ServiceNet, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 2003

340 N.L.R.B. 1245 (N.L.R.B. 2003)

SERVICENET, INC. 1245
ServiceNet, Inc. and Service Employees International
Union, Local 285, AFL–CIO, CLC. Case 1–CA–
39682
December 15, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND
WALSH
On March 25, 2003, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions, and the General Counsel filed
an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the Respondent’s exceptions and brief and
affirms the judge’s rulings, findings,1 and conclusions2
and adopts the recommended Order as modified.3
I. INTRODUCTION
The issue presented in this case is whether the Re-
spondent unlawfully insisted to impasse on two contrac-
tual proposals for a successor contract—one involved the
manner in which changes to a health insurance plan
would be decided; the other involved the duration of the
proposed agreement. For the reasons set forth herein, we
agree with the judge that the health insurance proposal
and duration-clause proposals were nonmandatory sub-
jects of bargaining and that when the Respondent insisted
to impasse on them it violated Section 8(a)(5) and (1) of
the Act.
II. FACTUAL BACKGROUND
As more fully set forth in the judge’s decision, the Un-
ion has represented the Respondent’s employees for the
past 7 years, and has negotiated successive collective-
bargaining agreements, the most recent of which was

1 The Respondent has filed exceptions to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
The Respondent’s exceptions imply that the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. On careful ex-
amination of the judge’s decision and the entire record, we are satisfied
that the Respondent’s contentions are without merit.
Certain errors in the judge’s decision have been noted and corrected.
2 There are no exceptions to the judge’s dismissal of the complaint
allegations that the Respondent violated Sec. 8(a)(5) and (1) by enter-
ing negotiations with a fixed intention of reaching agreement only on
its terms, or by engaging in surface bargaining.
3 We have modified the judge’s recommended Order and notice to
include the description of the bargaining unit at issue.
effective until June 30, 2001.4 On May 8, the parties
commenced negotiations for a successor agreement. The
parties exchanged contract proposals and bargained on
several dates from May to October. On October 19, the
Respondent presented, on a package basis, a contract
proposal that included the following two clauses:

Article 19—Health and Welfare
(3) A committee comprised of up to five (5) bargaining
unit members will meet with ServiceNet management,
prior to any changes being made in the group health in-
surance plan, to discuss whether to keep the current
group health insurance plan in lieu of the other options
which may be available at that time.
Article 37—Duration and Renewal
This Agreement shall become effective July 1, 2001
except as otherwise specifically provided for herein and
shall remain in full force and effect until October 31,
2004. It is mutually agreed to and understood between
the parties that upon the expiration date of this Agree-
ment, if agreement has not been reached on a successor
Agreement, that all of the terms and provisions of this
Agreement shall be kept in full force and effect until a
successor collective bargaining agreement is agreed
upon and ratified by the parties.

The Union refused to enter into an agreement containing
these clauses.
The Respondent presented another contract proposal
on December 14. The proposal included an identical
version of article 19(3), and a modified version of article
37, which consisted of changing the proposed expiration
date from October 31, 2004, to June 30, 2002. The Re-
spondent presented this proposal as a “PACKAGE
PROPOSAL AS A BASIS FOR SETTLEMENT” and
“LAST, BEST, AND FINAL OFFER.” On January 16,
2002, the Respondent informed the Union that the parties
need not schedule another meeting, and threatened to
declare impasse if the Union did not accede to its latest
offer: “If we do not receive a response from you by
January 25, 2002, it shall be our position that we have
reached impasse in these negotiations, and we will be
taking action to implement our Last, Best, and Final Of-
fer.”
On January 22, 2002, the Union expressed its opinion
that the parties had not reached an insurmountable dead-
lock, and demanded that the Respondent rescind its dec-
laration of impasse and return to the bargaining table.
The Respondent refused, indicating again that if the Un-
ion failed to respond to its proposal by January 25, 2002,
4 All dates hereafter occurred in 2001 unless otherwise stated.
340 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
it would conclude the parties were at impasse and it
would implement at least the economic portion of its
proposal. On February 5, 2002, the Respondent declared
impasse, withdrew its entire proposal, and told the Union
that it would maintain the terms of the previous bargain-
ing agreement, refuse to deduct union dues, and would
not recognize the arbitration aspect of the grievance-
arbitration article. The Respondent refused the Union’s
demand for continued bargaining until May 16, 2002,
when the parties returned to the bargaining table.
On September 3, 2002, the Respondent presented the
Union with a proposal for a bargaining agreement that
would commence on July 1, 2001, and expire on June 30,
2003. The September 3 proposal included a number of
modifications to the Respondent’s prior proposals, in-
cluding a revised article 19(3), which read as follows:

(3) A committee comprised of up to five (5) bargaining
unit members, as may be designated by the union, will
meet with ServiceNet management, prior to any
changes being made in the group health insurance plan,
to discuss whether to keep the current group health in-
surance plan in lieu of the other options which may be
available at that time.

Article 37 remained unchanged. The Union accepted all of
the terms of the September 3, 2002 proposed bargaining
agreement except article 37, which the Respondent refused
to withdraw or modify.
III. THE JUDGE’S DECISION
The judge concluded that the Respondent violated Sec-
tion 8(a)(5) and (1) by insisting to impasse over article
19(3) and article 37, which he found to be permissive
subjects of bargaining; and by declaring impasse and
threatening to implement a part of its proposal.
The judge found that article 19(3) was a permissive
subject of bargaining because it affected the right to bar-
gain over the health benefits plan and not the plan itself.
Analogizing this proposal to the merit pay proposal at
issue in McClatchy Newspapers, 321 NLRB 1386
(1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. de-
nied 524 U.S. 937 (1998), the judge found that article
19(3) would have permitted the Respondent to bypass the
Union and deal directly with the employees, thereby al-
lowing the Respondent an unfettered right to implement
any changes it wanted.
The judge also found that article 37 was a permissive
subject of bargaining because it was an attempt to control
conditions of employment after the terms of the bargain-
ing agreement expired. In reaching this finding, the
judge analogized article 37 to an interest-arbitration
clause, which the Board has concluded is a permissive
subject.5 Additionally, because the Union had agreed to
the inclusion of a no-strike clause, the judge observed
that article 37 would effectively prevent the employees
from going on strike to support the Union’s economic
position following the expiration of the bargaining
agreement.
Finally, the judge found that the Respondent, as of
January 25, 2002, insisted to impasse over the inclusion
of these nonmandatory proposals in a successor collec-
tive-bargaining agreement. In support of this finding, the
judge noted that the Respondent had consistently pre-
sented its contract proposals on a package basis and had
declared that the parties were at impasse on January 25,
2002.
IV. ANALYSIS
A. Article 19(3)
We agree with the judge that article 19(3), as proposed
on October 19, is a nonmandatory subject of bargaining
because the proposal allows the Respondent to circum-
vent the Union and negotiate directly with the employees
over a term or condition of employment, namely, the
company health insurance plan. In affirming the judge’s
finding, however, we do not find it necessary to rely on
McClatchy Newspapers, supra. Rather, we agree with
the judge that article 19(3) is a nonmandatory subject of
bargaining for the reasons set forth in Retlaw Broadcast-
ing Co., 324 NLRB 138 (1997), enfd. 172 F.3d 660 (9th
Cir. 1999).
In Retlaw Broadcasting Co., the Board found that the
employer’s proposal, which allowed direct dealing with
employees over mandatory subjects of bargaining that
included a merit pay system and personal service con-
tracts with newly hired employees, was a nonmandatory
subject of bargaining within the meaning of Section 8(d)
of the Act. Approving the Board’s decision, the Ninth
Circuit noted that the employer’s proposal “would be a
license for the employer to go to impasse over whether it
has to deal with the union; that is the antithesis of good-
faith collective bargaining, which requires the employer
to accept the legitimacy of the union’s role in the proc-
ess.” Retlaw Broadcasting Co. v. NLRB, 172 F.3d at 666
(quoting Toledo Typographical Union No. 63 v. NLRB,
907 F.2d 1220, 1224 (D.C. Cir. 1990), remanding 295
NLRB 626 (1989), cert. denied 498 U.S. 1053 (1991))
(internal quotation marks omitted). The Ninth Circuit,
therefore, enforced the Board’s decision on the basis that
an employer “cannot relegate the union to a mere ob-
server on the very matters for which the Act prescribes it
to have a critical role.” Id. at 666–667.

5 Citing Laidlaw Transit, 323 NLRB 867 (1999).
SERVICENET, INC. 1247
Similarly here, article 19(3) diminishes the Union’s
role as the employees’ exclusive bargaining representa-
tive regarding changes to the employees’ health insur-
ance benefits, a matter that directly affects terms and
conditions of employment. For this reason, article 19(3),
like the proposal in Retlaw Broadcasting Co., constitutes
a subject over which the Respondent could not lawfully
bargain to impasse.
The Respondent argues that the parties did not reach
impasse over the inclusion of this clause in a successor
agreement because it continued to bargain, and eventu-
ally reached agreement with the Union over a revised
version of article 19(3). Before the parties reached
agreement on this issue, however, the Respondent de-
clared impasse, ceased deducting union dues and fees,
and refused to arbitrate grievances. Acting in confor-
mance with its declaration, the Respondent also refused
the Union’s demands for further bargaining and did not
meet with the Union from January until May 2002. The
parties’ subsequent agreement does not, as the Respon-
dent contends, prove that the parties were not at impasse
in January 2002, but rather shows, at best, that the im-
passe was subsequently broken. We therefore agree with
the judge that, as of January 25, 2002, the Respondent
had insisted to impasse that article 19(3) be included in
the collective-bargaining agreement and thus violated
Section 8(a)(5).
B. Article 37
We affirm the judge’s finding that the Respondent vio-
lated Section 8(a)(5) by insisting to impasse over article
37 because it is a nonmandatory subject of bargaining.
We agree with the judge that article 37 is analogous to an
interest-arbitration clause, which the Board has found to
be a permissive subject of bargaining. See, e.g., Laidlaw
Transit, supra at 869, and cases cited. While duration
clauses are generally treated as mandatory subjects of
bargaining,6 article 37 is different. Unlike the typical
clause, it does not simply govern the duration of the
agreement during its term. Rather, this article also re-
quires adherence to the contract—including any no-strike
and no-lockout undertakings—after it has expired and
while negotiations for a new agreement are ongoing.
The parties are, of course, free to enter into such an
agreement—i.e., it is not an illegal proposal. By so
agreeing, they would thereby voluntarily forego their
respective rights to take economic action in support of
their bargaining positions and indeed would afford a
measure of stability and certainty during the negotiation
process. But, neither party can be compelled to relin-

6 See Steelworkers of America Local 2140 (United States Pipe), 129
NLRB 357, 360 (1960).
quish its right to exercise its economic weapons perpetu-
ally. That is effectively what treating article 37 as a
mandatory subject of bargaining would accomplish. See
Laidlaw, supra. Accordingly, we agree with the judge
that the Respondent’s insistence that the any final agree-
ment contain article 37 was a violation of Section 8(a)(5)
of the Act.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that Respondent, ServiceNet,
Inc., Northampton, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 1(b).
“(b) Insisting to impasse on its so-called Duration pro-
posal.”
2. Substitute the following for paragraph 2(a).
“(a) On request, bargain collectively with Service Em-
ployees International Union, Local 285, AFL–CIO, CLC
as the exclusive representative of all employees in the
following appropriate bargaining unit with regard to rates
of pay, wages, hours of employment, and other terms and
conditions of employment and, if an agreement is
reached, embody that agreement in a written, signed
agreement:

All regular full-time and regular part-time Crisis Clini-
cian 2, Crisis Clinician 3, Outpatient Therapist
(LICSW), Outpatient Therapist (Licensed Psycholo-
gist), Day Treatment Counselor 1, Day Treatment
Counselor 2, Medication Clinic Nurse, Program Aide,
Teacher Assistant, Early Intervention Specialist 1,
Early Intervention Specialist 2, Allied Health Profes-
7 Member Schaumber does not find that art. 37 is analogous to an
interest-arbitration clause. An interest-arbitration clause requires the
parties to submit disputes over the terms of a new collective-bargaining
agreement to binding arbitration. Art. 37, in contrast, does not establish
the method by which terms of a successor contract will be determined
but instead specifies the period of time during which the proposed
contract would have been effective. It is, as its title suggests, a duration
clause. Member Schaumber nevertheless agrees with his colleagues that
art. 37, although not an illegal proposal, was not a mandatory subject of
bargaining and that the Respondent violated Sec. 8(a)(5) by bargaining
to impasse over it. Art. 37 would have continued the terms and condi-
tions of the proposed agreement until a new contract was agreed upon
and ratified. Because the parties could fail to reach agreement on a
successor contract, art. 37 fails to provide a fixed term for the agree-
ment and is therefore not a mandatory subject of bargaining. See
Massillon Community Hospital, 282 NLRB 675, 676 (1987) (employer
violated Sec. 8(a)(5) by bargaining to impasse over terminable-at-will
duration clause) and cases cited therein.
As noted above, the Union has agreed to all of the Respondent’s pro-
posals except art. 37, and the Respondent continues to insist on that
clause as a condition of reaching any agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
sional, Account Clerk 1, Account Clerk 2, Account
Clerk 3, Purchasing Specialist, Staff Accounts, Ac-
counts Receivable Assistant, Accounts Receivable
Specialist, Senior Accounts Receivable Specialist,
Computer Support Technician, Computer Technology
Specialist, Secretary/Receptionist, Administrative As-
sistant, Early Intervention Information Systems Coor-
dinator, Triage Coordinator, Revenue Coordinator, In-
take Coordinator and Clinician (Bachelor’s level) em-
ployed by Respondent, but excluding all other employ-
ees, guards and supervisors as defined in the Act.

3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we 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 in negotiations, insist to impasse on
our proposal to bypass the Union and deal directly with
our unit employees on the matter of unilateral changes to
health plans.
WE WILL NOT in negotiations, insist to impasse on
our duration proposal.
WE WILL NOT insist to impasse on nonmandatory
subjects of bargaining, declare impasse prematurely, and
threaten to implement a part of our proposals.
WE WILL NOT, in any like or related manner, inter-
fere with, restrain or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with the
Union as the exclusive representative of our employees
in the following appropriate unit with regard to rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an agreement is
reached, embody that agreement in a written, signed
agreement:

All regular full-time and regular part-time Crisis Clini-
cian 2, Crisis Clinician 3, Outpatient Therapist
(LICSW), Outpatient Therapist (Licensed Psycholo-
gist), Day Treatment Counselor 1, Day Treatment
Counselor 2, Medication Clinic Nurse, Program Aide,
Teacher Assistant, Early Intervention Specialist 1,
Early Intervention Specialist 2, Allied Health Profes-
sional, Account Clerk 1, Account Clerk 2, Account
Clerk 3, Purchasing Specialist, Staff Accounts, Ac-
counts Receivable Assistant, Accounts Receivable
Specialist, Senior Accounts Receivable Specialist,
Computer Support Technician, Computer Technology
Specialist, Secretary/Receptionist, Administrative As-
sistant, Early Intervention Information Systems Coor-
dinator, Triage Coordinator, Revenue Coordinator, In-
take Coordinator and Clinician (Bachelor’s level) em-
ployed by Respondent, but excluding all other employ-
ees, guards and supervisors as defined in the Act.

SERVICENET, INC.

Thomas J. Morrison, Esq., for the General Counsel.
Albert R. Mason, Esq., of Chicopee, Massachusetts, for the
Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case was tried in Northampton, Massachusetts, on October 21,
2002. The charge in Case 1–CA–39682 was filed by Service
Employees International Union, Local 285, AFL–CIO, CLC
(Union) on February 1, 2002, and an amended charge was filed
on June 27, 2002. The complaint and notice of hearing issued
on June 28, 2002. ServiceNet, Inc. (ServiceNet or Respondent),
filed timely answer admitting certain allegations including ju-
risdiction, while denying the commission of any unfair labor
practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, provides mental health ser-
vices at its facility in Northampton, Massachusetts. The Re-
spondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and a healthcare institution within the meaning of Sec-
tion 2(14) of the Act. It is admitted and I find that the Union is
a labor organization within the meaning of Section 2(5) of the
Act.
SERVICENET, INC. 1249
II. ALLEGED UNFAIR LABOR PRACTICES
A. An Overview of the Dispute
The Union has represented a unit of employees employed by
Respondent for at least 7 years. The unit is described as fol-
lows:

All regular full-time and regular part-time Crisis Clinician 2,
Crisis Clinician 3, Outpatient Therapist (LICSW), Outpatient
Therapist (Licensed Psychologist), Day Treatment Counselor
1, Day Treatment Counselor 2, Medication Clinic Nurse, Pro-
gram Aide, Teacher Assistant, Early Intervention Specialist 1,
Early Intervention Specialist 2, Allied Health Professional,
Account Clerk 1, Account Clerk 2, Account Clerk 3, Purchas-
ing Specialist, Staff Accounts, Accounts Receivable Assis-
tant, Accounts Receivable Specialist, Senior Accounts Re-
ceivable Specialist, Computer Support Technician, Computer
Technology Specialist, Secretary/Receptionist, Administrative
Assistant, Early Intervention Information Systems Coordina-
tor, Triage Coordinator, Revenue Coordinator, Intake Coordi-
nator and Clinician (Bachelor’s level) employed by Respon-
dent, but excluding all other employees, guards and supervi-
sors as defined in the Act.

The most recent collective-bargaining agreement was effec-
tive from July 1, 1999, to June 30, 2001.1 During negotiations
for a successor agreement, it is alleged that Respondent contin-
ued to insist, as a condition of reaching any new collective-
bargaining agreement, on two proposals, one relating to health
insurance and the other a so called “Evergreen” clause. The
health insurance proposal included a provision that, annually,
and before any changes could be made to the terms and provi-
sions of any health insurance plan or plans, Respondent would
meet with the bargaining unit represented by the Union to dis-
cuss possible changes to any plan or plans, and to obtain input
from the unit. The Evergreen clause would have continued all
contractual terms and conditions of employment after contract
expiration until a new agreement was reached.
Even though the Union objected to these clauses, it is alleged
that Respondent presented as a “package proposal” an offer
including these clauses, declared that the parties were at im-
passe, and threatened to implement all or part of its proposal.
Because the health insurance and Evergreen clauses are permis-
sive subjects of bargaining, General Counsel contends that
Respondent’s continued insistence on these proposals, in the
face of the Union’s objections to them, was unlawful, and Re-
spondent’s actions violated Section 8(a)(5) and (1) of the Act.
The complaint alleges specifically that Respondent violated
the Act by:

1. During the period of negotiations for a successor agree-
ment, Respondent engaged in the following conduct:

(a) Entered into negotiations with the fixed intention of
frustrating agreement or of reaching agreement only on its
own terms:
(b) About October 19, 2001, and thereafter, tendered
package proposals on a take-it-or-leave-it basis where the

1 All dates are in 2001 unless otherwise noted.
packages included the subjects set forth immediately be-
low;
(c) About October 19, 2001, and thereafter, attempted
to undermine and bypass the Union as collective-
bargaining representative by proposing a contract term that
permitted the Respondent to deal directly with unit em-
ployees concerning health insurance;
(d) About October 19, 2001, and thereafter, insisted as
a condition of any agreement that the Union agree to a
contract term establishing a clause that would effectively
prevent the Union from engaging in strike activity follow-
ing the expiration of the collective-bargaining agreement.
(e) By its overall conduct, Respondent has failed and
refused to bargain in good faith with the Union as the ex-
clusive collective-bargaining representative of the unit.
(f) The conditions of employment described above are
not mandatory subjects for the purposes of collective bar-
gaining.
(g) About January 25, 2002, in support of the condi-
tions described above, Respondent declared an impasse in
bargaining.
(h) About January 25, 2002, Respondent threatened to
implement its December 14, 2001 contract proposal.

The complaint allegations raise the following issues for de-
termination:

1. Did Respondent enter negotiations with a fixed in-
tention of reaching agreement only on its own terms in
violation of Section 8(a)(5) and (1) of the Act?
2. Did Respondent violate Section 8(a)(5) and (1) of
the Act by bargaining to impasse over its health insurance
proposal, with included a provision that “annually, and be-
fore any changes are made to the terms and provisions of
any health insurance plan or plans, the Agency will meet
with the Bargaining unit to discuss possible changes to any
plan or plans and to obtain input from the Bargaining
unit?”
3. Did Respondent engage in bad-faith bargaining and
violate Section 8(a)(5) and (1) of the Act by insisting, over
the Union’s objections, to its Evergreen clause?
4. Did Respondent violate Section 8(a)(5) and (1) of
the Act by declaring impasse and threatening to implement
its proposal?
5. Did Respondent fail and refuse to bargain in good
faith with the Union by engaging in surface bargaining in
violation of Section 8(a)(5) and (1) of the Act?
B. Statement of the Facts
The facts in this case are not in dispute. The Union has rep-
resented a unit of employees employed by Respondent for at
least 7 years. The most recent collective-bargaining agreement
between the parties was effective from July 1, 1999, through
June 30, 2001. Article 33 of the collective-bargaining agree-
ment was a no-strike, no-lockout provision that stated, in rele-
vant part, “The Union agrees that there shall be no strikes . . .
during the term of this agreement.”
Pursuant to the duration clause of the collective-bargaining
agreement, the Union, by letter dated February 20, gave Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
spondent notice of its intent to open negotiations for a succes-
sor collective-bargaining agreement. The Union and Respon-
dent began negotiations for a successor agreement in May
2001. Through January 2002, the parties met about every 2 to 3
weeks to negotiate. The negotiation sessions lasted about 2
hours, and there were approximately 17 bargaining sessions.
Richard Page was the Union’s chief bargaining spokesman; he
was assisted by, among others, Margaret Tomasko, Margaret
Parker, and Chris Mero. In addition, unit employees attended
the sessions. Page took notes at the negotiating sessions. Bruce
Barshefsky, the Respondent’s director of administration and
finance was the Employer’s chief spokesman. Medora Paquette,
human resources director, and Barbara Franklin assisted him at
the bargaining table.
The first negotiating session took place on May 8. The par-
ties discussed ground rules for collective bargaining, as well as
issues that they had been discussing at periodic labor-
management meetings. The parties agreed to exchange propos-
als at the next session. Respondent stated that its proposals
would be presented on a “package” basis.2 The parties next met
on May 17. The Union presented its initial contract proposal to
Respondent at this session. Respondent gave the Union its ini-
tial proposal as well. After the proposals were exchanged, they
were discussed. After these discussions, the parties caucused.
Other than general comments being made, the parties did not
engage in substantive discussions at this session.
The Union’s initial proposal called for a contract that would
expire on May 1, 2002. The Union stated that it wanted a May
date because it wanted to coordinate bargaining and get simi-
larly funded agencies set up with a common expiration date.
The Union believed it would have greater leverage with the
Commonwealth of Massachusetts on increasing funding of
mental health agencies if the contracts were coordinated to
expire simultaneously. The Union also proposed that article 35,
political education, be modified, because a common expiration
date in May, in conjunction with article 35, political action,
fostered effective lobbying. Indeed, Respondent felt the same.
Respondent joined other trade association partners and lobbied
the legislature. In its initial proposal, the Union also proposed
an increase in the Employer’s health and welfare contributions
and that paid dental insurance be added to the contract. It also
proposed that travel expenses be increased to Internal Revenue
Service’s rate. The Union stated that it was looking for wage
increases and uniformity in step increases throughout the wage
grid; its initial proposal did not, however, contain any specifics
concerning wages.
The cover sheet or prologue of Respondent’s proposal stated,
in relevant part, “all proposals are and will be set forth in a
package bargaining basis.” Respondent proposed in article 19:
Health and Welfare, that:

Annually, and before any changes are made to the terms and
conditions of any health insurance plan or plans, the Agency

2 At this stage in the bargaining, by “package” Respondent appeared
to mean no more than a reservation that agreement on any constituent
of its offer was contingent on the Union’s agreement to the total offer.
At the outset of bargaining, the Union had no reason to believe that
Respondent was inflexibly committed to any constituent of its offer.
will meet with the Bargaining unit to discuss possible changes
to any plan or plans and to obtain input from the Bargaining
unit.3

While the Employer also proposed a contract effective
through October 31, 2004, the Employer’s proposed article 37:
duration and renewal, contained language that stated that all of
the terms of the contract would remain in full force and effect
until a successor contract was adopted.4 The practical effect of
this Evergreen clause was that unit employees could never en-
gage in any type of strike activity directed at the Employer.5
The employer did not address any wage issues in this proposal.
Respondent proposed to add two positions to the bargaining
unit, a medical records coordinator and an account clerk. Re-
spondent also proposed that during an employee’s initial orien-
tation to the agency, the agency would provide the employee
with a collective-bargaining agreement and the union member-
ship card authorizing payroll deductions as well as the Union’s
agency service fee card which is an accommodation that the
agency had also agreed to with the united Auto Workers. Re-
spondent also included a “Notice” to the Union about how in-
surance changes had been handled in the past.
In its initial discussions, the Union attempted to focus on its
proposals, as opposed to Respondent’s article 19 proposal. The
Union did, however, state unequivocally that it found Respon-
dent’s proposal unacceptable and rejected Respondent’s Ever-
green clause.
The parties met again in May and June. On about June 1, the
Union presented a package of proposals to the Respondent.
This proposal “fleshed out” some issues. For example, the Un-
ion proposed a minimum wage of $10 per hour and that the first
five steps in the wage grid be removed. The Union still pro-
posed that the contract expire on May 1, 2002. Contracts with
other mental health agencies expired on May 1 and the Union
wanted the ability to take part in a coordinated job action to
create a “crisis in care” to pressure the legislature for increased
funding to the agencies. The Union indicated that it would not
picket or block access to the Respondent’s facility. Respondent
responded that it could not in good conscience agree to a pro-
posal that assists in the creation of the so-called crisis of care
for its clients. The Union indicated that it would consider a
multiyear contract as long as it suspended the no-strike/no-
lockout article each May so that the Union had the ability to
take part in statewide job actions. The Union explained that the
action would be for a short time—no more than 3 days—and
would not be directed at the Respondent. Management re-
sponded that it would not agree to this proposal for the same
reason it did not want the contract to expire on May 1.
On June 14, the Union presented another proposal to the
Employer. At that time, the Union rejected management’s pro-
3 Respondent claimed that it had unilaterally changed its health in-
surance in the past. It appears that when it did, the united Auto Work-
ers, who represented another unit of the Employer’s employees, had
filed an unfair labor practice charge and a grievance, and that the matter
had been settled in arbitration.
4 Hereafter, this clause will be referred to as the Evergreen clause.
5 It appears that Respondent had been angered that a union, not Lo-
cal 285, had picketed Respondent’s location in the past.
SERVICENET, INC. 1251
posal concerning meeting with the unit to discuss health insur-
ance. The Union modified its own wage proposal in small re-
spects. The Union proposed that the contract be effective
through May 1, 2003, with a wage reopener on June 1, 2002.
On June 19, the Union presented the Employer with an addi-
tional proposal. This proposal sought to modify article 1: Rec-
ognition by adding two job titles to the unit. The Union also
modified its proposal on Health and Welfare and eliminated its
demand for a wage reopener. On or about the same date, Re-
spondent made an economic proposal, (from 26 cents to 28
cents for mileage and a 2-percent across-the-board wage in-
crease). A paid release day to go to Boston to lobby legislators
was added. The duration proposal was modified from a 3-year
agreement to 1 year with the economics as proposed and wage
reopeners for the next 2 years.
On July 26, Respondent gave the Union another proposal.
The contractual prologue stated, in relevant part, that: “All
proposals are and will be set forth based on a package bargain-
ing basis.” article 19 stated: “Annually, and before any changes
are made to the terms and provisions of the health insurance
plan or plans, the Agency will meet with the Bargaining unit to
discuss possible changes to any plan or plans and to obtain,
input from the Bargaining unit.” Finally, article 37 contained
the Evergreen clause.
At the July 26 meeting, there was extensive discussion of the
respective proposals and the parties reached tentative agree-
ment on a number of issues. The proposal identified tentative
agreements. Although not contained in the Employer’s May 17
proposal, the parties had discussed and reached a tentative
agreement on modifications to article 14: Holidays, and the
Union’s proposal concerning COPE deductions. Both of these
tentative agreements were incorporated and contained in the
Employer’s July 26 proposal.
In its July 26 proposal, Respondent proposed that each em-
ployee would receive a wage increase of 2 percent, retroactive
to July 7, as well as a 2-percent increase at each step of the
wage scale. Respondent also proposed increasing the starting
salary for clinicians; which would have raised the salary of new
clinicians 30 percent, while giving experienced employees a
raise of 2 percent. Respondent justified its proposal on clini-
cians by stating that it had to have a wage that would attract
skilled clinicians. Respondent proposed that the contract remain
in effect until October 31, 2004, with a wage reopener on May
1, 2002 and May 1, 2003. This proposal also added language
that had not been contained in its May 17 proposal. For exam-
ple, it contained language concerning article 35: Political Edu-
cation.
On September 6 the Union presented another proposal to the
Respondent with an attached wage grid reflecting the positions
of both the Union and the Respondent.
On October 19 the parties met again. Prior to this session,
there had been give-and-take in negotiations and the parties
reached tentative agreement on a number of issues. At the Oc-
tober 19 session, however, Respondent continued to insist on its
article 19: Health and Welfare and article 37: Duration and
Renewal proposals, despite the Union’s having previously re-
jected these proposals. Also on October 19, Respondent gave
the Union a package no longer identified as “Agency Propos-
als.” Rather, the package was now identified as a “PACKAGE
PROPOSAL AS A BASIS FOR SETTLEMENT.” The pro-
logue stated that if the package was not accepted in total or as a
whole, then the whole package and all of its parts was rejected.
With the presentation of its October 19 package, Respondent
said that the Employer would like to see the negotiations con-
cluded. Respondent felt that the parties were not making much
progress. Respondent’s October package modified its proposed
article 19. In this regard, Section 3 stated, “A committee com-
prised of up to five (5) bargaining unit members will meet with
ServiceNet management, prior to any changes being made in
the group health insurance plan . . . .” The Respondent had just
concluded negotiations with the united Auto Workers in a dif-
ferent unit, and it wanted the language on this provision in Lo-
cal 285’s agreement to be identical to that in the UAW’s collec-
tive-bargaining agreement. It is not clear if the Union specifi-
cally rejected Respondent’s proposal at the October 19 session;
however, the Union had consistently rejected Respondent’s
previous article 19 proposals because it objected to language
conceding Respondent’s right to make unilateral changes in
health insurance, as well as the provisions for direct consulta-
tions with employees rather than the Union. Respondent’s Oc-
tober 19 package also retained the Evergreen clause. Respon-
dent proposed to pay 90 percent of health insurance premiums
on individual coverage and 65 percent on family coverage. The
proposal called for a wage reopener on May 1, 2002, and May
1, 2003.6
The Union caucused to review the Employer’s October 19
package. It had some major reservations about the proposal.
Principally, Respondent’s proposal allowed the Employer to
unilaterally modify the health insurance plan; in this regard, the
proposal called for the creation of a committee of five bargain-
ing unit members that would meet only for consultation with
management prior to any changes being made in the group
health insurance plan. The language did not provide for any
union participation, and effectively constituted a waiver of the
Union’s right to be consulted with respect to any changes in the
health insurance plan during the term of the contract, or when
read in conjunction with the Evergreen clause, after contract
expiration, until a new agreement was reached. In addition,
there were differences with respect to mileage reimbursement:
the Union sought to increase reimbursement to the IRS rate,
while Respondent proposed to increase the rate from 26 cents
to 28 cents per mile. Differences remained with respect to the
wage/compensation package: the Union wanted the base rate

6 In par. 11 of its answer to the complaint, Respondent admits it be-
lieved the Union was “stalling” negotiations to achieve a coordinated
bargaining date of May 2002, that by package proposal, Respondent
meant bargaining would proceed by “continuing revisions of a ‘pack-
age’ until an acceptable ‘package’ as agreed to or, until, in the pro-
poser’s [i.e., Respondent’s] opinion its ‘package’ could or should no
longer be modified,” that it insisted on its health insurance proposal
because Respondent customarily dealt with health insurance on an
employer-wide basis, and has obtained agreements from other unions
on this subject, and that it insisted on its Evergreen clause because
another union had agreed to it and, in its opinion, the continuation of
arbitration obligations and dues checkoff were adequate quid pro quo
for the perpetual no-strike clause.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
for the lowest wage raised to $10 per hour; uniformity in the
steps on the wage grid; a 2.5-percent increase across the board,
with a 2.5-percent increase at each step; and the Union pro-
posed adding a 13th step. Finally, the Union objected to the
Evergreen clause. The consequence of maintaining all terms
and conditions of the contract, including the no-strike clause, in
effect after the contract’s expiration effectively deprived the
Union of its right to strike in support of its position in future
negotiations. This was unacceptable to the Union.
Although the Employer explained its October 19 package,
there was no substantive discussion. The Union, after a caucus,
said that it wanted to study the proposal and the session ended.
On November 16 the parties met again. The Union stated
that it did not accept the package and Respondent said that it
was not a package. The Union said it rejected the package. The
Union suggested calling a mediator, and then walked out. No
substantive issues were resolved in this session. By the same
token, nothing was said on either October 19 or November 16
to suggest or indicate that negotiations were breaking down,
had broken down, or that the parties were at impasse.
The parties next met on December 14. There had been no
contact between the parties since the November 16 meeting.
The Respondent presented the Union with what it identified as
its “LAST, BEST AND FINAL OFFER.” The prologue stated,
“This proposal is being presented on a “package bargaining”
basis. That is, if any part of the package proposal is unaccept-
able, then the “whole package is unacceptable.” With the ex-
ception of its duration, the proposal was identical to the pro-
posal made by the Respondent on October 19. With respect to
the duration, the proposal was identical to the proposal made by
the Respondent on October 19. With respect to the duration,
Respondent proposed that the contract be effective through
June 30, 2002; and in this regard, removed the reopener lan-
guage that had been part of the October 19 package. Respon-
dent’s rationale for this change was that rather than the Union
agreeing to a contract that they are unhappy with and being
stuck with it for a period of 40 months, they would have a con-
tract with negotiations for a new one commencing with about 4
months.
Otherwise, the Respondent’s December 14 proposal con-
tained the same language that separated the parties in October.
Respondent maintained the article 19 language that allowed it
to make unilateral changes in the health insurance plan, as well
as the Evergreen clause in its article 37 proposal. Again, the
Union rejected the article 19 proposal that would have allowed
Respondent to make unilateral changes in health insurance. It
also rejected the article 37 proposal, the Evergreen clause, that
would have prohibited the unit employees from engaging in
collective activity. The Union continued to reject this provision.
At the conclusion of the December 14 bargaining session,
the parties scheduled another session for January 9, 2002. The
Union remained willing to negotiate over everything; there
were a number of issues outstanding. The Union did not feel
that the parties were near impasse.
The Union cancelled the negotiating session scheduled for
January 9, 2002. By letter dated January 16, 2002, Respondent,
by Barshefsky, sought the Union’s response to its offer. In the
letter, Barshefsky stated that the response could be given in any
number of ways and that it was not necessary that the parties
meet. Barshefsky declared that if the Respondent did not get a
response by January 25, 2002, it would be the Respondent’s
position that the parties “have reached impasse.” Moreover, the
letter concluded with a threat: “If we do not receive a response
from you by January 25, 2002, it shall be our position that we
have reached impasse in these negotiations, and we will be
taking action to implement our Last, Best and Final Offer.”
Until this letter, impasse had not been mentioned or discussed
by either party. Page responded by letter dated January 22,
2002, stating that he believed that the parties were a long way
from impasse and demanded that the parties return to the table.
In his letter, Page suggested that if the Respondent had any
questions, he could be reached at the Union’s office. Respon-
dent, by Barshefsky, immediately responded by letter dated
January 22, 2002. He again called for the Union to respond to
the Respondent’s December 14 proposal. He stated that the
Respondent would not be making any further movement and
that it did not intend to modify or change its proposal. Barshef-
sky also stated that if the Union failed to respond to the Re-
spondent’s proposal by January 25, 2002, Respondent would
conclude that the parties were at impasse. The letter went on to
state that if the Respondent did not hear from the Union, it
would conclude that impasse was reached and it would imple-
ment at least the economic portion of the proposal.7 Finally,
Respondent stated, “Should you not get us an answer by Janu-
ary 25, 2002, then, as previously stated, it will be our opinion
that we are at impasse and we will be taking necessary action to
implement.”
Respondent sent an additional letter dated February 5, 2002.
It detailed the exchange of letters and, in relevant part, stated
that the parties were at impasse. Further, it stated that the Re-
spondent had received certain information from its health in-
surance carrier that premiums were to be increased. As a result,
Respondent withdrew its entire proposal. Barshefsky stated that
the Respondent would maintain the status quo for what would
be the duration of a 1-year contract and noted it would be will-
ing to implement step increases and the mileage increase pro-
posed. The Respondent also stated that in the absence of an
agreement, it would no longer be deducting union dues and
would no longer be honoring the arbitration aspect of the griev-
ance-arbitration article. The Union responded by letter dated
February 7, 2002, and, in relevant part, demanded that the Re-
spondent return to the bargaining table. By letter dated Febru-
ary 15, 2002, Barshefsky rejected the demand and stated that
negotiations were at impasse and that the Respondent was go-
ing to maintain the status quo and, as a result, was unwilling to
bargain over those issues.
On February 21, 2002, the Union notified Respondent that
Tim Oppenheimer would be acting as the Union’s representa-
tive at the bargaining table and that he was attempting to iden-
tify dates when the parties could meet. By letter dated February
22, 2002, the Respondent reiterated its position that the parties
were at impasse and, by implication, refused to meet.

7 The letter does not foreclose the possibility that Respondent might
implement all portions of its offer.
SERVICENET, INC. 1253
Nevertheless, the parties continued to meet periodically
thereafter. A proposal was presented to the Union on Septem-
ber 3, 2002. Article 19 had been modified. Although still de-
manding the right to meet with bargaining unit employees,
Respondent provided that the employees would be designated
by the Union. Article 37 still contained the Evergreen clause.
The Union, by letter dated September 12, 2002, countered,
stating that it was agreeable to all of the terms of the Respon-
dent’s September 3, 2002 proposal except for the language of
the Evergreen clause. The letter proposed that the language be
removed. The Union’s agreement was conditioned on the re-
moval of the Evergreen clause. At no point has Respondent
been willing to withdraw its proposed Evergreen clause.
C. Conclusions
1. General overview
Section 8(d) of the Act requires “the employer and the repre-
sentative of its employees to bargain with each other in good
faith with respect to wages, hours, and other conditions of em-
ployment . . . .” Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 209–210 (1964), citing NLRB v. Wooster Divi-
sion of Borg-Warner Corp., 336 U.S. 342, 346 (1958). Accord-
ingly, both employer and union have a duty, in collective bar-
gaining, to “enter into discussion with an open and fair mind,
and a sincere purpose to find a basis of agreement . . .” NLRB v.
Herman Sausage Co., 275 F.2d 793 (5th Cir. 1960). Accord:
Kayser-Roth Hosiery Co. v. NLRB, 430 F.2d 793 (6th Cir.
1970). As the Supreme Court has observed, “[c]ollective bar-
gaining . . . is not simply an occasion for purely formal meet-
ings between management and labor . . . ; it presupposes a de-
sire to reach ultimate agreement, to enter into a collective bar-
gaining contract.” NLRB v. Insurance Agents’ International
Union, 361 U.S. 477, 485 (1960). Accord: Glomac Plastics v.
NLRB, 592 F.2d 94, 97–98 (2d Cir. 1979). Merely going
through the formalistic motions of collective bargaining, how-
ever, i.e., “mere shadow boxing to a draw,” does not fulfill a
party’s duty to bargain in good faith under the Act.” See
Stonewall Cotton Mills v. NLRB, 129 F.2d 629, 631 (5th Cir.
1942).
The Board draws a distinction between lawful “hard bargain-
ing” and unlawful bad-faith bargaining. In determining that an
employer’s conduct crosses over the line, the Board looks at the
totality of an employer’s conduct, of which the proposals them-
selves are a part. In so doing, the Board’s examination of a
party’s “bargaining position and proposals relates to whether
they indicated an intention by the Respondent to avoid reaching
an agreement; it is not a subjective evaluation of their content.”
Litton Microwave Cooking Products, 300 NLRB 324, 327
(1990). Thus, the Board will not determine whether a proposal
is acceptable or unacceptable to a party. Rather, the Board will
“consider whether, on the basis of objective factors, a demand
is clearly designed to frustrate agreement on a collective-
bargaining contract.” Reichold Chemicals, 288 NLRB 69
(1984). Thus, the Board has found bad-faith bargaining based,
in part, on an employer’s insistence on unilateral control over
wages and benefits, when combined with a broad no-strike
clause and an essentially illusory grievance-arbitration proce-
dure. A-1 King Size Sandwiches, 265 NLRB 850 (1982). Such
employer proposals “would strip the union of any effective
means of representing its members . . . .” Id. at 859, quoting
from San Isabel Electric Services, 225 NLRB 1073, 1080
(1976). If accepted, the proposed contract would have left the
union with substantially fewer rights than if it relied solely on
its certification. In addition, it is axiomatic that a party may
insist only on those subjects of bargaining that are mandatory—
that is, those subjects that relate directly to wages, benefits, and
other terms and conditions of employment of the bargaining
unit. While an employer may seek agreement as to permissive
subjects of bargaining, it may not attempt to compel an unwill-
ing party to accept such provisions as the price of an overall
agreement. Pleasantview Nursing Home, 335 NLRB 961, 963
(2001).
By October 19 two things were apparent. First the Union
made it clear it would not accept Respondent’s health care pro-
posal or the Evergreen clause. Second, Respondent not only
continued to advance these proposals over the Union’s objec-
tion, but also began to assert that the parties were at impasse,
privileging it to implement its package or constituent parts.
Because of its insistence that all its proposals continued to be
treated as total “packages,” as of October 19 and thereafter,
Respondent effectively insisted to impasse on January 25,
2002, on what I will find are permissive subjects of bargaining,
a clear violation of Section 8(a)(5) of the Act. In NLRB v. Borg-
Warner Corp., supra,, the Supreme Court held that insistence to
impasse is available to a party only with respect to a mandatory
subject of bargaining. Insistence to impasse on a nonmandatory
subject of bargaining violates the statutory duty to bargain in
good faith. See also, Intermountain Rural Electric Assn., 305
NLRB 783 (1991); Pleasantview Nursing Home, supra.
Neither of the two involved proposals are per se unlawful
and the Union could agree with them. However, if they are
permissive subjects of bargaining, the Respondent cannot insist
on them to impasse in the face of union objection without vio-
lating the Act. Thus, the core question in this case is whether
the two proposals in question, article 19 and article 37 are man-
datory or permissive subjects of bargaining. I believe that arti-
cle 37, the Evergreen clause is a permissive subject of bargain-
ing. I agree with General Counsel that Respondent’s proposed
Evergreen clause attempted to control terms and conditions of
employment outside of the term of the collective-bargaining
agreement in a way analogous to an interest-arbitration clause.
The Board has consistently held that an interest-arbitration
clause is a permissive subject of bargaining. Even parties that
are subject to interest arbitration cannot be compelled to adopt
a new contract with an interest-arbitration provision. Laidlaw
Transit, 323 NLRB 867 (1999). Among other objections, the
Union pointed out that this proposal effectively denied employ-
ees the right to strike at any time, including in support of the
Union’s economic position following contract expiration. In-
deed, this result was what Respondent was seeking. While the
Union could voluntarily agree to such a limitation, Respondent
could not lawfully insist on it, or threaten to impose on a claim
of impasse.
I believe proposed article 19 is also permissive. It does not
affect the actual health plans proposed by Respondent, rather it
goes to the Union’s right to bargain over the plans, thus, affect-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
ing the parties’ bargaining relationship rather than hours,
wages, benefits, or a term or condition of employment. It also
tends to undermine the Union’s statutory role as bargaining
representative of the unit on an issue of vital importance to the
represented employees. It would give the Respondent the right
to bypass the Union and deal directly with employees. It would
also require the Union to waive its right to bargain over
changes in health insurance and give the Respondent an unfet-
tered right to implement any health plan changes it wanted.
This situation is somewhat similar to that in McClatchy News-
papers, 321 NLRB 1386 (1996). There, the employer wanted
the unfettered right to determine wages without objective for-
mula or criteria, excluding the Union from any say in the mat-
ter. The Board stated: “In sum, it is not the Respondent’s bar-
gaining proposal that we view as inimical to the policies of the
Act, but its exclusion of the Guild (union) at the point of im-
plementation of the merit pay plan from any meaningful bar-
gaining as to the procedures and criteria governing the merit
pay plan, when the Guild has not agreed to relinquish its statu-
tory role. The impasse in this case occurred not with respect to
the establishment of specific working conditions according to
the Respondent’s proposal, but more generally resulted from
the employer’s insistence that it not be restricted in exercising
its discretion in the overall process of setting wage increases
generally.” Id. at 1391. The Board went on to find the em-
ployer’s insistence on its wage proposal to impasse unlawful. I
find the Respondent’s action in this case unlawful for the rea-
sons set forth in McClatchy Newspapers, and my finding that
Respondent’s action constitutes insisting on a permissive sub-
ject of bargaining to impasse in violation of Section 8(a)(5) and
(1) of the Act. See also, Colorado-Ute Electric Assn., 295
NLRB 607, 609 (1989); Retlaw Broadcasting, 324 NLRB 138
(1997).
Respondent’s effective declaration of impasse and threat to
implement its “Last, Best and Final” offer was also unlawful. In
fact, no lawful impasse had been reached. No impasse could be
possible while the Respondent was insisting on permissive
subjects of bargaining to which the Union objected.8 Both of
these proposed provisions would have stripped the Union of
rights it enjoyed simply by virtue of certification. The Board
has not looked favorably on such provisions. See Retlaw
Broadcasting, supra; Laidlaw Transit, supra. By so insisting on
these two permissive subjects of bargaining, Respondent has
bargained in bad faith in violation of the Act. Pleasantview
Nursing Home, supra; McClatchy Newspapers, supra.
I decline to find that Respondent entered negotiations with a
fixed intention of reaching agreement only on its terms in viola-
tion of the Act. It did engage in give and take on substantives
issues. As noted earlier, it is not precluded from engaging in
hard bargaining. I have found that proposed articles 19 and 37
are permissive subjects of bargaining and that Respondent’s
insistence on them to impasse does violate the Act. However, I
could find no case which clearly states that identical or very
similar proposals are permissive subjects of bargaining under

8 I find it telling that by letter dated September 12, 2002, the Union
agreed to all of Respondent’s proposals except the Evergreen clause
and Respondent still continues to insist on that clause.
Board law. Respondent may well have believed them to be
mandatory subjects of bargaining and if correct, could right-
fully insist on them. I also decline to find that Respondent has
engaged in surface bargaining for the same reason.
CONCLUSIONS OF LAW
1. ServiceNet, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Service Employees International Union, Local 285, AFL–
CIO, CLC is a labor organization within the meaning of Section
2(5) of the Act.
3. The Union is the exclusive collective-bargaining represen-
tative of a unit of Respondent’s employees described as fol-
lows:

All regular full-time and regular part-time Crisis Clinician 2,
Crisis Clinician 3, Outpatient Therapist (LICSW), Outpatient
Therapist (Licensed Psychologist), Day Treatment Counselor
1, Day Treatment Counselor 2, Medication Clinic Nurse, Pro-
gram Aide, Teacher Assistant, Early Intervention Specialist 1,
Early Intervention Specialist 2, Allied Health Professional,
Account Clerk 1, Account Clerk 2, Account Clerk 3, Purchas-
ing Specialist, Staff Accounts, Accounts Receivable Assis-
tant, Accounts Receivable Specialist, Senior Accounts Re-
ceivable Specialist, Computer Support Technician, Computer
Technology Specialist, Secretary/Receptionist, Administrative
Assistant, Early Intervention Information Systems Coordina-
tor, Triage Coordinator, Revenue Coordinator, Intake Coordi-
nator and Clinician (Bachelor’s level) employed by Respon-
dent, but excluding all other employees, guards and supervi-
sors as defined in the Act.

4. Respondent violated Section 8(a)(5) and (1) of the Act by
insisting to impasse on its proposal to bypass the Union and
deal directly with unit employees on the matter of unilateral
changes to health plans.
5. Respondent violated Section 8(a)(5) and (1) of the Act by
insisting to impasse on its so-called Evergreen proposal.
6. Respondent violated Section 8(a)(5) and (1) of the Act by
insisting to impasse on nonmandatory subjects of bargaining,
declaring impasse, threatening to implement a part of its pro-
posal, and by failing to bargain in good faith as required by the
Act.
7. Respondent did not violate the Act in other regards as al-
leged in the complaint.
8. Respondent’s 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.
On request, bargain collectively with the Union as the exclu-
sive collective-bargaining representative of the Respondent’s
employees in the above-described unit with regard to rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment and, if an agreement is reached, embody
that agreement in a written, signed agreement.
SERVICENET, INC. 1255
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, ServiceNet, Inc., Northampton, Massachu-
setts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Insisting to impasse on its proposal to bypass the Union
and deal directly with unit employees on the matter of unilat-
eral changes to health plans.
(b) Insisting to impasse on its so-called Evergreen proposal.
(c) Insisting to impasse on nonmandatory subjects of bar-
gaining, declaring impasse, and threatening to implement a part
of its proposal.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action deemed necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union as the ex-
clusive collective-bargaining representative of the Respon-
dent’s employees in the unit with regard to rates of pay, wages,
hours of employment, and other terms and conditions of em-

9 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 pur-
poses.
ployment and, if an agreement is reached, embody that agree-
ment in a written, signed agreement.
(b) Within 14 days after service by the Region, post at its fa-
cility in Northampton, Massachusetts, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 1, after being
signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately on receipt and main-
tained 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 altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 February 1, 2002.
(c) 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.

10 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.”