Mental Health Services, Northwest

National Labor Relations Board - Board Decisions

Dec 20, 1990

300 N.L.R.B. 926 (N.L.R.B. 1990)

926
300 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 All subsequent dates are in 1988 unless otherwise indicated.
3 The revision pertained to the period of time during which the Respondent
requested that the Union refrain from political activity.
Mental Health Services, Northwest, Inc. and District
1199, WV/KY/OH, National Union of Hospital
and Health Care Employees, AFL–CIO. Case
9–CA–25564
December 20, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 21, 1989, Administrative Law Judge Nor-
man Zankel issued the attached decision. The General
Counsel, the Charging Party, and the Respondent filed
exceptions and supporting briefs. The Charging Party
and the Respondent filed answering briefs.
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 only to the extent consistent with this Deci-
sion and Order.
1. The judge found that a contract proposal made by
the Respondent during negotiations with the Union
concerned a mandatory subject of bargaining and that
the Respondent did not violate Section 8(a)(5) of the
Act by insisting to impasse on its inclusion in the par-
ties’ contract. We do not agree with this conclusion,
for we find that the contract proposal was a nonmanda-
tory subject of bargaining.
The Respondent provides mental health services to
the residents of Hamilton County, Ohio. The Hamilton
County Mental Health Board (County Board) provides
the Respondent with the majority of its operating
funds, which are derived from a special real estate tax
levy on the county’s residents. The County Board is to
consider the next special levy in 1990.
The Union was certified in May 1987 as the collec-
tive-bargaining representative of the Respondent’s em-
ployees in separate units of clerical employees and
professional/nonprofessional employees. The parties
began negotiations for a contract in July 1987 and en-
gaged in approximately 12 bargaining sessions through
May 1988 without reaching agreement.
In December 1987, after approximately six bar-
gaining sessions, Robert Callahan, the Union’s spokes-
man during negotiations, appeared before the County
Board to remind the Board that although the Union
had supported the special tax levies in the past, its sup-
port of the 1990 tax levy could be jeopardized if the
Respondent failed to bargain in good faith.
At the February 13, 19882 bargaining session, the
parties discussed, inter alia, a portion of the Respond-
ent’s proposed management-rights clause which re-
quested the Union ‘‘to cooperate fully with employer
in the exercise of these management rights.’’ This pro-
posal was not new and the Union had previously op-
posed it because the Union could not guarantee its im-
plementation. The Union requested the Respondent to
explain what was required of the Union pursuant to
this clause.
On February 20, the Respondent presented a new
management-rights clause entitled ‘‘Responsibility of
the Parties,’’ part of which is as follows:
The Union recognizes that the Union and all em-
ployees have an obligation to insure the highest
degree of responsibility and service of clients and
others utilizing the . . . (Employer’s) . . . prem-
ises and services. The Union recognizes that nei-
ther it nor the employees will before, during or
after the term of this Agreement interfere with the
ability of the Employer to provide services by any
attempt to restrain, coerce, or otherwise influence
any actual or potential funding source for the . . .
(Employer) . . . or any actual or potential client.
It is also recognized that conducting Union or per-
sonal business during working hours may interfere
with effective operations of the . . . (Employer)
. . . and will not be permitted.
Callahan protested that the Respondent’s proposal,
which prohibited the Union from opposing the Re-
spondent’s funding, was a nonmandatory bargaining
subject and restricted its members’ exercise of their
political rights.
The Respondent explained that this proposal grew
out of its concern over Callahan’s December 1987 ap-
pearance before the County Board suggesting the
Union might withdraw its support for the 1990 mental
health tax levy. The Respondent emphasized that it
needed protection ‘‘against the threat of the Union en-
gaging in any political campaigning against the levy
which was the major source of the [Respondent’s]
funding.’’ Callahan suggested that the Union might
agree to a provision committing the Union to cam-
paign for the tax levy if the Respondent would propose
a fair contract.
The parties exchanged a number of contract pro-
posals at the February 29 negotiating session. The Re-
spondent proposed another revision to its management-
rights clause,3 and the Union countered with its affirm-
ative commitment language. Callahan summarized the
927MENTAL HEALTH SERVICES, NORTHWEST
4 Sheet Metal Workers Local 38 (Elmsford Metal Works), 231 NLRB 699,
700 (1977).
5 Allied Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157, 178 (1971).
6 NLRB v. Salvation Army Day Care Center, 763 F.2d 1, 7 (1st Cir. 1985),
quoting NLRB v. Massachusetts Nurses Assn., 557 F.2d 894, 898 (1st Cir.
1977).
7 The Respondent argues that the disputed provision is similar to a no-strike
clause and that it is, thus, a mandatory subject of bargaining. The Respondent
contends that the disputed provision relates to its ability to continue its oper-
ations and that it needed the protection offered by the provision in light of
the Union’s threat to interfere with the Respondent’s funding, for, without the
funding, the Respondent would go out of business. We do not accept this anal-
ogy. A no-strike clause is a mandatory subject of bargaining because it regu-
lates what the employees can and cannot do at the workplace and thus directly
relates to matters within the employment relationship, i.e., ‘‘regulates the rela-
tions between the employer and the employees.’’ Borg-Warner, supra at 350.
The Respondent’s proposed contract language, to the contrary, seeks to regu-
late nonwork activities, and seeks to regulate employee and union relations
with entities other than the Respondent.
The judge found that the effects of the Union’s success in preventing the
Respondent from obtaining its funding would be similar to the effects of a
successful strike by a union, i.e., the inability of the Respondent to carry on
its operations. However, the potential results of a particular union action do
not determine whether a contract proposal prohibiting that action is mandatory
or permissive. See the discussion of the relevant law in the text, supra. Nor
is it determinative that the Respondent was seeking, in the words of the judge,
‘‘to avert financial disaster.’’ As the Fourth Circuit has stated:
Not all proposals that somehow respond to a problem that is customarily
bargained about may themselves be insisted upon to impasse. Some pro-
posals in response to the problem of strikes are mandatory subjects of
bargaining. In Borg-Warner, however, the Supreme Court held that the
‘‘ballot’’ clause was not. Some proposals to reduce disruptions resulting
from breaches of contract are mandatory subjects of collective bargaining,
e.g., arbitration agreements. Yet . . . it has been consistently held that
performance bonds are not mandatory subjects. It is the particular pro-
posal, not merely the problem to which it is addressed, that must concern
‘‘wages, hours, and other terms and conditions of employment.’’ NLRB
v. Arlington Asphalt Co., 318 F.2d 550, 557 (4th Cir. 1963) (emphasis
added).
Finally, we note that in his decision the judge cited Ford Motor Co. v.
NLRB, 441 U.S. 488 (1979), and found, inter alia, that the Respondent’s pro-
posal satisfied the Ford Motor criterion of relevance to the working environ-
ment. However, as set forth above, we find, contrary to the judge, that the
Respondent’s provision seeks to regulate nonwork activities and is therefore
not germane to the working environment. Accordingly, we conclude that Ford
Motor does not support the judge’s decision.
Union’s position on disputed issues and reaffirmed the
Union’s view that it would not sign a contract which
‘‘restricted the political rights of [Union] members’’
and that the Respondent did not have the right to bar-
gain to impasse over this issue. The Respondent con-
cluded the February 29 meeting by stating that the
Union’s contract proposals made that date were unac-
ceptable.
The Union then initiated a publicity campaign to
gain support for its bargaining position. Callahan asked
the County Board to intervene in its dispute with the
Respondent.
The parties met again on May 16, at which time the
Union presented its final contract proposal, agreeing to
all parts of the Respondent’s ‘‘Responsibility of the
Parties’’ proposal except for the language pertaining to
influencing the Respondent’s funding source. The par-
ties disagreed as to whether the disputed language was
a mandatory or nonmandatory bargaining subject. The
Respondent remained firm in its position that the con-
tract contain a prohibition against political activity,
particularly in light of the Union’s publicity campaign
and its appearance before the County Board.
By letter dated May 26, the Respondent reiterated
that the proposal prohibiting attempts to influence
funding sources was a mandatory subject. The Union’s
June 13 letter reaffirmed its view that the proposal was
nonmandatory. On June 14, based on a petition signed
by employees from both units and on subsequent con-
versations with several supervisors who indicated that
a majority of the staff was unhappy with the Union
and wanted it to be removed, the Respondent withdrew
recognition from the Union in both units. No negotia-
tions have occurred since May 16.
At issue is whether the Respondent breached its bar-
gaining obligation when it insisted to the point of im-
passe that the Union agree to language prohibiting the
Union and employees from interfering with the Re-
spondent’s ability to obtain funding. ‘‘The mutual obli-
gation of employers and unions to bargain in good
faith as defined in Section 8(d) of the Act includes the
requirement that they ‘confer in good faith with respect
to wages, hours, and other terms and conditions of em-
ployment.’’’4 Parties to collective-bargaining negotia-
tions may bargain to impasse over provisions relating
to wages, hours, and other terms and conditions of em-
ployment (i.e., a mandatory subject of bargaining), but
it is unlawful to insist on including in a contract a pro-
vision which does not relate to these matters (i.e., a
permissive subject of bargaining). See NLRB v. Borg-
Warner Corp., 356 U.S. 342, 349 (1958).
We determine the mandatory/permissive character of
a contract proposal by deciding if it is one which will
‘‘settle an aspect of the relationship between the em-
ployer and employees.’’5 As the First Circuit has stat-
ed, ‘‘[T]his means that the subject must bear a ‘direct,
significant relationship to . . . terms or conditions of
employment,’ rather than a ‘remote or incidental rela-
tionship.’’’6
In this case, the Respondent seeks to prevent the
Union and employees from interfering with the Re-
spondent’s ability to provide services to its clients by
engaging in activities which might affect the avail-
ability of the revenues it requires to continue its oper-
ations. The proposal’s prohibition against any attempt
to influence the Respondent’s funding sources seeks to
govern employee activities which might occur outside
the workplace and outside the employment relation-
ship. Furthermore, the Respondent seeks, by its insist-
ence on this issue, to determine the Union’s position
on a political issue. Neither objective is directly related
to the employees’ terms and conditions of employ-
ment. It is our view that the disputed provision does
not fall within the purview of the phrase ‘‘wages,
hours, and other terms and conditions of employment’’
and that it is not a mandatory subject of bargaining.7
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The judge decided to reach and decide the impasse issue in the event that
his decision on the mandatory/nonmandatory nature of the disputed contract
provision was reversed.
9 See Borg-Warner, supra at 349; Laredo Packing Co., 254 NLRB 1, 18–
19 (1981).
2. We further find, in agreement with the judge,8
that the parties were adamant in their respective posi-
tions about the disputed portion of the ‘‘Responsibility
of the Parties’’ clause and this adamant insistence was
a part of the reason a contract was not reached after
May 26. In response to the Union’s request for clari-
fication of the Respondent’s February 13 management-
rights proposal, the Respondent proposed, on February
22, its ‘‘Responsibility of the Parties’’ clause, by
which the Union was to agree not to interfere with the
Respondent’s ability to obtain funding. The Union pro-
tested that this language restricted its members’ polit-
ical rights and that the subject matter of the clause was
a nonmandatory subject of bargaining. The Respondent
in turn emphasized that it needed the protection offered
by this language in light of the Union’s December
1987 appearance before the County Board. On Feb-
ruary 29, the Respondent made a nonsubstantive
change to the disputed clause. The Union suggested
that it might agree to campaign for the special tax levy
if the Respondent would propose a fair contract, but
reasserted that it would not sign a contract containing
the disputed language. When the parties met again on
May 16, the Union presented its ‘‘final’’ contract pro-
posal omitting the disputed language of the Respond-
ent’s ‘‘Responsibility of the Parties’’ proposal. The
parties disagreed as to the mandatory/nonmandatory
nature of the Respondent’s proposal. The Respondent,
however, remained adamant that the contract contain
the disputed language.
The Respondent’s May 26 letter reiterated its posi-
tion that the subject matter of the disputed clause was
a mandatory bargaining subject and that the inclusion
of the disputed clause in a contract was the Respond-
ent’s ‘‘first priority.’’ The Respondent indicated that it
would review whatever subsidiary issues still remained
in dispute at that time if the Union would accept the
Respondent’s previously expressed position on several
issues, chief among them the noninterference clause.
The Union’s June 13 letter referred to the Respond-
ent’s noninterference clause as ‘‘ridiculous’’ and urged
the Respondent to withdraw the proposal. No direct re-
sponse to the Union’s June 13 letter was ever received
by the Union and no negotiations have been held since
May 26. On June 14, the Respondent withdrew rec-
ognition from the Union.
The judge found that the parties maintained rigid po-
sitions regarding the disputed clause. Although the Re-
spondent maintains that its modifications to the clause
showed some movement on this issue, a closer exam-
ination of the changes shows that they merely dealt
with the timeframe in which the disputed clause was
to apply. They were not intended to relieve the Union
of the responsibility which the Respondent wanted it to
assume. Indeed, by proposing merely minor changes,
the Respondent made it clear that it intended to force
the inclusion of its desired language in the contract.
Additionally, the Respondent’s claim that it would re-
view subsidiary issues if the Union would agree to the
disputed language makes its all the more obvious that
the Respondent was insisting that the disputed proposal
be kept in the contract.
The Union also remained firm in its position that the
disputed language would not be included in any con-
tract it signed with the Respondent. The Union contin-
ually maintained that the subject matter of the proposal
was a nonmandatory subject of bargaining. The
Union’s proposal that it would actively support a spe-
cial tax levy in return for a fair contract did not con-
stitute a change in its position rejecting the entire dis-
puted clause. Moreover, Callahan’s appearance before
the County Board to secure the Board’s assistance in
its contract negotiations indicates how strongly the
Union believed in its position on this issue.
We find that the Respondent insisted on including
the nonmandatory provision despite the Union’s con-
tinued rejection of the proposal and that the nonmanda-
tory proposal was one of the subjects preventing agree-
ment on a contract. It is well settled that a party may
not insist to the point of impasse on accepting a pro-
posal on a nonmandatory subject as a condition for
reaching a collective-bargaining agreement. Accord-
ingly, we find that the Respondent violated Section
8(a)(5).9
3. We further conclude that the Respondent violated
Section 8(a)(5) by withdrawing recognition from the
Union as the collective-bargaining representative of
employees in both the clerical unit and the
professional/nonprofessional unit, for the Respondent’s
withdrawal of recognition did not occur in a context
free of unfair labor practices.
In late winter/early spring, employee Gausmann told
O’Bryan, the Respondent’s executive director, that he
and other employees were unhappy with the Union and
asked if there was anything they could do to eliminate
the Union. O’Bryan responded that nothing could be
done until the Union’s certification year had expired.
In late May, Gausmann learned from O’Bryan that the
certification year had ended and told O’Bryan that he
was going to circulate a petition among the employees.
On June 2, Gausmann gave O’Bryan a petition con-
taining the signatures of 23 bargaining unit employees
stating that they no longer wished to be represented by
the Union. Of the 23 signatures on the petition, 19
were from employees in the professional/nonprofes-
sional unit and 4 were from the clerical unit. On June
3, Gausmann orally gave O’Bryan the names of five
929MENTAL HEALTH SERVICES, NORTHWEST
10 Guerdon Industries, 218 NLRB 658, 659 (1975), and cases cited there.
11 Id. at 661.
12 Ibid.
13 Because our finding of a violation is based on the context in which the
withdrawal of recognition occurred, we find it unnecessary to pass on the
issues raised by the employee petition presented to the Respondent.
additional employees who were opposed to the Union.
Three of 12 supervisors told O’Bryan that a majority
of the staff was unhappy with the Union and wanted
it removed. On June 14, the Respondent withdrew rec-
ognition from the Union as the representative of em-
ployees in both bargaining units.
The Respondent claims, based on the above facts,
that it had a good-faith doubt as to the Union’s major-
ity status. The judge found that the Respondent’s claim
was valid as to the clerical unit because all four unit
employees had signed the petition. As to the
professional/nonprofessional unit, however, the judge
found the employee petition was insufficient to estab-
lish a good-faith doubt because it was signed by only
19 of 44 employees, less than a majority of unit em-
ployees.
Unlike the judge, we find that the Respondent was
not privileged to withdraw recognition from the Union
in either unit of employees it represented, for Respond-
ent’s withdrawal of recognition did not occur in a con-
text free of unfair labor practices. An employer may
withdraw recognition from an incumbent union under
certain circumstances.10 However, a withdrawal of rec-
ognition must occur in a context free of unfair labor
practices which are of ‘‘such a character as to either
affect the [u]nion’s status, cause employee disaffection,
or improperly affect the bargaining relationship
itself.’’11 The Respondent’s insistence on the inclusion
of a permissive subject of bargaining as a condition for
a collective-bargaining contract is the type of violation
‘‘which would improperly affect the bargaining rela-
tionship so as to negate the legality of the later with-
drawal of recognition.’’12 Accordingly, we find that
the Respondent violated the Act when it withdrew rec-
ognition from the Union in both units.13
CONCLUSIONS OF LAW
1. The Respondent’s proposal that the Union agree
that neither it nor the bargaining unit employees would
attempt to restrain, coerce, or otherwise influence any
actual or potential funding source for the Respondent
or any actual or potential client is a nonmandatory sub-
ject of bargaining.
2. The Respondent violated Section 8(a)(5) and (1)
of the Act by demanding, as a condition of reaching
a collective-bargaining agreement, that the Union agree
to a contractual provision in a proposed management-
rights clause that prohibited the Union or employees
from any attempts to restrain, coerce, or otherwise in-
fluence any actual or potential funding source for the
Respondent or any actual or potential client.
3. The Respondent violated Section 8(a)(5) and (1)
of the Act by withdrawing recognition from the Union
as the collective-bargaining representative of its em-
ployees in the professional/nonprofessional unit.
4. The Respondent violated Section 8(a)(5) and (1)
of the Act by withdrawing recognition from the Union
as the collective-bargaining representative of its em-
ployees in the clerical unit.
5. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
AMENDED REMEDY
In addition to the remedy recommended by the
judge, we shall order that the Respondent cease and
desist from withdrawing recognition from, and refusing
to bargain with, the Union as the exclusive bargaining
representative of the employees in the clerical unit. We
shall further order the Respondent to recognize and
bargain with the Union, on request, as the representa-
tive of the employees in the clerical unit.
ORDER
The National Labor Relations Board orders that the
Respondent, Mental Health Services, Northwest, Inc.,
Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with District
1199, WV/KY/OH, National Union of Hospital and
Health Care Employees, AFL–CIO, by demanding, as
a condition of reaching a collective-bargaining agree-
ment, that the Union agree to a contractual provision
in a proposed management-rights clause that prohibits
the Union or employees from any attempts to restrain,
coerce, or otherwise influence any actual or potential
funding source for the Respondent or any actual or po-
tential client.
(b) Withdrawing recognition from, and refusing to
bargain collectively with, the above-named Union as
the exclusive bargaining representative of employees in
the following appropriate unit:
All full-time and regular part-time professional
and nonprofessional employees employed at the
Respondent’s mental health facilities at locations
in and around Cincinnati, Ohio, excluding office
clerical employees, management employees,
guards and supervisors as defined in the Act.
(c) Withdrawing recognition from, and refusing to
bargain collectively with, the above-named Union as
the exclusive bargaining representative of employees in
the following appropriate unit:
All office clerical employees, excluding all con-
fidential employees, supervisory employees,
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 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.’’
1 I see a parity of reasoning here with that of Justice Stewart in his concur-
rence in Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964). He found it ‘‘hardly
conceivable that [management] decisions,’’ such as the employer’s ‘‘manner
of financing’’ are so related to ‘‘‘conditions of employment’ that they must
be negotiated with the employees’ bargaining representative.’’ Id. at 223.
Thus, a union clearly could not insist to impasse on a proposal governing an
employer’s sources of financing. By the same token, we are finding here that
an employer may not insist to impasse on a clause broadly prohibiting the
union from expressing its opinion on funding to the sources of the Respond-
ent’s ‘‘financing arrangements.’’
guards and all other employees, professional and
nonprofessional.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
and in good faith with the above-named Union, as the
exclusive bargaining representative of the employees in
the aforementioned appropriate bargaining units, con-
cerning the wages, hours, and other terms and condi-
tions of employment of those employees and, if an un-
derstanding is reached, embody that understanding in
a signed contract.
(b) Post at its Cincinnati, Ohio facilities copies of
the attached notice marked ‘‘Appendix.’’14 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
CHAIRMAN STEPHENS, concurring.
I agree with my colleagues, for the reasons stated in
their opinion, that the Respondent’s withdrawal of rec-
ognition violated Section 8(a)(5) and (1) of the Act
and that the parties had bargained to impasse over the
‘‘Responsibility of the Parties’’ clause. I write sepa-
rately only to make clear the limited ground on which
I concur in the finding that the Respondent violated
Section 8(a)(5) and (1) of the Act by insisting to im-
passe on that clause, which prohibited the Union or the
unit employees from threatening the Respondent’s fi-
nancial resources by taking any actions ‘‘to restrain,
coerce, or otherwise influence any actual or potential
funding source . . . .’’ I find the clause a merely per-
missive subject of bargaining only because of the
breadth of the prohibition.
In my view, some of the kinds of activity covered
by this proposal could be related to workplace interests
and could therefore constitute protected activity which
the Union might waive participating in, just as it can
waive the right to strike. Cf. Sacramento Union v.
NLRB, 889 F.2d 210 (9th Cir. 1989) (holding that em-
ployee letters to employer-newspaper’s advertisers
criticizing the employer were protected by Sec. 7 be-
cause they related to terms and conditions of employ-
ment).
I find it unnecessary, however, in order to decide
this case, to decide whether a clause embodying such
a waiver would be a merely permissive subject of bar-
gaining. This is so because the clause proposed by the
Respondent embraced any actions influencing funding
sources that could interfere with the Respondent’s rev-
enues, i.e., there was no limit on the reasons for such
actions or the form such actions might take. Even in
the Respondent’s May 26 letter referring to ‘‘sub-
sidiary language issues’’ the Respondent still made it
clear that it wanted a contractual prohibition that
would assure against any cutting off of its funding. I
therefore agree that the prohibition ventured beyond
the employer-employee relationship, and for that rea-
son the Respondent’s insistence to impasse violated
Section 8(a)(5) and (1).1
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with
District 1199, WV/KY/OH, National Union of Hospital
and Health Care Employees, AFL–CIO, as the exclu-
sive collective-bargaining representative of the employ-
ees in the below-named appropriate units, by demand-
ing, as a condition of reaching a collective-bargaining
agreement, that the Union agree to a contractual provi-
931MENTAL HEALTH SERVICES, NORTHWEST
1 All dates are in 1988 unless otherwise indicated.
2 The Employer’s unopposed posthearing motion to correct transcript is
granted.
3 The certification actually encompassed ‘‘professional and nonprofessional’’
personnel. For convenience, this unit will be referred to as the ‘‘professional
unit.’’
4 The operative facts are substantially undisputed. My description of facts
in this, sec. III, of the decision, is a composite of contents of documentary
evidence (many of which were offered and received as joint exhibits), undis-
puted testimony, and stipulations. Not all evidence, or argument based on it,
is reported. Omitted matter is deemed irrelevant, superfluous or of no pro-
bative value.
sion in a proposed management-rights clause that pro-
hibits the Union or employees from any attempts to re-
strain, coerce, or otherwise influence any actual or po-
tential funding source for the Employer or any actual
or potential client.
WE WILL NOT withdraw recognition from, or refuse
to bargain with, the above-named Union, as the exclu-
sive collective-bargaining representative of employees
in the following appropriate units:
All full-time and regular part-time professional
and nonprofessional employees employed at our
mental health facilities at locations in and around
Cincinnati, Ohio, excluding office clerical em-
ployees, management employees, guards and su-
pervisors as defined in the Act.
All office clerical employees, excluding all con-
fidential employees, supervisory employees,
guards and all other employees, professional and
nonprofessional.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively and in good faith with the above-named Union
as the exclusive representative of all the employees in
the appropriate units described above with regard to
wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
that understanding in a signed agreement.
MENTAL HEALTH SERVICES, NORTH-
WEST, INC.
Carol L. Shore, Esq., for the General Counsel.
Timothy P. Reilly, Esq. (Taft, Stettinius & Hollister), of Cin-
cinnati, Ohio, for the Employer.
Mr. Robert J. Callahan, Secretary-Treasurer, of Columbus,
Ohio, for the Union.
DECISION
NORMAN ZANKEL, Administrative Law Judge. This case
was tried before me on January 24–25, 1989, at Cincinnati,
Ohio.
The Union filed the charge on July 14, 1988.1 The Re-
gional Director for Region 9 of the National Labor Relations
Board (the Board) issued a complaint against the Employer
on October 24.
The complaint alleges the Employer unlawfully refused to
bargain collectively with the Union, in violation of Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act), in two respects: (1) by insisting, to the point of im-
passe, the Union agree to the inclusion in a collective-bar-
gaining agreement of a nonmandatory subject of bargaining;
and (2) by improperly withdrawing recognition from the
Union as the certified exclusive collective-bargaining agent
of certain of its employees.
The Employer filed a timely answer to the complaint. The
answer admits certain allegations, but denies the Employer
committed either of the alleged unfair labor practices.
All parties were given full opportunity to produce relevant
evidence through witnesses and documents; to examine and
cross-examine witnesses; and to make oral arguments.
Posthearing briefs were received from counsel for the Gen-
eral Counsel and the Employer.2 Based on my observation
of the conduct and demeanor of the witnesses, and the record
as a whole, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Jurisdiction is uncontested. The Employer is a nonprofit
corporation engaged in providing out-patient and professional
care services as a health care institution operating mental
health care facilities in Cincinnati, Ohio.
In the 12-month period immediately preceding complaint
issuance, the Employer’s gross revenues exceeded $1 million
from these operations; and, in the same time period, the Em-
ployer purchased and received products, goods, and materials
exceeding $50,000 in value at its Cincinnati, Ohio facilities.
Such products, goods, and materials came from other enter-
prises in Ohio, each of which, in turn, received them directly
from points outside Ohio.
The Employer admits, the record reflects, and I find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7), and a health care institution
within the meaning of Section 2(14) of the Act.
All parties agree, the record reflects, and I find the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ISSUES
A. Did the Employer insist, to point of impasse, upon the
Union’s agreement to a nonmandatory bargaining subject?
B. Did the Employer unlawfully withdraw recognition
from the Union as exclusive collective-bargaining representa-
tive of certain of its employees?
I shall find the disputed provision is a mandatory bar-
gaining subject; an impasse in bargaining existed; the with-
drawal of recognition relative to the clerical unit was lawful;
but the withdrawal of recognition regarding the professional3
unit constituted an unlawful refusal to bargain.
III. THE ALLEGED UNFAIR LABOR PRACTICES4
A. Background
The Employer has provided outpatient counseling, residen-
tial, and day treatment mental health services since 1973.
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These services have been, and are, provided principally to
residents of Hamilton County, Ohio. The Hamilton County
Community Mental Health Board (County Board), supplies
the Employer with the bulk of its operating funds. Eighty to
85 percent of such funds are supplied by the County Board
under a performance contract between it and the Employer.
The County Board’s funds are derived from a special real
estate tax levy. Such a levy first was passed by the County
Board in 1980 for a 5-year period; was renewed for another
5 years in 1985; and will next appear on the ballot in 1990.
The levy generates $10 to 15 million annually. This levy
constitutes the local revenue source required to match mental
health funds provided by the Federal and state governments
to the County Board for use in Hamilton County.
On May 21, 1987, the Union was certified as the exclusive
collective-bargaining representative of two separate units of
the Employer’s employees. One unit consists of ‘‘all full-
time and regular part-time professional and non-professional
employees . . . excluding office clerical employees, manage-
ment employees, guards and supervisors as defined in the
Act.’’
The second bargaining unit is composed of ‘‘all office
clerical employees, excluding all confidential employees, su-
pervisory employees, guards and all other employees, profes-
sional and non-professional.’’ All parties agree these units
are appropriate for collective bargaining within the meaning
of the Act.
The parties began collective-bargaining negotiations in
July, 1987. Robert Callahan, the Union’s secretary-treasurer,
was the Union’s chief spokesperson throughout the negoti-
ating sessions which were conducted on various dates
through May 16, 1988. The Employer’s chief spokesperson
was Attorney Barbara Donley from the beginning of negotia-
tions until January 22, 1988. On that date, Donley telephoned
Callahan and advised him that the Employer would thereafter
be represented by Attorney William K. Engeman.
In December 1987 Callahan appeared before the County
Board. He reminded that Board that the Union had supported
the county mental health service levies in the past, but that
such political support could be jeopardized by the failure of
the Employer to bargain in good faith.
The parties held approximately 12 bargaining sessions in
1987, but no agreement upon contractual terms had been
reached. A bargaining session had been scheduled for Janu-
ary 25, but was canceled because of inclement weather. That
meeting was rescheduled for February 1.
B. The Bargaining Proposal
1. The facts
In 1988, the parties met together five times for negotia-
tions between February 1 and May 16, as follows:
February 1: The Union presented a written proposal (Jt.
Exhs. 1–16) for economic terms. The proposal was for
wages, health, vacation, holiday, sick leave, and continuing
education benefits. The Union’s proposal contained a con-
tract expiration date of July 1, 1990.
Engeman rejected the economic proposal as being incon-
sistent with the Employer’s bargaining positions previously
taken by his negotiating predecessor.
Callahan reviewed the status of negotiations to that date.
Callahan asked Engeman to present a complete written pro-
posal from the Employer. Callahan agreed to do so.
The parties agreed to change their meeting format from
Monday evening to daytime hours. They arranged the next
bargaining session for Saturday afternoon, February 13.
February 13: Engeman presented a document which con-
tained the Employer’s proposed language for noneconomic
terms of a collective-bargaining agreement (see Jt. Exh. 2).
Those proposals included provisions upon which the parties
previously agreed. Discussion ensued, during which the par-
ties identified specific areas of disagreement and presented
their views regarding them.
No new agreements were reached on any language during
this bargaining session. However, considerable discussion
was held concerning the Employer’s inclusion of the fol-
lowing sentence in its proposed management-rights clause:
The Union undertakes for itself, its representatives,
agents and members to cooperate fully with employer
in the exercise of these management rights.
The quoted sentence had been included in earlier employer
proposals. Callahan said he had already opposed inclusion of
that language because he could not guarantee its implementa-
tion. Callahan asked Engeman to explain exactly what it was
that the Employer wanted the Union to do to demonstrate the
cooperation called for by this aspect of the Employer’s pro-
posal.
Apparently, Engeman did not explicitly respond during
this meeting. Instead, Engeman testified that Callahan’s ques-
tion
sort of laid the redicate [sic] for the proposal we [the
Employer] put on the table on . . . (February 22) . . .
which was a revision of . . . [the management-rights
proposal and] . . . the subject of . . . [the instant] . . .
proceeding’’ (Tr. vol. II, p. 11).
The parties agreed to meet again on February 22.
February 22: This session opened with the Employer’s de-
livery of (a) an alternative economic proposal (Jt. Exh. 3);
(b) revised dues-checkoff and no-strike/lockout clauses (Jt.
Exh. 14); and (c) another management-rights proposal under
the new title ‘‘Responsibility of the Parties’’ (Jt. Exh. 16).
The Employer’s executive director, John O’Bryan, made a
detailed presentation of the alternative economic proposal
which contained a new concept calling for the establishment
of a joint management/staff subcommittee to study to eco-
nomic issues and report economic recommendations to the
Employer’s and Union’s bargaining committees. The Union
rejected the concept of the separate subcommittee and asked
the Employer to present an explicit offer on compensation
and other economic benefits.
The Employer’s revised management-rights proposal en-
gendered considerable discussion. As indicated above, for-
merly, that provision had been entitled ‘‘Management
Rights’’ (see Jt. Exh. 2, p. 6). Because Callahan had asked
Engeman to explain what the Employer required by way of
its proposal (see February 13 meeting, above), which re-
quired the Union to agree to cooperate in implementation of
management rights, Engeman changed the title of the man-
agement-rights proposal to ‘‘Responsibility of the Parties.’’
933MENTAL HEALTH SERVICES, NORTHWEST
Other changes were made in the Employer’s management-
rights clause. Specifically, the disputed language which re-
quired union cooperation had been deleted. A new proposed
paragraph was substituted. The new proposal reads:
The Union recognizes that the Union and all employees
have an obligation to insure the highest degree of re-
sponsibility and service for clients and others utilizing
the . . . [Employer’s] . . . premises and services. The
Union recognizes that neither it nor the employees will
before, during or after the term of this Agreement inter-
fere with the ability of the Employer to provide services
by any attempt to restrain, coerce, or otherwise influ-
ence any actual or potential funding source for the . . .
[Employer] . . . or any actual or potential client. It is
also recognized that conducting Union or personal busi-
ness during working hours may interfere with effective
operations of the . . . [Employer] . . . and will not be
permitted.
Callahan protested, in relevant part, that the new language
which prohibited the Union from opposing the Employer’s
funding was a nonmandatory bargaining subject. He also said
the Union had no intention of agreeing to contract language
which would limit the political rights of the Union and the
employees.
Engeman explained why the Employer was proposing lim-
itations on union opposition to funding the Employer’s oper-
ations. He said this proposal grew out of Callahan’s Decem-
ber 1987 appearance (reported above), before the County
Board at which he suggested to that Board the Union might
alter its previous position in support of mental health tax lev-
ies.
Engeman further explained the disputed proposal emanated
from the Employer’s concerns over repeated union references
during the parties’ negotiations that if a fair and reasonable
settlement were not reached between the parties the Union
would seek assistance of other labor organizations to orga-
nize opposition to the next (1990) mental health levy. As
Callahan candidly testified, ‘‘Mr. Engeman made it very
clear that they wanted to have protection in this contract
against the threat of the Union engaging in any political cam-
paigning against the levy which was the major source of the
. . . [Employer’s] . . . funding’’ (Tr. vol. I, p. 31).
Callahan said it was in the Union’s best interest to support
the mental health tax levies because they were obvious
sources of its members’ wages and benefits. Callahan pro-
posed the parties adopt a contractual provision similar to one
he negotiated with an employer in Toledo, Ohio. He ex-
plained that provision committed the Union to campaign af-
firmatively for a levy, and said he would be willing to agree
to do the same for the instant Employer but only if the Em-
ployer would propose a fair contract. Engeman agreed to ex-
amine language incorporating Callahan’s suggestion. That
language was not available on February 22.
The parties reached no agreements during this bargaining
session. They arranged to meet again on February 29.
February 29: O’Bryan discussed the Employer’s budget,
including its projections of 1989 revenues and expenses. This
information was contained in documents (Jt. Exhs. 4a–4b),
delivered to the Union at this bargaining session.
The parties exchanged certain proposals. The Employer
delivered revised no-strike/lockout and dues-checkoff clauses
(Jt. Exh. 5), an insurance proposal (Jt. Exh. 6), and another
revised version of the management-rights clause (Jt. Exhs.
15a–15b). The Union delivered the language of its affirma-
tive commitment to supporting mental health levies (G.C.
Exh. 2), as a counterproposal to the disputed language of the
Employer’s management-rights proposal.
The parties discussed compensatory time off, sick leave,
and insurance. No agreements were reached. They then dis-
cussed the Responsibility of the Parties (management rights)
proposal. As noted above, the provision delivered at this
meeting constituted a revision of the Employer’s language
submitted to the Union on February 22.
Engeman discussed the revisions. He told the union rep-
resentatives that the Employer dropped the language which
restricted the Union from attempting to interfere with fund-
ing before and after the term of the collective-bargaining
agreement being negotiated. Engeman said the language of
the revised proposal required the Union to refrain from such
activity only during the term of the collective-bargaining
agreement.
In fact, on February 22, the disputed language read, ‘‘The
Union recognizes that neither it nor the employees will be-
fore, during or after the term of this Agreement interfere
(etc.).’’ (Emphasis added.) The disputed language, on Feb-
ruary 29, reads, ‘‘The Union recognizes that neither it nor
the employees will interfere (etc.).’’ Thus, Engeman’s expla-
nation of the meaning of the February 29 revision was predi-
cated on the absence of any explicit reference to a time-
frame.
Callahan rejected the disputed language presented on Feb-
ruary 29. He repeated his belief the Employer’s proposal was
a restriction on the political rights of the Union and employ-
ees. He again told Engeman the Employer’s proposal was a
nonmandatory bargaining subject. Engeman retorted he be-
lieved the disputed matter was a mandatory subject and re-
peated the Employer needed such protection because of the
Union’s past conduct in its dealings with the County Board.
Callahan again proposed adoption of the Union’s language
committing itself to levy support, but that the Union’s pro-
posal required it to receive a ‘‘fair settlement of all the other
issues.’’ In fact, the document which contains the Union’s
proposed language also contains the notation: ‘‘This proposal
is contingent upon acceptance of the Union’s position on all
outstanding issues’’ (G.C. Exh. 2).
The discussion turned to economic items, but no agree-
ments were reached. The parties caucused. A mediator at-
tended the union caucus. He was asked to tell the Employ-
er’s representatives that the Union was willing to revise its
union-security proposal from one seeking a union shop to
one for agency shop. The mediator apparently conveyed this
information. He returned to tell the union negotiators that the
Employer rejected any provision which would compel em-
ployees to pay union dues.
The parties then reconvened in joint session. The Union
proposed an agency shop, establishment of a labor-manage-
ment committee, and wage increases with no reduction of
fringe benefits.
Callahan and Engeman gave different testimonial versions
of what, if anything, then was said concerning the manage-
ment-rights proposal. Engeman testified that Callahan ‘‘made
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a proposal which the minutes reflect . . . (but) . . . said
nothing about section four’’ [of the Employer’s Responsi-
bility of Parties proposal. (Tr. vol. II, p. 23, emphasis added).
Callahan testified ‘‘We . . . made it clear . . . [to the Em-
ployer] . . . that absolutely there had to be a contract that
did not include the political prohibition. They did not have
the right to bargain to impasse over that. We were not going
to sign a contract, and it was unreasonable to even think that
we would, that in any way restricted the political rights of
our members’’ (Tr. vol. I, p. 42).
I adopt Callahan’s version concerning what was finally
said about the disputed proposal on February 29, although I
found Engeman and Callahan generally equally credible and
reliable witnesses. There are four bases for adoption of Cal-
lahan’s description. First, I find it probable the Union would
have repeated its opposition to the Employer’s proposal be-
cause of the frequent and adamant earlier expressions of con-
cern that the Employer could not require the Union and em-
ployees to relinquish rights to engage in political activity.
Second, I find it likely Callahan’s remarks would have
been made at the conclusion of the February 29 session when
he was summarizing the Union’s current position on disputed
issues, especially because the words he claims to have ut-
tered are fully consistent with the Union’s proposal to agree
to the provision by which the Union pledged its support of
levies.
Third, I find Callahan’s recital of the relevant discussion
more reliable because it was rendered spontaneously directly
from his personal recollection. In contrast, the emphasized
portion of Engeman’s testimony (above) tends to support a
conclusion that Engeman’s recall of these particular remarks
is, in part, based on notes which are not necessarily complete
descriptions of what took place.
Finally, in testimony not previously reported, Engeman ac-
knowledged that Callahan ‘‘was saying that the Union would
sign a contract that included Section Four as he (Callahan)
had drafted it . . . .’’ Engeman further testified Callahan as-
serted the disputed proposal was a nonmandatory bargaining
subject; Engeman disagreed and suggested each of them re-
search the authorities on that point (Tr. vol. II, pp. 24–25).
I find this combination of Engeman’s testimony an impres-
sive indicator that the discussion about the disputed language
occurred as Callahan described it.
The meeting ended with Engeman telling Callahan that the
Union’s proposals were unacceptable and were not going to
be the basis for an agreement. The February 29 session ad-
journed with agreement that if either party’s position were to
change, the mediator would be notified and another bar-
gaining session could be arranged.
The Union immediately initiated a publicity campaign to
gain support for its bargaining objectives. By letter dated
March 1, Union President Henry Nicholas notified O’Bryan
that the Union intended to conduct informational picketing at
the Employer’s location on March 16. On March 16, employ-
ees distributed handbills at the Employer’s headquarters.
On March 17, Callahan attended the regularly scheduled
monthly County Board meeting. (He had previously re-
quested an opportunity to address the County Board on this
date and was provided 5 minutes to make his presentation,
see R. Exh. 2). He asked those board members to intervene
in resolving the Union’s dispute with the Employer. He made
it clear the Union was opposed to use of tax money for
‘‘union busting’’ and threatened if employers funded by the
county levy engaged in such tactics, the Union would oppose
the next levy.
Callahan also wrote a letter dated March 28 to the Cin-
cinnati AFL–CIO, and a letter dated March 29 to individual
union members. In relevant part, he solicited their support to
notify the County Board that they would oppose the next
levy unless the board intervened to help produce a fair col-
lective-bargaining agreement.
A second notice of intent to picket was sent to the Em-
ployer by letter dated March 21, advising picketing would
take place on April 6. Callahan testified no picketing actually
occurred because of inclement weather.
At Callahan’s request in late April, the mediator arranged
for the parties to meet on May 16. The meeting was con-
ducted at the Union’s office. Callahan announced he was
prepared to spend an indefinite amount of time negotiating
that day. Engeman said O’Bryan’s time was limited and it
wasn’t Engeman’s understanding the parties would be spend-
ing unlimited time together that day. In any event, the fol-
lowing material discussion took place.
May 16: Engeman criticized the Union for having publicly
claimed that tax levy funds were supporting union-busting
tactics. He said the Union’s actions since their February 29
meeting caused him to propose any collective-bargaining
agreement negotiated by these parties would expire after the
date of the 1990 tax levy. Engeman accused Callahan of
being prepared to ‘‘take down mental health services for the
entire community in some fight he was having with [the in-
stant Employer].’’ Engeman told Callahan if there was a way
he [Engeman] could stop the Union from such disruption, he
was going to stop it.
Callahan asked for a final proposal on economics.
Engeman said he was not prepared to make proposals; that
the meeting had been convened at the Union’s request; and
the Employer was prepared to listen to any proposals the
Union might offer.
Callahan presented what he termed the Union’s ‘‘final’’
proposal (G.C. Exh. 3). In relevant part, the Union proposed
the parties agree to all of the Employer’s Responsibility of
Parties proposal, except section four which contained the dis-
puted language. Callahan again asserted he believed that part
of the Employer’s proposal was a nonmandatory bargaining
subject. Engeman asked Callahan to show him legal authority
holding this issue nonmandatory. Engeman said he had not
researched the issue, but thought the Employer’s proposal
was a mandatory bargaining subject.
Engeman said the Employer was firm in its position that
the collective-bargaining agreement contain a prohibition
against political activity and the Employer’s commitment to
that position became stronger because of the tenor of the
Union’s publicity campaign and Callahan’s attendance, and
discussion, at the County Board’s March meeting.
Callahan proposed a contract termination date of June 30,
1990. Engeman said the Employer was somewhat flexible re-
garding an exact expiration date, but nonetheless was ada-
mant that the contract’s term would have to extend beyond
the date of the 1990 mental health levy.
The May 16 meeting ended with Engeman saying he
would submit a written response to the remainder of the
Union’s ‘‘final’’ proposal.
935MENTAL HEALTH SERVICES, NORTHWEST
5 The issue of withdrawal of recognition will be discussed separately in sec.
III, C, below.
In fact, Engeman did respond to the Union’s proposal by
letter dated May 26 (Jt. Exh. 10). In that letter, Engeman
once again stated his view that the Employer’s proposal pro-
hibiting the Union from attempting to influence funding
sources is a mandatory bargaining subject. Engeman wrote
he would review legal authorities supporting the Union’s op-
posite position if the Union would provide them.
Meanwhile, Engeman suggested Callahan ‘‘review the au-
thorities which we believe support the general proposition
that an attack on an ordinary business’ customers or sup-
pliers, even by protected concerted activity, such as strikes
or picketing or bannering can be banned by contract’’ (G.C.
Exh. 10, p. 2). Engeman’s letter sets forth citations to au-
thorities, but they are omitted at this juncture because I con-
clude they do not enhance my factual description.
As to other items in the Union’s ‘‘final’’ proposal,
Engeman’s May 26 letter rejects: (a) a single 2-year agree-
ment and (b) an across-the-board 4-percent wage increase,
while renewing the Employer’s proposal to establish a
management/staff committee or use the negotiating commit-
tees to ‘‘listen to any proposal for an agreement on wages
and benefits consistent with the budgetary realities with
which our staff personnel are well familiar.’’
Engeman’s May 26 letter observes the Union has aban-
doned its insistence on compulsory membership or compul-
sory dues payments. Engeman wrote ‘‘This is appropriate
and acceptable to the . . . [Employer].’’
The May 26 letter concludes with the following paragraph:
‘‘It seems to us that we should resolve the remaining critical
issues of duration, wage/benefit levels/costs, units/contracts
and the assurance that the . . . [Employer] . . . and its staff
will not have its funding sources coerced or cut off during
or after any agreement(s) as our first priority. If you can con-
firm your acceptance of the . . . [Employer’s] . . . positions
expressed above on these issues, we will be glad to review
the subsidiary language issues that may remain to propose
workable solutions to them when these major items are out
of the way. Please give me your response at your earliest
convenience.’’ (Jt. Exh. 10, pp. 3–4, emphasis added.)
Callahan answered Engeman’s May 26 letter with a letter
of his own dated June 13 (Jt. Exh. 11). Callahan’s letter calls
the Employer’s proposal to forbid the Union from exerting
influence upon funding sources ‘‘ridiculous.’’
Callahan’s June 13 letter then sets forth citations to legal
authority which he claims holds attempts to control the polit-
ical activity of the Union and its members to force their ac-
ceptance of an employer’s position on public affairs to be a
nonmandatory bargaining subject. Also cited are cases which
Callahan wrote establish that well-founded criticism in the
public interest is protected activity and that employees are
entitled to express their own beliefs on matters of public con-
cern.
Callahan concluded his June 13 letter by writing the Em-
ployer’s proposal is an attempted restraint upon concerted
political activity and, as such, is a nonmandatory bargaining
subject. Callahan called on Engeman to withdraw the dis-
puted proposal and asked Engeman to call him to schedule
a meeting to do so.
No action was taken by Engeman on Callahan’s June 13
letter. It had been received on June 14, but Engeman had al-
ready dispatched his own letter (Jt. Exh. 12) dated June 14
to Callahan. Engeman’s June 14 letter withdrew the Employ-
er’s recognition of the Union as collective-bargaining agent
for employees in both certified units.5 The parties have not
met for negotiating purposes since May 16.
2. Analysis
a. The character of the disputed proposal
Resolution of one aspect of the complaint allegations de-
pends on whether or not the Employer’s disputed proposal is
a mandatory subject for collective bargaining. A party to col-
lective bargaining engages in bad-faith bargaining by advanc-
ing a nonmandatory subject of bargaining to impasse. Con-
versely, insistence to impasse upon acceptance of a manda-
tory subject does not constitute a refusal to bargain in viola-
tion of Section 8(a) (5) and (1) of the Act. NLRB v. Borg-
Warner Corp., 356 U.S. 342 (1958).
No party has cited authority which explicitly declares a
proposal such as that under consideration a mandatory or
nonmandatory bargaining subject. My independent research
has uncovered no such authority. I must be guided by gen-
eral principles. Clearly, the Board has broad authority to de-
cide the nature of collective-bargaining proposals. Ford
Motor Co. (Chicago Stamping Plant) v. NLRB, 441 U.S. 488,
496 (1979). The Supreme Court has recognized the Board
possesses ‘‘special expertise’’ concerning the matter of
classifying bargaining subjects. Meat Cutters v. Jewel Tea
Co., 381 U.S. 676, 685–686 (1965).
In Ford Motor, supra, the Court observed: ‘‘National labor
policy contemplates that areas of common dispute between
employers and employees be funnelled into collective bar-
gaining. The assumption is that this is preferable to allowing
recurring disputes to fester outside the negotiation process
until strikes or other forms of economic warfare occur’’ 441
U.S. at 499. Of course, the ‘‘areas of common dispute’’ to
which the Court referred reasonably must fall within the
Act’s framework for imposition of a bargaining obligation
when the subject matter relates to ‘‘wages, hours and other
terms and conditions of employment’’ (Sec. 8(d) of the Act,
emphasis added).
The General Counsel’s theory of violation, enunciated in
her posthearing brief, is based on the claim that the Employ-
er’s proposal that the Union agree to refrain from ‘‘any at-
tempt to restrain, coerce or otherwise influence any actual or
potential funding source for the . . . [Employer] . . . or any
actual or potential client’’ (par. 7(a), complaint) constitutes
a nonmandatory bargaining subject.
The General Counsel, in effect, asserts the disputed pro-
posal is not encompassed in the category of ‘‘other terms and
conditions of employment.’’ Specifically, General Counsel
contends the proposal (1) ‘‘seeks, in essence, the waiver of
constitutional rights to engage in political activities’’ (G.C.
br., p. 10); and (2) is like so-called industry promotion funds
which have been declared nonmandatory bargaining subjects
because ‘‘they are outside the employment relationship, since
they concern themselves ‘with the relationship of employers
with one another.’’ In support, General Counsel cites Sheet
Metal Workers Local 38 (Elmsford Sheet Metal), 231 NLRB
699, 700 fn. 4 (1977), enfd. 575 F.2d 394 (2d Cir. 1978)
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which, in turn, cited Mills Floor Covering, 136 NLRB 769,
771 (1962), enfd. 317 F.2d 269 (6th Cir. 1963).
The Employer principally argues the disputed language is
(1) analogous to a no-strike clause which long has been rec-
ognized to be a mandatory bargaining subject under such
cases as Lloyd A. Fry Roofing Co., 123 NLRB 647, 649
(1959), and Shell Oil Co., 77 NLRB 1306 (1948); and (2)
is necessary to preserve its very existence as an employing
entity and so is directly concerned with the employment rela-
tionship.
A decision whether or not the disputed Employer proposal
is a mandatory bargaining subject is not easily made. There
is evidence which supports each litigant’s contentions. How-
ever, on balance, I am persuaded that the particular cir-
cumstances of this case militate in favor of finding the pro-
posal is a mandatory subject.
I find the following factors persuasive.
1. The Ford Motor supra, criteria exist in the instant case.
In Ford Motor, the Supreme Court, in relevant part, observed
that the matter under consideration was of deep concern to
workers, was germane to the working environment, and
caused substantial disputes between management and labor,
as the Court held that inplant food prices and services were
mandatory bargaining subjects.
Workers’ deep concern over the Employer’s proposal of
the disputed language is manifest by Callahan’s March ap-
pearance before the County Board, his written solicitations of
Cincinnati AFL–CIO and individual union members to sup-
port the Union’s cause, and his own counterproposal which
committed the Union to support mental health levies during
the term of a collective-bargaining agreement.
Relevance to the working environment surfaces from an
analysis of the ultimate result of each party’s adherence to
its position. If the Employer suffered little or no interference
with operational funding, the employees’ jobs and, perhaps,
wages and other benefits could be assured and even en-
hanced. If the Union’s opposition to a levy were effective,
the entire working environment could be destroyed and the
employees could lose their jobs with this Employer.
That the subject matter of the disputed language is the
basis for substantial disagreement is self-evident from the
treatment each party accorded the other during bargaining
over the subject, their intractable positions, and the forceful
character of the instant litigation.
The disputed language was proposed as protection against
renewal of the Union’s December 1987 attempt to interfere
with the Employer’s operational funding. Callahan’s visit to
the County Board that month set forth the first threat of the
Union’s intent to block voter approval of the mental health
levy.
Later, it is apparent the Union’s attack was broadened. In
fact, its breadth leads me to conclude the attack was de-
signed to cut the Employer off from virtually all funding.
Consequently, the Employer could suffer its demise, not
merely be crippled. The Union’s conduct clearly suggests its
intent to accomplish this very result.
Callahan’s March 28 letter (R. Exh. 4) to the Cincinnati
AFL–CIO states: ‘‘I want to make our position clear—if the
. . . [County Board] . . . refuses to intervene and help settle
. . . [our dispute with the Employer] . . . we will sign these
substandard contracts. However . . . we will also be irrev-
ocably and unequivocally committed to killing the levy in
1990. . . . I hope that we can make clear to the . . . [Coun-
ty Board] . . . the severity and finality of our position.’’
(Emphasis added.)
I recognize my interpretation of the Union’s intent could
be flawed as illogical. Responsible labor organizations nor-
mally would not engage in such self-destructive activity as
my interpretation suggests. In fact, Callahan testified he actu-
ally made that point to the Employer. Nonetheless, my judg-
ment is persuaded by the emphasized words within the above
excerpt from Callahan’s March 28 letter. Those words, in
their context, provide insight to the Union’s true intentions.
They, read within the framework of the sentence in which
they appear, foretell retaliatory action against the Employer
even after a collective-bargaining agreement is signed.
In this light, I view the Union’s position to be more than
mere bargaining rhetoric or posturing. I simply cannot say
the Employer was not justified in seeking to negotiate protec-
tive language to avert financial disaster. It is such an effort
which tends to make the disputed language a mandatory bar-
gaining subject.
Even General Counsel acknowledges that ‘‘concededly a
cutoff of public funding would cause substantial disruption
to . . . [the Employer’s] . . . enterprise’’ (Br. p.10). Never-
theless, she argues the disputed language ‘‘neither affects nor
relates to the actual employment relationship existing be-
tween . . . [the Employer] . . . and its employees.’’ The
General Counsel claims the Union’s warning about opposi-
tion to the levy was a legitimate exercise of Section 7 rights
as peaceful and noncoercive appeals to the public, citing 40-
41 Realty Associates, 288 NLRB 200, 202 (1988).
I find material distinctions between 40-41 Realty and the
case at bar. No dispute existed in 40-41 Realty concerning
the character of a bargaining proposal. The principal question
related to the protected nature of a union’s picketing in sup-
port of an economic strike. The pivotal issue was whether
the union’s picketing at certain locations of the employer’s
facility was an excessive infringement on the employer’s
property rights. I can find nothing in 40-41 Realty even sug-
gestive of the possibility the picketing could have so severely
impacted on the employer as to cause it to totally terminate
its operations. That is the case here.
I recognize that in 40-41 Realty the union wrote letters
similar to those in the instant case soliciting the support of
other unions. Specifically, in 40-41 Realty, the striking union
asked the membership of other unions to exert pressure on
the struck employer. However, 40-41 Realty contains no evi-
dence that the union sought the aid of the struck employer’s
funding source to exert such pressure to the degree present
in the instant case. It is an economic reality that every lawful
primary strike by employees against their employer is de-
signed to persuade customers to do business elsewhere. In
that sense, 40-41 Realty parallels the case here. But that sim-
ilarity is quite limited.
The Employer here is virtually dependent on the mental
health levy for its financial viability. The struck employer (a
dental clinic) in 40-41 Realty had about 10,000 customers
(patients), about 90 percent of whom had insurance coverage.
There was no evidence that the union sought to exert sepa-
rate pressure, apart from its picketing, on the insurance car-
riers. Had it done so, I would regard that situation analogous
to the instant case.
937MENTAL HEALTH SERVICES, NORTHWEST
In my view, the enmeshing of the County Board by the
Union here tends to diminish the strength of General Coun-
sel’s contention that the Union was engaged in such activity
recognized protected by the statute (the Act) as to render the
Employer’s disputed proposal a nonmandatory bargaining
subject.
All the circumstances of this case convince me the dis-
puted language is more akin to a no-strike clause than to an
industry promotion fund. Industry promotion funds which, as
described above, have been held nonmandatory bargaining
subjects, do not directly affect the very existence of the em-
ploying entity. Here, as discussed above, the Union’s inter-
ference can reach the point of preventing the Employer from
producing its services and literally close it down.
The collective bargaining involved in negotiating industry
promotion fund provisions entails discussion over matters
‘‘which might conceivably enhance the prospects of the in-
dustry’’ (Mills Floor Covering, supra). Those provisions
focus on employers’ public business image. They do not di-
rectly affect employees.
In contrast, the underlying focus of the instant Employer’s
disputed proposal is the protection of its very existence as an
employing entity. Should it cease to exist, the fundamental
employer-employee relationship also will end. Accordingly, I
find the disputed proposal sufficiently concerns itself with
the employment relationship as to make it a mandatory bar-
gaining subject.
2. The allegation that the disputed language is unlawful is
based on a narrow construction of the words and is taken out
of context.
I consider it important to note the quoted language which
allegedly makes the proposal a nonmandatory subject is only
part of one of the sentences the Employer proposed as article
IV, section 4 of the Responsibility of Parties provision.
The entire sentence, as proposed on February 29, reads:
‘‘The Union recognizes that neither it nor the employees will
interfere with the ability of the Employer to provide services
by any attempt to restrain, coerce or otherwise influence any
actual or potential funding source for the . . . [Employer]
. . . or any actual or potential client.’’ (Emphasis added.)
When the disputed language is read in the context of the
Employer’s Responsibility of Parties proposal, its alleged un-
lawful tenor is dissipated. In fact, the disputed language is
modified by its antecedent phrase, the plain words of which
show the prohibition of influence on funding sources related
only to such influence intended to interfere ‘‘with the ability
of the Employer to provide services.’’ I cannot subscribe to
the General Counsel’s assertion that the disputed language
extends to prohibit the Union or its members from freely ex-
ercising their political rights in other respects.
The words ‘‘provide services’’ in the disputed proposal are
the functional equivalent of the words ‘‘production, or other
work’’ in the Lloyd A. Fry Roofing, supra, no-strike clause.
By parity of reasoning, I find the Employer’s disputed lan-
guage the functional counterpart of the Lloyd A. Fry Roofing
no-strike clause. In each case the operative factor making the
language a mandatory bargaining subject is the patent effect
on the affected employees’ wages, hours, and other terms
and conditions of employment in the event of interference
with the employer’s ability to maintain its status as an em-
ploying entity.
Upon all the above discussion relative to the disputed pro-
posal’s characteristics, I conclude that proposal sufficiently
concerns itself with the employment relationship as to make
it a mandatory bargaining subject in all the circumstances of
this case. It follows that I also find the Employer did not
violate Section 8(a)(5) and (1) of the Act by proposing the
disputed language or by insisting on its acceptance in any of
the forms proposed.
b. The impasse issue
My conclusion that the disputed language was a manda-
tory bargaining subject eliminates the need to decide whether
an impasse existed, because it is not unlawful to insist to im-
passe upon acceptance of proposals on mandatory bargaining
subjects.
However, if my decision regarding the disputed language
is overruled by an appellate tribunal, then it is important to
determine whether an impasse existed. I find there was an
impasse after May 26.
As previously indicated, the General Counsel contends the
Employer insisted on the Union’s acceptance of the disputed
language as a condition of reaching agreement on a collec-
tive-bargaining contract. Such insistence, upon what the Gen-
eral Counsel claims is a nonmandatory bargaining subject
(contrary to my findings) is alleged as a violation of Section
8(a)(5) and (1) of the Act.
The Employer, referring to the various revisions of the dis-
puted language and to its expressions of willingness to re-
view the Union’s legal authorities, asserts no impasse existed
principally because the evidence does not allow a conclusion
that further bargaining between the parties would have been
futile.
The existence of an impasse is a matter left to the judg-
ment of the trier of fact. Taft Broadcasting Co., 163 NLRB
475, 478 (1967), affd. 395 F.2d 622 (D.C. Cir. 1968). A va-
riety of factors enters into a decision as to whether an im-
passe in bargaining is present in any particular cir-
cumstances.
Relevant factors in the case before me are: (a) to what ex-
tent the parties have maintained rigid positions (Loud
Stechers Supermarkets, 275 NLRB 475 (1985); Triple A
Maintenance Corp., 283 NLRB 44 (1987)); (b) whether there
is a possibility of agreement through compromise (Union
Terminal Warehouse, 286 NLRB 851 (1987)); whether both
parties mutually understand they are at impasse (Colfor, Inc.,
282 NLRB 1173 (1987), enfd. 838 F.2d 164 (6th Cir. 1988));
and (d) whether it reasonably can be concluded that further
bargaining would be futile (Alsey Refractories Co., 215
NLRB 785 fn. 2 (1974)).
A summary of the salient evidence shows:
February 13: Employer first proposed a management-
rights clause which contained a sentence by which the Union
would commit itself to cooperate with the Employer’s exer-
cise of its management rights. The Union questioned what
this precisely entailed.
February 22: Management-rights clause renamed ‘‘Re-
sponsibility of the Parties.’’ Disputed language appeared for
the first time, asking for Union’s commitment not to attempt
to influence funding sources before, during, or after the term
of any collective-bargaining agreement being negotiated.
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 29: Employer altered disputed language to make
it applicable only during term of a collective-bargaining
agreement.
Although the Union made it clear there had to be a con-
tract without prohibitions on ‘‘political’’ activity, and the
Employer suggested both parties research the mandatory
character of its proposal, it is clear the Employer did not
withdraw the disputed language as a proposal.
In fact, the Employer rejected the Union’s offer of lan-
guage by which the Union would support levies when
Engeman said that the Union’s proposal was not going to be
the basis for agreement.
May 16: Union presented a ‘‘final’’ proposal. Engeman’s
comments about the nature of the Union’s publicity cam-
paign since the parties’ February 29 meeting and Callahan’s
March appearance at the County Board, reflect the Employer
was as adamant as ever regarding the inclusion of the dis-
puted proposal in some form.
Specifically, Engeman said the contract’s term would ex-
tend beyond the date scheduled for the 1990 levy and if there
were any way he could stop the Union from disruption of
mental health services he would do so.
May 26: Employer made written response to Union’s
‘‘final’’ proposal. That response indicates the Employer’s
willingness to review the Union’s legal authorities.
However, the response also contained the following posi-
tions: (a) the Employer’s proposal of disputed language is a
mandatory bargaining subject; (b) acceptance of language
which limited activity designed to influence the funding
sources was the Employer’s highest priority issue; and (c) the
Union’s ‘‘confirm(ation) of . . . (its) . . . acceptance of’’
the Employer’s disputed proposal (among others) was re-
quired before another negotiating session would be sched-
uled. (The quoted language appears in the final paragraph of
Jt. Exh. 10.)
June 13: Union’s written response to Employer’s May 26
positions (1) called them ‘‘ridiculous’’; (2) reiterated the dis-
puted subject was nonmandatory; (3) demanded that proposal
be withdrawn; and (4) requested the parties meet for the pur-
pose of accomplishing the withdrawal.
I find the evidence leads to a virtually inescapable conclu-
sion that each party maintained an intractable, rigid position
concerning the disputed proposal throughout the negotiations.
Ostensibly, my summary of negotiations shows Employer
movement on the disputed subject. But close scrutiny reveals
(as General Counsel urges) that the alterations of the Em-
ployer’s positions merely were cosmetic.
For example, the February 29 proposal to make the dis-
puted proposal effective only for the length of a collective-
bargaining agreement is not a substantive change. That revi-
sion simply curtails the period the disputed proposal would
be implemented. It does not relieve the Union or its members
from the commitment to refrain from attempts to influence
the Employer’s funding sources.
Similarly, the Employer’s May 16 proposal to settle on an
agreement which would expire after the 1990 levy effected
no substantive revision of the disputed proposal. Indeed, I
conclude the offer of this termination date actually solidified
the Employer’s insistence that a collective-bargaining agree-
ment needed to contain some form of the disputed proposal.
Engeman expressed such an intent when, on May 16, he said
if there were any way the Employer could prevent the Union
from disrupting funding sources, it would do so.
Arguably, the seemingly conciliatory invitation of
Engeman’s May 26 letter in which he indicates the Employer
would review the Union’s legal authorities shows the issue
has not yet been foreclosed and suggests (at least by implica-
tion) the Employer possibly could be convinced to change its
demand for inclusion of the disputed provision in a contract.
But, such an interpretation is negated by the concluding
statements in the May 26 letter.
I find the language of the final paragraph of the May 26
letter makes the Employer’s offer to review legal authorities
illusory. That last paragraph contains language which plainly
conditions further collective bargaining on the Union’s ‘‘con-
firmation’’ of its acceptance of the disputed proposal.
I conclude the above factors show the Employer main-
tained a rigid position on the disputed proposal.
As noted, I find the Union’s positions no less inflexible.
It never wavered from the contention that the disputed sub-
ject matter was nonmandatory. Callahan’s consistent position
at the bargaining sessions was that the Union positively
would not agree to any form of the disputed proposal; and
his conduct away from the bargaining table displays the
strength of his conviction. Thus, Callahan continued to exert
pressure on the County Board and issued strongly worded
solicitations for assistance from other union sources.
I do not find the February 22 offer that the Union agree
to support levies during the contract term a basis for holding
that the Union’s position had changed in a substantive way.
Notwithstanding that union proposal, the evidence shows the
Union never once varied from its immediate and total rejec-
tion of any of the formulations of the Employer’s disputed
proposal, each of which had been couched in negative terms
limiting the Union’s conduct.
The foregoing discussion persuades me that the evidence
demonstrates the kind of rigid adherence to positions by both
parties which supports a conclusion they were at a bargaining
impasse.
I also conclude the record shows there was no possibility
of agreement through compromise. In my view, the totality
of circumstances reflects a pervasive undercurrent of dis-
agreement on the disputed proposal. In the one instance, on
February 22, where the Union proposed positive language of
support for levies, the Employer swiftly rejected it on Feb-
ruary 29 with Engeman saying that the Union’s proposal was
not going to form the basis of any agreement; and later, on
May 16, returned to reiterate the Employer’s insistence on
the acceptance of the disputed proposal.
Further, I conclude the record shows that continued bar-
gaining after May 26 would have been futile. First, I have
already found that Engeman’s May 26 letter conditioned fur-
ther bargaining on the Union’s acceptance of the disputed
proposal.
I now find the Union’s last-taken position connotes the fu-
tility of bargaining. That position is contained in Callahan’s
June 13 letter. In my view, Callahan’s call for the Employ-
er’s withdrawal of its disputed proposal, and a meeting at
which that will occur, is tantamount to a declaration that no
additional bargaining can take place until the disputed pro-
posal has been withdrawn. The combination of these two
most recent positions of the parties is convincing evidence of
the futility of the situation.
939MENTAL HEALTH SERVICES, NORTHWEST
6 The General Counsel claims the number is 45, but the Employer asserts
there were 44 employees in this unit. The differences are due to the fact that
employee C. J. Vradelis, who actually stopped working on May 13, continued
to be carried on the payroll while collecting vacation benefits. In any event,
my findings and conclusions on the instant issue are not affected by the as-
serted differences in size of this unit.
Finally, I find the record as a whole supports a finding
that the parties mutually did understand, or could have, that
they had bargained to impasse. I concede there is no direct
evidence that the parties believed or understood an impasse
had been reached. There is no evidence the parties explicitly
discussed the impasse issue between themselves.
Nonetheless, I conclude each party reasonably could have
inferred an impasse existed from the attendant circumstances
more fully described above. In particular, the Employer’s
May 26 renewed adamant insistence on acceptance of its pro-
posal and the Union’s June 13 response that the Employer’s
proposal was ‘‘ridiculous’’ and demand for its withdrawal
are strong indicators of a mutual understanding an impasse
was at hand.
My overview of all the relevant evidence regarding the im-
passe issue leads me to conclude this case presents a classic
portrayal of the proverbial image of the irresistible force
meeting the immovable object. Accordingly, I find the evi-
dence sustains a conclusion an impasse in the parties’ bar-
gaining existed on and after May 26.
C. The Withdrawal of Recognition
1. The facts
Some time in late winter or early spring 1988, bargaining
unit employee Grady A. Gausmann told O’Bryan (the Em-
ployer’s executive director) he was unhappy with the Union.
Gausmann also told O’Bryan a number of other employees
felt the same. Gausmann asked O’Bryan if there was any-
thing the employees could do to get rid of the Union.
After consulting the Employer’s attorney, O’Bryan told
Gausmann management could do nothing to assist the em-
ployees; that nothing at all could be done by anyone during
the first year following the Union’s certification; but that the
staff could petition for the Union’s removal after that year
had passed if no collective-bargaining agreement had become
effective.
Gausmann spoke to O’Bryan again in late May and asked
whether the certification year had expired. O’Bryan said it
had. Gausmann told O’Bryan he was going to circulate a pe-
tition among the staff.
On June 2, Gausmann came to O’Bryan’s office and pre-
sented him with a petition which was undated, contained sig-
natures of 23 bargaining unit employees; and an introductory
statement which reads: ‘‘We the undersigned feel that we do
not want to be represented by Local Union 1199. And would
like to call for a recertification vote.’’
Gausmann told O’Bryan other employees were opposed to
the Union but did not sign the petition because they did not
want their union friends to see their signatures on it.
When the petition was presented, the professional bar-
gaining unit contained about 45 employees6 and there were
4 employees in the clerical unit (see R. Exh. 10). Of the 23
employees whose signatures appear on the petition, 19 were
in the professional unit and 4 were in the clerical unit.
On June 3, O’Bryan phoned Gausmann and asked him
many employees had told him they were opposed to the
Union. Gausmann replied by actually naming 5 additional
employees.
O’Bryan then asked the supervisory staff whether any em-
ployees told them they were unhappy with the Union. Three
of the 12 supervisors reported, in O’Bryan’s words, ‘‘that on
various occasions staff had come to them saying they were
unhappy with the Union and that the majority of the staff
was unhappy with the Union and wanted it to be removed’’
(Tr. 61). O’Bryan did not identify the employees who pur-
portedly said these things to the supervisors, and none of the
supervisors appeared as a witness in the instant proceedings.
This scenario of events was the basis for Engeman’s June
14 letter (Jt. Exh. 12) in which recognition was withdrawn
from the Union as collective-bargaining representative for the
employees in both certified units.
2. Analysis
An incumbent labor organization enjoys a presumption
that its certified majority status continues through the so-
called certification year and after the expiration of its collec-
tive-bargaining agreement. Thereafter, the presumption be-
comes rebuttable. Club Cal Neva, 231 NLRB 22 (1977),
enfd. 604 F.2d 606 (9th Cir. 1979); Stratford Visiting Nurses
Assn., 264 NLRB 1026 (1982). Such rebuttal may be accom-
plished by the interposition of an employer’s good-faith
doubt the union enjoys its majority status.
The Board, in Celanese Corp., 95 NLRB 664, 673 (1951),
established two factors essential to a finding that an em-
ployer acts in good faith when raising the majority issue in
cases where a union had been certified. Those factors are (1)
the employer must have reasonable ground for believing the
union lost its majority status since its certification, and (2)
the majority issue must be raised in a context free of illegal
antiunion activity or other conduct aimed at causing disaffec-
tion or indicating that the issue was raised merely to give the
employer time to undermine the union.
The General Counsel, citing Terrell Machine Co., 173
NLRB 1480, 1481 (1969), enfd. 427 F.2d 1088 (4th Cir.
1970), contends the Employer’s withdrawal of recognition is
unlawful because it was not based on a showing that the
Union actually lost its majority status or on valid objective
considerations which give rise to a bona fide good-faith
doubt of such majority status.
Also, General Counsel claims the Employer is precluded
from asserting it had a good-faith doubt of the Union’s ma-
jority status because the Employer engaged in unfair labor
practices (insistence on nonmandatory bargaining subject) to
impasse and such unlawful conduct caused employee dis-
affection from the Union.
The Employer urges its withdrawal of recognition con-
forms precisely with the applicable legal standards described
in Terrell Machine, supra, and more recently enunciated by
the Board in Burger Pits, Inc., 273 NLRB 1001 (1984), and
Master Slack Corp., 271 NLRB 78 (1984). Specifically, the
Employer claims it has a good-faith doubt that the Union
maintained its majority status when Gausmann presented the
petition. (The certification year expired May 21.)
The Employer’s good-faith doubt claim is based on the
combination of (1) the June 2 petition, (2) Gausmann’s June
2 and 3 statements to O’Bryan that employees other than
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 I shall find below, contrary to General Counsel’s claim, that the introduc-
tory language on the petition unambiguously reflects the signatories do not
want the Union to represent them.
8 With respect to the last factor, I find the instant case analogous because
I conclude there is no probative value to O’Bryan’s extremely generalized, and
patently hearsay, testimony concerning the similarly generalized reports he re-
ceived from the three supervisors. Atlanta Hilton & Towers, 278 NLRB 474,
481 (1986)).
9 I reject the General Counsel’s argument the petition’s language is ambig-
uous because its second sentence requests a ‘‘recertification’’ vote. In the first
sentence, the employees plainly and clearly state they do not want the Union
(by name) to represent them. In context, I consider the second sentence merely
an inartful suggestion of how to achieve the first sentence’s intended result.
those who signed the petition supported it and his identifica-
tion of five employees in that category, and (3) the reports
of the three supervisors regarding employees’ desires to re-
move the Union.
In my view, the guiding legal principles, the parties’ con-
tentions, and the specific facts of this case, require that I sep-
arately analyze the withdrawal of recognition as to each bar-
gaining unit—the clerical unit and the professional unit.
Regarding the clerical unit, the Employer asserts that the
petition, alone, provided a valid basis for its good-faith doubt
of the Union’s majority status among the clerical unit. It is
uncontested that the petition contains the signatures of all
four employees within that bargaining unit.
General Counsel does not expressly deal separately with
this condition. Instead, she apparently relies on the holdings
in Celanese Corp., supra, and Guerdon Industries, 218
NLRB 658, 661 (1975), which render such employee expres-
sions of union disaffection invalid support for a good-faith
doubt in the context of employer unfair labor practices.
Inasmuch as I have found the Employer did not engage in
the alleged unlawful insistence to impasse on a nonmanda-
tory bargaining subject, and the withdrawal of recognition
concerning the clerical unit was based on a showing that 100
percent of employees in that unit signed the petition,7 I con-
clude withdrawal of recognition from the Union as represent-
ative of the clerical unit employees was based on the Em-
ployer’s good-faith doubt of the Union’s majority status.
However, the situation regarding the professional unit is
different. The petition itself does not contain signatures of
even a majority of employees in that unit, whether its size
is 44 or 45 employees. (Twenty-three employees comprise a
majority of this unit.)
The Employer, citing U-Save Food Warehouse, 271 NLRB
710 (1984), as directly in point, urges that it may, and did,
rely on Gausmann’s June 3 identification of five additional
professional/service employees whose antiunion sentiments
were the same as signatories to the petition to compute the
absence or existence of the Union’s majority status. If legiti-
mately added to the 19 signatures, there would be evidence
of union disaffection from 24 professional unit employees.
This is one employee more than needed to show a numerical
majority of unit employees were unhappy with the Union.
I recognize the Employer is only required to show it had
objective reasons to doubt the Union’s majority, and need
not prove the Union actually lost a numerical majority (see
Sofco, Inc., 268 NLRB 159, 159–160 (1983): Laystrom Mfg.
Co., 151 NLRB 1482 (1965), enf. denied on other grounds
359 F.2d 799 (7th Cir. 1966)). Here, however, the Employ-
er’s asserted knowledge that a total of 24 employees did not
want the Union to represent them is the sole factor which is
claimed to justify its asserted good-faith doubt.
The General Counsel, relying on KEZI–TV, 286 NLRB
1396 (1987), argues Gausmann’s report regarding the senti-
ments of the five employees whom he named are hearsay as-
sertions which may not be relied on to establish a claim of
good-faith doubt of majority union status.
In KEZI–TV, as here, there was no backdrop of employer
unfair labor practices; the petition which had been presented
to the employer did not contain a numerical majority of sig-
natures of unit employees; the solicitor of the petition’s sig-
natures told a management official he had received ‘‘feed-
back’’ from other unit employees that they felt the same as
the signatories but would not sign the petition because they
were afraid of ‘‘peer pressure’’; and no other unit employees
directly communicated their sentiments to members of man-
agement.8
In KEZI–TV, the Board held, ‘‘in the circumstances of this
case, the petition, either standing alone or taken together with
other factors relied on by the Respondent, is not sufficient
to establish a good-faith doubt of the Union’s continuing ma-
jority status’’ (286 NLRB 1396 fn. 1).
Gausmann’s explicit identification of five additional unit
employees purportedly with views identical to petition sig-
natories does not create a sufficient distinction between
KEZI–TV and the instant case to render the Board’s quoted
observation inapplicable. The Employer’s reliance on U-Save
Food Warehouse, supra, does not, in my opinion, warrant the
addition of those five employees as support for the good-
faith claim.
Granted, as the Employer argues, the Board, in U-Save
Food Warehouse, left undisturbed Judge Thomas R. Wilks’
acceptance of a report to management by a bargaining unit
employee that three other unit employees had told him they
did not want to be represented by their union. However, U-
Save Food Warehouse, I find contains material distinctions
from the case at bar.
First, in U-Save Food Warehouse, there was considerable
evidence of cumulative circumstances which established an
atmosphere of employee discontent with their collective-bar-
gaining representative. That atmosphere was notorious and
the evidence showed it had been brought directly to the at-
tention of managerial officials several months before recogni-
tion had been withdrawn. The evidence in U-Save Food
Warehouse, showed that the employer knew that employee
complaints festered over such things as a failure to receive
a wage increase, a collective-bargaining hiatus, and a failure
of union agents to be on hand to service their needs.
In marked contrast, the instant record contains no such
background. Viewing this case in a light most favorable to
the Employer, it is the June 2 petition which comprises the
first express disclaimer of interest in representation by the
Union which officially came to the Employer’s attention.9
U-Save Food Warehouse contains a second important dis-
tinction. There, the information concerning antiunion senti-
ment was conveyed to the employer’s president from an indi-
vidual (Ibarra) who acted in a dual role. He was both meat
department manager and meatcutter, the latter being a bar-
gaining unit position. It is not clear whether Ibarra was a
statutory supervisor when he functioned as meat department
manager. Even if he were not a supervisor, there is abundant
evidence that he was the employer’s agent.
941MENTAL HEALTH SERVICES, NORTHWEST
Once again, the instant case is vastly different. There is no
assertion, and no party adduced evidence to show, that
Gausmann was either the Employer’s supervisor, managerial
employee, or agent. In this context, Gausmann’s June 3 re-
port regarding how the other five employees felt is entitled
only to little weight. (Golden State Habilitation Convalescent
Center, 224 NLRB 1618 (1976).) Here, the Employer’s reli-
ance on Gausmann’s report is necessarily heavy. It forms the
underpinnings of the Employer’s assertion that it had a valid
objective basis to form a good-faith doubt of the Union’s
majority status.
Summarizing, I find the instant case more nearly like
KEZI–TV than U-Save Food Warehouse. In the absence of
background evidence on which the Employer reasonably
could have relied to create its asserted good-faith doubt; and
absent a showing Gausmann had any relationship to the Em-
ployer but bargaining unit employee, I conclude the instant
petition, in virtual isolation, is an insufficient supporting
foundation for the Employer’s withdrawal of recognition
from the Union as collective-bargaining agent of the employ-
ees in the professional/service unit. Accordingly, I find the
Employer refused to bargain in violation of Section 8(a)(5)
and (1) of the Act when it withdrew recognition of the Union
as to this bargaining unit.
On the basis of the above findings of fact and on the en-
tire record in the case, I make the following
CONCLUSIONS OF LAW
1. Mental Health Services, Northwest, Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. District 1199, WV/KY/OH, National Union of Hospital
and Health Care Employees, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All the Employer’s full-time and regular part-time pro-
fessional and nonprofessional employees employed at the
Employer’s mental health facilities at locations in and around
Cincinnati, Ohio, excluding office clerical employees, man-
agement employees, guards and supervisors as defined in the
Act constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. All the Employer’s office clerical employees, excluding
all confidential employees, supervisory employees, guards
and all other employees, professional and nonprofessional,
constitute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act.
5. The Employer’s proposal that the Union agree that nei-
ther it nor the bargaining unit employees would interfere
with the Employer’s ability to provide services by attempts
to restrain, coerce, or otherwise influence the Employer’s ac-
tual or potential funding sources or clients is a mandatory
subject for collective bargaining.
6. The Employer did not refuse to bargain in violation of
Section 8(a)(5) and (1) of the Act by proposing, or insisting
on the Union’s acceptance of, a provision by which the
Union would agree not to interfere with the Employer’s abil-
ity to provide services by attempts to restrain, coerce, or oth-
erwise influence the Employer’s actual or potential funding
sources or clients.
7. There was an impasse in the parties’ collective bar-
gaining on and after May 26, 1988.
8. The Employer’s withdrawal of recognition from the
Union as collective-bargaining representative of the employ-
ees in the clerical unit was based on valid objective evidence
and was not unlawful.
9. The Employer refused to bargain, in violation of Sec-
tion 8(a)(5) and (1) of the Act when it withdrew recognition
from the Union, on June 14, 1988, as collective-bargaining
representative of the employees in the professional/service
unit.
10. The unfair labor practice identified above in Conclu-
sion of Law 9 affects commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Employer violated the Act with re-
spect to its withdrawal of recognition from the Union in con-
nection with the professional unit, I shall recommend that it
be ordered to cease and desist therefrom and take certain af-
firmative action necessary to effectuate the purposes of the
Act.
The Employer will be required to (1) recognize and, on re-
quest, bargain with the Union as the exclusive collective-bar-
gaining representative of the employees in the professional
unit, and (2) post an appropriate notice to employees.
[Recommended Order omitted from publication.]