Renal Care of Buffalo, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1284 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 112
1284
Renal Care of Buffalo, Inc. and Communication
Workers of America, Local 1168. Cases 3–CA–
24947, 3–CA–25054, 3–CA–25145, and 3–CA–
25223
August 31, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On October 3, 2005, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answer, and the Respondent filed a re-
ply. The General Counsel filed exceptions and a sup-
porting brief, the Respondent filed an answer, and the
General Counsel filed a reply.
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,1 and conclusions
only to the extent consistent with this Decision and Or-
der, and to adopt the recommended Order as modified
and set forth in full below.2
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) by removing a protected union
document from the designated union bulletin board, and
by threatening reprisals if the document were reposted.
We further adopt the judge’s recommended dismissal of
allegations that the Respondent engaged in direct dealing
and surface bargaining, and that the Respondent repudi-
ated the contract as to work schedules for bargaining unit
employees on the negotiating team. Finally, we adopt
the judge’s finding that the Respondent’s allegedly
unlawful conduct did not cause employees to request
decertification of the Union. As explained in further
detail below, we reverse the judge and find that the Re-
spondent lawfully withdrew recognition from the Union
on September 10, 2004.3 As a result, the General Coun-

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 We will also substitute a new notice in conformity with the Order
as modified. The Respondent has requested oral argument. The re-
quest is denied as the record, exceptions, and briefs adequately present
the issues and the positions of the parties.
3 In reaching this determination, we adopt the judge’s finding that
Deborah Reger was not in the bargaining unit at the time the Respon-
dent withdrew recognition, but we find, contrary to the judge, that
Lynne Yung, like Reger, was also not in the bargaining unit. All dates
are 2004, unless otherwise indicated.
sel’s remaining allegations involving the Respondent’s
conduct after it withdrew recognition, and the parties’
remaining exceptions to the judge’s decision, are dis-
missed or rendered moot.
I. INTRODUCTION4
Renal Care of Buffalo (RCB) is a privately owned di-
alysis center in Buffalo, New York. During the relevant
period, RCB had a service contract with Total Renal
Care (TRC) for training, management, and operations.
TRC, a subsidiary of DaVita Corporation (DaVita), a
national dialysis service provider, operates several facili-
ties in New York, including RCB. Cleve Hill, a separate
dialysis center in Buffalo, was operated by Erie County
Medical Center (ECMC). During the relevant period,
TRC was in the process of acquiring Cleve Hill’s operat-
ing license from ECMC. In late July 2004, in anticipa-
tion of the Cleve Hill acquisition, TRC hired two nurses,
Deborah Reger and Lynne Yung, who the Respondent
asserted were to train at RCB and move to Cleve Hill
when the license transfer was final.
The Union had been the exclusive collective-bargain-
ing representative for the relevant unit at RCB since
1996. The collective-bargaining agreement at issue was
in effect from July 2, 2001, to July 2, 2004. The parties
agreed, during negotiations for a successor contract, to
extend the agreement until August 2, 2004.
The parties began negotiations for a new contract in
May 2004. On August 17, several bargaining unit em-
ployees requested a meeting with DaVita officials to
voice their concerns that the Union was not listening to
them or representing their needs. On September 3, the
employees submitted a petition to the Respondent with
15 signatures stating that the undersigned employees did
not support the Union and were in favor of withdrawing
recognition. On September 10, relying on the decertifi-
cation petition, the Respondent withdrew recognition.
II. DISCUSSION
A. Withdrawal of Recognition
In Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001), the Board held that an employer must show a
union’s actual loss of majority support in order to law-
fully withdraw recognition. In this case, the employer’s
withdrawal of recognition was lawful if the 15 signatures
on the decertification petition, which were not disputed,
represented at least 50 percent of the bargaining unit.
The determining factor, therefore, is the number of unit
employees at the time of withdrawal.

4 These facts are taken from the judge’s decision and from undis-
puted record evidence.
RENAL CARE OF BUFFALO 1285
The Respondent determined that there were 30 em-
ployees in the bargaining unit at the time and, relying on
the petition’s 15 signatures, withdrew recognition from
the Union on September 10. The General Counsel, how-
ever, contends that there were 32 employees, and thus
the 15 signatures did not represent at least 50 percent of
the unit. The two employees at issue are nurses Reger
and Yung.
On or about July 29, the Respondent hired Reger, a li-
censed practical nurse (LPN), to begin work on August
16. Reger testified that she was told during her interview
that she was hired to work at Cleve Hill, but she would
be trained at RCB and work there until the Cleve Hill
operating license was transferred to TRC, at which time
she would become a permanent employee at Cleve Hill.5
The judge accepted the Respondent’s claim that Reger
was hired to work at Cleve Hill, and he thus found that
Reger was not an employee at RCB for the purposes of
collective bargaining and was not in the bargaining unit
when the Respondent withdrew recognition. We agree.
At the end of July, about the same time Reger was
hired, Yung interviewed for and was offered a full-time
position with TRC as a registered nurse (RN) starting on
August 3.6 Like Reger, Yung testified that she was told
that she would be trained at RCB, but she would work at
Cleve Hill.7 The judge also noted that Yung’s job appli-
cation stated “hired @ $22.15 as a full-time RN @ RCB
to move over later.”8 Despite these facts, the judge

5 TRC operated RCB and planned to operate Cleve Hill after the li-
cense transfer, and both facilities used the same equipment. Thus, it
was reasonable that TRC might hire nurses and train them at RCB in
preparation for their employment at Cleve Hill. DaVita Regional Di-
rector William Brezsnyak and RCB Operating Officer Barbara Proud-
man testified without contradiction that, at the time they hired Reger
and Yung, they expected the operating license at Cleve Hill to be trans-
ferred to TRC within 1 to 3 months. As of the hearing dates in June
and July 2005, the operating license at Cleve Hill had not yet trans-
ferred from ECMC to TRC. Thus, both Reger and Yung worked only
at RCB.
6 We do not dispute the judge’s finding that both Reger and Yung
were hired as permanent, full-time employees. That fact does not con-
flict, however, with our finding that the Respondent temporarily placed
them at RCB pending the license transfer to Cleve Hill.
7 On cross-examination, Yung was asked, “You were told that you
were going to be trained at Renal Care for your work at Cleve Hill?” to
which Yung responded, “Yes.” The judge apparently overlooked this
testimony, however, because he found that Yung “categorically denied”
the Respondent’s assertions that, among other things, Yung would be
trained at RCB but would move to Cleve Hill when the license trans-
ferred. Contrary to our dissenting colleague, we find nothing ambigu-
ous about counsel’s question or Yung’s admission that she was hired to
work at Cleve Hill, and we find that Yung’s admission, along with
corroborating evidence cited below, is sufficient to warrant reversing
the judge’s finding that Yung was hired as an employee at RCB and
was in the bargaining unit.
8 Contrary to our dissenting colleague’s assertion, the judge never
questioned the authenticity of the phrase “to move over later” on
found that Yung, unlike Reger, was an employee at RCB
and thus was in the bargaining unit when the Respondent
withdrew recognition.9
We find that the judge erred by holding that Yung was
in the bargaining unit, especially after finding, on re-
markably similar evidence, that Reger was not.10 In ad-
dition to the facts stated above, the undisputed evidence
shows that both Reger and Yung were on different wage
scales from employees in the bargaining unit, and both
were offered substantially identical benefits that were
different from those provided under the collective-
bargaining agreement, including bonuses and profit shar-
ing, paid time off accrual, jury duty and bereavement
leave, seniority, and layoff and recall rights.11 Neither
Reger nor Yung was required to pay union dues. More-
over, RCB employees Carrie Kropidlowski and Julie
Galatioto testified that they understood that Reger and
Yung were hired to work at Cleve Hill, and thus they did
not ask them to sign the decertification petition. In short,
the evidence shows that neither Reger nor Yung was ever
considered by the Respondent, the Union, or unit mem-
bers as an employee of RCB or as a member of the bar-

Yung’s application, but he appears to have discounted its significance.
We find that it corroborates Yung’s testimony that she was hired to
train at RCB and “move over” to Cleve Hill later. The judge disre-
garded the evidence because Yung never moved to Cleve Hill during
her tenure with TRC. This fact, however, reflects the vagaries of the
licensing process and not the Respondent’s intention, when it hired
Yung, to move her to Cleve Hill. Moreover, the judge found that Reger
was hired to work at Cleve Hill despite the fact that she, like Yung,
remained at RCB during the relevant period. At the time the Respon-
dent withdrew recognition, both Yung and Reger had been employed at
RCB for only 1 month. We find that the evidence shows that, at the
time the Respondent withdrew recognition, its intention was to place
both Yung and Reger at Cleve Hill.
9 Our dissenting colleague asserts that, by finding that Yung was not
in the bargaining unit, we are overruling the judge’s credibility find-
ings. The dissent misapprehends our position. Our grounds for rever-
sal are not the judge’s credibility findings, but his failure to consider
significant evidence showing that Yung was hired to work at Cleve
Hill.
10 The dissent finds that the evidence is not similar because, e.g., Re-
ger was hired as an LPN and Yung as an RN, they did not seek the
same position, and they were not interviewed at the same time or by the
same hiring official. But these facts are irrelevant to the only signifi-
cant issue—whether each was hired to work at Cleve Hill after the
license transferred. The similar, and significant, evidence is their tes-
timony that they were hired to work at Cleve Hill and their similar
terms and conditions of employment, which, as explained below, were
different from unit employees at RCB.
11 These facts indicate that Yung and Reger did not share a commu-
nity of interest with bargaining unit employees, a significant factor in
determining whether employees properly belong in the unit. See, e.g.,
Alley Drywall, Inc., 333 NLRB 1005, 1006 (2001); Kalamazoo Paper
Box Corp., 136 NLRB 134, 137 (1962) (listing community-of-interest
factors, including wages and employment benefits).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1286
gaining unit.12 We therefore adopt the judge’s finding as
to Reger but reverse as to Yung and find that Reger and
Yung were not in the unit when the Respondent with-
drew recognition on September 10.
As a result of this finding, we necessarily find that
there were 30 employees in the bargaining unit on Sep-
tember 10 when the Respondent withdrew recognition,
and thus the 15 signatures on the decertification petition
provided the Respondent with the necessary proof that
the Union had actually lost majority support.13 The with-
drawal of recognition, therefore, was lawful.14
B. The General Counsel’s Remaining Allegations
In light of our finding that the Respondent lawfully
withdrew recognition from the Union on September 10,
we dismiss the following allegations.
1. The judge found that the Respondent repudiated the
contract by denying employee Sherry Jakubowski be-
reavement leave on January 11, 2005. The contract was
no longer in effect on January 11, 2005, and thus the
Respondent did not repudiate it. This allegation is there-
fore dismissed. Moreover, because we find that Jaku-
bowski’s discharge for abusing leave was lawful, the
Respondent’s exception to the appropriateness of the
recommended remedy is moot.
2. The judge found that the Respondent unlawfully re-
fused to furnish the Union with requested information
during bargaining. On August 9, the Union requested
certain information from the Respondent that it alleged
was relevant to the contract negotiations.15 The Respon-
dent asked the Union to explain why the information was
relevant, and the Union responded on August 23. The
Respondent withdrew recognition 18 days later on Sep-
tember 10.

12 Although the General Counsel argues that Yung and Reger were
in the bargaining unit, we find it significant that the Union apparently
made no effort to assure that these employees became union members,
received union benefits, or paid union dues during their tenure at RCB.
Moreover, we find it significant that both management and employees
apparently recognized that Yung and Reger were different from unit
employees at RCB.
13 Although Members Schaumber and Kirsanow agree that the judge
properly applied the Levitz standard here, they did not participate in
Levitz, and they express no view as to whether that case was correctly
decided. See, e.g., Unifirst Corp., 346 NLRB No. 52, slip op. at 5 fn.
17 (2006); Flying Foods, 345 NLRB No. 10, slip op. at 3 fn. 9 (2005).
14 In light of this finding, the Respondent’s exception regarding the
appropriateness of a bargaining order in this case is moot.
15 The Union originally requested the Respondent’s “990’s for the
three most recent years available.” At the hearing, the General Counsel
moved to amend the complaint to delete this item from the information-
request allegation. The judge did not rule on the motion, and the Gen-
eral Counsel renewed it in his brief to the Board. In light of our dis-
missal of the information-request allegation, we find it unnecessary to
pass on the General Counsel’s motion.
Following the lawful withdrawal of recognition, the
Respondent no longer had a duty to provide the Union
with the requested information. Thus, the only violation
that could be found here involves the Respondent’s fail-
ure to provide the requested information for the 18 days
prior to the withdrawal of recognition.16 Under the cir-
cumstances, we do not find that the Respondent’s failure
to provide the information in the 18 days between the
Union’s response and the withdrawal of recognition con-
stitutes an unlawful refusal. Thus, the allegation is dis-
missed.
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, Renal Care of Buffalo, Inc., West Seneca,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Removing printed communication protected by the
Act from the designated union bulletin board and threat-
ening employees with discipline if the printed communi-
cation is re-posted.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in West Seneca, New York, copies of the at-
tached notice marked “Appendix.”17 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 3, after being signed by the Respondent’s author-
ized 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-

16 The General Counsel did not allege that the Respondent unlaw-
fully delayed in providing the information. In any event, the relatively
brief delay was not unreasonable.
17 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.”
RENAL CARE OF BUFFALO 1287
ployed by the Respondent at any time since July 14,
2004.
(b) 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-
testing to the steps that the Respondent has taken to
comply.
MEMBER WALSH, dissenting in part.
The administrative law judge found, for reasons
grounded in credibility findings, that the Respondent,
Renal Care of Buffalo, Inc., unlawfully withdrew recog-
nition from the Union. My colleagues reverse that find-
ing. I dissent.
I. INTRODUCTION
The lawfulness of the Respondent’s withdrawal of rec-
ognition here comes down to whether Deborah Reger
and Lynne Yung were bargaining unit employees.1 If at
least one of them was, then the decertification petition
was signed by less than half of the unit and did not jus-
tify the Respondent’s withdrawal of recognition. See
Levitz Furniture Co. of the Pacific, 333 NLRB 717
(2001). The judge found that Yung was in the unit. Be-
cause I would affirm that credibility-based decision, I
would find that the Respondent’s withdrawal of recogni-
tion was unlawful.2
II. THE FACTS
The majority’s recitation of the facts is incomplete.
The judge found that Yung, a registered nurse (RN),
sought a job with the Respondent at a job fair in July
2004. She and the interviewer discussed wages and

1 The unit consists of::
All full-time, regular part-time and per diem scheduled employees
employed by the Employer at its facility located at 550 Orchard Park
Road, West Seneca, New York, including registered nurses (RNs), so-
cial workers, dieticians, licensed practical nurses (LPNs), patient care
technicians, maintenance/re-use technicians, machine technicians and
the chief technician, but excluding clinical care coordinators/directors,
office clerical employees, medical records consultant, chief executive
officer, business manager, all other employees of the Employer,
guards and supervisors as defined in the Act.
2 Because I would find that Yung was in the unit, I find it unneces-
sary to pass on the judge’s finding that Reger was not in the unit at the
time in question. Further, in view of my finding that the Respondent’s
withdrawal of recognition was unlawful, I disagree with the majority’s
findings that the Respondent’s conduct subsequent to the withdrawal of
recognition—namely, its repudiation of the contract regarding be-
reavement leave; its discharge of employee Sherry Jakubowski for
allegedly misusing bereavement leave; and its failure to furnish the
Union with requested information—was lawful. I would adopt the
judge’s findings that each of those actions was unlawful. I would
therefore find that employee Jakubowski is entitled to reinstatement
and backpay as a remedy to her unlawful discharge, and I would grant
the General Counsel’s motion to delete the Union’s request for “990’s”
from the information-request allegation in the complaint.
benefits; Yung was particularly concerned about benefits
because her husband was disabled, and there was a pos-
sibility that he would lose his own medical benefits.
During the interview, DaVita Regional Director William
Brezsnyak offered Yung a permanent full-time RN posi-
tion with the Respondent, commencing on August 3.
Although DaVita mentioned that Yung might at some
point be transferred to the Cleve Hill facility, nothing
more definite was said.
Yung began work at the Respondent’s facility on Au-
gust 3, on a 40-hour-per-week basis. Some time after she
began work, Yung inquired of Barbara Proudman, the
Respondent’s administrator, about her eligibility for
benefits. Proudman confirmed that Yung was eligible.
Yung did not apply for medical benefits, however, as her
husband was able to retain his coverage. Proudman, like
Brezsnyak, told Yung that she might eventually be
moved to Cleve Hill. Yung asked that she not be trans-
ferred; ultimately, she was not, but remained an em-
ployee of the Respondent, working at the Respondent’s
facility until she voluntarily resigned in April 2005. Nei-
ther at her interview nor at any time during her employ-
ment did any official of the Respondent or DaVita ever
inform Yung that she was a temporary employee. Nor
was Yung ever told, during the interview or during the
course of her employment, that she was hired to work at
Cleve Hill but was assigned to the Respondent’s facility
merely until DaVita obtained the operating license for
Cleve Hill.
The judge made those findings after expressly credit-
ing Yung’s testimony and expressly discrediting the tes-
timony of Brezsnyak, who testified that he told Yung that
she was being hired for a position at Cleve Hill but
would receive her training at the Respondent’s facility.
The judge stated: “Yung impressed me as a reliable wit-
ness who had an excellent command of the facts. Indeed,
her testimony was articulate and convincing that during
the hiring interview Brezsnyak offered her a permanent
full-time position at Renal Care with a specific hourly
wage rate and benefits.” (Emphasis added.)
The judge concluded that, in September, when the de-
certification petition was presented to management,
Yung was (1) an employee of the Respondent, and (2)
not a temporary employee, but a member of the bargain-
ing unit.
III. ANALYSIS
The judge found that Yung was hired as a full-time RN
at the Respondent’s facility, and that she worked there
and nowhere else, performing unit work, until her volun-
tary departure some 8 to 9 months later. On those facts,
it seems to me indisputable that Yung was an employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1288
of the Respondent and a member of the unit.3 As basic
as any other Board principle is that an administrative law
judge’s credibility findings are entitled to great defer-
ence, and the Board should not overrule such findings
unless the clear preponderance of all the relevant evi-
dence demonstrates that they are incorrect. Standard
Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d. Cir. 1951). In light of that standard, my col-
leagues have failed to point to any convincing evidence
that justifies their disregard of the judge’s credibility-
based finding that Yung was in the unit during the rele-
vant period. Indeed, the majority’s response to the
judge’s credibility findings is largely to ignore them.
The majority’s freewheeling approach to the facts is in-
compatible with our fundamental rules of procedure.
The principal rationale my colleagues offer for revers-
ing the judge is that it was inconsistent of the judge not
to treat Yung and Reger in the same manner “on re-
markably similar evidence.” The short answer to that
assertion is that the evidence is not “remarkably similar.”
Yung was an RN, Reger an LPN. They did not seek, nor
were they offered, the same position, and they did not
interview at the same time or with the same hiring offi-
cial. In fact, there was no credited evidence showing that
the Respondent hired the two employees with the same
purpose in mind. Accordingly, there was nothing re-
markable about the judge’s crediting both Yung, who
testified that she was hired to work for the Respondent,
and Reger, who testified that she was hired for Cleve
Hill. The majority’s attempt to impose consistency is at
odds with the record.
My colleagues also state that Yung “testified that she
was told that she would be trained at [the Respondent],
but she would work at Cleve Hill.” My colleagues refer
to a portion of Yung’s cross-examination testimony in
which she answered “yes” to a question about whether
she was being trained at the Respondent for her future
work at Cleve Hill. Yung’s answer to that ambiguous
question, however, does not require the reversal of the
judge’s finding that Yung was hired as an employee of
the Respondent, especially in light of Yung’s other, cred-
ited testimony.
In addition, my colleagues rely upon the testimony of
two antiunion employees, Carrie Kropidlowski and Julie
Galatioto, that it was their understanding that Yung was

3 Even assuming that Yung was hired with an understanding that she
would transfer to Cleve Hill when DaVita obtained the appropriate
license, I would conclude that Yung was a unit employee. Yung was
performing full-time unit work. The Respondent’s expectation that she
would be transferred to Cleve Hill, which neither the Respondent nor
DaVita then owned or administered, is not sufficient to deny her em-
ployee status or remove her from the unit.
hired to work at Cleve Hill, and for that reason they did
not seek her signature on the decertification petition. But
what Yung’s coworkers—who were not present when
Yung was hired and had no involvement in the hiring
process—perceived her employment status to be is ir-
relevant.
My colleagues further point to a notation made by
Brezsnyak on Yung’s employment application that states
that Yung was hired as a full-time RN at the Respondent
“to move over later.” But the judge did not find that this
notation was made at the time of the interview, or indeed
at any time during Yung’s tenure with the Respondent.
Moreover, as the notation fails to indicate where or when
Yung was to be “moved,” it is ambiguous at best, and it
does not compel a finding that Yung was hired as an em-
ployee of Cleve Hill.4
Finally, my colleagues point out that Yung was not
paid the same amount as other unit employees, and that
she was offered employee benefits that were different
from those provided under the collective-bargaining
agreement. My colleagues also assert that Yung was not
“required” to pay union dues and that she was not
“treated” as a unit employee. In the absence of any other
credible evidence, however, those factors fail to prove
that Yung was hired as an employee of Cleve Hill rather
than the Respondent. Even assuming that the Respon-
dent—which apparently wanted to ensure that Yung was
not considered a unit employee—did not treat Yung as it
treated other unit members, this does not change the fact
that Yung performed full-time unit work and should have
been included in the unit. In these circumstances, the
differences in Yung’s pay, benefits, and “treatment” fail
to refute the judge’s finding that Yung was in the unit.
In sum, for the reasons stated above, I believe that the
evidence my colleagues rely upon to support their find-
ing that Yung was not in the unit when the Respondent
withdrew recognition is insufficient to reverse the
judge’s credibility-based findings. I would therefore
adopt the judge’s finding that Yung was in the unit, and
that the Respondent failed to show that the Union had
actually lost majority support under Levitz, supra, when it
withdrew recognition. Accordingly, I would adopt the

4 My colleagues assert that the judge “discounted the significance”
of the notation. That assertion is without merit. There is no question
that the judge found the notation to be “significant”; he simply did not
find that it supported my colleagues’ desired conclusion. In this regard,
the judge interpreted the notation—which states that Yung was hired as
“a full-time RN at Renal Care” and does not mention Cleve Hill—to
mean that Yung was hired as an employee of the Respondent. Consid-
ering the plain language of the notation, and the lack of any other
credible evidence to show that Yung was hired as an employee of Cleve
Hill, the judge’s interpretation is more logical and reasonable than that
of my colleagues.
RENAL CARE OF BUFFALO 1289
judge’s finding that the Respondent’s withdrawal of rec-
ognition was unlawful, and, for the reasons stated by the
judge, I would issue a bargaining order to remedy that
violation.
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 remove printed communication pro-
tected by the Act from the designated union bulletin
board and threaten employees with discipline if the
printed communication is re-posted.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
RENAL CARE OF BUFFALO, INC.
Ron Scott, Esq. and Aaron Sukert, Esq., for the General
Counsel.
Charles S. Birenbaum, Esq., Jeffrey S. Bosley, Esq., and
Deborah S. K. Jagoda, Esq., of San Francisco, California, and
New York, New York, for the Respondent-Employer.
Patricia DeVinney, of Buffalo, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on June 27 through July 1, and July 18 and
19, 2005, in Buffalo, New York, pursuant to a consolidated
complaint and notice of hearing in the subject cases (the com-
plaint) issued on April 28, 2005, by the Regional Director for
Region 3 of the National Labor Relations Board (the Board).
The underlying charges and amended charges were filed on
various dates in 20041 and 2005 by Communications Workers
of America, Local 1168 (the Charging Party or the Union) al-
leging that Renal Care of Buffalo, Inc. (the Respondent, Renal

1 All dates are in 2004, unless otherwise indicated.
Care or Employer), has engaged in certain violations of Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
The Respondent filed a timely answer to the complaint denying
that it had committed any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in a
number of independent violations of Section 8(a)(1) of the Act
including removing printed communications from the union
bulletin board and threatening discipline if they were re-posted.
Additionally, the complaint alleges violations of Section 8(a)(1)
and (5) of the Act including engaging in surface bargaining,
bypassing the Union and engaging in direct dealing with em-
ployees concerning conditions of employment, the refusal to
provide necessary and relevant information, unilaterally chang-
ing conditions of employment and unlawfully withdrawing its
recognition of the Union as the exclusive collective-bargaining
representative of the unit.
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 the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the operation of
an outpatient dialysis center in West Seneca, New York, where
it annually in conducting its business operations derives gross
revenue in excess of $250,000 and purchases and receives
products, goods, and materials valued in excess of $5000 di-
rectly from points outside the State of New York. The Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since about 1996, the Union has been the designated exclu-
sive collective-bargaining representative of the unit and at all
material times, from 1996 until on or about September 10, the
Union has been recognized as the representative by the Re-
spondent. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of which was
effective from July 2, 2001, to August 2 (GC Exh. 16).
At various times from May until August 2004, Respondent
and the Union met for the purpose of negotiating a successor
collective-bargaining agreement.
Renal Care is owned by Dr. Eugene Cunningham. It has a
contract with Total Renal Care which is a subsidiary of DaVita
Corporation for management services. DaVita owns and man-
ages over 500 Dialysis Centers throughout the United States
with the Respondent being the only Center whose employees
are represented by a labor organization.
Cleve Hill is a Dialysis Center located in Buffalo, New
York, and is owned by the Erie County Medical Center but has
a management services contract with Total Renal Care. Cleve
Hill employees are represented by a labor organization other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1290
then the Union. Renal Care does not presently own or operate
Cleve Hill, however, it is anticipated that Cleve Hill will even-
tually become part of the DaVitta umbrella of companies.
B. The 8(a)(1) Allegations
The General Counsel alleges in paragraphs 6(a) and (b) of
the complaint that on or about July 14, the Respondent removed
printed communications protected by the Act from designated
union bulletin boards and threatened employees with discipline
if they re-posted the materials.
1. The facts
Union Steward Sherry Jakubowski informed Union Vice
President Sharon Schultz that a number of bargaining unit em-
ployees had complained to her that unknown visitors were in-
terrupting there work duties and requesting to talk to them.
Jakubowski learned that the majority of these visitors were
managers associated with DaVita Corporation whose subsidiary
Total Renal Care had a management services contract with
Renal Care. In late June 2004, Schultz in conjunction with the
Union’s attorney prepared a list of questions titled “What to
know about the DaVita visitors.” This one-page document
listed eight bullets that included requesting the visitors to iden-
tify themselves, inquiring whether the employees were required
to answer questions and the consequences if they did not and
whether the employees could have a witness or obtain a copy of
any prepared written questions (GC Exh. 9). Schultz provided
the document to Jakubowski who posted it on the designated
union bulletin board on or about July 1.2 Several days later,
Jakubowski noticed that the document was removed from the
union bulletin board. Accordingly, Jakubowski re-posted the
document. On or about July 14, Jakubowski observed a printed
sign above the union bulletin board that stated: Posting of the
document, “What to know about the DaVita visitors,” violates
the union contract and is prohibited by management. Re-
posting the document is just cause for disciplinary action (GC
Exh. 10). The bottom of the sign had the name of the Respon-
dent’s administrator, Barbara Proudman.
Since the sign threatened employees with discipline, Jaku-
bowski did not repost the DaVita visitors questions.
Respondent raised the issue of the DaVita visitor’s questions
during bargaining between the parties in one of the sessions
held in July 2004. They claimed the posting of the DaVita
questions posed a threat to patient safety and interfered with
there ability to conduct efficient operations. (GC Exh. 32.) The
Employer proposed that the parties solve any problems associ-
ated with this issue and come to an agreement through the ne-
gotiation process. The Union declined to enter into such an
agreement.
2. Discussion
The Board has long held that employees are privileged to
engage in protected conduct as long as it is not egregious so as
to lose its protection under the Act. Felix Industries, 331 NLRB
144, 146 (2000). Here, the employees were concerned that

2 Art. 45 of the parties’ collective-bargaining agreement provided for
a bulletin board reserved for the Union’s use. There are no contractual
restrictions on material that could be posted (GC Exh. 16).
unknown visitors were interfering with there job duties, inter-
rupting there work routine, and asking questions about matters
that some of the employees were uncomfortable in responding
to. I find that the questions contained on the DaVita visitor’s
document are protected and do not interfere with the operations
of the Respondent or undermine patient rights. Tradewaste
Incineration, 336 NLRB 902, 905 (2001). If DaVita visitor’s
wanted to ask questions of employees while they were working,
then employees should be entitled to respond in kind. Such
questions would enable an employee to determine whether the
issue was critical or could be deferred to another time. It would
also permit an employee to determine if the questions were
voluntary or mandatory. I note that the Respondent claimed
that the posting of the DaVita document violated the parties’
collective-bargaining agreement but no grievance was ever
filed and no discussions occurred with the Union before the
document was unilaterally removed from the union bulletin
board or employees were threatened with discipline if the mate-
rial was re-posted.
Under these circumstances, I find that the Respondent en-
gaged in conduct violative of Section 8(a)(1) of the Act when it
removed the DaVita visitor’s document from the union bulletin
board and threatened employees with discipline if the material
was re-posted.
C. The 8(a)(1) and (5) Allegations
1. Surface bargaining
The General Counsel alleges in paragraph 8 of the complaint
that the Respondent has engaged in surface bargaining and
therefore has failed and refused to bargain in good faith with
the Union. During the period between May and September 10,
the General Counsel asserts that the Respondent engaged in
conduct including:
1. Insisting on a management rights clause that would
grant it the right to make mid-term contract modi-
fications to the parties’ collective-bargaining
agreement, and exclude such modifications from
arbitration.
2. Insisting on a no strike/no lockout proposal that
would prohibit employees from engaging in pro-
tected activity including handbilling.
3. Insisting on contract proposals, that as a whole,
would leave the employees in the Unit with fewer
rights and protections than they would have if they
did not have a collective-bargaining agreement.
It should be noted that the Respondent filed an unfair labor
practice charge (Case 3–CB–8333) against the Union alleging
that it refused to bargain in good faith over the period of the
parties negotiations between May and August 2004. By letter
dated February 28, 2005, the Regional Director for Region 3
dismissed the charge and on May 5, 2005, the Respondent’s
appeal of the Regional Director’s dismissal was denied by the
General Counsel.
a. The facts
The parties commenced negotiations on May 27, and the Un-
ion was informed during this meeting that the Respondent re-
RENAL CARE OF BUFFALO 1291
tained Total Renal Care to represent it in collective bargaining.
The Respondent made a presentation to educate the Union
about the mission and values that Total Renal Care has adopted
and informed the Union that it will base its bargaining propos-
als on these criteria. The Union proposed that the parties deal
with noneconomic items first before preceding to economic
issues. No bargaining proposals were exchanged by either
party at this meeting.
The next meeting was held on June 8. The issue of ground
rules for negotiations was raised by the Respondent and the
Union demanded that any ground rules be in writing. During
the period between June 8 and the next scheduled negotiation
session on June 24, the parties exchanged written proposals on
ground rules. Both parties agreed that an inordinate amount of
time was spent on finalizing the ground rules that were finally
completed on June 24 (R. Exh. 6).
On June 23, the Respondent proffered its initial contract pro-
posal to the Union. This proposal included a comprehensive
management-rights clause and a no-strike/no-lockout clause
both of which were somewhat more restrictive then what was
included in the parties’ existing collective-bargaining agree-
ment. On June 29, the Respondent conducted a briefing on
incentive pay and profit sharing. On June 30, the Employer
presented its second revised proposal to the Union and removed
the incentive pay and profit-sharing proposal from inclusion in
the management-rights clause. At the conclusion of the June 30
meeting, the parties had reached agreement on ground rules, a
confidentiality clause and extending the existing agreement to
August 2.
At the July 14 negotiation session, the Union informed the
Respondent that it was not interested in engaging in further
negotiations on profit sharing. The Union, however, introduced
a nondiscrimination proposal in which the parties engaged in an
extensive dialogue. Additionally, the Union introduced a num-
ber of new proposals to restructure the contract in response to
the Employer’s earlier proposals to do the same.3
On July 15, the Respondent made its third revised proposal
to the Union. This proposal eliminated profit sharing but re-
tained incentive pay. The Union reconsidered its removal of
the profit-sharing proposal and now proposed to include that
subject along with incentive pay for negotiation between the
parties. Accordingly, on July 15, the Respondent agreed to
reintroduce the profit-sharing proposal for discussion between
the parties. Additionally, the parties continued discussions on
the Union’s nondiscrimination proposal which the Union ini-
tially withdrew during this session but after further considera-
tion came back to the table and reinstated the proposal.
The Union presented the Respondent with a partial response
to its third proposal on July 22, but did not provide a full re-
sponse until July 27. On that same date, the Respondent pre-
sented its fourth and fifth contract proposals to the Union.
While the Respondent was prepared to commence negotiations
in the morning (per the ground rules), the Union requested ad-

3 The Union proposals concerned recognition, per diem job classifi-
cation, extended illness, resignation, Family Medical Leave Act, mili-
tary leave, outsourcing, the preceptor program, management rights, and
several other proposals.
ditional time to caucus and negotiations did not begin until late
in the afternoon. While the Union responded to a number of
the Respondent’s proposals, it indicated that it was still review-
ing the totality of the fourth proposal and was not prepared to
respond in full. Finally, on July 30, the Union presented a re-
vised proposal to the Respondent.
The parties continued negotiations during the month of Au-
gust 2004, and met on August 5, 6,4 24, and 25.5 Likewise,
they tentatively scheduled two negotiating sessions in Septem-
ber to take place after the September 10.6
During the August 5 negotiating session, the parties dis-
cussed the management-rights clause proposal that had re-
mained unchanged since the Respondent’s June 30 revisions.
The Union’s spokesperson, Debora Hayes, stated that we do not
necessarily oppose a management-rights clause but we can’t
blindly agree to it. While some proposals were tentatively
agreed to during the August 6 negotiation session, in subse-
quent sessions held in August 2004, changes were proposed by
the Respondent.
b. Discussion
Under Section 8(d) of the Act, an employer and its employ-
ees’ representative are mutually required to “meet at reasonable
times and confer in good faith, with respect to wages, hours,
and other terms and conditions of employment. . . . but such
obligation does not compel either party to agree to a proposal or
require the making of a concession.” “Both the employer and
the union have a duty to negotiate with a sincere purpose to
find a basis of agreement,” Atlantic Hilton & Tower, 271
NLRB 1600, 1603 (1984) (quoting NLRB v. Herman Sausage
Co., 275 F.2d 229, 231 (5th Cir. 1960), but “the Board cannot
force an employer to make a ‘concession’ on any specific issue
or to adopt any particular position”). The employer is, nonethe-
less, obliged to make some reasonable effort to compose his
differences with the union, if Section 8(a)(5) is to be read as
imposing any substantial obligation at all.
In determining whether a party has violated its statutory ob-
ligation to bargain in good faith, the Board examines the total-
ity of the party’s conduct, both at and away from the bargaining
table. Public Service Co. of Oklahoma (PSO), 334 NLRB 487
(2001), enfd. 318 F.3d 1173 (10th Cir. 2003). From the context
of the party’s total conduct, the Board must decide whether the
party is engaging in hard but lawful bargaining to achieve a
contract that it considers desirable or is unlawfully endeavoring
to frustrate the possibility of arriving at any agreement. PSO,
334 NLRB at 487.
The Board considers several factors when evaluating a
party’s conduct for evidence of surface bargaining. These in-
clude delaying tactics, the nature of the bargaining demands,
unilateral changes in mandatory subjects of bargaining, efforts
to bypass the union, failure to designate an agent with sufficient
bargaining authority, withdrawal of already-agreed upon provi-
sions and arbitrary scheduling of meetings.

4 The Respondent presented its sixth contract proposal to the Union.
5 The Respondent presented its seventh contract proposal to the Un-
ion.
6 The Respondent presented its eighth contract proposal to the Union
on September 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1292
In totality, the parties engaged in 15 bargaining sessions be-
tween May and August 2004. While two additional sessions
were scheduled in September 2004, they were never held as the
Respondent withdrew the Union’s recognition on September
10.
I have reviewed the voluminous bargaining proposals com-
piled for both the Respondent and the Union (Jt. Exh. 1).
Likewise, I have reviewed the Respondent’s official bargaining
notes for each of the 15 negotiation sessions held between the
parties (R. Exh.13). I also note the Union’s admission that a
number of the Respondent’s requests for information had not
been responded to as of August 25.
The Respondent concedes that it proposed a restrictive man-
agement-rights clause and adhered to this unchanged proposal
throughout the negotiation process. However, the Union admit-
ted that the Respondent never conditioned agreement on its
management-rights clause before it would agree to anything
else in the parties’ collective-bargaining agreement. Likewise,
the Union acknowledged that while the Respondent’s proposed
a no-strike/no-lockout proposal that prohibited certain conduct
including handbilling, the Employer informed the Union that
the proposal only restricted handbilling that interfered with its
business operations.
Under these circumstances, and particularly noting that both
the Respondent and the Union moved very slowly during the
course of bargaining, I find no evidence that either party re-
fused to bargain in good faith, with any intent of frustrating the
reaching of a collective-bargaining agreement. In this regard,
the Employer and the Union participated in 15 negotiation ses-
sions on agreed upon dates, exchanged proposals, and moved
on some issues including reaching agreement on ground rules, a
confidentiality clause, extending the agreement and tentatively
agreeing on hours of work and work schedule proposal.
Accordingly, the Employer’s conduct did not violate Section
8(a)(1) and (5) of the Act and I recommend that paragraph 8 of
the complaint be dismissed.
2. Bypassing the Union
The General Counsel alleges in paragraph 9 of the complaint
that on or about June 2, 3, and 4, Respondent by Jack Stewart,
bypassed the Union and dealt directly with employees in the
unit by discussing with them their opinions about merit pay,
pay for performance, and flexible work hours.
a. The facts
Stewart, an admitted agent of Respondent, is employed as a
people services manager for DaVita. In early June 2004, at the
direction of his immediate boss, Stewart visited Renal Care for
the purpose of assessing employee morale and evaluating the
relationship between employees and first- and second-line man-
agers.
Stewart was provided with a list of employees and prepared
in advance a number of questions that he intended to ask em-
ployees in individual meetings. An example of these questions
include the name, position, and length of employment for each
employee, the employee’s rating on a scale of 1–10 on how
satisfied they were at work and a request to provide positive
and negative factors concerning there jobs. Additional ques-
tions included a rating of the effectiveness of management on a
scale of 1–10 and what changes the employees would make for
improvement at Renal Care.
Stewart met with approximately 12 employees either indi-
vidually or in a group setting for periods lasting between 10 and
20 minutes (GC Exh. 72). Each employee was informed in
advance of the meeting that it was voluntary. During some of
these meetings Stewart engaged employees in discussions about
pay for performance, merit pay, and other benefit matters.
Stewart took notes that comport with the recollections of the
employees in attendance at the meetings (GC Exh. 71).
b. Analysis
Section 8(a)(5) of the Act provides that an employer com-
mits an unfair labor practice by refusing to bargain collectively
with the exclusive representative of its employees. The duty to
bargain is defined in Section 8(d). The obligation to bargain in
good faith requires, “at a minimum recognition that the statu-
tory representative is the one with whom the employer must
deal in conducting negotiations, and that it can no longer bar-
gain directly or indirectly with employees.” General Electric
Co., 150 NLRB 192, 194 (1964), enfd. 418 F.2d 736 (2d Cir.
1069), cert. denied 397 U.S. 965 (1970). Indeed, it is not
enough that the employer communicates with its employees
about wages, hours, or working conditions; such communica-
tion must be made with the intent to, or for the purpose of, cir-
cumventing bargaining with the union. Emhart Industries, 297
NLRB 215, 225 (1987).
The Board in Permanente Medical Group, Inc., 332 NLRB
1143, 1144 (2000), citing Southern California Gas Co., 316
NLRB 979 (1995), held that in order to prove unlawful direct
dealing in violation of Section 8(a)(5) of the Act the following
criteria must be established:
(1) the employer was communicating directly with un-
ion-represented employees; (2) the discussion was for the
purpose of establishing or changing wages, hours, and
terms and conditions of employment or undercutting the
union’s role in bargaining; and (3) such communication
was made without notice to, or to the exclusion of the un-
ion.
In Emhart, supra, the Board found that an employer did not
engage in direct dealing even though it conducted several man-
datory employee meetings, without notice to the union, on pro-
cedures for productivity and quality control, topics that were
also the subjects of ongoing negotiations with the union. Since
the employer was not promising any benefits in these meetings
to the exclusion of the union, the Board held that its intent was
not to undermine the union and thus there was no unlawful
direct dealing.
The evidence establishes that Stewart directly communicated
with union represented employees and such communication
was made without notice to the designated union representative.
In this regard, Proudman admitted that her normal contact for
changes in conditions of employment was Vice President
Schultz rather then Union Steward Jakubowski, who partici-
pated in a meeting with Stewart.
Stewart’s meetings with the employees were entirely volun-
tary. There is no evidence that Stewart commented about the
RENAL CARE OF BUFFALO 1293
Union or discussed its merits with those employees that at-
tended the meetings. There was no evidence presented that
Stewart singled out bargaining unit employees to attend the
meetings. Rather, the record discloses that Stewart met also
with non bargaining unit employees based on their availability
and asked the same questions of these employees.
There is no evidence that Stewart’s conversations were to ef-
fect any changes to employee’s terms and conditions of em-
ployment without bargaining with the Union. Stewart apprised
the employees that he had nothing to do with the collective-
bargaining negotiations including not being a member of the
bargaining team and had no input into framing collective-
bargaining proposals. While Stewart did inquire of employees
whether they preferred pay for performance or tenure based
pay, he never attempted to negotiate with the employees.
Rather, the parties addressed the subject of incentive pay during
the course of there collective-bargaining negotiations.
Additionally, the General Counsel did not establish evidence
that Stewart made any promises to the employees. Moreover,
Stewart did not have the authority to make any changes to
terms and conditions of employment and he did not assign
work to or evaluate Renal Care employees.
For all of the above reasons, I find that the General Counsel
did not establish that Stewart’s voluntary discussions with bar-
gaining unit employees was for the purpose of establishing or
changing wages, hours, and terms and conditions of employ-
ment. Under these circumstances, and particularly noting that
Stewart did not undercut the Union’s role in bargaining, I find
that the Respondent did not bypass the Union and deal directly
with bargaining unit employees. Therefore, consistent with
outstanding Board precedent, I recommend that paragraph 9 of
the complaint be dismissed.
3. Unilateral changes
The General Counsel alleges in paragraph 10 of the com-
plaint that the Respondent without notice or bargaining with the
Union, on or about August 1, unilaterally changed a term of
employment by which it counted days spent by employees in
collective bargaining as workdays for the purpose of scheduling
their work and on or about January 10, 2005, repudiated an
article in their collective-bargaining agreement regarding be-
reavement leave for the death of nonimmediate family mem-
bers.7
The Supreme Court has held that an employer must first no-
tify and bargain with the union before it effects changes in
mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736
(1962).
a. The term of employment
Jakubowski and Lori Digaetano, both of whom are members
of the Union’s negotiating team, testified that a practice existed
for employee union negotiators to have days spent in collective
bargaining counted as workdays for the scheduling of work.

7 Art. 29, sec. 3 states: For nonimmediate family, an employee will
be allowed one (1) day off for any actual workdays missed from the
day of death through the day of burial. Pay for such leave will be de-
ducted from any accrued but unpaid PTO. The term PTO stands for
paid time off.
For example, if these employees were scheduled to work a
regular 5-day schedule and 2 days were spent in negotiations,
they would only have to work 3 additional days to complete
there regular scheduled workweek. According to Jakubowski,
Respondent changed this practice on or about August 1, by not
providing her a day off after she completed her 5-day work
schedule that included 2 days spent in negotiations. Thus, with
the 2 negotiation days included, Jakubowski was scheduled and
did work 6 days that week.
The Respondent denies that any unilateral change occurred
and relies on the parties June 24 bargaining ground rules to
support there position (R. Exh. 6). In this regard, item 2 of the
ground rules provides that “employees specifically identified
above will be released from any scheduled work on days of
negotiations but are expected to work if scheduled on any day
preceding or following the negotiations.”
Under these circumstances, and in agreement with the Re-
spondent, I find that the Union agreed to a procedure on the
scheduling of work for employees who participated in negotia-
tions. Therefore, since Jakubowski was scheduled to work a
total of 6 days (2 negotiation days and 4 workdays) the ground
rules agreement prevails (R. Exh. 6).8 Likewise, I note that
Jakubowski worked a similar 6-day schedule at the end of June
2004, a period of time after the execution of the parties’ ground
rules agreement on June 24 (R. Exh. 18).
Accordingly, the General Counsel’s allegation of a unilateral
change by which it counted days spent by employees in nego-
tiations as workdays for the scheduling of work is rejected and I
recommend that paragraph 10 of the complaint be dismissed.
b. Bereavement leave
Jakubowski testified that a nonimmediate family member
died on January 7, 2005. On arriving at work the following
day, she reported the death to the charge nurse and requested 1
day of bereavement leave for January 11, 2005, the day of the
funeral. After checking the work schedule, the charge nurse
initially informed Jakubowski that there appeared to be ade-
quate coverage but any leave must be approved by Renal Care
Administrator Proudman. Upon further checking the schedule
on January 10, 2005, Proudman apprised Jakubowski that cir-
cumstances had changed and coverage was necessary for the
evening of January 10, 2005 (Monday). Accordingly, Proud-
man requested Jakubowski to remain at work and cover the
evening shift. Proudman offered Jakubowski the option of
working the second shift on January 10, 2005, in return for the
day off on January 11, 2005. Jakubowski, who was scheduled
to attend the deceased’s wake on Monday evening, rejected the
offer and also did not report to work on January 11, 2005
(Tuesday), the day of the funeral.
Upon returning to work on January 12, 2005, and completing
her regularly scheduled shift, Jakubowski reported to Proud-
man’s office, as directed. In the presence of a witness, Proud-
man informed Jakubowski that because she did not work on
January 11, 2005 (no call-no show without requesting PTO)

8 On cross examination, Jackubowski admitted that she was aware of
being scheduled for 6 days of work including 2 days for negotiations
but informed Proudman that she did not want to cancel negotiations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1294
and disregarded patient care, she was being terminated effective
immediately.
The General Counsel seeks a make-whole remedy arguing
that the repudiation of article 29, section 3, of the parties’ col-
lective-bargaining agreement was undertaken without notice to
or affording the Union an opportunity to negotiate. Therefore,
Jakubowski’s discharge was a direct result of the repudiation
and is violative of Section 8(a)(1) and (5) of the Act.
The Respondent proffers several defenses to this allegation.
First, it argues that on January 10, 2005, the parties’ collective-
bargaining agreement was no longer in effect. Moreover, since
it lawfully withdrew recognition from the Union on September
10, it was under no obligation to notify and bargain with the
Union concerning the provisions of article 29, section 3 of the
parties’ collective-bargaining agreement. Second, it asserts that
in order to take bereavement leave under article 29, section 3,
an employee must request and be granted PTO. Since Jaku-
bowski did not comply with this requirement and did not call in
on January 11, 2005, she was lawfully terminated.
Based on my below finding that the Respondent did not con-
clusively establish that a majority of the employees in the bar-
gaining unit no longer wanted the Union as its representative,
the repudiation of article 29, section 3 without notice to or ne-
gotiations with the Union was unlawful.
Accordingly, since the terms and conditions of the expired
agreement remain in full force and effect until an agreement is
reached or the parties bargain to impasse, the Respondent has
an obligation to negotiate with the Union. Its failure to do so is
a violation of Section 8(a)(1) and (5) of the Act.
Second, the Respondent opines that even if the collective-
bargaining agreement remained in full force and effect, it was
nevertheless privileged to deny bereavement leave to Jaku-
bowski. It argues that article 20, section 5(a) of the parties’
collective-bargaining agreement supports this proposition.9
Stated otherwise, the Respondent contends that the request for
bereavement leave was for a nonvacation request and could be
denied based on staffing needs.
The fallacy of this argument is exposed by a literal reading
of the first portion of article 29, section 3. Indeed, it provides
that an employee will be allowed one (1) day off for any actual
workdays missed from the day of death through the day of bur-
ial for a nonimmediate family member (emphasis added). This
is fully consistent with the language of article 29, section 1 that
provides an automatic entitlement for time off to attend to the
death of an immediate family member. The reference to PTO in
article 29, section 3 solely involves how the employee will be
paid. It has no relation to the scheduling of work and the staff-
ing needs of the facility as found in article 20, section 5(a).
Likewise, there is no reference in article 29, section 3 to any
requirement to request or have approved a PTO day before

9 Art. 20, sec. 5(a) states: Although PTO may be utilized as an em-
ployee wishes, it is the responsibility of each employee to submit a
written request for PTO to his or her immediate supervisor. All re-
quests for PTO will be considered in light of the staffing needs of the
facility.
bereavement leave is granted.10 Moreover, the scheduling of
work or staffing needs is not addressed in article 29.
Based on the forgoing, I find that the Respondent unilaterally
repudiated article 29, section 3 of the parties’ collective-
bargaining agreement without notice to or bargaining with the
Union, and therefore violated Section 8(a)(1) and (5) of the
Act.11
Under these circumstances, a make-whole remedy for Jaku-
bowski is appropriate. See Tocco, Inc., 323 NLRB 480 (1997).
4. The refusal to provide information
The General Counsel alleges in paragraph 11 of the com-
plaint that the Respondent refused to provide necessary and
relevant information to the Union that was requested by letters
dated August 9 and 23. The information requested concerned
policies and procedures for Respondent that are not covered by
the parties’ collective-bargaining agreement and policies and
procedures for DaVita and Total Renal Care.
The Board in Sheraton Hartford Hotel, 289 NLRB 463, 463–
464 (1988), set forth the law to be applied in situations like the
instant matter.
Section 8(a)(5) obligates an employer to provide a union re-
quested information if there is a probability that the informa-
tion would be relevant to the union in fulfilling its statutory
duties as bargaining representative. When the requested in-
formation concerns wage rates, job descriptions, and other in-
formation pertaining to employees within the bargaining unit,
the information is presumptively relevant. When the informa-
tion does not concern matters pertaining to the bargaining
unit, the union must show that the information is relevant.
When the requested information does not pertain to matters
related to the bargaining unit, to satisfy the burden of showing
relevance, the union must offer more than mere suspicion for
it to be entitled to the information.
By letter dated August 9, the Union requested the informa-
tion described above in an effort to aid it in negotiation meet-
ings scheduled later in the month and during September 2004.
The Union apprised the Respondent that the information was
relevant in light of their suggestion that the Union adopt much
of DaVita’s and Total Renal Care’s culture, methods, and style

10 Schultz credibly testified that in the 2001 negotiations that led to
the parties’ collective-bargaining agreement regarding art. 29, the Re-
spondent agreed to grant employees 1 day off for the death of a non-
immediate family member but unlike the death of an immediate family
member that provided 3 days off with pay, if an employee used a non-
immediate day off, they would be paid from their bank of PTO time.
Likewise, Schultz confirms that the Respondent could not deny a day
off for the death of a nonimmediate family member (Tr. 492–496).
11 I reject the Respondent’s argument that there refusal to grant be-
reavement leave to Jakubowski was consistent with its previous denial
of a day off for her in an earlier filed grievance under the same contrac-
tual article (R. Exh. 7). In this regard, that denial involved bereavement
leave taken on a Saturday in contrast to the subject complaint allegation
for bereavement leave that was requested for a Tuesday. The parties’
collective-bargaining agreement at art. 15, sec. 7, provides that when an
employee fails to report on any Saturday, he or she must work a
makeup Saturday on another weekend in which they would not other-
wise be scheduled.
RENAL CARE OF BUFFALO 1295
of operation including but not limited to its profit-sharing plan
and the language of its preamble proposal (GC Exh. 50).
By letter dated August 17, the Respondent replied to the Un-
ion and objected to the overbroad, vague, and unreasonable
nature of the information request this late in the bargaining
process (GC Exh. 51). The Respondent further stated in its
letter that the Union should clarify the specific information that
it was seeking and explain the reasons it is relevant. The Re-
spondent promised to give further consideration to the informa-
tion request once it was clarified.
By letter dated August 23, the Union replied to the Respon-
dent and further supported the reasons that it requested and
sought the information (GC Exh. 52).
The record is clear that the Respondent did not provide the
requested information to the Union.
I find, based on outstanding Board case law, that in light of
the Respondent’s proposal to the Union during negotiations that
the culture, methods and style of operation of DaVita and Total
Renal Care be adopted by the Union, the information requested
was necessary and relevant for the Union to formulate collec-
tive-bargaining proposals.
Since the Respondent refused to provide the information to
the Union, I find that it violated Section 8(a)(1) and (5) of the
Act.
5. Withdrawal of recognition
The General Counsel alleges in paragraphs 12 and 13 of the
complaint that the Respondent unlawfully withdrew the recog-
nition of the Union as the exclusive collective-bargaining rep-
resentative on or about September 10.
The parties entered into a stipulation of facts which ad-
dresses a number of issues related to this matter (Jt. Exh. 2).
In pertinent part, the parties agree that on or about September
3, the Respondent received a petition from 15 bargaining unit
employees that they no longer wanted the Union as there exclu-
sive collective-bargaining representative and urged Renal Care
to immediately withdraw recognition from the Union as it no
longer enjoys the support of a majority of employees in the
unit.
On or about September 10, Respondent determined that the
bargaining unit consisted of 30 employees.
On September 10, Respondent withdrew recognition from
the Union.
The General Counsel challenges the Respondent’s determi-
nation that the bargaining unit consists of 30 employees.
Rather, the General Counsel asserts that the bargaining unit
should be comprised of 32 employees, and therefore, the Re-
spondent has failed to establish that a majority of employees in
the unit no longer want the Union to represent them for collec-
tive-bargaining purposes. Thus, the General Counsel argues
that the September 10 withdrawal of recognition from the Un-
ion was unlawful.
In order to substantiate that position, the General Counsel
presented the testimony of two individuals, Deborah Reger and
Lynne Yung, who they contend were full-time employees in the
unit during the critical period.
The Respondent admits that these two employees were hired
but opines that they were temporary employees within the
meaning of article 14 of the parties’ collective-bargaining
agreement.12 Thus, it argues that since they were not in the
bargaining unit they were not “employees” covered by the
agreement. In addition, the Respondent asserts that Reger and
Yung were not hired as employees of Respondent. Rather, they
contend that both employees were hired for full-time positions
at Cleve Hill. Therefore, Reger and Yung could not be consid-
ered as employees of Respondent and were lawfully excluded
from the bargaining unit.
Reger credibly testified that she interviewed with Proudman
on July 29, and was hired as a licensed practical nurse to start
work on August 16. During the interview, Reger apprised
Proudman that she was seeking a full-time position with bene-
fits as she presently enjoyed those emoluments. According to
Reger, there was no discussion during the interview about ac-
cepting a temporary position. If there had been such an offer
for a temporary employee position, Reger would have declined
it. Reger acknowledges signing the Respondent’s associate
activation form on July 29, but credibly testified that the por-
tion on the form filled out by the Respondent designating her as
a temporary employee was not discussed or shown to her (GC
Exh. 5).
Record evidence confirms that the Respondent provided and
Reger completed enrollment application forms for medical,
dental, and vision benefits in August and September 2004 (GC
Exhs. 58 and 59).
Reger admitted on cross-examination that during the hiring
interview, Proudman apprised her that she would be hired for
Cleve Hill and would be working 5 days per week for 7.5 hours
per day. Reger also testified that Proudman informed her that
she would be temporarily assigned to Renal Care for her orien-
tation and training period but was specifically hired to work at
Cleve Hill.13 Indeed, Reger admitted that she expected to be a
permanent employee of Cleve Hill.
In February 2005, Reger bid on a posted position that was
advertised by the Respondent. She was selected for the posi-
tion and is now a full-time employee of Renal Care.
Based on the above discussion, and in agreement with the
Respondent, I conclude that Reger was not an employee of
Respondent in September 2004. Rather, I find that Reger was
hired to be a full-time employee of Cleve Hill. Therefore,
while I reject the Respondent’s argument that Reger should
have been excluded from the bargaining unit because she was a
temporary employee,14 I find that Reger was properly excluded

12 Art. 14 states in pertinent part: Sec. 1. A temporary employee is an
employee hired for a specific period of time not to exceed six (6)
months and is so informed at the time of hire. Sec. 3. Temporary em-
ployees are not entitled to any of the benefits outlined in this contract
and are not “employees” covered by the contract.
13 Proudman testified that Reger was hired for Cleve Hill because
New York State gave an indication that the operating license for Cleve
Hill would be transferred in approximately 2 months. I note that as of
the date of the hearing the operating license for Cleve Hill has not been
transferred.
14 To further support this finding, I note that in addition to receiving
full-time benefits, the Respondent never informed Reger that she was a
temporary employee at the time of hire and her employment was for a
period in excess of six months. See art. 14, secs. 1 and 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1296
from the collective-bargaining unit in September 2004, due to
her being hired as a full-time employee for Cleve Hill.
Yung, the other employee in dispute, credibly testified that
she sought a registered nurse position at a job fair for Renal
Care in July 2004. According to Yung, DaVita Regional Direc-
tor William Brezsnyak offered her a permanent full-time
nurse’s position at Renal Care with a starting date of August 3.
Yung testified that the interview topics included a discussion of
her hourly wage and benefits. Yung was seeking a permanent
full-time position with benefits as her husband was disabled
and there was a possibility that he could lose his medical bene-
fits. On August 3, Yung commenced her training orientation at
Renal Care. During her training period, Yung had a discussion
with Proudman about medical benefits and was informed that
she was eligible for them. Ultimately, Yung did not apply for
medical benefits with the Respondent as her husband was able
to retain his medical coverage. Yung remained an employee at
Renal Care for her entire tenure between August 2004 and
April 2005, when she voluntarily resigned her employment.
Yung testified that neither Proudman nor Brezsnyak ever in-
formed her that she was a temporary employee either during
her hiring interview or while she was employed at Renal Care.
Likewise, as with Reger, Yung never saw the portion of the
associate activation form completed by Brezsnyak that classi-
fied her as a temporary employee.
Brezsnyak testified that during the hiring interview he ap-
prised Yung that she was being hired for a temporary position
at Cleve Hill but would be assigned to Renal Care while com-
pleting her initial training before being transferred to Cleve Hill
in approximately 1 to 3 months once the operating license was
finalized. Yung categorically denied these assertions.
I reject Brezsnyak’s testimony to this effect for the following
reasons. First, Yung impressed me as a reliable witness who
had an excellent command of the facts. Indeed, her testimony
was articulate and convincing that during the hiring interview
Brezsnyak offered her a permanent full-time position at Renal
Care with a specific hourly wage rate and benefits. I also note
that documentation contained in Yung’s personnel file, with
Brezsnyak’s handwriting contained thereon, undermine and
contradict his testimony (GC Exh. 69). In this regard, the docu-
ment states that Yung was hired @ $22.15 as a full-time RN @
RCB to move over later.15 Indeed, the evidence confirms that
Yung remained a full-time employee at Renal Care for her
entire tenure of employment and was never moved over or
employed at another facility. Likewise, I note that there is no
written documentation in Yung’s personnel file confirming that
she was hired for a registered nurse’s position at Cleve Hill.16
I also find that Yung was not a temporary employee for the
following reasons. First, I fully credit Yung’s persuasive testi-
mony that neither Proudman nor Brezsnyak ever informed her
she was a temporary employee as required to do so under the
parties’ collective-bargaining agreement. Second, Yung was

15 Yung is a (RN) registered nurse. RCB stands for Renal Care of
Buffalo.
16 It is further noted that Yung’s associate activation form, executed
by Brezsnyak, shows that she was hired on August 3 at Renal Care (GC
Exh. 6).
employed for a period in excess of 6 months, and therefore
could not be a temporary employee. Third, Proudman informed
Yung that she was eligible for medical benefits an emolument
not afforded temporary employees under the parties’ collective-
bargaining agreement.
Accordingly, and particularly noting the above discussion, I
find that Yung was a full-time employee of Respondent during
September 2004, and should have been included in the bargain-
ing unit.
Therefore, contrary to the Respondent’s determination that
the bargaining unit was comprised of 30 employees, I find that
it should have consisted of 31 employees effective in Septem-
ber 2004. Under these circumstances, I find the Respondent
did not obtain a majority of employees in the unit that indicated
that they no longer wanted the Union to represent them when it
withdrew the Union’s recognition on September 10.
Thus, the Respondent unlawfully withdrew recognition from
the Union and violated Section 8(a)(1) and (5) of the Act.
The General Counsel further argues that the decertification
petition the Respondent received from its employees on or
about September 3, was tainted by unfair labor practices that
were committed by the Respondent. Therefore, the General
Counsel asserts that the withdrawal of the Union’s recognition
on September 10, was also unlawful on this basis.
An employer who wishes to withdraw recognition from a
certified union after the expiration of a collective-bargaining
agreement may rebut the presumption of majority status by
showing that on the date recognition was withdrawn the union
did not enjoy majority support. Levitz Furniture Co., 333
NLRB 717 (2001).
The law is also well settled that an employer may not avoid
its duty to bargain by relying on any loss of majority status
attributable to its own unfair labor practices. Pittsburgh & New
England Trucking Co., 249 NLRB 833, 836 (1980). However,
the unfair labor practices must be of a character to affect the
union’s status, cause employee disaffection, or improperly af-
fect the bargaining relationship itself. Stated otherwise, in the
subject case, the unfair labor practices must have caused em-
ployee disaffection or at least had a meaningful impact in
bringing about that disaffection. Factors that often are consid-
ered include any possible tendency to cause employee disaffec-
tion from the union and the effect of the unlawful conduct on
employee morale, organizational activities, and membership in
the union. Master Slack Corp., 271 NLRB 78, 84 (1984).
For the following reasons, and in agreement with the Re-
spondent, I find that the Respondent’s unfair labor practices
prior to the withdrawal of the Union’s recognition on Septem-
ber 10 did not cause employee disaffection, erode morale, or
undermine support in the Union.17

17 Respondent proffered the testimony of two bargaining unit em-
ployees to support there contention that the employees signatures on the
decertification petition was freely made independent of any alleged
unfair labor practices (Jt. Exh. 2). Carrie Kropidlowski testified that at
an August 1 meeting she apprised union representatives that she no
longer wanted the Union to represent her due in part to there lack of
progress in negotiations with the Respondent, the Union’s intent to
engage in informational picketing and the Union’s desire that employ-
ees wear union insignia and T-shirts. Kropidlowski asserted that Stew-
RENAL CARE OF BUFFALO 1297
Significantly, the General Counsel stated at the hearing that
it is the surface bargaining allegations/violations that caused a
disaffection of the employees and tainted the withdrawal peti-
tion. Based on my above finding that the Respondent did not
violate the Act by engaging in surface bargaining, this rationale
cannot support the General Counsel’s position that the with-
drawal of recognition was tainted. Moreover, the General
Counsel did not submit any employee testimony or other evi-
dence to establish that the unfair labor practices found above
had any causal relationship to the reasons that the Respondent
withdrew recognition from the Union on September 10. Flying
Foods, 345 NLRB No. 10 (2005). For example, the employees
who signed the withdrawal petition had no involvement in the
drafting of the request for information nor did they know the
type of information that was requested concerning specific
bargaining proposals that had been discussed during negotia-
tions. Indeed, the two employees who testified about the with-
drawal petition both stated that they were not aware of any
issues or discussions surrounding requests for information and
their reason for signing the petition was unrelated to any unfair
labor practices that the Respondent might have committed.
Rather, it is apparent from their testimony that it was the Un-
ion’s conduct that caused employee disaffection and prompted
the employees’ signatures on the withdrawal petition.
Therefore, I find that the Respondent’s unfair labor practices
did not taint the employee petition and the resulting withdrawal
of the Union’s recognition. Under these circumstances, I find
that the Respondent did not violate Section 8(a)(1) and (5) of
the Act in accordance with the General Counsel’s alternative
theory.
Finally, however, I find that an affirmative bargaining order
is appropriate in this case. Such an order will vindicate the
Section 7 rights of the unit employees who were denied the
benefits of collective bargaining by the Respondent’s with-
drawal of recognition. At the same time, an affirmative bar-
gaining order, with its attendant bar to raising a question con-
cerning the Union’s majority status for a reasonable time, does
not unduly prejudice the Section 7 rights of employees who
may oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary to
remedy the ill effects of the violation. The affirmative bargain-
ing order also serves the policies of the Act by fostering mean-
ingful collective bargaining and industrial peace. That is, it
removes the Respondent’s incentive to delay bargaining in the
hope of further discouraging support for the Union. It also
ensures that the Union will not be pressured by the possibility

art’s meeting with employees in June 2004, the removal of printed
communication from the designated union bulletin board and the re-
fusal of Respondent to provide necessary and relevant information to
the Union in no way impacted her decision not to want the Union as the
exclusive representative of the employees. Julie Galatioto also signed
the decertification petition and expressed similar reasons for doing so.
Galatioto, however, did not blame either the Union or Respondent for
the lack of progress during the parties’ negotiations. The General
Counsel did not present any employee testimony to confirm that the
unfair labor practices engaged in by the Respondent prior to the with-
drawal of recognition on September 10 was the reason the Union lost
employee support.
of a decertification petition or by the Respondent’s withdrawal
of recognition, to achieve immediate results at the bargaining
table following the Board’s resolution of its unfair labor prac-
tice charges.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by remov-
ing printed communications protected by the Act from the des-
ignated union bulletin board and threatening employees with
discipline if they re-posted the printed communication.
4. Respondent violated Section 8(a)(1) and (5) of the Act
when it repudiated article 29, section 3, of the parties’ collec-
tive-bargaining agreement regarding bereavement leave for the
death of nonimmediate family members without notice to or
bargaining with the Union.
5. Respondent violated Section 8(a)(1) and (5) of the Act
when on September 10, 2004, it unlawfully withdrew its recog-
nition of the Union as the exclusive collective-bargaining rep-
resentative of the unit.
6. Respondent violated Section 8(a)(1) and (5) of the Act
when it refused to furnish the Union with necessary and rele-
vant information that it requested on August 9 and 23, 2004.
7. Respondent did not violate Section 8(a)(1) and (5) of the
Act when it bypassed the Union and dealt directly with em-
ployees in the unit by discussing with employees their opinions
about merit pay, pay for performance, and flexible work hours.
8. Respondent did not violate Section 8(a)(1) and (5) of the
Act by engaging in surface bargaining for a successor collec-
tive-bargaining agreement between May and August 2004.
9. Respondent did not violate Section 8(a)(1) and (5) of the
Act by unilaterally changing a term of employment by which it
counted days spent by employees in collective bargaining as
work days for the purposes of scheduling their work.
10. The above unfair labor practices affect 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. The remedy should include a cease
and desist order, the posting of an appropriate notice and the
reinstatement of Sherry Jakubowski who was unlawfully termi-
nated when the Respondent repudiated article 29, section 3 of
the parties’ collective-bargaining agreement. Appropriate lost
wages and benefits must accompany the reinstatement, com-
puted on a quarterly basis from date of discharge to date of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1298
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W.Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]