Kitsap Tenant Support Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 28, 2015

19-CA-108144 (N.L.R.B. Jul. 28, 2015)

JD(SF)–29–15
Bremerton, WA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO OFFICE
KITSAP TENANT SUPPORT SERVICES, INC.
And Cases 19-CA-108144
19-CA-112388
WASHINGTON FEDERATION OF STATE 19-CA-125239
EMPLOYEES, AMERICAN FEDERATION OF 19-CA-128656
STATE, COUNTY AND MUNICIPAL
EMPLOYEES, COUNCIL 28, AFL-CIO
Richard Fiol, Esq., for the General Counsel.
Gary E. Lofland, Esq. (Meyer, Fluegge & Tenney P.S.),
for the Respondent Employer.
Daniel Hutzenbiler, Esq. (Robblee Detwiler & Black PLLP),
for the Charging Party Union.(at trial and on brief)
Edward Earl Younglove, III, Esq. (Younglove & Coker, PLLC),
for the Charging Party Union.(counsel of record)
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. This case raises issues
pertaining to the principles announced by the Board in Alan Ritchey, Inc., 359 NLRB No. 40
(2012), where the Board held, for the first time, that an employer whose employees are
represented by a union must bargain with the union before imposing discretionary discipline
during the “interim period” between the union’s certification (or recognition) and the parties’
first collective-bargaining contract. Alan Ritchey, as well as numerous other Board decisions,
was subsequently invalidated by the Supreme Court in its decision in NLRB v. Noel Canning,
134 S.Ct. 2550 (2014), on the basis that Board members that were part the required quorum in
those decisions had been unconstitutionally appointed by the President. Thus, Alan Ritchey and
the other cases were not overruled by the Court on the basis that the Board had misinterpreted
the Act, but were rather rendered null and void ab initio on constitutional grounds. This
represents, as far as I am aware, an unprecedented scenario that presents a dilemma for Board
administrative law judges on how to proceed when faced with Alan Ritchey issues, which is
occurring with increasing frequency. Although it is clear that Alan Ritchey—where the Board in
essence rejected (or at least modified) the existing doctrine regarding the collective-bargaining
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obligations of the parties regarding discipline during the “interim period”—is not valid
precedent, should administrative law judges proceed as if Alan Ritchey had never occurred and
mechanically apply prior doctrine on such issues, or has the Board signaled a fundamental shift
in policy that is likely to be reaffirmed and judges should accordingly read the proverbial
“handwriting on the wall?” I believe, for the reasons discussed below, that the prudent course of
action is to infer the latter, and to proceed accordingly.
I presided over this case in Seattle, Washington, on January 13-15, 2015, pursuant to a
consolidated complaint issued by the Regional Director for Region 19, alleging that Kitsap
Tenant Support Services, Inc. (Respondent or KTSS) had violated Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act) by failing to bargain with Washington Federation of State
Employees, American Federation of State, County and Municipal Employees, Council 28, AFL-
CIO (the Union or the Charging Party) with regard to several issues, to wit: (1) the disciplining
of five employees prior to imposing such discipline; (2) assigning bargaining unit work to
nonbargaining unit employees; (3) changing the schedule and duties of a bargaining unit
employee; (4) paying an annual holiday bonus to employees; and (5) failing to provide the
Union with payroll records it requested.
1
Findings of Fact
I. Jurisdiction and Labor Organization Status
Respondent admitted, and I find, that it is a Washington corporation, with an office and
place of business in Bremerton, Washington, engaged in providing residential support services.
During the 12-month period prior to November 26, 2014, as part of its business operations, it
derived over $250,000 in gross revenues, and during the same time period it performed services
worth in excess of $50,000 for the State of Washington, an entity directly engaged in interstate
commerce. Accordingly, I find that at all times material, Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. Additionally, Respondent
admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of
the Act.

1
In its answer to the complaint and its post-hearing brief, Respondent argues that the complaint was not validly
issued inasmuch Regional Director Ronald K. Hooks was appointed by the Board when it lacked a proper quorum.
This issue was disposed of by the Board in Longshoremen ILWU Local 19 (Seattle Tunnels Partners), 361 NLRB
No. 122, sip op. at 1 fn. 1 (2014), where the Board noted that Director Hooks was appointed in December 2011, at
which time the Board had a valid quorum. Accordingly, I reject this argument.
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II. The Alleged Unfair Labor Practices
A. Background Facts2
As briefly described above, Respondent is engaged in providing residential support
services for physically, developmentally, and/or intellectually disabled individuals under contract
with the Department of Social and Health Services (DSHS) for the State of Washington. In
essence, its employees watch over, supervise, transport, and take care of individuals with various
degrees of disabilities in their homes or apartments, although they do not provide medical
services of any type.
3
Respondent has three components or programs, consisting of its
Community Protection Division program (CPD); its Intensive Tenant Support program (ITS);
and its Supported Living Light program (SLL). The CPD component is not part of, or germane
to, the issues involved in the present case, since the employees in that component are in essence
security guards and not part of the bargaining unit. Rather, the issues in the present case revolve
around the employees in the ITS and SLL programs, which the Union has represented since
March 2012, when it was certified as the collective-bargaining representative of a unit composed
of employees in these two programs.
4
Bargaining unit employees who work in the ITS and SLL
programs are referred to as “direct service staff” (DSS). Respondent’s clients who are in the
ITS program are individuals with significant disabilities, and require around the clock care and
supervision by the staff. On the other hand, clients in the SLL program have milder disabilities
and are more independent, requiring less supervision.
5

2 The transcript, while generally accurate, contains a number of errors. The transcript should be corrected in the
following manner: Page 9, line 24, the word “omit” should be “admit;” page 18, line 18, “turning” should be
“charging;” page 189, line 16, “matriculating” should be “speculating;” page 238, line 3, “not” should be “now;”
page 296, lines 5 and 6, “quite” should be “quit;” page 354, line 20, “Laminates” should be “Lemonidis;” page
377, line 3 “response to” should be “Respondent’s;” page 384, line 21, “reactions” should be “your actions;” page
457, line 16, “laborer” should be “Allegra.” There may be others, but these are the most prominent.
3
One of the duties of staffers is to make sure that the clients take their prescribed medications, however.
4
The bargaining unit represented by the Union is as follows:
All full-time and regular part-time employees working for Respondent as Direct Service Staff (DSS) or
Head of Households (HOHs) in Respondent's Intensive Tenant Support Program (ITS) and Direct Service
(DSS) working in Respondent's Supported Living Lite Program (SL Lite Programs), including such
programs in Respondent's d/b/a, Olympic Peninsula Supported Living (OPSL) operations, located in or
about Kitsap County, Port Angeles, and Port Townsend, Washington; excluding employees working in the
Homecare division, Head of Households (HOHs) and Direct Service Staff (DSS) working in the
Community Protection Program (CP Program) because they are guards as defined by the Act, and all other
guards and supervisors as defined by the Act.
5
These background facts are not in dispute, and were summarized by counsel during opening statements (Tr.
13-28). Henceforth, transcript pages will be referred to as “Tr.” followed by the page number(s). General Counsel’s
exhibits will be referred to as “GC Exh.;” Respondent’s exhibits will be referred to as “R. Exh.;” The Charging
Party’s exhibits will be “CP Exh.;” and joint exhibits will be referred to as Jt. Exh.”
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Respondent and the Union have been in collective-bargaining negotiations since 2012,
but have not reached a collective-bargaining agreement as of the present.
6

Alan Frey is Respondent’s program manager, and as such is in charge of Respondent’s
day-to-day operations, including human resources, client intake, scheduling, crisis management,
etc. About the only aspect of Respondent’s operation that Frey is not directly involved in is its
payroll, and the only person above him on the chain of command is Michael Closser,
Respondent’s CEO. (Tr. 35-36.) Frey provided the most testimony during the trial, having been
called as an adverse witness (under Fed.R.Evid. 6(11)(c)) by the General Counsel as well as a
witness by Respondent during the presentation of its case.
B. The Disciplining of Five Employees
The complaint alleges that Respondent disciplined five employees, Allegra Waldron,
Kendrick Castillo, Tiana Taylor, Whitney Rolley, and Leslie Spires without first bargaining with
the Union. Respondent does not dispute that it disciplined those employees, which it admits in
its answer to the complaint, but disputes whether it did so without bargaining with the Union (in
one instance, as discussed below), or disputes whether it has an obligation to bargain with the
Union prior to imposing discipline.
Thus, the evidence shows that on September 16, 2013, Respondent issued Allegra
Waldron a disciplinary letter placing her on unpaid administrative leave (GC Exh. 3). The letter
states, and Frey testified, that the principal or precipitating reason for this discipline was
Waldron’s failure to write client “narratives.”
7
The letter also mentions prior written warnings
for failure to write narratives, as well as a prior problem having to do with a client’s medication.
Frey admitted, however, that this disciplinary action was not mandated, but instead was based on
discretion he exercised in deciding to discipline Waldron. Among the factors he considered in
choosing to exercise this discretion was Waldron’s attitude and response when confronted with
her alleged conduct, as well as prior warnings (Tr. 57; 365-366; R. Exhs. 24; 25). Frey testified
that before issuing Waldron the letter described above, he notified Union Representative Sarah
Clifthorne in person of his intentions to place Waldron on leave. Clifthorne told Frey that she
wanted to meet the following Monday, September 16, to discuss this matter.
8
On Monday,
September 16, the planned meeting between Frey and Clifthorne (or other union representatives)
was canceled, because Waldron had apparently been involved in an accident and was not
available to attend. Frey testified that he then phoned Waldron and informed her of his decision

6
I take judicial notice of the fact that on June 4, 2014, Administrative Law Judge Jay R. Pollack issued a
decision (JD(SF)-22-14) in a case involving eight separate charges, finding, inter alia, that Respondent KTSS had
engaged in bad-faith bargaining in violation of Sec. 8(a)(5) and(1) of the Act by delaying and postponing numerous
bargaining meetings and otherwise engaging in dilatory tactics. He also recommended dismissal of various other
allegations of the complaint. The decision is currently pending before the Board on exceptions.
7
According to Frey, among the duties required of DSS workers is to keep a written log, which they call
“narratives,” in which regular entries are made describing clients’ progress in achieving goals or describing any
problems. Narratives, according to Frey, should be done at minimum once per week, and are required by the
supervising State of Washington Agency, DSHS, which periodically audits the narratives, which could “spell
trouble” for Respondent if not performed (Tr. 271-273; 365-368).
8
Frey and Clifthorne were at the time attending an NLRB hearing before Judge Pollack in the prior cases(s),
and conferred during one of the breaks. Clifthorne confirmed Frey’s testimony in this regard (Tr. 132).
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to place her on leave pending further investigation, and sent Waldron the letter dated September
16, informing her of her being placed on leave of absence (GC Exh. 3). Frey met with union
representatives on or about September 28, and informed them that he had decided to terminate
Waldron. According to Frey, the union representatives asked him to “lay off” rather than
discharge Waldron, who had already apparently filed for unemployment benefits. Frey declined,
stating that it would not be legal to label her termination as a “lay off” in order for Waldron to
collect unemployment. Frey discharged Waldron later that day, September 28 (apparently by
phone), confirmed by letter dated October 1, 2013 (Tr. 57-58, 369-371, 460-464; R. Exh. 23).
I found Frey to be a straightforward and credible witness, and note that his testimony was not
contradicted by any other testimony or documentary evidence. I therefore credit his testimony,
not only with regard to the events surrounding Waldron, but on all other matters he testified to.
Frey additionally testified that in September 2013, he received reports that Kendrick
Castillo, a DSS staffer in the ITS program was sleeping during his shift, conduct which Frey
testified endangers the significantly disabled clients in the ITS program, which need around the
clock supervision. Frey phoned Castillo on September 20. 2013, to inquire about the matter, and
testified that the phone call did “not go well,” with Castillo turning hostile and combative with
Frey. On September 24, 2013, Frey sent Castillo a letter notifying him that he was being placed
on administrative leave, noting prior warnings he had received (Tr. 59-60, 375-376, 486-487; GC
Exh. 33; R. Exh. 26 [same exhibit]). Frey admitted that he did not notify the Union prior to
taking this action (Tr. 60-61). A few days later, Frey decided to discharge Castillo, and notified
him via letter dated September 27, 2013. Prior to sending Castillo the discharge letter, Frey met
with union representatives, who wanted Respondent to place Castillo on “lay off” status rather
than being terminated—apparently so he could collect unemployment—but Respondent declined
(R. Exh.32). As in the case of Waldron—and as discussed below, as in all cases of disciplinary
action at issue in the present case—Frey admitted that he exercised discretion in deciding what
type of discipline to impose (Tr. 60).
On February 28, 2014, Frey had a phone conversation with ITS staffer Tiana Taylor
regarding her missing work and refusing to work weekends, and later on the same day notified
Taylor via letter that he was placing her on administrative leave without pay pending further
investigation. On or about March 11, 2014, Frey terminated Taylor. Frey admitted that he
exercised discretion in deciding to discipline Taylor and that he did not notify or bargain with the
Union prior to imposing discipline (Tr. 61-64, 465-468,; GC Exh. 39).
9
On March 24, 2014, Frey, via email, notified the Union that he had placed ITS staffer
Whitney Rolley on an unpaid leave of absence because she had failed to obtain her food
handler’s health card as well as her tuberculosis (TB) test, as required by State of Washington
regulations in order to be employed in her capacity. Frey testified that he had verbally warned
Rolley a few days before that she had until March 24 to obtain the food handler’s card and TB
test, and that she has failed to comply with that directive. Frey admitted that he exercised
discretion in deciding to discipline Rolley, and that he did not notify the Union of her suspension

9
The second page appears to be missing from GC Exh. 39, the February 28, 2014 memo to Taylor placing her
on administrative leave.
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(via the email) until after he had imposed the discipline, although he did so shortly afterwards.
(Tr. 66-68, 330-336; GC Exh. 44.)
10

In early May 2014, it came to Frey’s attention that ITS staffer Leslie Spires, who works
at a home with a client with significant mental disabilities, had allegedly used a client’s EBT
card to make several separate purchases for her own use.
11
According to Frey, like physical
abuse, such conduct is considered to be “financial exploitation” and is extremely serious, and
must be immediately reported to the Complaint Resolutions Unit (CRU), which is part of the
DSHS of the State of Washington. Spires had apparently been recorded by video surveillance
cameras at a retail store making such purchases. Frey confronted Spires about this conduct
during a meeting with her on May 7, 2014, and at first she stated that she had made these
purchases by mistake, but finally admitted doing so intentionally when confronted with evidence
of repeated purchases. He informed her that he was placing her on immediate leave of absence
pending further investigation. Frey then phoned Union Attorney Andy Lukes about his decision
to suspend Spires, informing him that he had to report this matter to CRU, and according to Frey
Lukes did not object. Frey sent a confirming email to Lukes on the following day (Tr. 68-70, 73-
77, 311-315, 403-405; R. Exhs. 8; 9)
On May 13, 2014, Frey spoke with Lukes on the phone and informed him of his intention
to terminate Spires. On May 14, 2014, by letter, Frey discharged Spires. The May 14 letter
details Spires conduct, including her admission that she had misused the client’s EBT card to
make personal purchases (Tr. 323-324, 404-405; R. Exh. 10). After an investigation, the State of
Washington’s DSHS concluded that Spires had engaged in financial exploitation of a vulnerable
adult, and banned Spires from working with such individuals in the future (R. Exh. 11).
C. The Change of Schedule Regarding Mary Sanders
Mary Sanders has worked as a DSS “caregiver” (her words) at Respondent’s ITS
program for about 7 years.
12
She had always worked the evening shift from 3 to 11 p.m., until
June 2013, when she was switched to the “day” shift from 7 a.m. to 3 p.m. How and why this
switch came about is the subject of a dispute between the parties. According to Sanders,
sometime in June 2013 she went to KTSS’s office to pick up clients’ checks when she was asked
by two women in the office, whom she identified as Mieke (last name unknown) and Kathy
Grice, whether she would like to switch to working the day shift. Sanders said that she would
like to, because she was getting tired of working the evening shift. Sanders added that she did

10
Frey’s March 24 email to the Union advises that he had given Rolley a deadline of Friday, March 28, to
obtain the food handler’s card and TB test or face termination. After her suspension, Frey and the Union exchanged
emails and phone calls, and Rolley finally complied with the ultimatum at the “11th hour,” on March 28, according
to Frey (Tr. 336-338; R. Exhs. 14; 15). Respondent also introduced a copy of Washington’s regulations regarding
food handler cards and TB tests ( R. Exh. 16), and also a copy of the orientation package advising new employees
that they must obtain those in order to work for Respondent (R. Exh. 16).
11
An EDB card is like a debit card issued to disabled individuals by the Government, where food stamp funds,
welfare payments, and other such benefits are deposited.
12
Sanders described her duties as a “caregiver” were to make sure the clients at the home she worked in had
food, took their medicines, were dressed properly, to take them to activities, do their laundry, and make sure they
were safe. (Tr. 148.)
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not, however, want to assume “head of household” (HOH) responsibilities.
13
(Tr. 147-149, 151-
152, 175.)
Frey, on the other hand, testified that Sanders requested to be moved to the day shift, if
such schedule became available, claiming that she was “getting to old” to work the evening shift.
According to Frey, the scheduler informed Sanders that the HOH in her home had quit with little
notice and that the day shift was therefore available (Tr.295-296).
On June 24, Sanders began working on the day shift. About a week later, she
complained to Frey that she was not getting extra pay ($2 per hour) for the additional duties she
was performing, which Sanders believed—or alleged—were the duties of HOHs. These
additional duties, according to Sanders, were ordering medicines (from a pharmacy) and picking
them up, calling doctors to make appointments and transporting clients to such appointments,
shopping for food, and managing household money. Frey testified that he showed Sanders a
copy of Respondent’s manual listing the duties of DSS staffers, which included the duties
Sanders was now complaining about, and explained that other (day shift) DSS staffers perform
such duties on a regular basis. He said Sanders appeared satisfied with his explanation at the
time. About 3 weeks after she started working on the day shift, Respondent appointed Ramon
Tudela as HOH in Sanders’ household, and he took over most of these “additional” duties that
Sanders had been performing (Tr. 159-169, 216-217, 296-297, 300-302). For the reasons
discussed below, I find Frey’s testimony about these events more reliable and credible than
Sanders’.
During cross-examination, Sanders was shown a copy of Respondent’s 2011 “Program
and Personnel Policy and Procedure Manual” (the manual) (GC Exh. 2), which lists the duties
and responsibilities of all DSS staffers (which includes HOHs). This list includes all the duties
that Sanders alleged were the sole responsibility of HOHs.
14
Sanders was adamant these duties
had been changed from those listed in the original manual that was in place when she was first
hired. (Tr. 188-189.) Sanders’ recollection—and thus her credibility—was undermined by the
introduction of Respondent’s prior 2006 manual, signed by Sanders when she was hired, which
listed the exact same duties of DSS staffers as reflected in the 2011 version (R. Exh. 6). I note
that Sanders’ testimony was scattered and often not directly responsive to the questions posed,
and indeed I had to strike portions of her testimony because she often veered significantly from
the topic at hand. While I believe that Sanders did not intentionally mislead, and sincerely
believed that the duties that she inherited when she switched to the day shift were the sole
responsibility of HOHs, the facts show her to be wrong and her testimony thus unreliable.
Sanders, who had always worked in the evening shift, apparently had little if any knowledge of
what duties “regular” DDS workers performed during the day shift. For example, making

13
HOHs are part of the bargaining unit (see fn. 3, above), who are paid $2 per hour more than regular DSS
workers because of additional responsibilities, such as “supervising” (which Frey defined as directing and advising)
other DSS workers and being the liaison or “point of contact” with management. (Tr. 94, 298, 397-398.) At the
time, there was no HOH at Sander’s house, because that person had either been fired or quit.
14
The listed duties are: personnel safety; community resources; health and personal hygiene;
communication/basic literacy; skills; food/nutrition; home management; shopping; money management and
budgeting; behavior and interpersonal relationships; transportation; leisure time; establishing a residence; maintain
records and prepare reports; perform other duties as required by the program administrator or program supervisor.
(GC Exh. 2, p. 10.) There are no separate duties listed for HOHs. (Tr. 298.)
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appointments with and taking clients to doctors is something that only occurs during the day
shift, for the simple reason that doctors’ offices are closed during most of the evening shift, and
the same holds true for ordering medications. Thus, the evidence shows Sanders was not
assigned new duties or duties that were the sole responsibility of HOHs, because the record
shows that other day-shift DDS staffers, besides HOHs, also perform these same duties, as
indicated by Respondent’s manual. Simply put, the duties of all DDS workers (which, again,
includes HOHs), are clearly spelled out in the manual, which trumps the unreliable testimony of
Sanders, an employee who had never worked the dayshift and thus was not the best witness to
testify about what day-shift DDS workers did.
During Sanders’ testimony, the General Counsel asked her about statements that had
allegedly been made to her by Gloria Davenport, an individual not alleged in the complaint (or
admitted by Respondent) as a supervisor or agent of Respondent, regarding Sanders’ allegedly
assuming “HOH duties” in her new shift. I sustained Respondent’s hearsay objection, and the
General Counsel then moved to amend the complaint to allege Davenport as a §2(11) supervisor
or §2(13) agent of Respondent. Since at the time it was not clear whether Davenport’s
supervisory or agency status had been established, I reserved ruling on the motion to amend and
did not allow the testimony, but allowed the General Counsel to make an offer of proof. The
General Counsel made an offer of proof that if Sanders was allowed to testify about this matter,
she would have testified that Davenport had told her that Respondent was “doing away” with the
position of HOH, and that she was there to train her to perform HOH duties (Tr. 156). Under
Section 102.17 of the Board’s Rules and Regulations, judges are allowed wide discretion to
determine whether to allow or deny motions to amend complaints. Among the factors to be
evaluated in making such determination are: (1) whether there was surprise or lack of notice; (2)
whether there was a valid excuse for delay in moving to amend; and (3) whether the matter was
fully litigated. See Rogan Bros. Sanitation, Inc., 362 NLRB No. 61, slip op. at 3 fn. 8 (2015),
and cases cited therein. Applying the above criteria, I do not find it proper, under the
circumstances, to allow the complaint to be amended at the trial stage in order to permit the
General Counsel to “slip in” Davenport’s alleged comments. First, this testimony was a
complete surprise to Respondent, who was never given any notice that Davenport would be
alleged as a supervisor or agent or that her comments would be offered into evidence. On the
other hand, I find it reasonable to infer that this evidence came as no surprise to the General
Counsel, who presumably met or conferred with Sanders before the trial and therefore must have
known in advance about Davenport’s comments to her.
15
Thus, there appears to be no valid or
reasonable justification for not amending the complaint before the trial, or at minimum, for not
notifying Respondent about the General Counsel’s intentions to do so during trial. Finally, this

15
The testimony about Davenport was not accidently or unexpectedly uttered by Sanders, who rather was
specifically asked by the General Counsel about Davenport’s comments. Indeed, the argument that Respondent was
planning all along to “do away” with HOHs appears to be an integral part of the General Counsel’s theory of a
violation, as alleged in par. 6(b) of the complaint, and a recurring theme at that. In that regard I note the General
Counsel had alleged in the prior case before Judge Pollack that such proposal by Respondent (to exclude HOHs
from the bargaining or to eliminate the position) was unlawful, an allegation that Judge Pollack found to have no
merit. The General Counsel argued on the record in the present case, prior to Sanders’ testimony, that such intent
supported its theory that Respondent had planned all along to do away with HOHs and assign their duties to regular
staffers such as Sanders. (Tr. 116-120, 128; GC Exhs. 72; 73.) Since this theory appears to be such prominent part
of the General Counsel’s case, it is therefore the more inexplicable that the allegations regarding Davenport were
omitted from the complaint in the first place.
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issue was not fully litigated—Davenport’s alleged comments were not addressed during the
remainder of the trial, and it is not clear if Davenport would have been available to testify on
such short notice. Indeed, in their post-hearing briefs the General Counsel and the Union treat
Davenport’s alleged comments as if they were an admitted or undisputed fact, and Respondent
does not even mention such proffered testimony in its brief. To permit this amendment under
these circumstances would disregard due process and prejudice Respondent. Accordingly, and
for the above reasons, I deny the General Counsel’s motion to amend the complaint, and reject
the proffered testimony.
16
D. Bargaining Unit Work Performed by Managers and Office Personnel
It is undisputed that in or about June 2013, Respondent had managers and other office or
administrative personnel perform approximately 80 hours’ worth of work normally performed by
bargaining unit workers in the “Supportive Living Light” (SLL) program. This fact was
admitted by Respondent’s counsel (and admitted agent), Gary Lofland, during his opening
statements at the commencement of the trial. In his opening statements, Lofland conceded that
Respondent had assigned the work in question to individuals not in the bargaining unit, as
alleged in paragraph 6(d) of the complaint, but only for a limited time and for exigent reasons.
(Tr. 21-22, 27-28.) The General Counsel did not introduce any evidence in support of this
allegation, which Respondent had denied in its answer to the complaint, during its case-in-chief,
other than the contents of a document (GC Exh. 74), as described below. After the General
Counsel rested, Respondent made a motion to dismiss this allegation of the complaint. (Tr. 238-
239.) I demurred, not certain at the time whether there was sufficient evidence in the record in
support of such allegation. The parties did not address this issue in their post-hearing briefs,
despite my request that they do so. The motion still stands, however, since I demurred my
ruling, so I will now address this issue.
First, I note that statements made by counsel can be deemed to be an admission by their
clients. See, e.g., Packaging Techniques, Inc., 317 NLRB 1252 (1995), citing U.S. v. Blood, 806
F2d 1218, 1221 (4th Cir. 1986). Thus, it appears that Respondent’s counsel did in fact admit the
conduct alleged in paragraph 6(d) of the complaint during opening arguments, as the General
Counsel suggested at the time in his response to the motion to dismiss. (Tr. 243.) It is also
notable, however, that while Lofland admitted during his opening remarks that the above
conduct had taken place, he did not admit that Respondent had failed to notify or bargain with
the Union about this issue. Nothing was said about this. During its case-in-chief, the General
Counsel did not introduce any evidence, through testimony or otherwise, establishing that
Respondent had not bargained with the Union with regard to the bargaining unit work being

16
I note that Frey had earlier admitted that Davenport, a “Household Manager” in charge of training, was a
“supervisor,” although it’s not clear that this would suffice to meet the 2(11) definition, and he further explained her
role (as a trainer) later in the record (Tr. 96; 402-403). Even if I were to permit the amendment of the complaint,
and accept the proffer of proof, however, I would conclude that Davenport’s alleged comments did not reflect the
true facts of Respondent’s position. First, Davenport’s alleged comments about what constituted HOH duties are
directly contradicted by Respondent’s manual, which clearly lists the alleged “HOH duties” as being the
responsibility of all DSS workers. Second, the fact that Respondent hired a new HOH for Sanders’ house 3 weeks
later completely undermines the theory that Sanders’ alleged “new” duties was part of Respondent’s plan to do away
with HOHs.
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performed by others, as alleged in paragraph 6(k) of the complaint.
17
The Union, likewise, did
not introduce any evidence concerning this allegation during the General Counsel’s case-in-
chief. Accordingly, although the conduct alleged in paragraph 6(d) of the complaint was
admitted by counsel, the General Counsel failed during its case-in-chief to establish a crucial and
necessary element of its burden, as alleged in paragraph 6(k)—that Respondent had failed to
notify or bargain with the Union about such conduct.
18
Accordingly, I conclude that the General
Counsel failed in its burden of proof as to this allegation, and grant Respondent’s motion to
dismiss paragraphs 6(d) (and, sub silentio, 6(k) of the complaint, as it applies to par. 6(d)), as
well as paragraphs 8 and 9 of the complaint as they relate to the conduct alleged in paragraphs
6(d) and (k).
19
E. The 2012 Holiday Bonuses
It is undisputed that on or about December 5, 2012, Respondent paid bargaining unit
employees a holiday bonus, as it had done on previous holidays before the Union was certified as
collective-bargaining representative in early 2012. As in prior years, the amount of the 2012
holiday bonus varied according to the employee’s length of service, with more senior employees
receiving larger bonuses than newer employees. Frey testified that it was within Respondent’s
discretion whether to give a bonus, and well as determining the amount of such bonuses. (Tr. 77-
84, 86-94; Jt. Exh. 1; GC Exh. 66.)
Union Representative Sarah Clifthorne, who was the chief negotiator for the Union in
collective bargaining with Respondent, testified that she first heard about the December 2012
bonus from a unit employee sometime in January 2013. At that time, Clifthorne wrote a letter to
Respondent’s counsel (Lofland), inquiring about the 2012 holiday bonus. On or about February
14, 2013, Lofland responded to Clifthorne’s letter, confirming the fact that a bonus had been
given to employees in December 2012.
20
There is no evidence that Respondent notified or
bargained with the Union about the bonus. (Tr. 111-113, 135-136.)

17
The General Counsel called Frey as an adverse witness, and also called Union Representative Clifthorne as a
witness. Neither was asked nor otherwise testified about this matter.
18
In an exchange of emails between Lofland and Union Representative Sarah Clifthorne, introduced during the
General Counsel’s case-in-chief as GC Exh. 74; Tr. 131, which date from June to October 2013, the Union requests
information regarding the work performed by nonbargaining unit individuals earlier in the year, and Lofland’s
response provides information detailing the dates and circumstances regarding such work. While the information
provided by Lofland in this email also constitutes an admission that such work was performed by individuals not in
the bargaining unit, it does not constitute an admission that Respondent did not give notice or bargain with the
Union about such work. While the questions raised by the Union in these emails imply or insinuate the latter, the
General Counsel bears the burden of proof in this matter, and such burden must be met directly by the
preponderance of the evidence, not by implication or insinuation.
19
Frey, later in the proceedings during Respondent’s presentation of its case, confirmed Lofland’s admission
that Respondent had engaged in the conduct alleged, and admitted during cross-examination that Respondent had
indeed failed to notify or bargain with the Union. (Tr. 281-282, 391-392.) This was too late, since such evidence
was never introduced during the General Counsel’s case-in-chief, and therefore I strike such testimony. As Lofland
correctly argued when he made his motion to dismiss, when I demurred my ruling Respondent was placed in the
awkward position of having to refute something that had not been established by the General Counsel during its
case. Accordingly, Respondent was prejudiced, and due process requires that I rule accordingly.
20
Neither Clifthorne’s letter to Lofland, nor Lofland’s response, were introduced in evidence.
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F. The Union’s Request for Information
It is undisputed that on June 5, 2013, the Union sent a letter to Lofland describing its
view about what had occurred during collective-bargaining negotiations between them (GC. Exh.
68). While Respondent generally disputes much of what the letter asserts, it is undisputed that in
the letter the Union request that Respondent provide it with certain information. The request for
information reads as follows:
Given the Employer’s inability to pay for our proposal, the Union requests all KTSS
financial data and/ or records for calendar years 2011, 2012 and 2013 to date This
request includes, but is not limited to, annual audited financial statements, audit reports,
payroll records, annual budgets, profit and loss reports for each month in calendar years
2011, 2012, 2013, records identifying all sources of state funding, including projected
state funding for the second half of 2013 and 2014, if available, as well as all records that
demonstrate the financial solvency of KTSS in 2013 and 2014. [GC Exh. 68, p. 3.
Emphasis added.]
It is likewise undisputed that Respondent refused to provide the above-described
information (which it admits in its answer to the complaint), in essence arguing that it had never
pleaded an inability to pay the proposed wages and benefits, and thus that it was not obligated to
provide the requested financial records. (Tr. 108-110, 138; R. Exh. 1.) The General Counsel
avers that the only portion of the above-described information requested by the Union which is
the subject of the complaint is the request for payroll records, and nothing else.
Discussion and Analysis
I. The Alan Ritchie Issue Regarding five Disciplined Employees
The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) of the Act
by failing to notify and bargain with the Union prior to imposing discipline on employees
Allegra Waldron, Kendrick Castillo, Tiana Taylor, Whitney Rolley, and Leslie Spires. It is
undisputed—indeed admitted by Respondent—that it exercised discretion in deciding whether to
impose discipline and in deciding the type of discipline imposed.
As briefly discussed in the opening paragraph of this decision, whether this conduct by
Respondent violated the Act depends entirely on whether the Board re-affirms the principles it
announced in Alan Ritchey, which was invalidated by the Supreme Court in Noel Canning on
constitutional grounds. Prior to Alan Ritchey, the Board had never held that employers had to
bargain with unions prior to imposing discretionary discipline during the “interim period” after
certification but before a first contract. Indeed, the Board had adopted a decision of an
administrative law judge holding that there was no such pre-imposition duty to bargain over
discretionary discipline during this period. See Fresno Bee, 337 NLRB 1161 (2002). In Alan
Ritchey, the Board rejected the Fresno Bee rationale, explaining that its longstanding doctrine
that employers must bargain with the collective-bargaining representative of its employees prior
to discretionary changes in the status quo regarding terms and conditions of employment, a
mandatory subject of bargaining. The Board explained that even if the employer’s overall
disciplinary policy or process had not changed, the discretionary application of such discipline in
individual cases was fundamentally different from other unilateral changes in terms and
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conditions of employment, which might only require impact bargaining. Employers are thus
obligated to pre-imposition bargaining, the Board stated, in cases were the disciplinary actions
have an inevitable and immediate impact on employees’ tenure, status, or earnings—such as
suspension, demotion or discharge. The Board reasoned that to hold otherwise could undermine
employee support for a newly certified union, who would be seen as impotent in the face of
“business as usual” unilateral conduct by the employer.
The Board further explained how this new doctrine would be practically applied, stating
that although employers would be required to bargain with the union prior to imposing status-
changing discipline, such bargaining would not be required to reach impasse before the employer
could impose the planned discipline. Assuming that the employer complied with its pre-
imposition bargaining obligation and then proceeded to impose discipline, it was still obligated
to continue post-imposition bargaining to resolution or impasse. Moreover, the Board explained
that there could be exceptions to such pre-imposition bargaining obligation, such as in exigent
circumstances where immediate discipline was necessary.
21
Finally, the Board held that because
precedent was not clear on this issue (or in the case of post Fresno Bee conduct, permitted by
existing doctrine), it would only apply the pre-imposition bargaining obligation prospectively,
considering the significant potential financial liability that employers could face.
Although Alan Ritchie is not a valid precedent in light of its invalidation by Noel
Canning, I find its reasoning persuasive, and more importantly, I believe it is reasonable to
assume its principles will be re-affirmed by the Board in the near future. Accordingly, I will
apply its reasoning to the issues in the present case.
22
The evidence clearly shows that with the
possible exception in the case of Waldron, Respondent did not notify or bargain with the Union
prior to imposing status-changing discipline (leave without pay and/or termination) on the
employees in question. Even in the case of Waldron, however, while Frey notified the Union
prior to imposing leave without pay and actually scheduled a bargaining meeting with the Union,
he still went ahead and suspended Waldron, and eventually discharged her, before any meeting
took place. Accordingly, applying the Alan Ritchie reasoning to the instant case, Respondent
violated Section 8(a)(5) and (1) of the Act by suspending and/or terminating employees
Waldron, Castillo, Taylor, and Rolley without first bargaining with the Union. As discussed
below, I conclude Respondent had exigent reasons to discharge Spires without first bargaining
with the Union, and therefore I find no violation with regard to that employee.
Respondent argues that Alan Ritchie is not valid precedent and that in any event it was
wrongly decided, even if its principles are re-affirmed by the Board. Respondent is correct as to
the first argument, but I have already explained my basis for accepting its ruling. As to the
argument that Alan Ritchie was wrongly decided, if the Board re-affirms its principles, as

21
The Board defined “exigent” circumstances as those where the employer has a “reasonable, good-faith belief
that that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s
business or personnel.” Alan Ritchie, supra., slip op. at 9. The Board further clarified that the scope of such exigent
circumstances would be best defined going forward, on a case-by-case basis, but would certainly include instances
where the employer had a good-faith belief that the employee has engaged in unlawful conduct, exposed the
employer to potential legal liability, or was a threat to health, safety, or security.
22
Needless to say, if the Board does not re-affirm Alan Ritchie and instead were to return to the holding it
affirmed sub silentio in Fresno Bee, this conclusion would be moot.
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I suspect it will, then I would be bound by such decision, and it is up to Respondent to take that
issue before the appropriate circuit court. If the Board opts not to re-affirm Alan Ritchie, it will
reverse my findings, and Respondent would prevail on this issue. Given the unprecedented
circumstances raised by Noel Canning, my ruling either way would be a gamble. I have decided
to place the “chips,” so to speak, on the course of action I reasonably suspect the Board will
ultimately adopt.
Respondent also argues that the disciplinary actions against all five employees in
question were for “exigent” reasons, falling within the exception discussed by the Board in Alan
Ritchie, thus exempting Respondent from having to bargain with the Union prior to imposing
discipline. Except for the case of Spires, I disagree with Respondent. With regard to Spires, as
discussed in the facts section, she was caught using the EDB cards without the permission or
consent of the significantly disabled clients she was in charge of care taking (and protecting),
using the cards for her own benefit—conduct which she admitted. Plainly speaking, although
her conduct was labeled “financial exploitation,” this conduct arguably amounts to nothing less
than theft, which is not only unlawful but reprehensible when considering the helplessness of
those she victimized. Spires exposed Respondent to legal and financial liability, and was
ultimately barred by the State of Washington from working in the field. Respondent had to
remove such employee forthwith under the circumstances before she could do further harm,
circumstances that were clearly exigent under the Board’s definition and any reasonable
definition of such term. I therefore conclude that Respondent did not violate the Act when it
failed to bargaining with the Union before suspending and discharging Spires.
23
Under existing
Board doctrine Respondent still has an obligation to bargain with the Union regarding the
disciplining of Spires after such discipline was imposed, but there are no allegations in the
present case that Respondent has refused to do so.
The same exigent circumstances did not exist, in my opinion, with regard to the
disciplinary action taken against the four other employees. With regard to Waldron, Respondent
suspended and shortly thereafter discharged her because of multiple and cumulative reasons, as
testified by Frey (Tr. 57-58), including her refusal to write narratives and her overall “defiant”
attitude in her conversations with Frey. Nothing in those circumstances, however, justified
immediate action without first bargaining with the Union. Even though the State agency, DSHS,
periodically audits narratives, there is no evidence that such audit was eminent or that immediate
removal of Waldron for such reasons was necessary. As discussed earlier, although Frey notified
and actually scheduled a bargaining meeting with the Union prior to placing her on
administrative leave, Frey suspended and then discharged her prior to such meeting ever taking
place. The Alan Ritchie doctrine requires not only notification, but bargaining with the Union

23
The General Counsel argues that other employees in the past who had been accused of client abuse (either
physical or financial) were not disciplined in a similar (harsh) manner, and therefore such discipline was not
“exigent.” The immediate and simple response to such argument is that unlike other incidents in the past, where
employees had only been accused of such conduct—and were eventually cleared—Spires admitted her conduct,
which was caught on video. Moreover, as the Board explained in Alan Ritchie, whether circumstances are exigent
will be defined, going forward, on a case-by-case basis, which suggests that each case stands or falls on its own
merits, regardless of whether similar conduct in the past required “exigent” imposition of discipline at the time.
Thus, the General Counsel’s attempt to use a “disparate treatment” analysis, as in cases where discipline for union or
protected activity is alleged and pretext is an issue, is neither proper under the circumstances nor warranted by the
dicta in Alan Ritchie.
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prior to imposition of discipline.
24
In that regard, I note that in Alan Ritchie the Board explained
that the parties need not bargain to impasse prior to the employer imposing discipline.
Presumably, this means that one bargaining session might suffice for the employer to meet its
obligations under this doctrine, assuming such bargaining is in good faith. The burden would
thus appear to be minimal, under the circumstances.
25
Likewise, I find no exigent circumstances with regard to the discipline of Castillo.
Respondent placed Castillo on (unpaid) administrative leave, and discharged him soon thereafter,
for multiple and cumulative reasons, which included, as with Waldron, his defiant attitude in his
conversations with Frey. One of the reasons for his discipline was that he was falling asleep on
the job during his “graveyard” shift while taking care of significantly disabled clients, something
that apparently had happened on other occasions. The question is not whether his conduct may
have justified serious discipline, however, but whether the circumstances were “exigent,” thus
freeing Respondent from having to notify and bargain with the Union prior to imposing
discipline. I conclude they were not.
The same holds true for the discipline of Taylor and Rolley. Taylor was placed on
unpaid administrative leave and discharged soon thereafter because she has missed work on
several occasions (with little notice) and informed Frey she would not work weekends. Rolley
was placed on unpaid administrative leave because she had failed to obtain her State-required
food handlers’ card and TB testing, after she had been warned that her failure to do so could
result in suspension or termination. Again, at issue before me is not whether the disciplinary
action against Taylor and Rolley was justified, but whether there were exigent circumstances that
permitted Respondent to take disciplinary action against them prior to bargaining with the Union.
I conclude there is nothing in the record that supports a finding that exigent circumstances
existed.
Accordingly, I conclude that Respondent violated Section 8(a)(5) & (1) of the Act by
imposing discipline on Waldron, Castillo, Taylor, and Rolley without first bargaining with the
Union.
Having found that Respondent, pursuant to the doctrine announced in Alan Ritchie, has
violated the Act by failing to notify and bargain with the Union prior to imposing discipline,
I believe it proper to express some concerns regarding issues that this doctrine is likely to raise,

24
The meeting that had been scheduled between Respondent and the Union, which was to take place about 3
days after Frey notified Clifthorne about his intentions with regard to Waldron, was canceled because Waldron
could not attend the meeting. It is not clear which party canceled the meeting, but even assuming that it was the
Union, such cancellation did not provide Respondent with carte blanche or exigent reason to proceed with
discipline. As the Board explained, the purpose of the advance notice is to give the union an opportunity to for a
“meaningful discussion” of the issues, an opportunity that might not exist in the employee in question cannot
participate in the discussion or provide information to the union.
25
Whether one bargaining session might suffice to relieve employers of their pre-imposition bargaining
obligation is one of the issues I believe the Board will have to directly address. The General Counsel has taken an
assertive—some employers might argue aggressive—posture in Alan Ritchie type cases, and it would not be
surprising if it takes the position that one bargaining session will not suffice. As discussed below, there are a
number of other similar issues raised by Alan Ritchie that are certain to rise, which will ultimately need to be
clarified by the Board.
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issues that are beginning to surface in cases already in the “pipeline” to the Board. In an Alan
Ritchie scenario, employers and unions may find themselves in terra incognita in the sense that
unlike under the vast majority of collective-bargaining agreements, employers’ disciplinary
system—at least discipline that involves status change—is essentially paralyzed until the parties
have engaged in some pre-imposition bargaining. Under the vast majority of collective-
bargaining agreements, employers are free to impose even the harshest of discipline—
discharge—without first bargaining with the union, but must usually submit to the grievance-
arbitration procedure after such discipline is imposed, which might ultimately result in
modifying or rescinding such discipline. In Alan Ritchie, the Board expresses its belief that in
many cases, pre-imposition bargaining will lead to quick resolutions and better results.
Regardless of whether such prediction may prove to be accurate or overly optimistic, the silent
underlying assumption appears to be that the parties will be eager—and available—to meet and
bargain in very short order, if not immediately. Such assumption may be true in the case of
employers, who want to see their disciplinary decisions carried out. Unions, on the other hand,
may not be as eager, finding themselves in the unusually advantageous position (as compared to
the typical collective-bargaining agreement) of having the employer’s disciplinary system frozen
in place while bargaining awaits.
26
In the meantime, according to the Board’s policy, employees
who would have been discharged or suspended without pay, even for “good cause,” must be kept
on the payroll in order to maintain the status quo. While this may be a minimal burden for large
employers or those with generous assets, it may not be so for small employers with more limited
means, who may not be able to replace employees as needed. As discussed above in footnote 25,
it is unclear how many bargaining sessions it may take, short of an impasse that is not required,
to satisfy the pre-imposition duty to bargain in good faith, adding to the uncertainty created by
this new policy—a rich breeding ground for litigation.
27
If, as the Board argues, the intent of the
policy is to prevent the specter of impotency from being cast on a newly-certified union, it can be
argued that the same goal may be achieved as effectively, but without the underlying cost and

26
Indeed, the evidence thus far, in this case as well as in others, appears to indicate that both employers and
unions are often not available to meet and bargain is short order, given the unpredictable and unscheduled nature of
discipline, and their busy schedules.
27
This new policy appears to be creating uncertainty regarding the elements of proof, and the corresponding
burdens, necessary to establish a violation or a proper defense. As discussed above in fn. 23, for example, the GC in
this case subpoenaed and sought to introduce voluminous evidence from Respondent regarding past disciplinary
actions, in an attempt to establish that no “exigent” circumstances existed in the present disciplinary actions by
showing disparate treatment in actions past—a theory that I find is not applicable in these circumstances, as
discussed above. Even more significantly, the General Counsel, by arguing in its post-hearing brief that the Alan
Ritchie doctrine and remedies should be applied retroactively--as the General Counsel is doing in numerous other
cases--appears to advocate for a “strict liability” theory of violations in cases involving failure to engage in pre-
imposition bargaining. In other words, if an employer discharges or suspends an employee without first bargaining
with the union, for example, that employee must be re-instated and awarded back pay, regardless of how justified
the discharge may have been in the first place. This argument appears to run afoul of the language in Sec. 10(c),
which explicitly prohibits the Board from issuing any orders requiring the reinstatement of employees suspended or
discharged for “good cause,” or from awarding such employees back pay. Thus, a fundamental question exists as to
whether the Board has the authority to grant such “strict liability” remedy in these circumstances, particularly since
there is no evidence or allegations that these employees were disciplined for engaging in union or protected
activity—which is the exclusive domain of the Board. Accordingly, whether the employees in the present case or in
other similar Alan Ritchie scenarios were disciplined for “good cause” would not appear to be something the Board
arguably has the authority—or expertise—to adjudicate, since it is not the Board’s function to act as a “super
arbitrator” regarding the validity of discipline that does not involve union or protected activity. These types of
issues raise serious questions that will hopefully be soon addressed by the Board.
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uncertainty, by requiring the employer to bargain after the imposition of discipline, with a
required notice about such bargaining being sent to the entire bargaining unit. After all, it cannot
be said that a disciplinary action—by nature recurrent yet unpredictable—taken against a single
employee, or even several employees as in the present case, can have the same “union-
impotency” impact of a unilateral change affecting the entire bargaining unit, such as a change in
the wages, hours, and other unit wide working conditions.
I trust that these questions and issues will be addressed by the Board as it sorts out the
ramifications of Alan Ritchie—if the Board chooses to re-affirm such policy.
II. Respondent’s Failure to Bargain Regarding Mary Sanders’ Schedule and Duties
As discussed in the facts section, I have concluded that Respondent did not assign HOH
duties to Mary Sanders, but found that the additional duties that she had to perform as a day-shift
DSS worker were normally performed by all day-shift workers, including HOHs. Accordingly,
I recommend dismissal of paragraph 6(b) of the complaint.
The complaint also alleges, in paragraph 6(c), that Respondent violated Section 8(a)(5)
and (1) of the Act by failing to bargain with the Union regarding the change of work schedule of
Sanders. For the following reasons, I conclude such allegation lacks merit.
First, the language of paragraph 6(c) of the complaint is explicit in alleging that the
purpose of changing Sanders’ schedule was to have her perform HOH duties, as part of
Respondent’s alleged ploy to get rid of HOHs altogether. As I have discussed in the facts
section, the evidence does not support the General Counsel’s theory, and indeed Respondent
hired a new DSS worker to serve as HOH for Sanders’ house about 3 weeks after she started
working in the day shift. Thus, the theory behind the alleged motivation of Respondent is not
supported by the facts. Nonetheless, the General Counsel appears to argue (both on the record
and in its post-hearing brief) that regardless of motivation, Respondent was obligated to bargain
with the Union about reassigning Sanders from the evening shift to the dayshift. I disagree.
It is well settled that an employer violates Section 8(a)(5) and (1) of the Act when it
makes unilateral decisions or changes during the course of a collective-bargaining relationship
concerning matters that are mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736
(1962). Mandatory subjects of bargaining include those delineated in Section 9(a) as “rates of
pay, wages, hours of employment, or other condition of employment” and in Section 8(d) as
“wages, hours, and other terms and conditions of employment.” Ford Motor Co. v. NLRB, 441
U.S. 488, 496 (1979). An employer’s duty to bargain only arises, however, if the changes are
material, substantial, and significant ones affecting terms and conditions of employment. Palm
Beach Metro Transportation, LCC, 357 NLRB No. 26, slip op. at 4 (2011); Millard Processing
Services, 310 NLRB 421, 425 (1993). There appears to be no clear demarcation line in
determining what constitutes “material, substantial and significant” changes. Rather, the Board
examines whether allowing the unilateral change undermines the union’s status as collective-
bargaining representative or is otherwise destructive of the bargaining process. LM Waste
Service Corp., 360 NLRB No. 105, slip op. at 11 (2014) (and cases cited therein).
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Applying the above tests, I first note that Sanders requested such change, and that the
change was thus voluntary.
28
Secondly, Sanders’ transfer to the day shift did not increase or
decrease the number of hours worked, or the amount that Sanders was paid. Moreover, changing
shifts did not involve any change in the duties assigned to and typically performed by DSS
workers, at least those who work in the day shift. Sanders’ perception of having additional
duties was the result of her lack of familiarity with the duties normally performed by all DSS
dayshift workers, some duties which are sometimes, but not exclusively, performed by HOHs.
I conclude that by granting Sanders’ request to be transferred to working on the day shift,
Respondent did not make a material, substantial, or significant change in the wages, hours, or
working conditions of Sanders, let alone the rest of the bargaining unit, nor made a change that
would reasonably have a tendency to undermine the Union. Plainly speaking, this change was de
minimis, and one that would likely not have been the subject of a charge, or an allegation in the
complaint, but for the misguided belief of the General Counsel and the Union that this minor
change was part of a larger ploy to have regular DSS workers perform work allegedly
“belonging” to HOHs—a theory unsupported by the evidence.
I also note that the cases cited by the General Counsel and the Union are inapposite,
involving more significant and material changes to working conditions that were unrequested,
unwelcome, and detrimental to the bargaining unit and the union. For example, in Carpenters
Local 1031, 321 NLRB 30, 32 (1996), the employer added half an hour to an employees’ shift,
an increase of worktime which was unrequested and unwelcome; in Sheraton Hotel Waterbury,
312 NLRB 304, 307 (1993), the employer changed the work working hours for an entire
department, and eliminated various positions or reduced their hours; in San Antonio Portland
Cement Co., 277 NLRB 338 (1985), the employer changed the job classifications and
substantially reduced the employees’ wages; in Bay State Gas Co., 253 NLRB 538, 539 (1980),
the employer eliminated a bargaining unit position. In Bundy Corp., 292 NLRB 671 (1989), cited
by the Union, the employer added significantly and more complex duties to bargaining unit
employees, duties that had been performed by salaried employees, and were far from their
normal scope of their work.
In sum, in these cases the unilateral changes made by the employer were far more
significant in scope and in their impact, and were all an unwelcome surprise. In Sanders’ case,
she requested the change in shift, and the surprise on her part was due to her lack of
understanding of what day-shift DSS workers routinely did.
In view of the above, I conclude that Respondent did not make a significant or material
change in Sanders’ working conditions, and was not obligated to bargain with the Union with
regard to her transfer to the day shift.

28
As discussed in the facts section, I made the credibility resolution that Sanders had asked for the change.
Even if I were to conclude that Sanders did not ask for the change but was rather asked if she wanted the change of
shifts (as testified by Sanders), it is clear that the change happened voluntarily—Sanders was not ordered or forced
to change her schedule.
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III. The 2012 Holiday Bonus
As discussed in the facts section, on or about December 5, 2012, Respondent granted its
bargaining unit employees a holiday bonus, as it had done in holidays past. Respondent admitted
that it exercised discretion in deciding whether to give the bonus, as well as the amount. The
evidence also shows Respondent did not notify or bargain with the Union regarding the bonus.
The Union first learned about the bonus in January 2013 from an employee, which prompted the
Union to inquire Respondent about it. On or about February 14, 2013, Respondent
acknowledged to the Union that it had indeed granted such bonus in December 2012.
29
It is well settled that employers must negotiate with the collective-bargaining
representative of its employees concerning discretionary changes in wages, hours, or working
conditions, which are mandatory subjects of bargaining. Oneida Knitting Mills, Inc., 205 NLRB
500 (1973). Thus, there can be no question that Respondent was obligated to notify and bargain
with the Union about the December 2012 bonus, even if it had a past practice of giving such
bonuses. Accordingly, I conclude that its failure to do so violated Section 8(a)(5) and (1) of the
Act.
IV. The Union’s Request for Information
It is undisputed that in June 2013 the Union made an information request of Respondent,
requesting information regarding Respondent’s financial status. The General Counsel alleges
that the Union was entitled to and should have been provided with a single item out of the entire
request. It is also undisputed that Respondent refused to provide any of the records requested.
It is notable that the General Counsel did not allege a violation as to Respondent’s refusal
to provide any of the information requested except for payroll records, which helps frame the
issue before me. Presumably, the General Counsel thus agreed with Respondent’s defense for its
refusal to provide all the other items in the information request, which had to do with
Respondent’s financial status. Respondent’s defense, in essence, is that the Union’s information
request was solely based on the erroneous premise that Respondent pleaded an inability to pay
the proposed wages and benefits during collective-bargaining negotiations, and hence the Union
is not entitled to the requested financial data. In refusing to provide even the payroll records,
Respondent avers that the Union’s entire request, as reflected in the Union’s June 5, 2013
information request, is based and premised on Respondent’s inability to pay the Union’s
proposal. This is a reasonable reading of the Union’s letter, which contains the following phrase:
“Given the Employer’s inability to pay for our proposal. . . . .,” and then lists the requested list of
items described in the facts section, which includes payroll records. (GC Exh. 68, p. 3.)

29
Respondent argues that this allegation should be barred by Sec. 10(b) of the Act because the charge alleging
this conduct (Case 19-CA-108144) was not filed until June 26, 2013, more than 6 months after the bonus was
granted. I reject this argument, since the Union did not have actual or constructive notice of the bonus until at least
January 2013, less than 6 months prior to the filing of the charge, when an employee first reported it, or perhaps not
until February 14, 2013, when Responded admitted it. Castle Hill Health Care Center, 355 NLRB No. 196, slip op.
at 36-37 (2010), and cases cited therein. To hold otherwise would permit Respondent to profit from its failure to
notify the Union about the bonus in the first place. I would note that the Union most likely learned in January 2013
about the bonus by sheer accident, since receiving a bonus is not something employees would normally complain
about.
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Nonetheless, the General Counsel argues that in National Extrusion & Mfg. Co., 357 NLRB No.
8, slip op. at 3 (2011), the Board held that even when inability to pay is not at issue, the employer
may still have to provide information that may be of a financial nature, such as data that can
reflect on its competitiveness, and that an information request in that context “is not an all-or-
nothing or nothing proposition.” The General Counsel, in its post-hearing brief, goes on to add:
“. . . [W]hile the instant matter is not an inability to pay case, the Union is entitled to some
financial information; in this case, that which it requested.”
30
The fundamental flaw in this argument is that unlike in National Extrusion, where the
information request was narrowly tailored to request financial data reflecting on the
competiveness of the employer—who had claimed not poverty but an inability to compete—the
Union in this case requested financial information precisely and solely intended to rebut
Respondent’s professed inability to pay—something which the General Counsel concedes
Respondent did not claim. The Union, as reflected in the plain reading of its letter to
Respondent, thus “bet the farm” on its assumption that Respondent had pleaded poverty, an
assumption that the facts do not support. A single item in the Union’s information request
cannot be considered in isolation or divorced from the context in which it was presented to
Respondent, as reflected in the Union’s June 2013 letter. By pleading that Respondent violated
the Act by not providing the Union with “payroll records,” the General Counsel has surgically
removed or cherry-picked a single item from a much larger invalid information request in an
attempt to divorce it from the context in which it was made. I find this to be an improper
contortion of the record and thus overreaching, and National Extrusion to be inapposite under
these circumstances.
Further evidence that the Union’s information request was solely made in the context of
its erroneous assumption that Respondent had pleaded poverty is the fact that its request for
payroll records is not limited to those involving bargaining unit members, but is rather generic—
“payroll records.” The Union is of course entitled to payroll records regarding the bargaining
unit, which are presumably relevant and must be provided upon request. Castle Hill Health Care
Center, supra; Iron Workers Local 207 (Steel Erecting Contractors), 319 NLRB 87, 90 (1995).
The Union, however, did not tailor its request to the bargaining unit, but rather requested all
payroll records, which presumably include those records of employees not in the bargaining unit,
including supervisors and managers. The Union is not presumably entitled to payroll records of
those not in the bargaining unit, absent a showing of relevance, such as where the employer has
pleaded poverty, or at least an inability to compete, which is not the case here. Such showing of
the relevance of these records has not been made. In that regard, I note that the Union made its
information request in June 2013, more than 15 months after it had been certified, and more than
a year into collective-bargaining negotiations. It is thus safe to presume that the Union, by that
time, had long requested and been provided with the payroll records pertaining to the bargaining
unit. If all the Union wanted was an update of bargaining unit payroll records, it could have
easily made such clarification and this matter would likely not be before me. The Union never
made such clarification, of course, because that was not what it was seeking; rather, as the record

30
It is not clear what the General Counsel means by “that which it requested,” since what the Union requested,
as discussed below, was information reflecting on Respondent’s inability to pay, the vast majority of which was not
alleged in the complaint. Thus, this argument, on its face, appears contradictory.
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clearly shows, it was seeking financial records, including all payroll records, because it believed
Respondent had pled poverty.
31
In this context, for the General Counsel to argue that Respondent violated the Act
because of its refusal to provide a single item of a much larger and presumably invalid—or
irrelevant—information request, is unsupported by the facts or the legal theories it advances.
Under the circumstances, I conclude that Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to provide the information requested, as alleged in paragraphs 7 and 8 of the
complaint.
Conclusions of Law
1. Kitsap Tenant Support Services, Inc. (Respondent) is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Washington Federation of State Employees, American Federation of State, County
and Municipal Employees, Council 28, AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all material times, the Union has been, and continues to be, the exclusive
collective-bargaining representative for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act of the employees employed by Respondent in the following unit:
All full-time and regular part-time employees working for Respondent as Direct Service
Staff (DSS) or Head of Households (HOHs) in Respondent's Intensive Tenant Support
Program (ITS) and Direct Service (DSS) working in Respondent's Supported Living Lite
Program (SL Lite Programs), including such programs in Respondent's d/b/a, Olympic
Peninsula Supported Living (OPSL) operations, located in or about Kitsap County, Port
Angeles, and Port Townsend, Washington; excluding employees working in the
Homecare division, Head of Households (HOHs) and Direct Service Staff (DSS) working
in the Community Protection Program (CP Program) because they are guards as defined
by the Act, and all other guards and supervisors as defined by the Act.
4. By failing to provide the Union with notice or an opportunity to bargain concerning
the discretionary disciplinary action taken with regard to employees Allegra Waldron, Kendrick
Castillo, Tiana Taylor, and Whitney Rolley, and by failing to provide the Union with notice or an
opportunity to bargain concerning the granting of the 2012 holiday bonus to bargaining unit
employees, which were mandatory subjects of bargaining, Respondent violated Section 8(a)(5)
and (1) of the Act.

31
In its post-hearing brief, the Union argues that Respondent often made the point, during negotiations and in
communications, that the Union did not understand the nature of Respondent’s operations, and hence was making
unreasonable proposals. Its information request, it argues, was thus in keeping with trying to understand
Respondent’s business and its counterproposals, as prompted by Respondent. The flaw in this argument is that it is
contradicted by the very language of its June 2013 letter, which specifically premises its information request on the
alleged pleading of poverty by Respondent.
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5. The unfair labor practices of Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent did not otherwise violate the Act as alleged in the consolidated complaint.
Remedy
The appropriate remedy for the 8(a)(5) and (1) violations I have found is an order
requiring Respondent to cease and desist from such conduct and take certain affirmative action
consistent with the policies and purposes of the Act.
Specifically, Respondent will be required to bargain with the Union with respect to the
disciplinary action taken with respect to employees Allegra Waldron, Kendrick Castillo, Tiana
Taylor, and Whitney Rolley, and will further be required to bargain with the Union with respect
to the granting of the 2012 holiday bonus to bargaining unit employees. I decline the General
Counsel’s request to recommend any additional remedies (such as reinstatement and/or backpay)
with regard to the disciplined employees, as the Board in its invalidated Alan Ritchey decision
applied its holding only prospectively, for the reasons expressed in that decision. Additionally,
Respondent will be required to post a notice to employees assuring them that it will not violate
their rights in this or any other related matter in the future. Finally, as Respondent communicates
with its employees by email, it shall also be required to distribute the notice to employees in that
manner, as well as any other electronic means it customarily uses to communicate with
employees.
Accordingly, based on the forgoing findings of fact and conclusions of law, and on the
entire record, I issue the following recommended
32
ORDER
Respondent, Kitsap Tenant Support Services, Inc., Bremerton, Washington, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain with Washington Federation of State Employees, American
Federation of State, County and Municipal Employees, Council 28, AFL-CIO regarding the
disciplinary action taken with respect to employees Allegra Waldron, Kendrick Castillo, Tiana
Taylor, and Whitney Rolley.
(b) Failing to bargain with Washington Federation of State Employees, American
Federation of State, County and Municipal Employees, Council 28, AFL-CIO regarding the 2012
holiday bonus granted to bargaining unit employees.

32
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
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(c) Failing to bargain with Washington Federation of State Employees, American
Federation of State, County and Municipal Employees, Council 28, AFL-CIO regarding changes
in the wages, hours, or working conditions of our bargaining unit employees, including taking
disciplinary action, without first notifying the Union and giving it an opportunity to bargain.
(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Bargain with Washington Federation of State Employees, American Federation of
State, County and Municipal Employees, Council 28, AFL-CIO regarding the disciplinary action
taken with respect to employees Allegra Waldron, Kendrick Castillo, Tiana Taylor, and Whitney
Rolley.
(b) Bargain with Washington Federation of State Employees, American Federation of
State, County and Municipal Employees, Council 28, AFL-CIO regarding the 2012 holiday
bonus granted to bargaining unit employees.
(c) Within 14 days after service by the Region, post at all its facility in Bremerton,
Washington, where notices to employees are customarily posted, copies of the attached notice
marked “Appendix.”
33
Copies of the notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since December 5, 2012.
(d) Within 21 days after service by the Region, file with the Regional Director for
Region 19, a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated: Washington, D.C. July 28, 2015

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If this Order is enforced by a judgment of the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
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Ariel L. Sotolongo
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
In recognition of these rights, we hereby notify employees that:
WE WILL NOT refuse to bargain in good faith with Washington Federation of State Employees,
American Federation of State, County and Municipal Employees, Council 28, AFL-CIO (the
Union) regarding the disciplinary action taken with respect to employees Allegra Waldron,
Kendrick Castillo, Tiana Taylor, and Whitney Rolley.
WE WILL NOT refuse to bargain with the Union regarding the granting of the 2012 holiday
bonus to bargaining unit employees.
WE WILL NOT implement any changes in the wages, hours, or working conditions of our
bargaining unit employees, including taking disciplinary action, without first notifying the Union
and giving it an opportunity to bargain.
WE WILL NOT in any like or related matter interfere with, restrain, or coerce you in the
exercise of rights listed above.
WE WILL, upon request, bargain with the Union as the exclusive collective-bargaining
representative of employees in the following appropriate bargaining unit concerning terms and
conditions of employment:
All full-time and regular part-time employees working for us as Direct Service Staff
(DSS) or Head of Households (HOHs) in our Intensive Tenant Support Program (ITS)
and Direct Service (DSS) working in our Supported Living Lite Program (SL Lite
Programs), including such programs in our d/b/a, Olympic Peninsula Supported Living
(OPSL) operations, located in or about Kitsap County, Port Angeles, and Port Townsend,
Washington; excluding employees working in the Homecare division, Head of
Households (HOHs) and Direct Service Staff (DSS) working in the Community
Protection Program (CP Program) because they are guards as defined by the Act, and all
other guards and supervisors as defined by the Act.
WE WILL, before implementing any changes in wages, hours, or other terms and condition of
employment, including taking disciplinary action against employees in the above-described
bargaining unit, notify and, on request, bargain with the Union regarding these changes.
KITSAP TENANT SUPPORT SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
915 2nd Avenue, Federal Building, Room 2948
Seattle, Washington 98174-1078
Hours: 8:15 a.m. to 4:45 p.m.
206-220-6300.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-108144 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 206-220-6284.