New Seasons, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 2006

346 N.L.R.B. 610 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 57
610
New Seasons, Inc. and New England Health Care
Employees Union, District 1199 SEIU.1 Case 34–
CA–10946
February 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 8, 2005, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed cross-exceptions and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule the adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
See Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We agree with the judge’s conclusion that the Respondent violated
Sec. 8(a)(5) and (1) and Sec. 8(d) by modifying the language of art.
13(L), a subject that was outside the scope of the existing collective-
bargaining agreement’s reopener clause, without the Union’s consent.
We also agree that the Respondent violated Sec. 8(a)(5) and (1) by
unilaterally implementing changes to art. 13(F) of that agreement, and
by voiding the December 2000 settlement agreement. The Respondent
took these unilateral actions at a time when no lawful impasse was
possible. See, e.g., Safelite Glass, 283 NLRB 929, 940 fn. 3 (1987) (no
bona fide impasse possible where employer makes agreement contin-
gent on acceptance of terms beyond scope of reopener clauses), enfd. in
part sub nom. Lear Siegler, Inc. v. NLRB, 890 F.2d 1573 (10th Cir.
1989). We therefore find it unnecessary to reach the judge’s further
finding that the Respondent violated Sec. 8(a)(5) by implementing its
proposals before bargaining to impasse. See, e.g., D.C. Liquor Whole-
salers, 292 NLRB 1234, 1235 (1989), enfd. 924 F.2d 1078 (D.C. Cir.
1991).
Though Member Schaumber views this as an extremely close case,
he joins his colleagues in finding that the parties’ reopener agreement,
which was limited on its face to the “Article 13 attendance bonus bene-
fit,” did not encompass the general notice requirements of art. 13(L).
Reopener provisions are properly narrowly construed to avoid the po-
tential for disrupting bargaining relationships by creating opportunities
for renegotiation of terms settled in collective bargaining, simply be-
cause one party or the other proves unhappy, after the fact, with the
deal struck earlier. Many provisions of collective-bargaining agree-
ments implicate, cross reference, or otherwise relate to other provisions,
but that fact alone cannot bring them within the scope of a re-opener
provision limited to one specific provision. The credited evidence in
this case is, in his view, insufficient to establish that the parties in-
tended the reopener to encompass the separate notice provisions of art.
13(L).
and to adopt the recommended Order as modified and set
forth in full below.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, New Seasons, Inc., Manchester, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to continue in effect the terms and condi-
tions of its 2003–2005 collective-bargaining agreement
with the Union by, without consent of the Union, chang-
ing the existing contract language of that agreement’s
article 13(L).
(b) Over the objections of the Union, unilaterally im-
plementing changes in article 13(F) of the 2003–2005
collective-bargaining agreement.
(c) Over the objections of the Union, unilaterally void-
ing the December 2000 settlement agreement between
the parties.
2. Take the following affirmative actions deemed nec-
essary to effectuate the policies of the Act.
(a) On request of the Union, bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of the Respondent’s employees in the unit de-
scribed below with regard to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment and, if an agreement is reached, embody that
agreement in a written, signed instrument:
All regular, full-time direct care staff, including day
treatment program coordinators, house supervisors,
nurse supervisors habilitation specialists I and II, habili-
tation assistants, dietary/maintenance aides, residential
specialists, residential assistants, maintenance special-

4 We shall modify the judge’s recommended Order to conform to our
findings. Because the Respondent unlawfully modified art. 13(L), we
shall order the Respondent to rescind the unlawfully implemented
changes made to that section, and adhere to the 2003–2005 collective-
bargaining agreement. Because the Respondent unlawfully unilaterally
changed art. 13(F) and the 2000 settlement agreement, we shall order
the Respondent to rescind those unlawfully implemented changes and
restore the status quo until impasse or agreement is reached on art.
13(F), and restore the December 2000 settlement agreement and the
status quo as it existed prior to the unlawful voiding of the agreement.
The General Counsel has excepted to the administrative law judge’s
failure to expressly include a make-whole remedy in the decision and
order. The General Counsel urges that the restrictive changes that the
Respondent implemented to the two contract provisions and its unilat-
eral nullification of the parties’ December 2003 settlement agreement
may have deprived the unit employees of benefits, including bonus
days off, that they would have earned but for the Respondent’s unlaw-
ful action. We find merit in the General Counsel’s exception and will
include a make-whole remedy in the modified order for any such
losses.
NEW SEASONS, INC. 611
ists, and transportation officers, but excluding the ex-
ecutive director, director of programs and services, ad-
ministrator on call, director of nurses, business office
staff, recreation aides and consultants, staff develop-
ment coordinator (scheduler), and staff and training co-
ordinator (trainer).
(b) On request of the Union, rescind the unlawfully
implemented changes Respondent made to the parties’
2003–2005 collective-bargaining agreement, article
13(L), and adhere to that agreement.
(c) On request of the Union, rescind the unlawfully
implemented changes Respondent made to the parties’
2003–2005 collective-bargaining agreement, article
13(F), and restore the status quo until impasse or agree-
ment is reached.
(d) On request of the Union, restore the parties’ De-
cember 2000 settlement agreement which Respondent
unlawfully voided and restore the status quo as it existed
prior to the unlawful voiding of the agreement.
(e) Make whole employees in the unit covered by the
collective-bargaining agreement for any loss of benefits,
including loss of bonus days off, that the employees
sustained as a result of the changes in the terms and con-
ditions of employment that the Respondent unlawfully
implemented on September 1, 2005.
(f) Within 14 days after service by the Region, post at
its office and group homes maintained in and around
Manchester, Connecticut, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 34, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 1, 2004.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail to continue in effect the terms and
conditions of our 2003–2005 collective-bargaining
agreement with the Union by changing the existing con-
tract language in article 13(L) without the agreement of
the Union.
WE WILL NOT, over the objections of the Union, unilat-
erally implement changes in our 2003–2005 collective-
bargaining agreement, articles 13(F) and (L).
WE WILL NOT, over the objections of the Union, unilat-
erally void our December 2000 settlement agreement
with the Union.
WE WILL, on request of the Union, bargain collectively
with the Union as the exclusive collective-bargaining
representative of the employees in the unit described
below with regard to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
and, if an agreement is reached, embody that agreement
in a written, signed instrument:
All regular, full-time direct care staff, including day
treatment program coordinators, house supervisors,
nurse supervisors habilitation specialists I and II, habili-
tation assistants, dietary/maintenance aides, residential
specialists, residential assistants, maintenance special-
ists, and transportation officers, but excluding the ex-
ecutive director, director of programs and services, ad-
ministrator on call, director of nurses, business office
staff, recreation aides and consultants, staff develop-
ment coordinator (scheduler), and staff and training co-
ordinator (trainer).
WE WILL, on request of the Union, rescind the unlaw-
fully implemented changes we made to the 2003–2005
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD612
collective-bargaining agreement, article 13(L), and ad-
here to that agreement.
WE WILL, on request of the Union, rescind the unlaw-
fully implemented changes we made to the 2003–2005
collective-bargaining agreement, article 13(F), and re-
store the status quo until impasse or agreement is
reached.
WE WILL, on request of the Union, restore the Decem-
ber 2000 settlement agreement which we unlawfully
voided and restore the status quo as it existed prior to the
unlawful voiding of the agreement.
WE WILL make whole the employees in the unit cov-
ered by the collective-bargaining agreement for any loss
of benefits, including loss of bonus days off, that the em-
ployees sustained as a result of the changes we unlaw-
fully implemented in the terms and conditions of em-
ployment.
NEW SEASONS, INC.
Margaret A. Lareau, Esq., for the General Counsel.
Lisa S. Lazarek, Esq., of Hartford, Connecticut, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This case
was tried in Hartford, Connecticut, on February 23, 2005. The
charge was filed by New England Health Care Employees Un-
ion, District 1199, SEIU, AFL–CIO (the Union or District
1199) on September 2, 2004,1 and the complaint was issued
November 30, 2004. The complaint alleges that New Seasons,
Inc. (New Seasons or Respondent) has engaged in conduct in
violation of Section 8(a)(1) and (5) and Section 8(d) of the
National Labor Relations Act (the Act). Respondent filed a
timely answer wherein, inter alia, it admits the jurisdictional
allegations of the complaint.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a nonprofit Connecticut corporation, with
its administrative offices located in Manchester, Connecticut,
has been engaged in providing residential and daycare services
to mentally-impaired individuals at various sites throughout the
Greater Manchester area. The Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a

1 All dates are in 2004, unless otherwise indicated.
2 Respondent filed a motion to correct the transcript dated March 15,
2005. The motion to correct is granted. Counsel filed a similar motion
attached as app. A to her brief. Her motion is granted.
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. An Overview and Complaint Allegations
New Seasons operates seven group homes in the Manchester,
Connecticut area taking care of mentally disabled clients. The
Union represents a unit of Respondent’s employees described
as follows:
All regular, full-time direct care staff, including day treatment
program coordinators, house supervisors, nurse supervisors
habilitation specialists I and II, habilitation assistants, dietary/
maintenance aides, residential specialists, residential assis-
tants, maintenance specialists, and transportation officers, but
excluding the executive director, director of programs and
services, administrator on call, director of nurses, business of-
fice staff, recreation aides and consultants, staff development
coordinator (scheduler), and staff and training coordinator
(trainer).
Since about 1992 and at all material times, the Union has
been the designated exclusive collective-bargaining representa-
tive of the unit and recognized as such by the Respondent. This
recognition has been embodied in successive collective-
bargaining agreements, the most recent of which is effective
from April 1, 2003, to March 31, 2005 (the agreement). Article
31, subsection B of the agreement contains a midterm reopener
clause for the purpose of negotiating wages, health insurance
benefits, and the article 13 attendance bonus benefit.
The complaint alleges that on or about September 1, 2004,
Respondent:
(a) Implemented its final proposal modifying the article 13,3
subsection F attendance bonus benefit.4
(b) Failed to continue in effect all the terms and conditions of
the agreement by modifying the article 13, subsection L
planned-absence notice requirement.
The complaint alleges that the subjects of Respondent’s ac-
tions are mandatory subjects of bargaining and that the Re-
spondent took the action set forth above without affording the
Union an opportunity to bargain with respect to such actions
and without first bargaining with the Union to a good-faith
impasse. The complaint alleges that Respondent’s actions were
in violation of Section 8(a)(1) and (5) of the Act. Allegation b
above is alleged to be an independent violation of Section 8(d).
B. The Reopener Clause, Pertinent Contract Provisions, and
the December 2000 Settlement Agreement
The Respondent and the Union are parties to a collective-
bargaining agreement for the term April 1, 2003, to March 31,
2005. In article 31, “Duration,” paragraph B, the contract pro-
vides for a limited reopener in the third year on three subjects,

3 Art. 13 in the contract appears as art. XIII. It will be referenced
hereinafter as art. 13 for ease of typing.
4 The parties also had entered into a December 2000 settlement
agreement which affected the attendance bonus benefit. Without the
approval of the Union, Respondent effectively voided this agreement at
the same time it unilaterally modified art. 13, pars. F and L. I will find
that this action violated Sec. 8(a)(1) and (5) of the Act.
NEW SEASONS, INC. 613
namely, wages, insurance, and the “Article 13 attendance bonus
benefit.” Specifically, paragraph B, provides as follows:
The parties agree to reopen the Agreement for the purposes of
negotiating wages, health insurance benefits, and the Article
13 attendance bonus benefit effective April 1, 2004. In the
event the parties are unable to reach an agreement, the Union
will have the right to strike on or after April 1, 2004.
Article 13 is a lengthy provision with multiple subpara-
graphs. It deals with accrual and utilization of pool time and
related matters. Pool time is defined in paragraph 13(A) as “the
general term for paid leaves of absence as defined hereinafter.”
There are also other definitions set forth in paragraph A.
Among them, both “planned absence” and “unplanned ab-
sence” are defined. A “planned absence” is defined as “any
time off from work which has been approved in advance as set
forth in Paragraphs J, K, L and M below, unless otherwise ap-
proved by the Executive Director or her/his designee.” All
other approved time off is considered “unplanned absence.”
Both planned and unplanned absences require approval of the
executive director or his/her designee. However, the contract
only sets forth the criteria for approval of requests for planned
absences, not unplanned absences. In this regard, article 13,
paragraph J provides as follows:
Employee requests for planned absences are subject to
the approval of the Executive Director or her/his designee
taking into account the wishes of the Employee and the
needs of New Seasons. Where there is a conflict in choice
of planned absences among Employees, seniority shall
prevail.
Article 13, subsection F reads as follows:
Employees who incur no unplanned absences during
any period of three (3) consecutive months shall receive
one (1) additional day off with pay. Employees must use
or forfeit all such earned paid days off in the same year
such days are earned, except that Employees may request
pay in lieu of time off for up to fifty percent (50%) of such
earned time off each year. Pay for such earned time shall
be at the Employee’s regular pay rate.
Paragraph F describes the attendance bonus benefit. The
first sentence of paragraph F describes how the attendance
benefit is earned, and the remainder of the paragraph sets forth
how employees either use the earned day or instead receive
pay.
There is a disagreement between the parties about whether
article 13, paragraph L, is a component of what is called in the
reopener clause as the “Article 13 attendance bonus benefit.”
Article 13, subsection L reads as follows:
Except in the case of emergency, as determined by the Execu-
tive Director, planned time off requests, for a duration of up to
five (5) consecutive days off, must be submitted to the em-
ployee’s supervisor at least three (3) working days in advance
of such requested leave. Except in the case of emergency, as
determined by the Executive Director, planned time off re-
quests, for a duration of greater than five (5) consecutive days
off, must be submitted to the employee’s supervisor at least
ten (10) working days in advance of such requested leave. An
employee’s failure to submit time off requests in advance as
set forth above shall result in the denial of such request.
The provisions of a December 4, 2000 settlement agreement
which the parties had maintained and applied during the term of
the 2003–2005 contract also bear on the application of the at-
tendance bonus benefit. A key provision of the settlement
agreement, contained in paragraph 3, states:
3. In lieu of the emergency exception language set
forth in Article 13, Paragraph L, the parties agree that em-
ployees who work less than twenty hours a week will be
able to utilize up to 2 incidents of EPL (emergency per-
sonal leave) per year. Employees who work 20 hours per
week or more will be able to utilize up to 3 incidents of
EPL per year. The use of an EPL incident will not dis-
qualify an employee from accruing an earned day under
Article 13, Paragraph F. In addition, employees may earn
up to 2 extra EPL days (one for each of the first 2 earned
days earned in a year.)
There were also relevant provisions in the settlement agree-
ment at paragraphs 4, 5, 8, and 9, which read as follows:
4. The parties agree that any practice that may have
ever existed pertaining to half-day absences not counting
as an unplanned absence is void.
5. Each EPL day is one instance of absence from work
(for whatever period of time.)
8. With regard to achieving holiday pay eligibility,
employees shall not be permitted to us[e] an EPL day on
either the day before or after a holiday, except with the
approval of the Executive Director, whose discretion shall
not be subject to the contractual grievance procedure.
9. Henceforth, EPLs shall be referred to as “PT.” PT
stands for personal time.
The following is a synopsis of what appears to be undisputed
about the meaning and application of article 13, paragraphs F
and L, based on the text of the contract, the settlement agree-
ment, and the practice of the parties as described in record tes-
timony.
Article 13, paragraph F, provides that employees can earn an
extra day of pool time, dubbed an “earned day” or “bonus day,”
if they have not had any “unplanned absences” during any 3-
month period. Thus, paragraph F created the potential to earn 4
extra days of pool time in a year. However, the text of the De-
cember 2000 settlement agreement, paragraph 3, created a sub-
stantial exception to the requirement that employees have “no
unplanned absences” in a 3-month period in order to qualify for
an earned day. Paragraph 3 accomplished this by replacing the
introductory language of contract article 13, paragraph L,
which is the paragraph which lays out the rules about the num-
ber of day’s notice that must be provided for planned time off
requests. The introductory clause of article 13, paragraph L
contained the possibility of a discretionary exception to those
notice requirements, prefacing them with, “except in the case of
emergency, as determine[d] by the Executive Director.” Para-
graph 3 of the settlement agreement replaced that nebulous
exception with a concrete one—the EPL day system. In this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD614
regard, paragraph 3 provided that full time employees could use
up to three incidents per year of “emergency personal leave
(EPL days) without being disqualified from accruing an earned
day under article 13, paragraph F. Paragraph 3 of the settle-
ment agreement also provided that part-timers working less
than 20 hours were only afforded 2 such EPL days.5 Thus,
although the provisions of paragraph 3 of the settlement agree-
ment changed the introductory clause to article 13, paragraph L,
and did not actually replace any language in paragraph F, the
settlement agreement crafted an important element of the para-
graph F attendance bonus benefit by expressly stating that the
use of an EPL incident will not disqualify an employee from
accruing an earned day.
In unrebutted testimony, union delegate/employee Monica
Tourtellotte described the application of these provisions to the
unilateral changes implemented by the Respondent on Septem-
ber 1, 2004. Her testimony is consistent with the plain lan-
guage of the contract and the settlement agreement and is cred-
ited. Hereinafter the involved contract and settlement agree-
ment language used prior to September 1 will be called the old
system and the language imposed after September 1 will be
called the new system. In this regard, under the pre-September
1 or old system, employees with unexpected situations that
would make them late or absent from work could apply their
EPL days as a pass, so that an incident of tardiness or short
notice absence did not disqualify them from receiving an
“earned” or “bonus” day under article 13, paragraph F. She
used the same “get out of jail free card” language that was used
by Respondent in its opening statement in this case. Thus the
EPL days did not create paid extra time off, they simply en-
abled employees to earn their bonus days even though they had
some short notice absences or tardiness. However, if an em-
ployee had already used up her/his EPL days on earlier ab-
sences, then a short-notice absence would bar the employee
from securing an earned day.
Significantly, none of the provisions of the settlement
agreement modified the number of days of notice which article
13, paragraph L required employees to give for planned time
off requests. The required number of days of advance notice
was 3 working days for requests of up to 5 days off, and 10
working days in advance of requests for more than 5 days.
Article 13, paragraph L also set forth the consequences of
not meeting the notice requirement. It stated: “An Employee’s
failure to submit planned time off requests in advance as set
forth above shall result in denial of such request.”
It is noted that in 2003, during the negotiation of the 2003–
2005 contract which contains the reopener provision, the Re-
spondent had proposed to delete article 13, paragraph F and the
earned days entirely, but it had never advanced any proposal to
change article 13, paragraph L. The parties ended up keeping
the same paragraph F provision as had existed in the pre-2003
contract.

5 Although the settlement agreement, at par. 3, provides for earning
extra EPL days—as distinguished from extra earned days—there was
no testimony explaining just how such could take place. Union dele-
gate and employee Monica Tourtellotte testified that she was not sure
how the extra days could be earned.
As to negotiation of the reopener clause in 2003, Respon-
dent’s chief negotiator, Pat McHale, testified that the reopener
discussed by the parties in 2003 stemmed from the earned days
proposal: he did not tie it to the paragraph L notice provisions.
In this regard he testified that “we settled the contract with the
agreement to come back and revisit issues such as—including
wages, health insurance and the earned day proposal that we
had been discussing. Earned day issue.” Further, in attempting
to explain the purposes of the Employer’s proposals in 2005, he
referred to the preference being “to delete the earned days”; he
then testified that “[w]e had long conversations on this in 2003
with the Union. This is why it was the subject of the reopener.”
C. The Parties Negotiations and Communications
1. The negotiating sessions
a. Overview
By letter dated December 16, 2003, the Union requested re-
opening the contract on April 1, 2004. During the period April
27 through July 1, 2004, the parties met on five occasions and
negotiated under the reopener provision. As will be detailed
below, the bulk of the negotiations up until July 1, 2004, were
about wages and insurance, with very limited discussion of the
attendance bonus benefit. The employer initially made separate
proposals to delete article 13, paragraph F and to modify para-
graph L. It is the modifications to the notice provisions of para-
graph L that the General Counsel contends fall outside of the
permissible scope of the reopener provision. The Respondent
later orally advanced a package proposal to revise the existing
paragraph F to dramatically restrict the earned days (and void
the key settlement agreement provisions) and to retain the
modified paragraph L as first proposed.
On July 1, 2004, the Respondent presented the Union with
what it labeled as its “Final Offer”; in addition to wage and
insurance proposals, the offer included the same packaged pro-
posal to change both paragraphs of article 13 as it had advanced
orally at the preceding negotiating session. At the July 1 meet-
ing, the parties spent considerable time on wages and insurance,
and actually reached agreement on those issues. Then they
turned to the article 13 attendance bonus benefit. After limited
discussion on this issue, the parties agreed that the Union would
later fax a counterproposal to the Respondent.
b. The meetings
The first negotiating session pursuant to the reopener request
was held April 27, with the following sessions held May 27,
June 7 and 15, and July 1. Each session lasted about an hour to
an hour and a half. At the first session, the employees were
represented by union organizer Carla Montague, Linda Van-
noni,6 and employee/union delegates Monica Tourtellotte and
Cecile Winslow. The Respondent was represented by Attorney
Patrick McHale and its Executive Director Keith Lavallette.
The Union presented its proposals which called for a wage
increase, a future proposal on health insurance and no change in
the attendance bonus benefit. The Union’s proposal on health
insurance was put off until the Respondent supplied certain

6 I cannot find that Vannoni’s position with the Union is set forth in
the transcript.
NEW SEASONS, INC. 615
requested information. The Respondent made proposals with
respect to insurance and as pertinent, article 13. Respondent
proposed deleting article 13, paragraph F and modifying para-
graph L. With respect to paragraph L, Respondent proposed
deleting the opening phrase of the existing provision, i.e., “Ex-
cept in the case of emergency, as determined by the Executive
Director.” It also proposed increasing the advance notice re-
quired for a request of 5 or less days off from the current 3
working days to 5 “business” days. Specifically, the Respon-
dent proposed substituting the following language for the exist-
ing language of paragraph L:7
Planned absences from work requires appropriate advance no-
tice from the employee to the employee’s supervisor based
upon the requested duration of the absence. For absences
from work not to exceed five (5) consecutive days, the em-
ployee shall be required to provide her/his supervisor with no
less than five (5) business days notice of her/his request for
planned time off. For absences from work which exceed five
(5) consecutive days, the employee shall be required to pro-
vide her/his supervisor with a minimum of ten (10) business
days notice of her/his request for such planned time off. An
employee’s failure to submit planned time off requests in ad-
vance as set forth above shall result in the denial of such re-
quest.
According to Montague, Respondent’s representative stated
that the changes proposed in article 13 were to address a sched-
uling problem. Montague testified that a number of employees
who attended this meeting voiced their disapproval of Respon-
dent’s proposed changes to article 13. Had the Union accepted
the Respondent’s proposal both to delete paragraph F and
change paragraph L, in addition to losing earned bonus days,
the employees would have been faced with significant changes
in the notice requirements.
At the next meeting, on May 27, the parties were represented
by the same people. The Union made a proposal with respect
to health insurance and pensions. Respondent at this meeting
proposed changing health insurance providers and provided an
overview of the benefits and costs associated with the change.
According to McHale, Respondent objected to the pension
proposal on the grounds that it was outside the reopener and it
was withdrawn. Montague testified that she did not believe
there was any discussion of the Respondent’s proposal with
respect to article 13.
At the next meeting, held June 7, the parties began by talking
about the Respondent’s financial statement which it produced

7 The General Counsel urges and I agree that the change in the num-
ber of days notice and the type of days counted are significant. For an
absence of less than 5 days, employees effectively had to give notice a
calendar week ahead rather than the previous 3 working days. The
business office is not open on weekends, but only Monday through
Friday. It appears that business days would exclude Saturday and
Sunday. Thus it appears that a worker wanting to begin 5 days off
beginning on a Monday, would have to give notice on the preceding
Monday, rather than the preceding Friday, as was apparently the case
previously. The distinction between business days and working days
would be particularly significant to patient care workers who only work
weekends. The Respondent operates on weekends.
at this meeting. There was also substantial discussion about
health insurance. At this meeting, Montague rejected the Re-
spondent’s proposal with respect to article 13.
At the June 15 meeting, there were present representatives
from the insurance carrier to make a presentation. With respect
to the article 13 proposals, Respondent orally modified its offer.
It proposed to keep the earned days in paragraph F, but wanted
to do away with the settlement agreement. As noted earlier,
this agreement created the emergency person leave system, the
EPL days. The proposals were linked in a package, with the
Respondent proposing the modified paragraph F provided the
Union would be agreeable to the proposed changes to para-
graph L. The changes proposed to paragraph L remained un-
changed from the April 27 meeting. At this meeting, Montague
learned for the first time of the existence of the December 2000
settlement agreement. She asked for a copy of the settlement
agreement and was given one. The Union rejected Respon-
dent’s oral proposal but made no counteroffer. This meeting
lasted about an hour and a half, with about 15 to 20 minutes
devoted to the article 13 issues.
At the July 1 meeting, things were a little confused at the
start because of some miscommunication between the parties
following the June 15 meeting. It was cleared up and the Union
stated that the employees had voted to take the Respondent’s
proposed insurance option 1 without a raise. The employer
then presented a handwritten “Final Offer,” which correctly
stated the parties’ position with respect to wages and insurance.
It also contained what Respondent had proposed orally with
respect to article 13 at the June 15 meeting. This reflected the
same language for paragraph L which the Respondent had pro-
posed on April 27, along with a proposal to add to the existing
contract’s paragraph F the following language:
To be eligible to receive earned paid days under this Para-
graph, the employee must incur no unplanned absences dur-
ing the three (3) consecutive month period. There shall be no
exceptions to this requirement. There shall no longer be EPL
or PT exceptions and the terms of the Parties 12/4/00 Settle-
ment Agreement pertaining to such exceptions shall no longer
be effective.
The Union accepted the wage and insurance proposals, but
rejected the proposal to change article 13. The employees in
attendance then spent 10 or 15 minutes voicing their concerns
about the proposed changes to article 13. The Union represen-
tatives then caucused and determined to make a counterpro-
posal. Montague and Tortellotte then had a side meeting with
McHale and Lavalette, advising that the Union would draw up
counterproposals, which it would then fax to Respondent. Re-
spondent agreed to this procedure, but stated that it wanted to
get rid of the EPL days. Montague testified that she told them
that if Respondent did not agree with its counterproposal the
sides could meet for further negotiations. According to Monta-
gue, both McHale and Lavalette agreed to this procedure.
2. The communications following July 1 and the
implementation of changes in article 13
Following up on this agreement, the Union faxed a counter-
proposal to Respondent on July 12. In the fax, the Union stated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD616
that it would not respond to Respondent’s proposal on article
13, paragraph L, because it is not a subject covered under the
reopener. Montague testified that the Union had never stated
that the Respondent’s proposal with respect to paragraph L
were properly within the scope of the reopener. With respect to
paragraph F, the Union’s counterproposal reads as follows:
The Union proposal is to add three (3) more days to the an-
nual accrued pool time for full-time employees and prorated
for part-time employees, and delete the current Paragraph F of
Article 13 (and the relevant portions of the EPL Settlement
dated December 4, 2000[)].
Montague testified that this fax was sent in error. So she
called McHale and left a message telling him of the error and
promising a corrected version soon. On July 20, a revised
counterproposal was sent. It was identical with respect to the
Union’s position on paragraph L. It modified the July 12 fax
with respect to paragraph F. In this regard the revised proposal
reads:
Article 13, Section F—
The Union’s proposal is to add three (3) more days to
the annual accrued pool time for full-time employees and
prorated for part-time employees, and delete the current
Section F of Article 13.
Add New Language
In lieu of the emergency exception language set forth
in Article 13, Paragraph L, the parties agree that employ-
ees who work less then twenty (20) hours per week will be
able to utilize up to four (4) incidents of P.T. per year.
Employees who work twenty (20) hours per week or more
will be able to utilize up to five (5) incidents of P.T. per
year.
On the same day as the Union’s counterproposal was faxed
to McHale, July 20, McHale wrote the Union a letter in re-
sponse. It first notes the parties’ agreement on the wage and
health insurance issues. With respect to the article 13 issues,
the letter states:
With regard to the issue of the attendance bonus benefit, New
Seasons made its final offer on July 1, 2004 and the Union re-
quested additional time to consider the employer’s final offer
on this sole remaining issue. Through correspondence dated
July 12, 2004, you provided me with the Union’s counter to
the Employer’s final offer on perfect attendance days. This is
to advise you that New Seasons has considered the Union’s
counterproposal and finds it unacceptable. New Seasons’ fi-
nal offer which was distributed on July 1, 2004 concerning
the subject of the attendance bonus benefit, and which is at-
tached hereto, remains unchanged. Also, New Seasons dis-
agrees with the Union’s new claim that the Employer’s pro-
posal to amend Article XIII, Section L is not covered by the
re-opener. I note that the parties have bargained about this
provision since April 27, 2004 and the Union has never before
claimed that this proposal was not within the scope of the re-
opener. Please let me know promptly if the Union has any
other proposals on this issue.
Following receipt of this letter, Montague called Executive
Director Lavalette and requested that she and some of the union
employee/delegates have a meeting with him to try to settle the
outstanding issue. Lavalette noted that Respondent had given
its final offer and said he would speak with Respondent’s attor-
ney and would get back with Montague. Montague reiterated
her request to meet and asked Lavalette how much money the
benefit being affected was costing New Seasons. She received
no answer and the conversation ended. She did not hear back
from McHale or Lavalette about a further meeting until after
Respondent unilaterally implemented its proposals.
At a later date she called Lavalette back and left a message
again requesting a meeting. She received no response.
On August 23, Respondent posted a notice to employees in
which it announced that it was implementing new rules with
regard to article 13. Attached were pertinent pages from the
existing contract showing the old language and the new lan-
guage being implemented. It tracks Respondent’s final offer of
July 1. It also noted that the new language will become effec-
tive September 1, 2004.
By letter of the same date, McHale advised Montague of Re-
spondent’s implementation and sent her a copy of the posting to
employees. Montague was given no advance warning by Re-
spondent of the posting of notice that it was implementing its
proposals concerning article 13.
Upon seeing the memorandum/notice, employee/union dele-
gate Tourtellotte called Lavalette and left a voice message ask-
ing how the memo could be issued when negotiations were not
settled. She also objected to the change in paragraph L as she
felt that matter was not covered by the reopener provision. She
received no response to the call, but confronted Lavalette in
person the following day. Lavalette told her he had received
the message. Tourtellotte asked to talk with him about the
memo and Lavalette responded that the matter was being han-
dled by New Seasons’ attorney and Montague.
On August 31, 2004, Montague and some delegates hand de-
livered to Lavalette’s secretary a letter dated August 30, which
reads as follows:
It has come to the Union’s attention that on August 23,
2004, you notified the employees at New Seasons that you
are implementing your final proposal on Article 13, Atten-
dance Bonus, effective September 1, 2004[.]
Please be advised that we have not finalized negotia-
tions, and therefore it is illegal for you to implement your
proposal. Furthermore, the new paragraph L you intend to
implement is not properly a subject of negotiations.
The Union hereby demands that you cease and desist
from implementing these proposed unilateral changes. We
request confirmed negotiations on these matters.
Please contact me with further dates and times for such
negotiating sessions.
On September 2, the Union filed the charge in this case.
Prior to implementation of the changes, neither Montague nor
any other union representative was given the opportunity to
explain the Union’s July 20 counteroffer or be informed why
the Respondent considered it unacceptable. No one from the
Union ever received an answer to Montague’s question to
NEW SEASONS, INC. 617
Lavalette about what the old system under paragraph F and the
settlement agreement was costing Respondent. Before imple-
mentation, no one from Respondent offered to meet for addi-
tional negotiation over the matters in dispute.
By letter dated September 1, 2004, McHale responded for
New Seasons. He wrote
Your letter dated August 30, 2004 addressed to Keith
Lavalette was forwarded to me for a reply.
New Seasons does not intend to refrain from imple-
menting its final offer on the subject of attendance bonus
days since, based on the parties’ negotiating history, New
Seasons believes that the parties are at impasse regarding
this issue.
However, New Seasons is certainly willing to meet
and negotiate with the Union to the extent that the Union
has new proposals to offer on this issue. Representatives
from New Seasons would be available to meet with the
Union on either of the following dates and times: (dates
excluded).
On September 16, Montague responded with a letter which
reads:
I am in receipt of your letter dated September 1, 2004,
in which you state that New Seasons does not intend to re-
frain from implementing its final offer regarding Atten-
dance Bonus Days.
A counter proposal had been previously sent to you on
July 9 and 12, 2004, which you rejected. The Union is
more than willing to meet if you are willing to discuss our
new proposals, and not just blatantly reject them without
discussion as you have done in the past.
Also, the dates you proposed we meet on are at con-
flict with my scheduled vacation. Please provide addi-
tional dates of your availability following September 28,
2004.
McHale responded with a letter of the same date which
reads:
I am writing in reply to your letter to me dated September 16,
2004. In addition to the dates provided to you previously,
New Seasons’ representatives would be available to meet
with the Union to review any new proposals of the Union on
October 4, 6, or 7 at 3:30 p.m. Please let me know if these
dates are agreeable to the Union.
McHale sent another letter to Montague, dated September
28, in which he wrote:
You have not replied to my letter of September 16, 2004 in
which I offered the following dates for additional negotia-
tions: October 4, October 6 or October 7 beginning at 3:30
pm. Please be advised that representatives of New Seasons
are no longer available on October 7. Kindly advise me as to
whether you and your negotiating committee are available to
meet on October 4 or October 6 at 3:30 p.m. and if not, please
suggest alternative dates.8
Since September 1, Tourtellotte has had occasion to request
time off. She followed the dictates of the memorandum and
requested the time off 5 business days in advance. Previously
she could have made the request 3 working days in advance.
On or after September 1, Respondent issued a new “Time-
Off Request Form” which includes on its face the critical lan-
guage found in the newly implemented article 13, paragraph L.
It has two check off boxes to reflect disposition of the request.
The first reads “APPROVED (adequate accrued time and/or
coverage).” The other reads “DENIED (no accrued time avail-
able, scheduling conflict, inadequate notice).” Thus, “inade-
quate notice” can be fatal to the employee’s request. This form
contains language reflecting the new, longer number of days
notice required, the reference to business days rather than
working days, and a definition of business days as excluding
holidays or weekends.
According to the unrebutted testimony of employee/union
delegate Tourtellotte, employees must submit their planned
time off requests under the new time limits of article 13, para-
graph L even if they are otherwise ineligible for an attendance
bonus by virtue of already having unplanned absences.
III. FINDINGS AND CONCLUSIONS
A. The Employer Violated Section 8(d) of the Act by
Implementing Changes in the Notice Requirements of
Article 13, Paragraph L
It is undisputed that the Respondent made changes in the no-
tice requirements of article 13, paragraph L without the Union’s
agreement. The changes were significant—the Respondent
increased by 2 days the amount of prior notice that employees
had to give for planned time off requests in order to secure
approval. Because the changes were in contract provisions not
covered by the reopener provisions of the collective-bargaining
agreement, and the Union did not agree to the changes, the
Respondent’s conduct violated Section 8(d) of the Act.
1. Based on Section 8(d) of the Act, an employer may not
impose midcontract changes in contract provisions
that are not covered by a reopener clause
Mandatory subjects of bargaining in reopener negotiations
are limited to the topics specified in a contract’s reopener pro-
vision. Campo Slacks, Inc., 266 NLRB 492, 497 (1983). See
Safelite Glass, 283 NLRB 929 fn. 3 (1987); Lear Sigler, Inc. v.
NLRB, 890 F.2d 1573 (10th Cir. 1989). As stated in Campo
Slacks: “In short the parties to a contract need not bargain in
midcontract over matters not covered by a reopener clause,
Leveld Wholesale, Inc., 218 NLRB 1344, 1349 (1975); Inta-
Roto Incorporated, 252 NLRB 764, 768 (1980); Standard Oil
Company, 174 NLRB 177, 178 (1969); and Los Angeles Ma-
rine Hardware Co., 235 NLRB 720, 735 (1978).”
Based on the provisions of Section 8(d) of the Act, if a party
proposes midterm modifications of the contract beyond the

8 Montague testified that she was on vacation when these letters
were received by the Union and was unaware of their existence until
they were put in this record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD618
limited topics of the reopener, the opposing party cannot be
required to accept those proposals unless it consents to do so.
Campo Slacks, supra. Section 8(d) defines the obligation to
bargain. After setting forth the parameters of this duty, it pro-
vides “. . . the duties so imposed shall not be construed as re-
quiring either party to discuss or agree to any modification of
the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such
terms and conditions can be reopened under the provisions of
the contract.” As stated in Safelite Glass, 283 NLRB at 939,
“. . . it has been consistently held that an employer acts in dero-
gation of its bargaining obligation under Section 8(d) when
during the effective period of the contract and without the con-
sent of the union, it modifies contractually determined benefits
or other employment conditions that are mandatory bargaining
subjects. [Citations omitted.]”
Further, because parties to a contract need not bargain on
such midterm modifications, an impasse in the reopener nego-
tiations is not a defense to an employer’s unilateral changes in
topics outside the reopener. Campo Slacks, supra. The em-
ployer cannot avoid the limits of the reopener in the instant case
merely by pointing to the fact that the contract provision it
wants to change is related in some way to the contract provision
that is covered by the reopener. In Safelite Glass, supra, the
Board found that the Employer violated Section 8(d) and (5) of
the Act by insisting on and implementing its proposals on
noneconomic aspects of holiday and vacation provisions in
contrast to other, economic aspects of those benefits which
were arguably encompassed by the wage reopener.9
2. The reopener provision of the collective-bargaining
agreement did not encompass bargaining concerning
changes in the notice requirements of article 13,
paragraph L
The reopener provision, which is found in article 31 of the
contract, was limited to three topics, namely wages, health
insurance, and the “Article 13 attendance bonus benefit.” The
genesis of the attendance bonus resides in article 13, paragraph
F, which set up the mechanism for employees to earn an extra
day of pool time as a reward for not having unplanned ab-
sences. It is undisputed that this benefit was applied in con-
junctions with the December 2000 settlement agreement provi-
sions concerning emergency personal leave days, which ex-
pressly provided that use of an “EPL” incident did not disqual-
ify an employee from accruing an earned day under paragraph
F. Although the settlement agreement also replaced the origi-
nal introductory phrase to paragraph L concerning exceptions

9 An example of the limits of a reopener can be found in an aspect of
this case which is not at issue in this litigation. In this regard, early in
negotiations, the Union proposed to reduce the Employer’s pension
contribution in order to increase the pool of money for wages; it later
dropped this proposal. Wages were clearly part of the reopener, but the
pensions were set by another contract provision, art. 17. The pension
was not transformed into a mandatory subject of the reopener negotia-
tions just because the pension provisions could have an effect on the
pool of money available for wages. Rather, the Union’s pension pro-
posal was a permissive subject; thus the Union could not have insisted
to impasse on this proposal.
for “emergencies,” it otherwise did not affect paragraph L,
which sets forth the specific number of days notice that had to
be provided when requesting planned absences, and the conse-
quences of inadequate notice, namely the denial of the request.
Although Respondent appears to argue that paragraph L’s
notice requirements only have import for the attendance bonus
and nothing else, in fact the notice requirements do have sub-
stantial independent aspects. These independent aspects in-
clude those found in paragraph L, itself and in article 13, para-
graph J. The independence of paragraph L is also shown by the
collective-bargaining history. For example, in the negotiations
which resulted in the 2003–2005 contract, Respondent pro-
posed eliminating article 13, paragraph F, without modifying in
any respect paragraph L.
a. The text of the agreement demonstrates that the unilateral
changes in the notice requirement substantively changed
benefits impendent of the attendance bonus benefit
Paragraph L does not mention the attendance bonus benefit.
The last sentence of paragraph L, as it existed in the contract
both before and after the Respondent’s unilateral changes,
specifies that: An Employee’s failure to submit planned time
off requests in advance as set forth above shall result in the
denial of such request.
Thus, if an employee did not meet the old notice provisions
for planned time off or now does not meet the more stringent
requirements of the Respondent’s implemented proposal, the
request will be denied. On the face of the text of paragraph L,
this denial is not an element of the attendance bonus, i.e., the
earned day bonus. As Tourtellotte testified without rebuttal,
even if an employee is already ineligible for an attendance bo-
nus, he/she must still make the request for planned time off
within the new timeframes. In light of this, employees who
would like to submit a request for planned time off, but cannot
meet the notice requirements, would likely be deterred from
doing so, knowing the request will be denied. Thus, the Re-
spondent’s unilaterally imposed increase in the number of days
notice required has direct effect beyond the accrual of extra
pool days—it results in denial of the request.
In his testimony, McHale gave his opinion that the Respon-
dent’s imposed proposal concerning paragraph L only has rele-
vance vis-à-vis accruing “earned days,” and that it has no inde-
pendent life apart from its application to paragraph F and the
attendance bonus benefit. I find this opinion patently wrong.
McHale initially stated that if, due to inadequate notice, a re-
quest does not qualify to receive designation as a “planned
absence,” the time off is taken as paid, unplanned time off,
which merely excludes the employee from accruing earned
days off. Following McHale’s reasoning to conclusion, under
the unilaterally implemented revised paragraph L, a request for
10 consecutive days off that was not submitted 10 business
days ahead of the request would simply be designated as un-
planned time off, and granted. Similarly, a last minute request
for time off to go to see a ball game would be automatically
granted.
On further examination by counsel for the General Counsel,
McHale conceded that his testimony was limited to his opinion.
He further admitted that he did not know how the last sentence
NEW SEASONS, INC. 619
of paragraph L, concerning denials of requests, is being inter-
preted or applied by the Respondent. When pressed further,
McHale effectively nullified his initial testimony when he ad-
mitted that he could not even describe the effect of a failure to
meet the 5-day notice requirement.
The employer never called a witness having actual knowl-
edge to explain its practice under article 1, even though McHale
testified that Executive Director Lavalette would know how the
“denial” clause of paragraph L was being applied. Thus, Re-
spondent failed to introduce any competent evidence on how it
handles requests for unplanned absences. Lavallette or his des-
ignee is charged with approving requests for planned absences.
As no good reason was given for not calling him to testify, I
draw the inference that his testimony would not have been fa-
vorable to Respondent, and that his testimony would have
shown that denial of a planned leave request affects more than
the attendance bonus, and would not have supported the claim
that requests for unplanned absences are automatically ap-
proved. International Automated Machines, Inc., 285 NLRB
1122 (1987).
McHale’s opinion that a denied “planned time off request” is
always transformed into an unplanned absence, which is rotely
approved, is simply implausible. Planned absence requests are
subjected to the criteria of article 13, paragraph J. Paragraph J
provides:
Employee requests for planned absences are subject to the ap-
proval of the Executive Director or her/his designee taking
into account the wishes of the Employee and the needs of
New Seasons. Where there is a conflict in choice of planned
absences among Employees, seniority will prevail.
Thus, paragraph J secures a system for approval of planned
absences which weighs the wishes of the employee, the needs
of the Employer, and in certain cases, seniority. In sharp con-
trast, the contract provides no criteria at all for approval of
unplanned absence requests. It is absurd to think that approval
of unplanned absences, even for multiple days, would be auto-
matic. Once again, following McHale’s opinion to its logical
conclusion would mean that approval for unplanned absences,
even if not due to sickness or emergency, would be easier to get
at the last second than planned absences submitted days earlier.
This is not rational.
The changes to paragraph L have obvious import independ-
ent of the earned days and attendance bonus benefit. For ex-
ample, whereas in the past a top-seniority employee could
submit his/her planned absence request for 4 days off just 3
days ahead of time, confident that if there were competing re-
quests he/she would prevail by seniority, he/she now loses out
on that seniority right if he/she is unable to meet the new “5
business day” requirement. Thus the more onerous notice re-
quirements of the Respondent’s unilaterally-implemented revi-
sion of paragraph L strip employees of a contractual benefit
apart from the attendance day bonus benefit.
b. The collective-bargaining history establishes that article
13, paragraph L entails independent rights apart from
the attendance bonus benefit
The fact that paragraph L has life apart from the attendance
bonus is also shown by the collective-bargaining history in both
the 2003 contract negotiations and the 2004 reopener negotia-
tions.
In the 2003 negotiations which culminated in the existing
contract and its reopener provision, the Respondent made only
one proposal concerning the attendance bonus benefit. It sim-
ply proposed to delete paragraph F. It made no proposal to
change or delete paragraph L, which thus would have retained
independent vitality even if paragraph F had been deleted. The
Respondent never proposed changing the number of days no-
tice in 2003 in negotiations for the existing contract, nor is
there any evidence that this was even mentioned at the table.10
In the 2004 reopener negotiations, the Employer’s proposal
on April 27, which stayed on the table until the fourth session
was to delete paragraph F and the earned days entirely, yet at
the same time to modify paragraph L. These were initially
presented as two independent proposals. Thus, in the Em-
ployer’s own initial proposals, once again the notice require-
ments of paragraph L would have life even if the paragraph F
attendance bonus was dissolved.
The Employer apparently would have us believe that both
the 2003 and 2004 proposal, which retained paragraph L, while
eliminating paragraph F were meaningless proposals. That is
illogical. One can infer that the proposals had meaning and that
paragraph L had independent life. The Employer has not rebut-
ted this inference simply by the statement of opinion of its at-
torney at trial as to his interpretation of provisions.
In fact, McHale’s testimony about the negotiation of the re-
opener undercuts the Respondent’s position that the reopener
encompasses the notice requirements of paragraph L. He es-
sentially admitted that the reopener discussed by the parties
stemmed from the earned days proposal, not the paragraph L
notice provisions. In this regard he testified that “we settled the
contract with the agreement to come back and revisit issues
such as—including wages, health insurance and the earned day
proposal we had been discussing. Earned day issue.” Further,
in attempting to explain the purposes of the employer’s propos-
als in 2004, he referred to the preference being “to delete the
earned days” and testified that “We had had long conversations
on this in 2003 with the Union. This is why it was the subject
of the reopener.”
McHale’s testimony about the 2004 negotiations further un-
dercuts the Respondent’s claim that the reopener encompassed
its proposed changes in the notice requirements of paragraph L.

10 There is no evidence that there were actual negotiations about sec.
L in 2003 or about sec. L being part of the attendance bonus benefit.
No such evidence lies in the miniscule reference to sec. L which ap-
pears in the negotiating notes of one session. No such evidence lies in
the conclusory, self-serving testimony of McHale, whose memory was
clearly not genuinely refreshed by review of that miniscule reference in
his notes, that there was “negotiation” concerning par. L. Under any
measure, that “evidence” certainly does not constitute parole evidence
that the parties intended the reopener to encompass the notice require-
ments of par. L.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD620
Specifically, he testified that the proposed changes in the notice
provisions, were so “. . . we can schedule properly.” This cor-
roborates the Union’s testimony that the Respondent merely
cited scheduling needs in justifying its proposal at the bargain-
ing table. Scheduling needs are distinct from the earned day
bonus, and they are a concern regardless of whether an em-
ployee is eligible for a bonus.
Indeed, McHale’s testimony shows that the Respondent
packaged its proposed changes to paragraphs F and L as “a
signal for where we’d be willing to go to resolve this issue.”
Just like the Union’s proposal to modify the pension benefits to
provide funds for wage increases, such a strategy is permitted.
However, such a strategic use of a permissive subject, one not
within the narrow limits of the reopener cannot be insisted upon
to impasse. Safelite Glass, supra at 941–942.
3. Contrary to the Respondent’s arguments, changes in
paragraph L were not a necessary element of any
restriction on the attendance bonus benefit
The Respondent in its opening statement attempted to sweep
the notice provisions under the umbrella of the reopener on the
“Article 13 Attendance Bonus Benefit” by the claim that “. . .
there is no way to deal with the subject of earned days but by
referring to Section L,” and that its proposals regarding section
L “were a necessary component of the reopener clause.” The
Respondent also contended that the General Counsel was stat-
ing that the Respondent could only propose deleting the earned
days entirely. I find these statements inaccurate.
In this regard, the Respondent had many legitimate options
at the table if it was trying to tighten up the attendance bonus
benefit. It could have proposed a variety of approaches, even
permissive subjects, so long as it refrained from insisting to
impasse on permissive subjects, or implementing them unilat-
erally if the Union did not agree. It could have made proposals
which qualified as mandatory subjects under the reopener. For
example, it could have proposed reducing the number of earned
days that could be secured by perfect attendance. Indeed, it did
lawfully propose eliminating the use of EPL days to avoid dis-
qualifying employees from accruing an earned day under para-
graph F.
4. The implementation of changes to paragraph L
violated Section 8(d)
In summary, the Employer’s change in the notice require-
ments of section L, specifically its changes in the number of
days and their definition as “business days” rather than “work-
ing days,” represented substantive changes that were not part of
the “Article 13 attendance bonus benefit.” Therefore, this case
presents the same situation as in Safelite Glass, supra. Here, as
in Safelite, the Employer, under the guise of introducing a pro-
posal that is part of the reopener, proposed changes in a con-
tractual provision, namely the notice provisions of paragraph L,
that contains independent benefits. Here, as in Safelite, the
employer cannot sweep its proposal on one contract provision
into reopener negotiations just because that provision has an
effect on a subject encompassed by the reopener. Thus, the
proposed changes fell outside the limited reopener, and could
not be imposed without the Union’s agreement. Therefore, the
changes violated Section 8(d), and thereby violated Section
8(a)(1) and (5).
B. The Respondent Violated Section 8(a)(1) and (5) by Imple-
menting its Proposals to Change Article 13, Paragraphs F
and L Because the Parties had not Reached Valid Impasse
Concerning the Attendance Bonus Benefit
The Respondent prematurely and improperly declared im-
passe concerning the article 13 attendance bonus benefit and
unlawfully imposed its proposals. As a review of the course of
bargaining demonstrates, the Respondent cannot meet its bur-
den of establishing impasse.
Even aside from the absence of genuine impasse based on
the course of dealing, the Respondent’s insistence on including
a nonmandatory subject tainted any claimed impasse.
1. Applying well-established criteria to the course of
bargaining the Respondent did not meet its burden to
establish impasse here
Some of the criteria for determining if impasse exists are
summarized in a judge’s decision recently adopted by the
Board in Mastronardi Mason Materials Co., 336 NLRB 1296,
1306 (2001), enfd. NLRB v. Mastronardi Mason Materials Co.,
64 Fed. Appx. 271, 2003 WL 1975186 (2d Cir. 2003):
A genuine impasse in negotiations exists when the parties are
warranted in assuming that further bargaining would be futile
or when there is “no realistic possibility that continuation of
discussion at that time would have been fruitful.” Bryant &
Stratton Business Institute, 327 NLRB 1135, 1144 (1999).
“A genuine impasse in negotiations is synonymous with dead-
lock. Where there is genuine impasse the parties have dis-
cussed a subject or subjects in good faith, and despite their
best effort to achieve agreement with respect to such, neither
party is willing to move from its respective positions.” CJC
Holdings, 320 NLRB 1041, 1044 (1996). A lawful impasse
may occur where the parties have discussed issues separating
them fully and, notwithstanding their best effort to reach
agreement are unwilling to move from their positions. Taft
Broadcasting Co., 163 NLRB 475 (1967). The burden of
proving that an impasse exists is on the party asserting the
impasse. Outboard Marine Co., 307 NLRB 1333, 1363
(1992).
Further, as stated in Taft Broadcasting, supra at 478, a de-
termination of whether impasse exists is a matter of judgment,
based on a consideration of a number of criteria:
Whether a bargaining impasse exists is a matter of judgment.
The bargaining history, the good faith of the parties in nego-
tiations, then length of negotiations, the importance of the is-
sue or issues as to which there is disagreement, the contempo-
raneous understanding of the parties as to the state of negotia-
tions are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.
Subsequent cases have identified other criteria as well. For
example, the Board in Cotter & Co., 331 NLRB 787 (2000),
stated:
NEW SEASONS, INC. 621
Another factor that is considered is the parties’ demonstrated
flexibility and willingness to compromise in an effort to reach
agreement. See, e.g., Wycoff Steel, 303 NLRB 517, 523
(1991). After considering the relevant factors, the Board will
find that an impasse existed at a given time only if there is “no
realistic possibility that continuation of discussion at that time
would have been fruitful.” AFTRA v. NLRB, 395 F.2d at 628
(D.C. Cir 1968).
Common sense judgment, informed by the legal criteria,
demonstrates that the parties in the instant case were a long way
from impasse. The Respondent was simply impatient with the
bargaining process and overeager to implement its proposals,
and cut off bargaining midstream. The absence of impasse
stands out boldly upon a review of the key facts detailed earlier.
The parties met on only five occasions, and the bulk of the
negotiations were about wages and insurance, issues which the
parties finally resolved on July 1. Prior to July 1, there had
been very limited discussion of the attendance bonus benefit.
That discussion consisted of the Respondent initially presenting
proposals to eliminate the benefit by deleting paragraph F, and
to modify paragraph L, the latter being the disputed proposal
which it incorrectly claims to be part of the reopener. Then, on
June 15, the Respondent presented a revised, packaged pro-
posal under the heading of “Perfect Attendance Days,” which
remained on the table on July 1 as part of the so-called “Final
Proposal.” This was the packaged proposal that the Respon-
dent eventually implemented unilaterally.
Prior to July 1, the Union simply rejected the Employer’s
proposals, proposing instead that there be no changes to the
attendance bonus benefit. Even at the July 1 meeting, the dis-
cussion of the parties on this topic was limited, consisting of 10
to 15 minutes of employee comments, the Union’s rejection of
the proposal and a very short sidebar discussion between the
parties. In that brief sidebar discussion, the parties agreed that
the Union would send the Respondent a counterproposal, and
the Respondent expressed its desire to get rid of the EPL days
under the settlement agreement.
On July 20, the Union faxed to the Respondent its first sub-
stantive counterproposal on the attendance bonus. At the same
time, the Union objected in writing to the Respondent’s pro-
posal on paragraph L as falling outside the reopener. The Re-
spondent immediately rejected the Union’s counterproposal,
without explanation, and advised that its own final offer re-
mained unchanged. The Respondent advised that it disagreed
with the Union’s objection to the Respondent’s paragraph L
proposal, but did not explain why.
In response the Union repeatedly sought further negotiations.
Its chief spokesperson, Montague, twice orally asked Respon-
dent’s executive director, Lavallette, if the union team could
meet with him and try to reach some sort of settlement or come
up with a counteroffer that would satisfy both parties. She
asked how much the involved benefit was costing Respondent.
Union delegate Tourtellotte also contacted Lavallette, objected
that negotiations were not finalized, and also protested the in-
clusion of proposals to change the notice requirements of para-
graph L.
The Respondent rebuffed all of those requests and contacts,
and instead sent the Union a letter declaring impasse and an-
nouncing the impending implementation of its last proposals.
The Union followed up with a letter requesting negotiations,
noting again that negotiations were not finalized, stating that
implementation was illegal, and again protesting that the para-
graph L proposal was not subject to negotiations. The Respon-
dent continued to ignore the requests for meetings prior to im-
plementation and implemented its packaged proposal, which
changed the language of both paragraphs F and L and the re-
lated practices.
Considering the criteria complied in Mastronardi Mason
Materials, supra, and Taft Broadcasting, supra, these facts sim-
ply do not describe a situation in which the Respondent could
possibly have been warranted in assuming that further bargain-
ing would be futile. There was no deadlock. The Union had
made only one counterproposal, and had not heard why it was
unacceptable. It had not even been told why the Respondent
disagreed with its protest to the inclusion of a proposal on para-
graph L. It had not been told why the Employer refused to
meet. It had not been given in any reasonable detail the reasons
why the Respondent wanted its proposals. The Union was
doing all it could to meet and understand the Respondent’s
costs, and come up with a proposal. This then is certainly not a
case of the parties having discussed the issues fully, a factor
cited in Taft Broadcasting, supra. Indeed, the fact that the Un-
ion’s chief negotiator had been unaware of the existence of the
settlement agreement until the next to last bargaining session,
and the substantial gaps in the Respondent’s chief negotiator’s
knowledge of the operation of article 13, indicated that in-depth
discussion at the table would have provided both parties with a
solid basis from which to build agreement.
The parties’ dealings on the attendance bonus benefit and on
the challenged notice requirements of paragraph L were so
cursory that neither side could have know which aspects of
those issues were key to the other side—they could not have
known “the importance of the issues as to which there was
disagreement,” another factor cited in Taft Broadcasting, supra.
There was no indication that the Union was unwilling to
move from its respective position, a criteria cited in CJC Hold-
ings, supra. The Union had made only one counterproposal.
When the Respondent instantly rejected that counterproposal,
the Union gave no indication that it was adamant on the issue—
rather it sought a chance to meet to craft a counterproposal or
settlement.
In fact, the history of the parties bargaining in 2004 was that
they had demonstrated flexibility and willingness to compro-
mise in an effort to reach agreement, a significant point in find-
ing that impasse has not been reached. See Cotter & Co., su-
pra. In this regard, the parties had reached agreement on two of
the three reopener subjects—the difficult subjects of wages and
insurance. Indeed, the Union had been the one which moved to
accept the Respondent’s economic proposal—one of two op-
tions packaging wages and insurance advanced by the Respon-
dent early in negotiations. Both the parties had moved on the
attendance bonus benefit—the Respondent had dropped its
proposal to delete the earned days, and, in its July 20 faxed
proposal, the Union had backed off its initial rejection of any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD622
changes to the attendance bonus benefit. The Union’s July 20
counterproposal was the first substantive change the Union had
made, and there was no reason for the Respondent to assume
the Union would not consider further changes. To the contrary,
there was every reason to assume that the Union was beginning
its movement—it was seeking a face-to-face meeting, and ex-
pressly worded its request in terms of a desire to craft propos-
als.
Thus, the parties “did not have a contemporaneous under-
standing that they were at impasse.” See Cotter & Co., supra at
788. In this regard, when the Union learned that the Respon-
dent was rejecting the Union’s July 20 faxed proposal out of
hand, without explanation, it immediately requested meetings,
told the Respondent why it wanted them. Then, when the Re-
spondent proclaimed impasse, it protested in writing and orally
that negotiations were not completed and that it wanted to meet
to negotiate further. This conduct demonstrates the Union’s
reasonable belief that further negotiations might produce
agreement.
As stated by the Board in Cotter & Co., supra, on similar
facts:
Under these circumstances, an impasse cannot be found, be-
cause an impasse can only exist only it [sic] both parties be-
lieve that they are “at the end of their rope.” PRC Recording
Co., 280 NLRB [615,] 635 [(1986)]; Huck Mfg. Co. v. NLRB,
693 F.2d 1176, 1186 (5th Cir. 1982) (“[F]or a deadlock to oc-
cur, neither party must be willing to compromise”); and
Teamsters Local 639 v. NLRB, 924 F.2d 1078 (D.C. Cir.
1991).
All the evidence in the instant case points to a continued
willingness of the Union to explore compromise with a deter-
mination to reach agreement.
To the extent that Respondent argues that it was reasonable
to assume that there was no room to compromise in light of (a)
the character of the Union’s July 20 proposal, or (b) the ab-
sence of any union revised counterproposal after the Respon-
dent rejected the July 20 proposal, those arguments are without
merit. The Respondent had not given the Union any reasons
for rejecting the Union’s July 20 proposal. It had never ex-
plained anything about its desire for relief on the attendance
bonus benefit beyond its skeletal comment that there were
scheduling problems. The Respondent had never explained any
pressing needs for the changes in the attendance bonus benefit.
What the Union needed was a meeting to understand the Re-
spondent’s needs and concerns, and to marshal the information
to craft a revised counterproposal that both parties might ac-
cept. The Respondent needed to hear alternative solutions.
Montague’s conversation with Lavalette shortly after the Re-
spondent rejected the Union’s July 20 proposal conveyed the
need for a free exchange at the bargaining table, in person, as
the Act requires.11

11 Sec. 8(d) of the Act specifically provides that the duty to bargain
imposes the mutual obligation “to meet at reasonable times.” The
Board has repeatedly construed this language to require the parties to
meet face-to-face for collective bargaining. Twin City Concrete, Inc.,
317 NLRB 1313, 1314 (1995) (citing longstanding rule that the statu-
tory obligation to bargain collectively “is not satisfied by merely invit-
Here the parties were not deadlocked; rather, “the Respon-
dent’s declaration of impasse was premature, and the Union’s
request for further negotiations [sic] a reasonable attempt to
reach agreement.” Cotter & Co., supra.
The Respondent cannot control the facts and create impasse
merely by labeling its July 1 offer as “final,” by reiterating in
its July 20 letter that its offer remained “final,” or by invoking
the term “impasse.” Indeed, even where one party has asserted
that it had reached its final position and the other had not yet
offered specific concessions, this does not require a finding of
impasse. See Grinnell Fire Protection Systems Co., 328 NLRB
585 (1999), and cases cited therein; Circuit-Wise, Inc., 309
NLRB 905, 919 (1992) (statement of company negotiator that
parties were at impasse insufficient to establish impasse). The
Respondent did nothing to “test the finality” of the Union’s
position; it did not respond to the Union’s in-person inquiries,
phone calls, or letters. See Towne Plaza Hotel, 258 NLRB 69
(1981) (employer’s failure to “test the finality” of union’s posi-
tion, including returning union’s phone calls, was a factor es-
tablishing absence of impasse). Here, the Respondent simply
cut off bargaining when it wanted to, not when true impasse
existed.
Respondent’s argument that it was not obligated to bargain
further because it had asked the Union to submit a new coun-
teroffer, and the Union did not do so, fails. Although the Re-
spondent might have been able to insist on new proposals as
prerequisite to meeting if there had been genuine impasse, there
was no genuine impasse. Absent a valid impasse, the Respon-
dent could not precondition further negotiations on the Union’s
willingness to alter its bargaining posture. A.M.F. Bowling Co.,
314 NLRB 969, 980 (1994).
Indeed, it is difficult to escape the inference that the Respon-
dent cut off bargaining out of pique when the Union objected to
changes in paragraph L as beyond the reopener. The Respon-
dent did not explain to the Union why it considered that the
paragraph L notice provisions were covered by the reopener.
Instead, the Respondent cut off all bargaining at that point, and
ignored the Union’s repeated requests to meet. In sum, the
parties clearly had not exhausted the collective-bargaining
process. Grinnell Fire Protection Systems Co., 328 NLRB 585
(1999), citing D.C. Liquor Wholesalers, 292 NLRB 1234, 1235
(1989). The Respondent did not satisfy its bargaining obliga-
tion by its tardy, postimplementation of meetings limited to
exploring any new proposals the Union had.
2. The bargaining and any claimed impasse were tainted
by the Respondent’s insistence on a permissive subject,
so that there was no valid impasse concerning the
attendance bonus benefit
A party can introduce in reopener negotiations a topic that is
not included in the reopener; but such would be a permissive
subject of bargaining, subject to the constraints of Section 8(d)
which were discussed above. A party may not insist to impasse
on a permissive subject. NLRB v. Borg-Warner Corp., 356

ing the union to submit any proposition in writing where either party
seeks a personal conference.” Westinghouse Corp., 196 NLRB 306,
313 (1972) (face-to-face meetings are required).
NEW SEASONS, INC. 623
U.S. 342 (1958). Further, although a party may initially make a
proposal on a permissive subject and link it to a mandatory
subject as part of an overall package, that linkage does not
privilege an employer to “continue to insist upon acceptance of
the proposal to the point of impasse, in the face of a clear and
express refusal by the union to bargain about the [non-
mandatory subject].” Pleasantview Nursing Home, Inc., 335
NLRB 961, 964 (2001), affd. in part 351 F.3d 747 (2003), quot-
ing Union Carbide Corp., 165 NLRB 254, 255 (1967), enfd.
sub nom. Oil Workers Local 389 v. NLRB, 405 F.2d 1111 (D.C.
Cir. 1968). See also Servicenet Inc., 340 NLRB 1245 (2003)
(no valid impasse where party insisted in overall contract set-
tlement on inclusion of nonmandatory subjects). In the instant
case, the Union properly put the Respondent on notice that it
would not bargain about the permissive subject that was outside
the scope of the reopener.
Only a genuine impasse permits an employer lawfully to take
unilateral action of a mandatory subject. No genuine impasse is
possible in reopener negotiations where substantial cause of the
claimed impasse is an employer’s insistence that a union ac-
cept, as part of packaged contract proposals, a significant modi-
fication to existing contract provisions that fall outside the
scope of the reopener. Safelite Glass, supra at 941–942.
The Respondent on June 15 orally presented its proposals on
article 13, paragraphs F and L as a package, modifying its pro-
posed changes to paragraph F, provided that the Union would
be agreeable to the changes in paragraph L. It again presented
the proposal as a package in the July 1 written “final offer”
under the heading “Perfect Attendance Days.” It continued to
present them as a package in its August 23 mailing to the Union
announcing the impending implementation of the changes to
article 13.
Thus, the Respondent presented a package consisting of a
mandatory subject—paragraph F, and a permissive subject—
the notice requirements of paragraph L. By insisting on this
package to what it called impasse, and them implementing the
package, the Respondent precluded genuine impasse. See Safe-
lite Glass, supra; Campo Slacks, supra. Thus, the unilateral
imposition of its proposals on the attendance bonus benefit and
the notice requirements of paragraph L, independently violated
Section 8(a)(1) and (5), in addition to the 8(d) violation dis-
cussed earlier.
CONCLUSIONS OF LAW
1. Respondent New Seasons, Inc. is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, New England Health Care Employees Union,
District 1199, SEIU, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has engaged in conduct in violation of Sec-
tion 8(d) and Section 8(a)(1) and (5) of the Act by, over the
objections of the Union, failing to continue in effect the terms
and conditions of its collective-bargaining agreement with the
Union by changing the existing contract language of that agree-
ment’s article 13, paragraph L.
4. Respondent has engaged in conduct in violation of Sec-
tion 8(a)(1) and (5) by, over the objections of the Union, by,
without reaching impasse, unilaterally implementing changes in
article 13, paragraphs F and L of the collective-bargaining
agreement and by voiding the December 2000 settlement
agreement between the parties.
5. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent should be ordered to rescind its unlawful im-
plementation of changes to article 13, paragraphs F and L of the
collective-bargaining agreement and the voiding of the parties’
December 2000 settlement agreement, and restore the status
quo as it existed prior to September 1, 2004. Further, Respon-
dent should be ordered to bargain in good faith with the Union
and, if an agreement is reached, embody that agreement in a
written, signed agreement.
[Recommended Order omitted from publication.]