘‘Based on the authority given to
me by you, I have decided not to continue Bill Shoehigh’s
employment past the probationary period.’’ However, none
of the witnesses testified that Nesbitt and Whitehead commu-
nicated with each other concerning the decision. Rather, ac-
cording to the Employer witnesses, Nesbitt communicated
with Shaitburger. If Whitehead gave direct authorization to
Nesbitt, this must have occurred on March 17, the last day
that Whitehead was in the office prior to Shoehigh’s termi-
nation. As indicated, Nesbitt and Shaitburger testified in sum
that by telephone on the morning of March 21, Nesbitt rec-
ommended and Shaitburger authorized Shoehigh’s termi-
nation. Nesbitt testified that this occurred in telephone con-
versations at about 9:15 and 10:15 a.m. Whitehead testified
that he authorized Shoehigh’s termination on March 20.
Shaitburger’s records indicate that he did not make any long
distance calls to the office on March 21, although he made
two calls on the afternoon of March 20. Shaitburger testified
that he, Whitehead and Bollon checked out of their hotel be-
tween 8:30 and 8:45 a.m., and thereafter were on their way
back to Washington. It is evident that Nesbitt and
Shaitburger testified falsely, that Whitehead authorized
Shoehigh’s termination prior to March 21, and that if Nesbitt
made any recommendation at all, that recommendation was
made prior to March 21.
Before resolving the reason or reasons for Shoehigh’s ter-
mination, it is necessary to consider one other matter, name-
ly, the Employer’s alleged 60-day review policy. The Em-
ployer went to great lengths, presenting testimony by an
array of officials and supervisors to show the existence of
such a policy. In fact, the testimony demonstrated that no
such policy existed before Shoehigh’s discharge, or was con-
sistently followed afterwards, and if a review policy existed,
it was not followed in Shoehigh’s case. Whitehead, Bollon,
and Shaitburger testified in sum that Whitehead initiated a
60-day review policy after Whitehead became president in
September 1988. However, the Employer’s department direc-
tor witnesses (other than Nesbitt) who would be responsible
for implementing such a policy, failed to corroborate their
testimony. Randall Hudgins became director of research in
December 1988. Hudgins testified that Assistant to the Presi-
dent David McCormack told him about the 70-day probation-
ary period, but Hudgins did not learn about a 60-day evalua-
tion until some time later (which he could not identify).
Hudgins hired secretary Crystal Fry in late December or
early January. He kept her on without ever submitting a writ-
ten evaluation. In early February Hudgins hired Dan Barr as
a research assistant. Hudgins testified that he attended a staff
meeting in early May at which President Whitehead dis-
cussed the probationary period and required 60-day written
evaluations, and Hudgins prepared a written evaluation of
Barr about 2 weeks later, recommending that he be contin-
ued. (There was in fact a department managers’ meeting in
early May.) In light of Hudgins’ testimony, it is evident that
Hudgins was not told about the alleged 60-day evaluation
procedure until the staff meeting in early May, and the al-
leged Barr evaluation was backdated to May 4 in order to
support the Employer’s case. Dwight Horkheimer became
manager of the education department on November 28, 1988.
He also reports to McCormick. Horkheimer initially testified
that McCormack told him about the 70-day probationary pe-
riod, without indicating that anything was said about a 60-
day evaluation. In response to a leading question from Em-
ployer counsel, Horkheimer testified that McCormack men-
tioned the 60-day period. However, Horkheimer also testified
that McCormack instructed him to counsel new employees
and discuss their performance on a weekly basis. Horkheimer
testified that he hired an employee in July 1989 and termi-
nated her at about her 50th working day because of unsatis-
factory performance. Horkheimer testified that he counseled
her on a daily basis. Horkheimer also testified that the proba-
tionary period was discussed at the May managers’ meeting.
Hudgins testified that in December 1989 he counseled, and
in January 1990 terminated a probationary employee for ab-
senteeism and tardiness, after 40 days of employment. In
light of the testimony of Horkheimer and Hudgins, it is evi-
dent that unsatisfactory probationary employees could be ter-
minated at anytime during their probationary period. It is
also evident that the Employer expected its department man-
agers to regularly counsel new employees, particularly if
their performance was unsatisfactory. In Shoehigh’s case,
there was no criticism of his performance, but only praise,
until shortly before his termination, after he indicated his
support for Cheryl Gannon. Richard Duffy has been director
of the department of occupational health and safety since
1985. Duffy, an evasive witness, initially testified that proba-
tion was discussed at a meeting at which attendance was also
discussed, i.e., the managers’ meeting in early May. Duffy
then testified that probation was discussed many times, be-
ginning in September 1988. Duffy testified that he was in-
structed to counsel employees who were not performing sat-
isfactorily, and if the problem persisted, to notify Duffy’s su-
periors. Again, no such practice was followed in Shoehigh’s
case. Duffy testified at one point that he was told to submit
written memoranda, and at another, that he was not in-
structed concerning paperwork. The Employer failed to
present any evidence that any probationary employee was
given a 60-day evaluation prior to Shoehigh. Tom Derkas
testified that when he began he was not told anything about
the probationary period. As indicated, Shoehigh testified that
he was told only that there was a 70-day probationary period.
I credit their testimony. I find that there was in fact no such
thing as a 60-day evaluation, that the Employer’s department
heads (other than Nesbitt) were not even told about such a
procedure until early May, after Shoehigh’s discharge, and
that the ostensible 60-day review was simply a device to get
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rid of Shoehigh when it became apparent that Shoehigh
would not abandon his support for Gannon.
I am not persuaded that the Employer was engaged in a
scheme to phase out Gannon’s job. I credit the testimony of
Nesbitt and Shaitburger that prior to January 1989, Gannon
indicated a lack of interest in attending the AFL–CIO lobby-
ists’ meetings. It is undisputed that prior to December either
Shaitburger or Shoehigh’s predecessor, Udell, attended the
meetings. As the meetings fell within the category of legisla-
tive activity, it is unlikely that Gannon would have tolerated
this situation without protest, unless she was not interested
in attending the meetings. It is also unlikely that Shaitburger
would remember an incident which occurred nearly 4 years
earlier, unless the incident posed a continuing problem or
was mentioned by Gannon to Nesbitt. Gannon became inter-
ested in the meetings only when it became apparent that they
would play a more significant role in the department’s pro-
gram. Gannon never complained that Shoehigh was taking
her place with respect to legislative matters on Capitol Hill,
which was her principal work and the work she enjoyed
most. Gannon did complain that Nesbitt was taking her place
in contacts with Capitol Hill. However, Nesbitt was new to
the department, and as Shaitburger pointed out to Gannon, as
department head it was important for him to learn the work,
in this case, by establishing his own relationship with and
presence on the Hill. Nesbitt did assign Shoehigh to edit
Gannon’s written work. However, Shaitburger evidently re-
garded Gannon’s writing style as too detailed and technical,
and felt that Shoehigh, with his political savvy, could be
helpful in this regard. Moreover, Gannon was often absent on
union business, whereas Shoehigh had no comparable limita-
tions on the time he could devote to his job. Gannon had
ample work. She could have requested a transfer to another
department. However, she did not.
This does not mean that Gannon lacked reason to com-
plain about the manner in which Nesbitt assigned department
work. Gannon had for some time worked virtually alone in
the department. Now, with Nesbitt and Shoehigh actively at
work and taking on increased duties, she felt that her status
was being downgraded. Department work assignments were
a term and condition of employment for both Gannon and
Shoehigh. Gannon discussed her concerns with Shoehigh,
and convinced Shoehigh that Nesbitt was using him as a
‘‘pawn’’ to undermine Gannon’s position in reprisal for her
union activity. Thereafter Gannon and Shoehigh, acting in
concert and participation with each other, presented their
complaints to Bollon, Shaitburger, and Nesbitt. By discussing
Gannon’s complaints and presenting them to management,
Gannon and Shoehigh engaged in activity protected by Sec-
tion 7 of the Act. Fair Mercantile Co., 271 NLRB 1159,
1162 (1984), enfd. 767 F.2d 930(T) (8th Cir. 1985); Pacific
Coast International Meat Co., 248 NLRB 1376, 1380 (1980);
C.J. Krehbiel Co., 227 NLRB 383, 385 (1976), enfd. 593
F.2d 262 (6th Cir. 1979); Dreis & Krump Mfg., 221 NLRB
309 (1975), enfd. 544 F.2d 320, 327–328 (7th Cir. 1976);
NLRB v. Jasper Seating Co., 857 F.2d 419 (7th Cir. 1988).
As these cases indicate, protected concerted activity may in-
volve as few as two employees, and it is immaterial whether
their position is correct or their actions reasonable or wise.
I credit the testimony of Gannon and Shoehigh concerning
their meetings and conversations with Bollon, Shaitburger
and Nesbitt. I specifically find that Nesbitt warned Shoehigh
that he was putting himself in jeopardy by defending Gan-
non, and that Bollon told Gannon that the reason given by
the Employer for terminating Shoehigh, i.e., work perform-
ance, was bullshit. I further find, as discussed, that Nesbitt
accused Shoehigh of being a clockwatcher and failing to
keep Nesbitt informed of Shoehigh’s Capitol Hill activities,
because he indicated that he wanted overtime compensation.
The testimony of the Employer officials involved in the
events leading to Shoehigh’s discharge (Whitehead, Bollon,
Shaitburger, and Nesbitt), was demonstrably incredible. They
falsely testified about the alleged 60-day evaluation policy
and the timing of the decision to terminate Shoehigh, and
Nesbitt testified falsely concerning his alleged dissatisfaction
with Shoehigh’s performance. Whitehead, Shaitburger, and
Nesbitt contradicted each other as to who made the decision
to terminate Shoehigh. As indicated, the testimony of
Shaitburger, who played a key role in the Employer’s version
of the events, was replete with contradictions as to material
matters. (For example, Shaitburger testified at one point that
Gannon told him she did not want to attend the AFL–CIO
lobbyists’ meetings, at another point that she did not so indi-
cate, and at a third, that she wanted to attend when issues
of interest to her were discussed, e.g., family leave.) Gannon
and Shoehigh in their testimony, tended to exaggerate the ex-
tent to which work was shifted from Gannon, and they con-
tradicted each other on minor points in the sequence of
events. However, these failings pale into insignificance when
compared with the testimony of the Employer officials.
Bollon told Gannon that the Employer gave a false reason
for terminating Shoehigh, because Bollon knew the reason
was false. When President Whitehead learned that Shoehigh
was speaking out in defense of Gannon’s position that
Nesbitt was undermining or phasing out her job, he in-
structed Nesbitt (probably on March 17) that if Shoehigh per-
sisted in pleading Gannon’s case, Nesbitt should use the os-
tensible 60-day evaluation as a pretext to discharge
Shoehigh. Whitehead and Nesbitt were also upset because
they expected to get the benefit of Shoehigh’s Capitol Hill
connections at no extra cost to the Employer. Nesbitt warned
Shoehigh that he was putting his job in jeopardy. When
Shoehigh adhered to his support for Gannon and assertion
that he was entitled to overtime compensation, Nesbitt car-
ried out Whitehead’s instruction and discharged Shoehigh.
Shoehigh’s alleged disregard of the chain of command in
going to Bollon, was a sham. Bollon frequently involved
himself in personnel matters. He never told Gannon or
Shoehigh that they were wrong in going to see him. Indeed
Bollon asked to speak to Shoehigh. Whitehead was angered
at the substance of Shoehigh’s grievances, rather than the
fact that he addressed them to Bollon. Shoehigh was not in-
subordinate, nor does the Employer claim he was, or that he
was discharged for insubordination. Shoehigh presented his
views and those of Gannon, but did not refuse to carry out
any work assignment. The Employer discharged Shoehigh
because of his protected concerted activity in discussing
Gannon’s grievances with her and vocally joining with and
supporting Gannon in presenting their views to management.
The Employer thereby violated Section 8(a)(1) of the Act.
The Employer also discharged Shoehigh in part because he
asserted that there should be an arrangement under which he
could receive overtime compensation for attending afterhours
functions. The Employer thereby violated Section 8(a)(1) and
431FIRE FIGHTERS
8 On the basis of the timing of Shoehigh’s discharge, and the statements
made by Nesbitt and Bollon, demonstrating hostility towards Shoehigh’s pro-
tected activities and a virtual admission that Shoehigh was discharged because
of those activities (even without considering other evidence), the General
Counsel presented a prima facie case that the Employer discharged Shoehigh
because of his protected union and concerted activity. As the Employer’s posi-
tion that it terminated Shoehigh for poor work performance is not credible,
it follows that the Employer failed to meet its burden of establishing that it
would have discharged Shoehigh in the absence of such activity.
(3) of the Act. As Shoehigh was invoking an arguable, good-
faith contract right, it is immaterial that he did not discuss
his grievance with Gannon before talking to management.
NLRB v. City Disposal Systems, supra.8 I further find that the
Employer, by Nesbitt on March 20, violated Section 8(a)(1)
by threatening him with loss of employment or other reprisal
if he continued to support Gannon. As I indicated at the
hearing, Shoehigh’s work, principally that of a lobbyist (ei-
ther directly or indirectly), involved exercise of the Employ-
er’s First Amendment right to petition the Government for a
redress of grievances. I agree with the General Counsel that
this would not preclude the Board from finding that his dis-
charge was unlawful, or from directing the usual remedies of
reinstatement and backpay. Associated Press v. NLRB, 301
U.S. 103, 130–133 (1937); Passaic Daily News v. NLRB, 736
F.2d 1543, 1556 (D.C. Cir. 1984), on remand 276 NLRB
605 (1985).
F. The Gannon Warning
The complaint in Case 5–CA–20466 alleges that on or
about May 10, the Employer by Nesbitt violated Section
8(a)(1) and (3) by issuing a verbal warning to Cheryl Gan-
non because of her union and concerted activities, and to dis-
courage employees from engaging in such activities.
As indicated, employees signed in on a daily attendance
sheet as they reported to work, indicating time of arrival. In
May 1989 feelings were running high on both sides. The re-
sumed negotiations had foundered, and the parties were en-
gaged in correspondence in an effort to find some way to ac-
commodate their differences. Both sides were making propa-
ganda pronouncements. In April the Union, led by President
Haines, distributed literature, accusing the Employer of un-
fair labor practices, at the Employer’s annual Congressional
Fire Service Caucus dinner (attended by President Bush and
other dignitaries).
Cheryl Gannon testified in sum as follows: On May 10,
Department Director Nesbitt told her she had been signing in
late in the morning, the contract said the employees had to
be at work at 9 a.m., and she should be sure to sign in before
that time. Gannon said she would. The daily attendance
sheets indicate that Gannon signed in at 8:49 a.m. on May
10, but signed in late on 3 of the 7 previous workdays in
May (at 9:12, 9:06, and 9:13 a.m., respectively). On these
occasions, and even when she signed in on time, Gannon
was among the last employees to sign the sheet. Gannon fur-
ther testified in sum as follows: About 1 week later, Nesbitt
told her she was late two additional times. (The daily attend-
ance sheets indicate that Gannon signed in before 9 a.m. on
all workdays from May 10 through 19, although Tom Derkas
signed in late three times and David Billy, Shoehigh’s suc-
cessor, signed in late twice during this period.) Gannon said
the accusation wasn’t true, and Nesbitt should look at the at-
tendance sheets. Nesbitt said that one day she got to her desk
at 9:02, and previously was seen talking to Alan Beer in the
cafeteria, and on another occasion she got to her desk 1 or
2 minutes late. Gannon said she never heard of such a pol-
icy. Nesbitt said she had to be at her desk at 9 a.m., that
President Whitehead told all the directors ‘‘to enforce the
contract to the letter of the law.’’ Gannon explained that she
had a longstanding arrangement with Shaitburger (Nesbitt’s
predecessor) which allowed her some flexibility in arriving
late and leaving early from work, because of her work on
Capitol Hill. Nesbitt said he had no knowledge of the ar-
rangement, that Gannon had to be at work at 9 a.m. and
there would be no makeup time (although the implemented
‘‘contract’’ provided for makeup time for tardiness up to
9:15 a.m.). Gannon said she was being singled out, and that
other employees were not at work at 9 a.m. Nesbitt asked
who, and Gannon mentioned Derkas. Nesbitt asked if Gan-
non wanted him to reprimand Derkas. Gannon said she did
not, and would have to file a grievance. Nesbitt said if this
happened again, Gannon would be written up. Gannon did
not file a grievance, she was not written up, and Nesbitt did
not speak to her again about her attendance.
Nesbitt testified in sum as follows: On May 3 or 4 he at-
tended a department managers’ meeting (this was the same
meeting at which the probationary period was discussed).
The main topic of discussion was attendance. Whitehead and
Bollon said that employees were signing and coming in late,
they must be at their desks at 9 a.m., and the directors
should make sure they were ready for work at 9 a.m. The
employees could make up time if they came in before 9:15
a.m. No names of employees were mentioned. On Monday,
May 8, Nesbitt told Gannon she was late three times, includ-
ing that day (Gannon signed in at 9:13 a.m. that day).
Nesbitt knew Gannon was late because he saw she was not
at her desk at 9 a.m. Nesbitt said that the provision for
makeup time did not excuse tardiness. Employees could
make up time if not more than 15 minutes late, if there were
extenuating circumstances. Gannon said she would come to
work on time. However, Nesbitt saw that she was late on
two more occasions, on or about May 18 and 19 (although
this was not reflected on the daily attendance sheets). Nesbitt
went by his pen watch. He told Gannon she was 5 to 10
minutes late. He said he saw Gannon and Alan Beer coming
from the cafeteria at 9:03 or 9:04 a.m. Gannon said the clock
on the office wall showed 9 a.m. Nesbitt said that was not
the official time, ‘‘the official time is at the desk,’’ and Gan-
non was persistently late. Gannon then referred to her special
arrangement with Shaitburger. Nesbitt was not aware of the
arrangement, and said so. He said the contract clearly re-
quired all employees to be at work at 9 a.m. Gannon said
that Derkas was late, and asked why Nesbitt didn’t talk to
him. Nesbitt said if Gannon was accusing Derkas of being
late, Nesbitt would bring him in and Gannon could confront
him. Gannon said she was not, but might file a grievance.
Nesbitt said that was her prerogative, but he had counseled
Gannon twice, and if she was late again, he would write her
up. Nesbitt did not dock Gannon’s pay or require her to
make up the lost time. Thereafter Gannon was not late.
Nesbitt counseled Derkas for tardiness during the week of
May 22, and counseled David Billy twice in early June. At
a managers’ meeting in June, the Employer reiterated that
employees must be at their desks by 9 a.m.
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
President Whitehead, Secretary-Treasurer Bollon,
Shaitburger, and Department Directors Hudgins and Duffy
testified concerning the managers’ meetings at which tardi-
ness was discussed. They testified in sum as follows: White-
head observed a constant problem, in that employees were
signing in late or were not at their desks at 9 a.m. He dis-
cussed the problem at the May managers’ meeting. White-
head said he wanted the personnel at their desks at 9 a.m.,
the employees should be so informed, and counseled for tar-
diness, and that progressive discipline should be applied in
cases of continued tardiness. Nothing was said about excep-
tions to this policy. No names were mentioned at this meet-
ing. Thereafter some supervisors continued to have problems
with employee tardiness. Shaitburger named three employees
whom he counseled for tardiness. Director of Research
Hudgins testified that in December 1989 he counseled, and
in January 1990 discharged an employee for tardiness and
absenteeism. Bollon had continuing tardiness problems with
two employees in his jurisdiction. He and his administrative
assistant, Glenn Berger, counseled the employees. At the
June managers’ meeting Bollon informed Whitehead of the
problem employees. Gannon’s name was not mentioned.
Shaitburger testified that under his arrangement with Gannon,
when he was department director, she could come in late if
she worked beyond 4:30 p.m. the previous day.
The Employer witnesses’ testimony concerning counseling
of employees other than Gannon was undisputed. Derkas did
not deny that he was counseled, and the General Counsel did
not present testimony by other employees who were alleg-
edly counseled. However, Alan Beer testified that about 2
days after Gannon was reprimanded, Director Duffy told the
occupational health and safety staff (Beer, Vita, and Harry
Smith) that higher management said employees had to be at
their desks promptly at 9 a.m. Beer commented that, ‘‘I
guess they’re looking for excuses to get me,’’ whereupon
Duffy responded, ‘‘Yeah, you and Cheryl.’’ Duffy testified
that following the department managers’ meeting he spoke to
his staff, telling them they had to be at work at 9 a.m., al-
though the department did not have an attendance problem.
Duffy denied Beer’s testimony concerning the alleged ref-
erences to Beer and Gannon. I credit Beer. As indicated, I
have problems with the quality of Duffy’s testimony, which
was marked by evasiveness and contradictions. I have no
comparable reservations with respect to Beer’s testimony. If
the complaint alleged that Duffy made an unlawful threat, I
would be inclined to find a violation. However, the com-
plaint does not so allege. Rather the complaint alleges that
on or about May 10, Nesbitt unlawfully issued a verbal
warning to Gannon.
In order to establish a violation, the General Counsel must
show that the Employer either: (1) discriminatorily instituted
a tougher attendance policy, and pursuant to such policy
issued a verbal warning to Gannon, or (2) regardless of the
Employer’s general policy, the Employer singled out Gan-
non, discriminatorily, for an attendance warning, because of
her union activities. I am not persuaded that either was the
case. The Employer did have a tardiness problem among its
staff, and Gannon was part of the problem. Gannon was late
several times without justification in early May. Gannon did
not claim that she was working beyond 4:30 p.m. during this
period. As discussed in connection with Shoehigh’s dis-
charge, Gannon claimed she was not getting enough work.
I credit Shaitburger’s testimony concerning his arrangement
with Gannon. It is unlikely that Shaitburger would simply
give Gannon carte blanche to come in late for work. Rather,
it is probable, as testified by Shaitburger, that he permitted
Gannon to come in late following days on which she worked
beyond 4:30 p.m., usually by reason of her Capitol Hill com-
mitments. The evidence further indicates that following the
May managers’ meeting the Employer vigorously sought to
achieve prompt attendance by all its staff. Pursuant to that
policy, the Employer counseled and disciplined employees to
the extent necessary to improve attendance, including termi-
nation of an employee with a poor attendance record. Gan-
non reported to work on time, and thereafter nothing more
was said to her about the matter. Indeed the Employer was
lenient toward her attendance. Gannon had used up her sick
leave. Nevertheless, the Employer tolerated her absences in
June and July 1989, by reason of a medical problem. This
was not the action of an Employer who was seeking a pre-
text to get rid of an unwanted employee. It is axiomatic that
working time is for work. However, Gannon again displayed
her tendency to see an Employer conspiracy lurking behind
every tree and bush. I find on the basis of Director Duffy’s
remark to Alan Beer, that the General Counsel presented
prima facie evidence that Gannon was discriminatorily
warned about her attendance, although Duffy probably en-
gaged in sarcastic humor. However, I find that the Employer
carried its burden of establishing that it would have warned
Gannon in the absence of her union activity. I find in the cir-
cumstances that Duffy’s remark did not reflect the Employ-
er’s policy, and that pursuant to a nondiscriminatory policy
the Employer warned Gannon about her attendance. There-
fore, I am recommending that this allegation of the complaint
be dismissed.
G. The Notice of Resolution
It is undisputed that on or about May 16 the Employer
posted on the employee bulletin board a notice of resolution
passed by its executive board, which stated as follows:
The Executive Board Unanimously Moves To Condemn
The Tactics Undertaken By Local 2 OPEIU In Their
Relations With The International Association Of Fire
Fighters Including Letters To The International Vice
Presidents, And Also To Condemn Personal Attacks On
The President Of The International And His Family;
And The Executive Board Considers These Attacks To
Be Industrial Terrorism And An Attack On The Integ-
rity And Effectiveness And Very Existence Of The
IAFF As An Organization;
The Board Therefore Unanimously Directs The Prin-
cipal Officers To Take Whatever Measures Necessary
To Bring Those Actions To A Conclusion, Up To And
Including Discharge Of Responsible Employees And
The Closure Of The IAFF Office, Until The Matter Is
Resolved.
The complaint alleges that the Employer thereby violated
Section 8(a)(1) of the Act. After hearing and considering evi-
dence presented by the parties, and offers of proof of still
more evidence, I granted summary judgment in favor of the
General Counsel, stating as follows:
433FIRE FIGHTERS
9 Under New Horizons, interest on and after January 1, 1987, is computed
at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S.C. § 6621.
JUDGE ROTH: The allegations of paragraph five and
eight of the complaint in Case 5–CA–20466 have been
sustained by the evidence and an appropriate remedial
order will be entered in my decision.
The posted resolution on its face threatens employees
with discharge, office closure or other retaliation be-
cause of protected employee union and concerted activ-
ity.
At the very least, the resolution is ambiguous in this
regard and it is settled law that such ambiguity must be
construed against the employer who promulgated the
document, and employees reading this notice could rea-
sonably believe that the employer was threatening such
retaliation against union tactics which would include le-
gitimate collective bargaining, and also would encom-
pass legitimate union propaganda and permissible prop-
aganda.
I note further, I note in this regard that President
Whitehead has testified that this literature consists of or
does include personal attacks upon him.
I further note that the employer has failed to come
forward with any probative evidence of union mis-
conduct or unprotected conduct, although this finding is
not necessary to the resolution of the merits of this alle-
gation.
I adhere to that ruling. See Universal Fuels, 298 NLRB 254
(1990).
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 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. All office employees employed by the Employer, in-
cluding those employees who are normally assigned to work
less than five (5) full days each week; excluding those em-
ployees whose work is of a supervisory nature as defined by
the NLRB, and the secretary to the president and the sec-
retary to the secretary-treasurer and those employees not cov-
ered by the jurisdiction of the OPEIU, constitute a unit ap-
propriate for the purpose of collective-bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been and is
the exclusive collective-bargaining representative of the Em-
ployer’s employees in the unit described above.
5. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed by Section
7 of the Act, the Employer has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. By discriminatorily discharging William Shoehigh,
thereby discouraging membership in the Union, the Employer
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
7. By unilaterally implementing changes in terms and con-
ditions of employment which were inconsistent with its prior
contract proposals, without affording the Union an oppor-
tunity to bargain concerning such changes, the Employer has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Employer has committed violations
of Section 8(a)(1), (3), and (5) of the Act, I shall recommend
that it be required to cease and desist therefrom, to post ap-
propriate notices, and to take certain affirmative action de-
signed to effectuate the policies of the Act. The Employer
engaged in serious and substantial violations of three sections
of the Act, involving disregard of fundamental employee
rights. The Employer also has a recent history of other unfair
labor practice conduct. In Firefighters, 297 NLRB 865
(1990), the Board found that the Employer violated Section
8(a)(1) by unlawfully encouraging and assisting employees to
form a bargaining association. I find that the Employer’s re-
cent history and conduct as evidenced in this case dem-
onstrates a proclivity to violate the Act and general disregard
of employee rights. Therefore I shall recommend that the
Employer be ordered to cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
I shall further recommend that the Employer be ordered to
rescind its notice of resolution by its executive board. Having
found that the Employer discriminatorily terminated William
Shoehigh, it will be recommended that the Employer be or-
dered to offer him immediate and full reinstatement to his
former job, or if it no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings
and benefits that he may have suffered from the time of his
termination to the date of the Employer’s offer of reinstate-
ment. I shall further recommend that the Employer be or-
dered to expunge from its records any reference to the un-
lawful termination of Shoehigh, to inform Shoehigh in writ-
ing of such expunction, and to inform him that its unlawful
conduct will not be used as a basis for further personnel ac-
tions against him. Backpay shall be computed in accordance
with the formula approved in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).9
The complaint does not allege that the Employer engaged
in overall bad-faith or surface bargaining. However, as dis-
cussed, the Employer by unilaterally changing terms and
conditions of employment which cut across the spectrum of
issues between the parties, and by rigidly adhering to its own
unlawful conduct in the resumed negotiations, effectively
thwarted the conditions for meaningful good-faith bargaining.
Therefore I shall recommend a general bargaining order,
rather than one limited to the specific issues which were the
subject of unilateral changes. I shall further recommend that
the Employer be ordered, if requested by the Union, to re-
store the salaries of the health and safety assistants to a
Grade 9 level, and reimburse Alan Beer, Joe Vita, and any
other employees who have held or presently hold such posi-
tions, for the Employer’s failure to pay them at such level,
including cost-of-living adjustments. I do so with some hesi-
tation, as the effect of this recommendation is to permit the
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
11 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
Union to have its cake and eat it too, i.e., to retain increases
for the other professional assistants while requiring restora-
tion of the former grade level for the OSHA research assist-
ants. However, the Employer created the problem by its own
unlawful conduct, and must bear the cost. I shall further rec-
ommend that the Employer be ordered, if requested by the
Union, to restore the practice of permitting carryover of ac-
cumulated floating holidays and unused compensatory time,
pursuant to the side letters of May 6, 1987. The Employer
shall compensate employees who were required to cash out
accumulated floating holidays or unused compensatory time,
by permitting them to elect either (1) restoration of same if
they repay the amount of such cashout, or (2) compensation
for the difference between the cashout rate and their pay rate
at the time of Employer compliance with the Order herein.
I shall further recommend that the Employer be ordered, if
so requested by the Union, to rescind the Employer’s self-
designated ‘‘contract’’ in its entirety, or any specific provi-
sion or provisions of such ‘‘contract’’ which differs from the
terms and conditions in effect under the 1986–1988 contract.
The Order shall not be construed as requiring the Employer
to cancel any wage increase or benefit without a request
from the Union. See McClatchy Newspapers, 299 NLRB
1045 at 1046 (1990). Reimbursement for health and safety
assistant’s pay, accumulated floating holidays and unused
compensatory time, shall be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970),
with interest as prescribed above. Restoration of pre-Decem-
ber 27, 1988 terms and conditions of employment, pursuant
to the Order herein, shall continue until such terms and con-
ditions are changed in accordance with the law. The Em-
ployer shall be required to preserve and make available to
the Board, or its agents, on request, payroll and other records
to facilitate the computation of backpay and reimbursement
due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, International Association of Fire Fighters,
AFL–CIO–CLC, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because they discuss or concertedly complain about
their supervision, work assignments or other terms and con-
ditions of employment, or claim rights under a collective-bar-
gaining contract, or otherwise engage in union or concerted
activities for the purpose of mutual aid and protection with
respect to wages, hours or other terms and conditions of em-
ployment.
(b) Threatening employees with discharge, office closure,
or other reprisal because they engage in union or other pro-
tected concerted activities.
(c) Failing or refusing to bargain collectively in good faith
with the Union as the exclusive representative of all its em-
ployees in the above-described appropriate unit.
(d) Unilaterally changing terms and conditions of employ-
ment of unit employees without affording the Union ade-
quate and meaningful opportunity to negotiate and bargain
concerning such changes as the representative.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer William Shoehigh immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him, in
the manner set forth in the remedy section of this decision.
(b) Expunge from its files any reference to the termination
of William Shoehigh, and notify him in writing that this has
been done and that evidence of this unlawful discharge will
not be used as as basis for future personnel actions against
him.
(c) Rescind its notice of resolution of its executive board
which it posted on or about May 16, 1989.
(d) On request, bargain collectively with the Union as the
exclusive representative of all employees in the appropriate
unit described above, with regard to rates of pay, hours of
employment, and other terms and conditions of employment
and, if an understanding is reached, embody it in a signed
agreement.
(e) If requested by the Union, restore the salaries of the
health and safety assistants to a Grade 9 level, and reimburse
Alan Beer, Joe Vita, and any other employees who have held
or presently hold such positions, for the Employer’s failure
to pay them at such level, as set forth in the remedy section
of this decision.
(f) If requested by the Union, restore the practice of per-
mitting carryover of accumulated floating holidays and un-
used compensatory time, pursuant to the side letters of May
6, 1987, and compensate employees who were required to
cash out accumulated floating holidays or unused compen-
satory time, as set forth in the remedy section of this deci-
sion.
(g) If requested by the Union rescind its self-designated
‘‘contract,’’ or any specific provision or provisions of such
‘‘contract’’ which differ from the terms and conditions in ef-
fect under the 1986–1988 contract, and maintain such terms
and conditions under the 1986–1988 contract unless and until
changed in accordance with the law.
(h) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay and reimbursement due.
(i) Post at its Washington, D.C. place of business copies
of the attached notice marked ‘‘Appendix.’’11 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 5, after being duly signed by Respondent’s representa-
435FIRE FIGHTERS
tive, shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced or covered by any other material.
(j) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.