Pennsylvania State Corrections Officers Association

National Labor Relations Board - Administrative Judge Opinions

Mar 17, 2011

04-CA-037648 (N.L.R.B. Mar. 17, 2011)

JD–11–11
Harrisburg, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
PENNSYLVANIA STATE CORRECTIONS
OFFICERS ASSOCIATION
and Cases 4-CA-37648
4-CA-37649
4-CA-37652
BUSINESS AGENTS REPRESENTING
STATE UNION EMPLOYEES ASSOCIATON
Henry R. Protas, Esq., of Philadelphia, PA,
for the General Counsel.
Richardson Todd Eagen, Esq., of Harrisburg, PA,
for the Respondent.
DECISION
Statement of the Case
ROBERT A. GIANNASI, Administrative Law Judge: This case was tried in Philadelphia,
Pennsylvania on January 26 and 27, 2010. The complaint, as amended, alleges that
Respondent (PSCOA) violated Section 8(a)(5) and (1) of the Act by failing to give effect to, and
thereafter repudiating, a collective bargaining agreement between it and the Charging Party
Union (the Union or BARSUEA). The amended complaint also alleges that Respondent violated
Section 8(a)(5) and (1) by discharging employees represented by the Union without prior notice
to the Union and without affording it an opportunity to bargain concerning the discharges and
their effects; and by failing to provide, or, as further amended at the hearing, unreasonably
delaying in providing, relevant information to the Union. The Respondent filed an answer
denying the essential allegations in the complaint.
After the conclusion of the trial, the Acting General Counsel and the Respondent
submitted briefs, which I have read and considered. Based on the entire record in this case,
including the testimony of the witnesses, and my observation of their demeanor, I make the
following
Findings of Fact
I. Jurisdiction
Respondent, an unincorporated Pennsylvania association with an office in Harrisburg,
Pennsylvania, represents employees in bargaining units within the Commonwealth of
Pennsylvania. In a representative 1-year period, Respondent received dues and fees in excess
of $500,000 and purchased and received goods valued in excess of $50,000 directly outside the
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Commonwealth. Accordingly, I find, as Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
It is also admitted that the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. The Alleged Unfair Labor Practices
The Facts
Background and Contested Election for Leadership of Respondent
Since June 2001, Respondent has represented some 11,000 correctional officers at 28
facilities in Pennsylvania’s prison system. It is led by a 13-member executive board, including a
president and other officers. And it operates under a written constitution that sets forth the
responsibilities and duties of its officers and governing executive board. Tr. 22, GC Exh. 2.
Respondent’s headquarters are located in Harrisburg, where its president and other officers and
employees maintain offices.
In May 2009, Ron Pinto, Respondent’s eastern regional vice president and a member of
its executive board, announced that he was a candidate for the office of president of
Respondent in an election that would be held to fill the position in June 2010. The incumbent
president, Donald McNany, who had been in office since August 2002, also announced that he
was running for reelection. For the last several years, Pinto and his allies were a minority on the
executive board, consistently outvoted by McNany and his supporters. Tr. 49-50.
A mail ballot election to select Respondent’s officers and executive board was scheduled
for June 2010. Although there were three slates of candidates, the real contest was between
McNany, and his mostly incumbent slate, and Pinto, whose slate included some incumbents,
but was regarded as the insurgent group. The ballots were mailed to the membership in late
May and completed ballots were counted on June 25, 2010, at the offices of the American
Arbitration Association in Philadelphia. Tr. 19, 51-52. Pinto received a majority of the votes for
president, and some candidates on his slate were also elected. But some of the other positions
required a runoff election because no candidate had received a majority. R Exh. 1, Tr. 26. The
runoff election was held on August 17, 2010. Tr. 161. After the runoff election, the Pinto slate
controlled all of the 13 executive board positions.
After the June 25 announcement of the vote results for president, there was confusion
as to when Pinto was going to take office and when McNany would leave office. McNany, who
lives in Butler, some 230 miles from Harrisburg, moved out of the president’s office in Harrisburg
on June 29. On that date, Pinto moved into the office. However, in some respects, McNany
continued to act as president and some of the incumbent officers and board members continued
in office until the results of the runoff election were announced a month later. In addition, the
Elections Committee, which apparently supervised the election, sought a manual recount of the
election results, further delaying an orderly transition. In support of his effort to clarify the
situation, Pinto filed a lawsuit to certify the election results and determine when exactly he could
take office. On July 15, 2010, Judge Andrew Dowling of the Court of Common Pleas for
Dauphin County, issued a memorandum opinion and order providing, inter alia, that Pinto and
four other elected officers and executive board members be certified as having won their
positions effective July 8, 2010. GC Exh. 7 & 8. Later that day, Pinto announced that he would
be sworn in as president on July 20; he was in fact sworn in on July 20 at Respondent’s
headquarters in Harrisburg.
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The Union Wins Representation Rights for Respondent’s Employees and Concludes an
Agreement with McNany
On June 25, 2010, the Union filed an election petition with the Board’s regional office in
Philadelphia seeking to represent Respondent’s roughly 20 business agents and staff
employees. Tr. 24, 85, GC Exh. 3.1 The petition was faxed to the regional office late in the day
on June 24 by Shawn Hood, the Union’s president and a business agent for Respondent. Hood
had been a supporter of the loser in the presidential election, Donald McNany, and was present
in Philadelphia when the vote count was announced on June 25. Hood had indicated on the
election petition that the Respondent’s representative was Ron Pinto so it was served on Pinto.
Since Pinto had not yet taken office when the petition was served on him, on June 28, he
walked across the hall to McNany’s office and hand delivered the petition to McNany. Tr. 14-15.
On July 1, 2010, the Respondent and the Union entered into a stipulated election
agreement, approved by the region, setting an election for July 12, 2010, in the following unit:
All full-time and regular part-time business agents and support staff employed
by the Respondent, excluding all other employees, guards and supervisors.
GC Exh. 4, Tr. 26-27. The election was held as scheduled and the Union won. On July 21,
2010, the Board certified the Union as the official bargaining representative of the Respondent’s
employees. GC Exh. 6.
Between the election and the Board’s certification, McNany, on behalf of Respondent,
and Hood, on behalf of the Union, engaged in three negotiating sessions, the last of which was
to go over the language of and sign a final collective bargaining agreement. At the last session,
on July 19, McNany and Hood signed the agreement, which had a 5 year term and contained
new and generous severance and other benefits. Tr. 33-35, 59, 60-63, GC Exh. 9. McNany
and Hood met in western Pennsylvania, where they both lived, not at Respondent’s Harrisburg
offices. Tr. 69-70. Nor did McNany consult Respondent’s executive board or Pinto on any
matter involving the Union’s representation rights, the negotiations, or the collective bargaining
agreement he and Hood signed. Tr. 54-60. McNany testified that, at the end of July, he
submitted a copy of the collective bargaining agreement to Sam Brezler, the outgoing secretary
of Respondent. Brezler was retiring and had not run for reelection; he was still in office,
awaiting the selection of his successor, who would be chosen in the runoff election on August
17, 2010. Tr. 38-39, 72.
The Union’s Information Request
On July 20, 2010, the Union’s secretary-treasurer, Patricia Hurd, prepared a letter asking
Respondent to provide the names and addresses of the unit employees. Hurd, who, as one of
Respondent’s business agents, had an office at Respondent’s Harrisburg headquarters, placed
a copy of the letter in McNany’s mailbox at headquarters. But, because Pinto was being sworn
in as president that day, she also placed a copy, along with a covering note, in Pinto’s mailbox
at headquarters. Tr. 140-142, GC Exh. 11, 12.
Hurd received no response to her July 20 request so she sent another request, dated
August 16, 2010, to Jason Bloom, Respondent’s western regional vice president, asking for the

1 At that time, Respondent employed 13 business agents and 7 clerical employees.
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same information she had requested the month before. GC Exh. 13, Tr. 144-145. The Union
received no reply to this letter, but, on November 9, 2010, after the initial complaint issued in
this case, Respondent’s lawyer did provide the requested information to the Union. R Exh. 11;
Tr. 205, 146-147. Pinto testified that he was unaware of the July 20 request, and, although he
was aware of the August 16 request, he did not answer that request immediately because he
was seeking evidence of the Union’s certification, which he did not confirm until August 23. Tr.
216-217. Although the complaint simply alleges that the information was not provided, at the
hearing, counsel for the Acting General Counsel effectively amended the complaint on this issue
and now alleges that the Respondent unreasonably delayed providing the information. Tr. 142-
143.
Respondent’s New Regime Discharges Some Employees and Refuses to Acknowledge the July
19 Bargaining Agreement
According to Jason Bloom, who was reelected to Respondent’s executive board on the
Pinto slate as western regional vice-president in June 2010, the Pinto slate’s platform on
Respondent’s business agents and employees was essentially one word, “change.” Tr. 226-
227. In accordance with that view, on July 17, 2010, Bloom sent a letter to all 13 business
agents of Respondent asking each of them to submit a letter of interest to be considered for a
continued business agent position by the end of the day on July 20. The letter stated that those
who were not interested in remaining as business agents should return Respondent’s property
in their possession and that those who wanted to remain would be scheduled for interviews. R
Exh. 7; Tr. 228-229. All but one indicated an intent to remain. Tr. 229. Bloom conducted
interviews in the first 2 weeks of August. On August 20, 2010, seven of the business agents
were notified that they had been terminated and that they should make arrangements to return
to their positions as correctional officers. GC Exh. 14. Subsequently, the terminations of two of
the business agents, those of Robert Smith and Larry Blackwell, were rescinded and they were
retained by Respondent. Tr. 232.2
One other employee was discharged by Respondent after the Pinto team took office.
She was Sonya Corish, a staff employee, who carried the job description of lung and heart
clerk. She was terminated on August 18 (Tr. 232-234).
On August 23, 2010, the Union filed grievances with the Respondent alleging that it had
violated the July 19 collective bargaining agreement by “terminating employees without just
cause,” failing to pay them “the negotiated severance and unused leave,” and failing to bid the
vacant positions. GC Exh. 15.
On August 27, 2010, Respondent, through its lawyer, sent the Union a letter in response
to the grievances. The letter stated that the Respondent had just recently learned of the
existence of the Union and its July 19 collective bargaining agreement. The letter also stated
that the agreement was void because McNany had no authority to sign the agreement on behalf
of the Respondent since he had been voted out of office and the agreement had not been

2 As indicated in the termination letters, the Respondent’s business agents were on leave of
absence from their positions as corrections officers with the Commonwealth of Pennsylvania.
Indeed, since January of 2007, they were paid a salary by the Commonwealth, which was
reimbursed by Respondent. So when they were terminated, the business agents returned to
their jobs as corrections officers. Likewise, an outgoing officer of Respondent, such as McNany,
who was defeated for reelection, was able to return to his position as a corrections officer.
McNany did indeed return to his position as a corrections officer in August of 2010.
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approved by Respondent’s executive board, as required by Respondent’s constitution. GC Exh.
16.
On January 3, 2011, Respondent entered into a new collective bargaining agreement
with the Union. That agreement, which runs for a term of 1 year and dispenses with the
lucrative severance and other benefits in the July 19 agreement, was signed by President Pinto
and a representative of the Union. R Exh. 10. Unlike the July 19 agreement, the new
agreement was approved by Respondent’s executive board. Tr. 204-205.
Discussion and Analysis
The complaint presents three basic questions: (1) Did the Respondent violate Section
8(a)(5) and (1) of the Act by failing to give effect to, and repudiating, the July 19 collective
bargaining agreement negotiated and signed by McNany and Hood; (2) Did Respondent violate
the Act by, unilaterally and without giving prior notice to the Union, discharging employees in
August 2010, and failing to bargain over the discharges and their effect; and (3) Did Respondent
unreasonably delay providing information to the Union in response to its information request.
Respondent contests the validity of the July 19 collective bargaining agreement, but does not
contest the Union’s representative status. Thus, the complaint allegations must be considered
in that light.
Failing to Give Effect to and Repudiating the July 19 Bargaining Agreement
The Acting General Counsel’s allegation that Respondent unlawfully failed to give effect
to and repudiated the July 19 collective bargaining agreement turns on whether McNany had
the authority to negotiate and execute the agreement. I agree with the Respondent that
McNany had no such authority.
First of all, when McNany negotiated and signed the agreement, he was the defeated
former president of Respondent. The vote count announced on June 25 not only showed that
Pinto had received a majority of the votes cast for that position, but that McNany was not even a
close second. He trailed Pinto by over 1000 votes, out of the some 4500 votes cast for three
presidential candidates. R Exh. 1. Although there was some confusion as to exactly when the
new president would take office, that was a technicality eventually resolved by a state court
judge, who ruled, on July 15, that Pinto should be certified as having won the presidency as of
July 8. Actually, McNany had physically abandoned his office in Harrisburg on June 29, and
Pinto moved into that office on the same day. McNany had retreated to his home in Butler,
Pennsylvania, 230 miles away from Respondent’s headquarters in Harrisburg. Nor did McNany
seek, or receive, any specific authority to negotiate or sign an agreement from either the
executive board or the newly elected president. In these circumstances, I find that McNany had
no actual authority to negotiate or sign the July 19 bargaining agreement.
Even if McNany could, by some stretch of the imagination, still be considered president
of Respondent when he negotiated and signed the July 19 agreement, he did not have the
authority, under Respondent’s constitution, to bind Respondent without the approval of
Respondent’s executive board, which he never sought or received. At the outset, the July 19
agreement committed Respondent to wages and benefits well in excess of the $5000 limit,
beyond which executive board approval was required. Tr. 60-63. Contrary to McNany’s
testimony, the absence of any provision in the constitution governing collective bargaining for
Respondent’s employees does not give him the authority to conclude such agreement in excess
of the $5000 limit. Even though the constitution is silent on the authority over bargaining
agreements, the constitution does give the executive board, not the president, authority over
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financial commitments and personnel and benefits policies that are typically covered by
bargaining agreements. See GC Exh. 2, pp. 9-11, Tr. 60-66. The executive board is also
empowered to enter into agreements necessary to effectuate its purposes and objectives. GC
Exh. 2, p. 10. The record contains documentary evidence showing that the executive board
regularly approved agreements, financial commitments and personnel policies in accordance
with its constitutional authority. See Tr. 240-264, and accompanying exhibits. Indeed, the
“governing authority” of Respondent resides in the executive board and the president simply has
the responsibility to enforce and carry out “the policies established” by the executive board. GC
Exh. 2, p. 4 and p. 9. Nor, contrary to McNany’s testimony, does the president have the sole
authority to construe or interpret the constitution. That responsibility may initially fall upon the
president, but the constitution clearly states that the president’s authority is “subject to the
approval of the executive board.” Tr. 68, GC Exh. 2, p. 5-6. Thus, the ultimate authority to
commit Respondent to a collective bargaining agreement rests not with its president, but with its
executive board.
Nor did McNany have apparent authority to bind Respondent to a collective bargaining
agreement. Apparent authority “results from a manifestation by the principal to a third party that
creates a reasonable basis for the latter to believe the principal has authorized the alleged
agent to perform the acts in question.” Corner Furniture Discount Center, Inc., 339 NLRB 1122,
1122 (2003). “Either the principal must intend to cause the third person to believe the agent is
authorized to act for him, or the principal should realize that his conduct is likely to create such
belief.” Id., cited with approval in Mastec Direct TV, 356 NLRB No. 110, slip op. 1-2 (2011).
Neither of these situations is present here. Contrary to the Acting General Counsel’s assertion
in his brief (Br. 33), the Respondent’s new leadership gave no signals that McNany was acting
in its interests. Quite to the contrary, it vigorously fought against McNany’s attempt to remain in
office after his election defeat, even to the point of filing a lawsuit to uphold the election results.
There was thus no manifestation by anyone from Respondent, aside from McNany, its
purported agent, to Hood that would provide a reasonable basis for him, or anyone else, to
believe that McNany had the apparent authority to negotiate and conclude a collective
bargaining agreement on behalf of Respondent. See also 300 Exhibit Services & Events, Inc.,
356 NLRB No. 66, slip op. 4-5 (2010).3
Indeed, it appears that Hood and McNany tried to keep their negotiations secret in an
effort to conclude an agreement before Respondent’s newly elected leadership took office. The
agreement, as noted, was signed 1 day before Pinto was sworn in as president. But to rule that
McNany was authorized to act on July 19, but not on July 20, would exalt form over substance.
Both Hood and McNany knew that McNany had no legitimacy to act on behalf of Respondent at
this time. They knew McNany had lost the election as early as June 25. Indeed, Hood himself
had named Pinto as Respondent’s representative when he filed the election petition before the
Union was even selected as bargaining representative. Moreover, a judge had directed that
Pinto be certified as the winner of the election as of July 8. And it was generally announced and
known throughout the membership on July 15 that Pinto would be sworn in on July 20. But
McNany and Hood carried on sham negotiations in an effort, I believe, to give a semblance of

3 There is testimony that Hood asked McNany, at one point during the negotiations, whether
McNany needed to get anyone else involved and McNany replied in the negative. That
statement does not establish apparent authority. In fact, it supports the notion that Hood knew
he was on shaky ground in dealing with McNany. In any event, it is well settled under general
agency principles that the statements of a purported agent cannot establish the existence of an
agency relationship. Karavos Campania Naviera S.A. v. Atlantica Export Corp., 588 F.2d 1, 11
(2nd Cir. 1978), citing authorities.
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legitimacy to the greater benefits, including severance benefits, that the July 19 agreement gave
to business agents like Hood, who probably read the handwriting on the wall that he might be
ousted by the new regime. Hood had supported McNany in the presidential election and he and
McNany colluded to give Hood a questionable one-time payment of over $40,000 shortly before
McNany left office, supposedly for a past inequity in pay. Indeed, the check to Hood was issued
the day before the election results for Respondent’s officers and executive board were
announced. See Tr. 270-292 and accompanying exhibits. The relationship between Hood and
McNany was not at arms length and it infected the whole bargaining process that led to the
signing of the July 19 agreement. This provides additional support for my view that McNany
had no authority, actual or apparent, to commit the Respondent to a 5-year collective bargaining
agreement that gave unusually generous benefits to business agents like Hood.4
In sum, McNany had no authority to enter into the July 19 collective bargaining
agreement. Thus, that agreement has no legitimacy. It follows that Respondent did not violate
the Act when it refused to give the agreement any effect and when it repudiated the agreement.
I shall therefore dismiss those allegations in the complaint.5
The Discharge of Business Agents and a Clerical Employee
The complaint also alleges that Respondent violated its bargaining obligation by
discharging employees represented by the Union on August 20, 2010, without giving prior notice
to the Union, and by failing to bargain about the discharges and their effects. It is settled that an
employer violates Section 8(a)(5) and (1) of the Act by unilaterally changing employee wages,
hours and other terms and conditions of employment—mandatory subjects of bargaining—
without first providing their bargaining representative prior notice and opportunity to bargain over
those changes. NLRB v. Katz, 369 U.S. 736 (1962). Termination of employment has long been
considered a mandatory subject of bargaining, requiring bargaining over discharges after they
have occurred. Ryder Distribution Resources, 302 NLRB 76, 90 (1991). But the prior notice
rule does not automatically apply before discharges actually occur. The Board has held that,
where an employer has in place pre-disciplinary policies that limit discretion, and applies those
policies, there is no requirement that the employer bargain before each employee is disciplined,
although there may be such a requirement after the discipline is imposed. See Fresno Bee, 337
NLRB 1161, 1186-1187 (2002).6

4 For example, the July 19 agreement commits Respondent to pay 13 business agents,
including Hood, salaries of over $70,000 each for 5 years, provides for a $5,000 per month
credit card authorization and $100,000 travel and life insurance for each agent, and provides for
a severance package to each agent that amounts to 2 months salary for every year of service.
For someone like Hood, that would net him over $70,000 in severance pay. Tr. 60-63.
5 In support of his position, the Acting General Counsel cites (Br. 27 n. 17, 31) Teamsters
Local 575, 259 NLRB 344 (1981). But that case is distinguishable. In Teamsters, unlike here,
the issue was whether the employer’s former leadership unlawfully assisted the clerical union,
which obtained bargaining rights and later negotiated and signed a bargaining agreement with
the employer. Moreover, unlike in this case, in Teamsters, the outgoing official who signed the
bargaining agreement on behalf of the employer did so before he was voted out of office and he
secured an opinion from counsel that he was not required to obtain the approval of the
executive board.
6 In Alan Ritchey, Inc., 354 NLRB No. 79 (2009), a two-member panel of the Board cited
Fresno Bee with approval and observed, at fn. 11, that Fresno Bee, which found no violation,
was not irreconcilable with Washoe Medical Center, Inc., 337 NLRB 202 (2001), a case finding
a violation.
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Contrary to the Acting General Counsel’s assertion that the Union was not given prior
notice of the discharge of Respondent’s business agents, the record shows that such notice
was given. On July 17, all of Respondent’s 13 business agents were sent a letter asking them
to submit a letter of interest to retain their jobs. The letter stated that those who expressed an
interest in keeping their jobs would be interviewed. The clear implication was that continued
employment depended on a successful interview. This should have put all business agents on
notice that they might be terminated. Since this was the entire unit of business agents, such
notice was tantamount to notice to the Union. Among those receiving the July 17 letter were the
Union’s president and its secretary-treasurer. Yet the Union made no request to bargain prior to
the interviews or the possible terminations. In these circumstances, I find that the Union had
adequate notice of the impending terminations and its failure to request bargaining permitted
Respondent to carry out the termination decisions implicit in the July 17 notices unilaterally.
Accordingly, the complaint is dismissed insofar as it alleges a violation with respect to the
discharge of the business agents on August 20, 2010, without giving the Union prior notice or
opportunity to bargain.
The discharge of clerical employee Sonya Corish is a different matter. She was not a
business agent so she did not receive a copy of the July 17 notice. Indeed, neither she nor the
Union received prior notice that she might be discharged. However, the Respondent interposes
another defense to the complaint, which has particular application to Corish’s situation.
Respondent contends, contrary to the testimony of former President McNany, who insisted all of
Respondent’s employees were at-will employees, that the employees were covered by a
predisciplinary policy that severely limited Respondent’s discretion. The existence of such a
policy, Respondent further contends, relieved it of any advance bargaining obligation, at least as
to Corish’s termination, under Fresno Bee, cited above.7
In support of its contention, Respondent refers to a policy statement issued to all of
Respondent’s executive officers by former President McNany on May 12, 2003. The statement
pointed out that, at a May 7, 2003 executive board meeting, “we discussed and will implement
the following disciplinary process:
1. Counseling session—Verbal, with notation of same in supervisory file.
2. Letter of reprimand—Copy to individual and supervisory file.
3. Unpaid suspension—Length of suspension will by determined by the offense.
4. Termination”
The policy statement concluded that “[b]y following this procedure, we will be able to establish
just cause for any and all discipline imposed.” R Exh. 3. This policy statement was placed in
Respondent’s regularly maintained policy booklet that contained many other personnel policies
that had been approved by the executive board. Tr. 241-244.
The problem with Respondent’s position is that, when it discharged Corish, it did not
apply the above disciplinary policies. It summarily discharged her for incompetency. It did not
consider counseling, reprimand or suspension before discharging Corish. Tr. 166-168. In these
circumstances, I find that Respondent utilized virtually complete discretion when it discharged
Corish. Since Corish was represented by the Union and the discharge obviously affected

7 Respondent also raises this as an alternative defense to the allegation involving the
business agents. But I do not reach the issue with respect to the business agents because, in
their case, there was adequate prior notice before the discharges were effectuated, thus
relieving Respondent of the requirement to bargain with the Union before effectuating the
discharges.
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working conditions, I find that Respondent could not discharge her without providing prior notice
and an opportunity to bargain to the Union. At the very least, had the Union been given prior
notice, it could have insisted that Respondent adhere to its disciplinary policies when
considering Corish’s discharge. Ironically, Respondent is in the unusual, and, indeed,
inconsistent, position of urging the existence of disciplinary policies as a defense to the violation
alleged, but not following those very policies when it unilaterally discharged the individual. In
these circumstances, I find that Respondent violated Section 8(a)(5) and (1) of the Act by
discharging Corish without bargaining with the Union over both its decision to discharge her and
the effects of that decision.
There is one remaining question: Was the Respondent required to bargain with the
Union over the effects of the decision to discharge the business agents, even though there was
no obligation to bargain prior to the decision because adequate notice was given to the Union?
It is clear that the Union did not specifically ask to bargain either over the decision or its effects.
Ordinarily that would end the matter. But the Union did file a grievance, after the August 20
discharge of the business agents, alleging that Respondent had violated the July 19 bargaining
agreement by terminating employees without just cause. The July 19 bargaining agreement
was, of course, not a valid agreement. But the grievance over the discharges essentially
amounts to a request to bargain over the effects of the decision to discharge the business
agents. Surely, an incumbent union may file a grievance, which essentially amounts to a
request to bargain, even in the absence of a valid collective bargaining agreement. I do not
believe that the Union and the employees it represents should be penalized for the Union’s
having based its grievance on the void bargaining agreement. Had the Union known that it
could not rely on the agreement and its grievance procedure to protect the rights of its
members, it surely would have requested bargaining over the effects of the discharge decisions.
I will therefore treat the grievance filing as a request by the Union to bargain over the effects of
the decision to discharge the business agents. Respondent clearly failed to bargain over the
effects of the discharge decision. Accordingly, I find that Respondent violated Section 8(a)(5)
and (1) by failing to bargain over the effects of the decision to discharge the business agents.
See Ryder Distribution Resources, above, 302 NLRB at 90.
Although Respondent need not bargain over the decision to discharge the business
agents, it is required to bargain over its effects. I understand that the business agents returned
to their former jobs as corrections officers. Their losses thus may be minimal. But there may be
severance pay and other accrued, but unpaid, benefits, such as vacation or sick pay, that could
be involved in effects bargaining. Any severance pay due the business agents in this case
would be subject to the bargaining process and Respondent is not required to agree to
anything, provided it bargains in good faith to impasse on the issue. Moreover, the typical
remedy for effects bargaining, under the Board’s order in Transmarine Navigation Corp., 170
NLRB 389 (1968), sets a floor of 2 weeks backpay, a not unreasonable severance package, in
view of the bargaining violation I have found.
The Information Request
This is an easy one. Respondent did not provide the information requested by the Union
until November 9, 2010, after the complaint issued alleging an unlawful refusal to provide the
information. This was almost 5 months after it was first requested. Even assuming that the new
regime did not know about the first request, it is clear that Respondent knew of the second
request, which was made on August 16. Respondent has no explanation for why it waited for
another 2-1/2 months before providing the requested information, which was clearly, indeed,
presumptively, relevant. Nor was the request onerous. It simply asked for the names and
addresses of the roughly 20 employees in the unit, information to which it was clearly entitled.
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Respondent’s delay in providing the information was thus unreasonable. I find that, by its
unreasonable delay in providing the information, Respondent violated Section 8(a)(5) and (1) of
the Act.
Conclusions of Law
1. Respondent violated Section 8(a)(5) and (1) of the Act by discharging employee
Sonya Corish without giving the Union prior notice and an opportunity to bargain over the
discharge or its effects.
2. Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain over the
effects of its decision to discharge business agents and employees Lee Dyches, Shawn Hood,
Patricia Hurd, John Miller and Bill Parke.
3. Respondent violated Section 8(a)(5) and (1) of the Act by unreasonably delaying in
providing information to the Union.
4. The above violations are unfair labor practices affecting commerce within the
meaning of the Act.
5. Respondent has not otherwise violated the Act.
Remedy
Having found that Respondent violated the Act in certain respects, I shall recommend that
it cease and desist from engaging in such conduct, take affirmative action to remedy its
violations, and post an appropriate notice. The Respondent will be ordered to bargain with the
Union concerning its decision and the effects of its decision to discharge employee Sonya
Corish and the effects of its decision to discharge employees Lee Dyches, Shawn Hood,
Patricia Hurd, John Miller and Bill Parke. Respondent will also be ordered to reinstate
employee Sonya Corish and make her whole for any losses she may have suffered because of
its unlawful refusal to bargain over her discharge. See Lapeer Foundry & Machine, 289 NLRB
952, 955-956 (1988). Any backpay owing, less any net interim earnings, shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Respondent’s failure to engage in effects bargaining on the discharge of employees
Dyches, Hood, Hurd, Miller and Parke shall be remedied by a backpay remedy similar to that
required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified by Melody Toyota,
325 NLRB 846 (1998). Thus, the Respondent shall pay those employees backpay at their
normal wages from 5 days after the date of this order until the earliest of the following
conditions: (1) the date Respondent bargains to agreement as to the effects of the discharges;
(2) a bona fide impasse in bargaining; (3) the Union’s failure to request bargaining within 5
business days after receipt of this order or to commence negotiations within 5 days after receipt
of Respondent’s notice of its desire to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith. In no event shall the sum paid to these employees exceed the
amount they would have earned as wages from the date they were discharged to the time they
secured equivalent employment elsewhere, or the date on which the Respondent shall have
offered to bargain in good faith, whichever occurs sooner. However, in no event, shall this sum
be less than the employees would have earned for a 2-week period at the rate of their normal
wages when last in Respondent’s employ. Backpay, less any net interim earnings, shall be
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computed in accordance with the Board cases cited above, in connection with Corish’s backpay.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:8
ORDER
The Respondent, Pennsylvania State Corrections Officers Association, its officers,
agents, successors and assigns, shall
1. Cease and desist from
(a) Refusing or failing to bargain in good faith with the Union in the following
appropriate unit:
All full-time and regular part-time business agents and support staff
employed by Respondent, excluding all other employees, guards
and supervisors within the meaning of the Act.
(b) Refusing to bargain collectively with the Union by implementing changes in
wages, hours, or other terms and conditions of employment of unit employees without giving the
Union prior notice and an opportunity about those changes.
(c) Refusing to bargain collectively with the Union by unreasonably delaying in
providing relevant information requested by the Union.
(d) In any like or related manner, interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Before implementing any changes in wages, hours, or other terms and
conditions of employment of unit employees, notify, and, on request, bargain with the Union as
the exclusive collective bargaining representative of the employees in the above appropriate
unit.
(b) On request, bargain with the Union with respect to the effects of its decision
to discharge Business Agents Lee Dyches, Shawn Hood, Patricia Hurd, John Miller and Bill
Parke.
(c) Within 14 days from the date of this order, offer employee Sonya Corish
immediate and full reinstatement to her former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any other rights or
privileges previously enjoyed.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(d) Make Sonya Cornish whole for any loss of earnings and other benefits
suffered as a result of the unlawful refusal to bargain over her discharge and its effects, in
accordance with the remedy section of this decision.
(e) Within 14 days from the date of this order, remove from its files any reference
to Cornish’s unlawful discharge, and, within 3 days thereafter, notify her in writing that this has
been done and that the discharge will not be used against her in any way.
(f) Pay its discharged business agents, Lee Dyches, Shawn Hood, Patricia Hurd,
John Miller and Bill Parke, their normal wages for the period set forth in the remedy section of
this decision.
(g) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this order.
(h) Within 14 days after service by the Region, post at its facility in Harrisburg,
Pennsylvania, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by e-mail, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since August 24, 2010.
(i) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. March 17, 2011
_______________________
Robert A. Giannasi
Administrative Law Judge

9 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 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.”
JD–11–11
Harrisburg, PA
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse or fail to bargain in good faith with Business Agents Representing State
Union Employees Association (BARSUEA) in the following appropriate unit:
All full-time and regular part-time business agents and support staff
employed by Pennsylvania State Corrections Officers Association (PSCOA),
excluding all other employees, guards and supervisors within the meaning of
the Act.
WE WILL NOT refuse to bargain collectively with BARSUEA by implementing changes in
wages, hours, or other terms and conditions of employment of unit employees without giving
BARSUEA prior notice and an opportunity about those changes.
WE WILL NOT refuse to bargain collectively with BARSUEA by unreasonably delaying in
providing relevant information requested by BARSUEA.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to them by Section 7 of the Act.
WE WILL, before implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify, and, on request, bargain with BARSUEA as the exclusive
collective bargaining representative of the employees in the above appropriate unit.
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Harrisburg, PA
WE WILL, on request, bargain with BARSUEA with respect to the effects of our decision to
discharge Business Agents Lee Dyches, Shawn Hood, Patricia Hurd, John Miller and Bill Parke.
WE WILL pay Business Agents Lee Dyches, Shawn Hood, Patricia Hurd, John Miller and Bill
Parke their normal wages for the period set forth in the remedy section of the Board’s decision.
WE WILL, within 14 days of the date of the Board’s order, offer employee Sonya Corish
immediate and full reinstatement to her former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her seniority or other rights or privileges
previously enjoyed.
WE WILL make Sonya Corish whole for any loss of earnings and other benefits suffered as a
result of our unlawful refusal to bargain over her discharge and its effects, in accordance with
the remedy section in the Board’s decision.
WE WILL, within 14 days of the date of the Board’s order, remove from our files any reference
to Corish’s unlawful discharge, and, within 3 days thereafter, notify her in writing that this has
been done and that the discharge will not be used against her in any way.
PENNSYLVANIA STATE CORRECTIONS
OFFICERS ASSOCIATION
(Employer)
Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.