Union Child Day Care Center

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 517 (N.L.R.B. 1991)

517
304 NLRB No. 64
UNION CHILD DAY CARE CENTER
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 With regard to the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by refusing to bargain over changes in the net pay of employ-
ees, we note that the judge, at one point in her decision, finds that the Re-
spondent was obligated to bargain over the effects of its decision to computer-
ize its payroll system. We understand the judge to mean that the Respondent
was not under an obligation to bargain about the decision to switch from Con-
troller Roher’s manual preparation of the payroll to use of an outside, comput-
erized service, ADP. Rather, we understand the judge to be finding that the
computerized service’s changes in the methods by which deductions were
computed resulted in less net pay. Thus, as found by the judge, Roher, among
other things, deducted the employee pension contribution after figuring the
witholding and other taxes while ADP deducted the pension contributions be-
fore making the other calculations. This was a change not just in the procedure
for doing the payroll but in the substance of the deductions. In the absence
of any evidence that changes of this sort were mandated by law or regulation,
we find that, as alleged in the complaint, the Respondent’s unilateral change
in net pay violated Sec. 8(a)(5), and that the Respondent, on the Union’s re-
quest, is obligated to bargain about such changes.
The General Counsel has excepted to the judge’s failure to order the Re-
spondent, on request, to rescind the changes in employees’ net pay and the
decision not to permit employees to use its vehicles to obtain lunch for em-
ployees. In declining to order rescission of the unilateral change in net pay,
the judge reasoned that ‘‘such a change would be disruptive to unit employ-
ees.’’ After examining the record, we find that restoration of the status quo
ante would not be unduly disruptive. We agree with the General Counsel’s ex-
ceptions and shall amend the Order and notice accordingly. See San Antonio
Portland Cement Co., 277 NLRB 309, 314 (1985).
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Union Child Day Care Center, Inc. and District
Council 1707, Community and Social Agency
Employees Union, AFSCME, AFL–CIO. Case
2–CA–23841
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On December 11, 1990, Administrative Law Judge
Eleanor MacDonald issued the attached decision. The
Respondent filed exceptions and a supporting brief; the
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board orders that the
Respondent, Union Child Day Care Center, Inc., White
Plains, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with District
Council 1707, Community and Social Agency Employ-
ees Union, AFSCME, AFL–CIO concerning the effects
on unit employees of its decision to computerize its
payroll procedures.
(b) Making unilateral changes in employees’ terms
and conditions of employment without notifying and
affording an opportunity to bargain to the Union.
(c) Disparately enforcing any rule prohibiting em-
ployees from meeting with Union agents in the staff
room, and threatening the arrest of Union agents who
are meeting with employees.
(d) In any like or related manner interfering with,
restraining, 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) Rescind the unilateral change in its practice of
permitting use of its vehicles to obtain lunch for its
employees and bargain with the Union over the deci-
sion.
(b) On request, rescind the changes in the net pay
of employees and bargain with the Union over any
such future changes in net pay for unit employees.
(c) Notify the Union that it will grant access to
Union agents to meet with employees in the staff
room.
(d) Post at its facility in White Plains, New York,
copies of the attached notice marked ‘‘Appendix’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon 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 al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain with Dis-
trict Council 1707, Community and Social Agency
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I note that at p. 28 of Respondent’s brief, the first footnote refers to a doc-
ument and purported facts that were ruled inadmissible at the hearing. Re-
spondent does not argue in its brief that the ruling rejecting the proffered evi-
dence should be reconsidered. This attempted reliance on evidence not admit-
ted at the hearing is improper. I shall disregard the first footnote on p. 28 of
Respondent’s brief.
Employees Union, AFSCME, AFL–CIO concerning
the effects on unit employees of our decision to com-
puterize payroll procedures.
WE WILL NOT make unilateral changes in employ-
ees’ terms and conditions of employment without noti-
fying and affording an opportunity to bargain to the
Union.
WE WILL NOT disparately enforce any rule prohibit-
ing employees from meeting with Union agents in the
staff room or threaten the arrest of Union agents who
are meeting with employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our unilateral change in our prac-
tice of permitting use of our vehicles to obtain lunch
for our employees and bargain with the Union over
that decision.
WE WILL, on request, rescind the changes in net pay
of employees and bargain with the Union over any
such future changes in net pay for unit employees.
WE WILL notify the Union that we will grant access
to union agents to meet with employees in the staff
room. The unit is:
INCLUDED: All full-time and regular part-time
teachers, assistant teachers, teachers’ aides, assist-
ant social workers, business office assistant, as-
sistant building superintendent, food service aide,
nurse, bus driver, receptionist, cook, transportation
cooordinator, building and grounds coordinator,
and food service coordinator employed by the Re-
spondent.
EXCLUDED: The Executive Director, Comp-
troller, Assistant to Executive Director, Executive
Secretary, Social Service Coordinator, Health and
Infant Coordinator, Therapeutic Nursery Coordi-
nator, Educational Coordinator, and guards, pro-
fessional employees and supervisors as defined in
the Act.
UNION CHILD DAY CARE CENTER, INC.
Randy M. Girer, Esq., for the General Counsel.
Marc L. Silverman, Esq. and Meredith H. Savitt, Esq.
(Milgrim Thomaian & Lee P.C.), of New York, New
York, for the Respondent.
Stephen E. Appell, Esq. (Sipser, Weinstock, Harper & Dorn),
of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on May 21 and 22,
1990. The complaint alleges that Respondent, in violation of
Section 8(a)(1), (3), and (5) of the Act, changed the amounts
of net pay received by its employees, changed the established
practice that permitted Respondent’s drivers to use its vehi-
cles for nonbusiness purposes, threatened to have union rep-
resentatives arrested while they were on Respondent’s prem-
ises meeting with employees, and disparately prohibited
union-related solicitations and distributions. Respondent de-
nies that its actions violated the Act, and asserts that if any
unfair labor practices were committed they were isolated and
de minimis.
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 on July 17,
1990, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent a New York not-for-profit corporation with an
office in White Plains, New York, is engaged in the oper-
ation of a day care center. Respondent admits, and I find,
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
In March 1988, the Union, District Council 1707, Commu-
nity and Social Agency Employees Union, AFSCME, AFL–
CIO, was certified as the bargaining representative of Re-
spondent’s employees in the following unit:
Included: All full-time and regular part-time teachers,
assistant teachers, teachers’ aides, assistant social work-
ers, business office assistant, assistant building super-
intendent, food service aide, nurse, bus driver, recep-
tionist, cook, transportation coordinator, building and
grounds coordinator, and food service coordinator em-
ployed by Respondent.
Excluded: The Executive Director, Comptroller, As-
sistant to Executive Director, Executive Secretary, So-
cial Service Coordinator, Health and Infant Coordinator,
Therapeutic Nursery Coordinator, Educational Coordi-
nator, and guards, professional employees and super-
visors as defined in the Act.
Since 1988, Respondent and the Union have negotiated for
a collective-bargaining agreement but no contract has been
reached. The last negotiating session between the parties took
place on September 26, 1989.
2. Change in the net pay of employees
The undisputed evidence establishes that in the spring of
1989, the board of directors of Respondent discussed with its
Controller the desirability and feasibility of converting from
519UNION CHILD DAY CARE CENTER
2 She named these employees as Burwell, Hilliard, and Buckner. Employee
Olivia Howcott testified that she asked Roher why her paycheck had de-
creased. According to Howcott, whom I credit, Roher told her that she did
not know where ADP got its figures but that Howcott should not worry be-
cause she would recoup the amount at tax time.
3 The changes in the net wages received biweekly by employees ranged
from an increase of $21.44 to a decrease of $8.81. For the majority of employ-
ees, the changes amounted to well over $2.
4 The sunshine club is a staff supported fund which raises money so that
it may give flowers or presents to employees on occasions such as births, wed-
dings, birthdays, and the like. The club is run by the staff and not by managers
of Respondent, although the executive director may give the club advice when
requested to do so.
a manual method of preparing the biweekly payroll to the
use of an outside computerized service. The Controller, Flor-
ence Roher, testified that it was burdensome for her to write
manually the payroll and the 60 to 65 checks. After a study
of available services, the board of directors decided to en-
gage the services of ADP. It is clear that the decision to
change the method of preparing the payroll was not due to
any failing or deficiency on Roher’s part: in the many years
during which she kept Respondent’s records and prepared the
payroll, no complaint had been made that her work was not
accurate. The last manually prepared payroll was dated May
25, 1989. The first payroll prepared by ADP was dated June
9, 1989. Although the gross pay received biweekly by the
employees did not change, the net pay of the employees was
either increased or decreased on the ADP checks because the
methods used by ADP were different from those used by
Roher. Roher testified that both her method and the ADP
method were consonant with generally accepted accounting
principles. The differences in the methods and the resultant
figures obtained for net pay arose from the fact that Roher
used tables with ranges as the basis for computing withhold-
ing, while ADP used a computer that was accurate to the
penny; further Roher deducted the employee pension con-
tribution after figuring the withholding and other taxes while
ADP deducted the pension contribution before making the
other calculations. Finally, according to Roher, ADP cor-
rected some minor errors she may have made. Roher empha-
sized that the changes in net pay would not result in a great-
er tax being owed by employees.
On June 6, 1989, a staff meeting was held at which the
unit employees were informed that Respondent was changing
to a computerized payroll system and that there were likely
to be changes in their net pay. Roher attended the meeting
and she invited any employees with questions to come see
her. The evidence shows that Shop Steward Robert Plenty
was present at the meeting. Not all unit employees could at-
tend the staff meeting because some had to remain with the
children in their classes. Respondent also distributed minutes
of the meeting the next day. According to Roher, three em-
ployees came to her subsequent to the distribution of the next
pay checks and asked about changes in their net pay.2
It is undisputed that Respondent did not inform the Union
that it had decided to institute a different payroll system
under which the net pay of employees would change. The
Union first heard of the change when Shop Steward Robert
Plenty called it to say that staff members were concerned
about the changes in their paychecks.3 Some employees were
afraid that they would owe more money at tax time and oth-
ers thought they might be entitled to more money than they
were receiving. Plenty asked the Union to look into the prob-
lem. On September 6, 1989, the Union wrote to Hulkower
protesting any change in terms and conditions of employ-
ment made without consulting the certified collective-bar-
gaining agent. The letter requested meetings to clarify the
changes in the payroll checks. The Union suggested that each
employee concerned as well as a shop steward and a union
representative would be present at the suggested meetings
and stated that it would call soon to schedule the meetings.
On September 15, 1989, Respondent’s attorney, Marc L.
Silverman, wrote to counsel for the Union stating that Re-
spondent would discuss the changes at a projected meeting
of September 26. When this meeting was held, the Union re-
peated its request that any employee who had a question
about the change in his or her net pay be granted a meeting
with a representative of Respondent together with union rep-
resentatives. Silverman said such individual employee meet-
ings were not necessary as he was prepared to go over each
employee’s status at that time. But the Union said
Silverman’s proposal was not acceptable: it maintained that
the individual employees had the right to be present at the
meeting where their net pay was explained.
3. Use of Respondent’s vehicles
Robert Plenty is Respondent’s transportation coordinator.
He has been employed by Respondent since 1973. Plenty is
responsible for planning all routes and all trips involving the
pickup and delivery of the children to the Day Care Center.
He sees to it that vehicles are inspected and maintains all
records necessary to this purpose. Plenty testified that Re-
spondent operates two vehicles, a minibus and a 20-pas-
senger van. The two vehicles are used for many purposes:
those listed by Plenty include picking up children at home
or at local schools, taking children home, running errands for
the Center, taking employees to the bank, taking people to
pick up lunch, taking people to church, taking Center depos-
its to the bank, taking the executive director’s personal de-
posits to the bank, transporting employee Rose Einstein when
it snows and she is unable to drive, transporting the execu-
tive director when her own car is unavailable, picking up fur-
niture donated to the Center and occasionally transporting the
furniture to the home of an employee, and picking up soda
for the sunshine club.4 Plenty testified that no one had ever
instructed him as to the permissible and nonpermissible uses
of the vehicles nor was he aware of any rules or regulations
relating to the use of the vehicles for specific purposes. In
addition to planning transportation matters for Respondent,
Plenty drives a vehicle daily to pick up and deliver children
and for some of the purposes described above. Respondent
employs another driver, Geneva Benton; also, the building
superintendent drives the vehicles when necessary.
Plenty is a member of the bargaining unit. He distributed
authorization cards for the Union and acted as an observer
for the Union at the election. Plenty is the shop steward and
attends all bargaining sessions as a member of the employee
negotiating committee.
Plenty testified that on September 6, 1989, he took his
lunch break at 1 p.m. During this time, Geneva Benton was
to be on duty at the Center. He drove the van to the Burger
Deli a short distance from the Center, taking with him em-
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Ellison and Oliva are both assistant shop stewards and members of the ne-
gotiating committee.
6 The record shows that Hulkower was standing outside because she wanted
Plenty to drive her around to look for one of the Center’s pupils who had been
permitted to leave a local school district bus when she should have been trans-
ported to the Center for an after school program. It has not been explained
why Benton was not available for this purpose although she was supposed to
be on duty during Plenty’s lunch hour. At any rate, there is no suggestion in
the record that Plenty should not have been absent from the Center during his
lunch hour and no discipline was issued to him by Respondent as a result of
the events of September 6, 1989.
7 Ellison did not hear the conversation between Plenty and Hulkower on
September 6. Oliva did not testify.
8 The agenda for discussion with Hulkower read:
1. Scheduling meetings for payroll problems
2. Understaffing
3. Escrow account for salary enhancement money.
ployees Lilly Ellison and Laura Oliva.5 There, the employees
met union organizers Tom Murray and Ben Meskin and dis-
cussed union business. When Plenty, Ellison, and Oliva re-
turned to the Center 45 minutes later, Executive Director
Rita Hulkower was standing outside.6 As Plenty got out of
the van Hulkower asked him where he had gone with the
van. According to Plenty, he told Hulkower that he had been
to lunch and to a meeting with the Union. Hulkower said he
should not use the van for personal business; Plenty replied
that they had been doing that since the beginning and that
if Hulkower was changing the rules she should do so in writ-
ing. Plenty’s affidavit given to a Board agent does not relate
that he told Hulkower that the employees were returning
from a union meeting; instead, the affidavit states that he
came back from the meeting with union papers in his hands
and that when Hulkower saw the papers she said they were
not to use the van for that business.
Ellison has worked at the Center for 18 years. She testified
that she has observed drivers using the vehicles to pick up
and deliver children, take children and staff on trips, take
employees to cash their paychecks at the bank and take em-
ployees to pick up their lunches. Ellison stated that employ-
ees often pick up lunch on the way back from the bank on
payday, but that occasionally the drivers take someone to get
lunch on other days or pick up lunch for the staff on nonpay-
days.7
Hulkower’s testimony is contrary to that of Plenty in sev-
eral significant respects. Hulkower testified that the vehicles
were used to transport children, staff members and parents
on outings and to and from the Center. She stated that the
vehicles were used to make the Center’s deposits at the bank
and to purchase items for the sunshine club. The vehicles
take employees to the bank to cash their paychecks, but only
on payday. Hulkower acknowledged that the bus had been
used to transport donated furniture to an employee’s home.
Hulkower stated that the sunshine club is not considered per-
sonal business. She denied any knowledge that Center vehi-
cles were used to pick up employee lunches or to take em-
ployees to church. Hulkower works at least 10 hours per day
at the Center and she sees Plenty almost everyday.
Hulkower testified that when Plenty and the two employ-
ees got off the bus on September 6 and she asked Plenty
where he had gone, Plenty replied that he took two people
to lunch; he did not say that he had taken them to a union
meeting and she did not see any papers in Plenty’s hand.
Hulkower stated that she did not know that Plenty had been
to lunch with union representatives until the first day of the
instant hearing. According to Hulkower, when Plenty told
her he had gone to lunch, she said that is not what the bus
was to be used for.
Respondent introduced into evidence a document entitled
Personnel Practices which prohibits ‘‘unauthorized use of
Center equipment.’’ There is much controversy over when
and if this document was distributed to employees. It is not
necessary for me to make any finding on that subject. The
document does not define what constitutes unauthorized use,
and the phrase begs the question posed in the instant case
because the parties disagree over what was the practice as to
authorized use of the Center’s vehicles.
4. Events of September 15, 1989
a. Background
In order to understand the dispute surrounding the events
of September 15, 1989, when General Counsel asserts that
Respondent disparately denied access to the union and threat-
ened to have union representatives arrested, it is necessary to
explore the issue of access to the Center generally as well
as to determine exactly what happened on that day. Respond-
ent contends, in substance, that access to the facility is mon-
itored and controlled by the receptionist while General Coun-
sel urges that few, if any, restrictions are placed on public
access to the Center.
The evidence shows that when one enters the front door
of the Day Care Center, there is a main hallway opposite the
entrance and another hallway to the right. The first office on
the main hallway is the reception office. A sign posted over
the door to the reception office reads, ‘‘All persons must
stop at reception desk.’’ Past the reception office down the
main hallway are the classrooms. The reception office is the
outer area of a suite of offices which contain, inter alia,
Hulkower’s office and the controller’s office.
b. The meetings
Plenty testified that on September 15, 1989, he called a
union meeting so that a group could gather in order to
present an agenda to Hulkower.8 At 1 p.m. on that day, Plen-
ty together with union staff organizers Thomas Murray and
Ben Meskin and with unit employees Olivia Howcott, Mil-
dred Blackwell, and Bernice Wilson, proceeded to
Hulkower’s office. According to Plenty, he spoke to the re-
ceptionist in the office outside Hulkower’s private office and
told her he was going in to see Hulkower. Plenty stated that
he and the others did not wait outside and ask for permission
to enter because he normally does not wait in that fashion
before entering Hulkower’s office. When the group entered
Hulkower’s office, they handed her the agenda they had pre-
pared and asked to meet with her. Hulkower said that she
was engaged in speaking on the telephone and asked the
group to wait. According to Plenty, the group then left
Hulkower’s office and waited just outside until they saw that
she was no longer on the telephone. Then they walked back
into Hulkower’s office and asked about the items on their
agenda. Hulkower said the Union should speak to her lawyer.
Meskin said the Union had already asked Respondent’s attor-
ney about the items on the agenda but had not received an
answer. He asked whether the Union would have to wait
521UNION CHILD DAY CARE CENTER
9 Murray had been at the Center about 15 times before September 15, 1989.
10 Meskin did not testify herein.
11 Howcott is the head teacher for the 4-year olds.
12 My observation of the employee witnesses leads me to conclude that
these were all mild mannered, genteel individuals used to working with chil-
dren in a professional environment. I also observed that Murray was a careful,
gentlemanly individual.
13 Hulkower testified that the group ‘‘burst’’ into her office, but there is no
evidence to show why this word would be accurate. All the witnesses agree
that Hulkower’s door was open and no one suggested that they arrived scream-
ing or making a commotion in any other way.
14 Although Hulkower purported to recall the events of September 15 in
great detail, she could not recall to whom she was speaking when the union
group entered her office.
15 The testimony shows that Hulkower’s office is quite small and would be
filled by the presence of a group such as that which called on her that day.
until Christmas. At that point, Hulkower stood up and said
she did not have to listen this. She said she could deal with
Murray but that she was not going to deal with Meskin.
Then Hulkower left her office: as she did so, she said to
Plenty, ‘‘this is the kind of guy that you want to represent
you.’’
According to Plenty, the union group left Hulkower’s of-
fice and went to the staff room to discuss union matters.
After about 10 minutes, Hulkower entered with education co-
ordinator Irma Green. She told the union representatives that
they would have to leave the building or she would call the
police. Then Hulkower and Green left and the union rep-
resentatives and unit members continued their meeting in the
staff room. Other staff members were present during the time
they met and when Hulkower came in and made her threat
to summon the police.
Union staff organizer Thomas Murray testified about the
Union’s attempt to discuss its agenda with Hulkower on Sep-
tember 15, 1989.9 His testimony is to the same effect as
Plenty’s except that he supplied more details about the events
of the day. Murray stated that when Hulkower told the union
agents and employees that she could not talk to them because
she was speaking on the telephone they left her office and
waited outside. Hulkower’s door remained open while she
completed her telephone conversation. After Hulkower fin-
ished her conversation and the group reentered her office,
she refused to discuss the agenda items saying that her law-
yer would discuss them. Murray said she did not need the
lawyer because the items concerned individual problems. At
this point, there was a heated exchange of words between
Hulkower and organizer Ben Meskin.10 Murray stated that
Meskin talks a lot and it can be hard to follow what he says
because he talks fast and loud. Murray maintained that
Meskin did not shout at Hulkower but that he normally
speaks in a loud voice. Then Hulkower left her office and
the group followed her out. When Murray told her in parting
that they had to discuss certain subjects, Hulkower said she
could talk to him but that, indicating Meskin, ‘‘I’ll never talk
to this.’’
Murray testified that after the union group left the offices,
they went to the staff room down the hall and met to discuss
what had just happened and what could be done to achieve
a collective bargaining agreement. The time was about 1:15
p.m. and several employees were in the staff room taking
their lunch breaks; these employees were sitting on a sofa 4
or 5 feet from the table where the union group was seated.
About 5 or 10 minutes after the meeting began, Hulkower
entered the staff room with educational coordinator Irma
Green. She told the union representatives that they must
leave the premises right away and said she would call the
police and have them arrested if they did not. According to
Murray, Hulkower appeared angry and upset. Murray said,
‘‘fine,’’ and then Hulkower left. The group continued talking
for about 45 minutes. Before Murray and Meskin left the fa-
cility, they went to Hulkower’s office and gave her their
business cards in case the police wanted to reach them.
Unit employee Olivia Howcott testified about the Union’s
attempt to meet with Hulkower on September 15.11 Although
Howcott could not see or hear everything that went on in
Hulkower’s office because Howcott was at the back of the
group, her testimony is consistent with that of Plenty and
Murray; she stated that Hulkower’s door was open while the
group waited for her to complete her phone call. Later, in
the staff room meeting, Howcott heard Hulkower tell the
union representatives that if they did not leave now she
would call the police.
Hulkower testified at length about the events of September
15, 1989. I note that Hulkower was patently hostile to the
Union. Her testimony was replete with adjectives such as
‘‘astounded’’ and ‘‘shocked’’ when she described the union
group’s attempt to visit her on September 15. In describing
the action of Murray in handing her the agenda, she at first
testified that Murray put the paper on her desk and then
changed it to say that he threw a paper on her desk.
Hulkower sounded as though she felt threatened by the pres-
ence of the two union agents and the employees in her office
although she did not describe any threatening actions.12 Dur-
ing her testimony, Hulkower gave unresponsive answers to
questions posed by counsel in an effort to interject evidence
that she believed would make the Union look bad. She was
uncooperative on cross examination by counsel for the
Union. For these reasons as well as for the reasons discussed
in connection with Hulkower’s testimony below I shall not
rely on Hulkower’s testimony where it is contradicted by
other, more reliable evidence.
Hulkower testified that on September 15, 1989, Murray,
Meskin and four to six of her staff members entered her of-
fice.13 She was speaking on the telephone and told Murray,
‘‘excuse me, I’m on the phone.’’14 Nevertheless, according
to Hulkower, Murray put his briefcase on her desk and also
placed a piece of paper on her desk. Murray said they would
wait and Hulkower replied, ‘‘please wait outside.’’ The
group then left her office, and, according to Hulkower, she
ended her conversation, closed the door to her office and
called Respondent’s attorney, Silverman. She read Silverman
the paper given to her by Murray and told him that she was
shocked. According to Hulkower, Silverman said if the group
did not leave she could tell them to go and if they refused
she could call the police. After finishing the conversation
with Silverman, Hulkower stated that she got up and opened
the door to her office. When she did so the union group
came back in. They stood around her desk.15 Murray stated
that he wanted to discuss the agenda items with Hulkower
but she said that her lawyer’s response should be at the
union office momentarily. Then Meskin shouted that the peo-
ple have waited long enough and, ‘‘It’s about time you
stopped treating them this way; come up with some answers
and come to some agreement.’’ Hulkower then told Murray
that she had nothing further to say to him. Meskin kept
shouting, according to Hulkower. She told him, ‘‘If you
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
don’t leave, I will call the police.’’ As the group left her of-
fice, Meskin shouted that she was treating the staff like gar-
bage and that she was a miser and was mismanaging funds.
Hulkower denied that she shouted at Meskin.
According to Hulkower, she called Silverman again and he
told her to call the police if the union representatives were
still in the building. Hulkower telephoned the local police
and she was informed that if anyone was disturbing the
peace, she could file a complaint.
Someone told Hulkower that Meskin was in the staff
room. She went to the staff room and told Meskin and Mur-
ray that if they did not leave she would summon the police.
Then Hulkower left the staff room and called Silverman
again. She told him she had decided not to call the police
because she did not want to cause any disruption. Sometime
after this, Murray and Meskin came to her office and gave
her their business cards so that the police would know where
to find them.
When asked by counsel for Respondent why she threat-
ened to have Meskin and Murray arrested, Hulkower replied
that they were being abusive to her, that they were causing
a disturbance in the office that could easily be observed by
parents and children, that they were disrupting nap time, and
that the proper procedure when people want to see her is to
talk to the receptionist. On cross-examination, Hulkower
added that she was advised by counsel to call the police and
she felt threatened by the encounter in her office. She stated
that the union officials were not doing anything disruptive in
the staff room.
Hulkower testified that Meskin is rather short and fat. He
told her that he was brought in to ‘‘make trouble’’ at the ne-
gotiating table. Hulkower stated that Meskin took threatening
actions: he picketed the Center, he called the Center’s board
of directors to appeal for support for the Union, he called the
United Way, the town supervisor and the State Department
of Social Services. Respondent filed charges concerning this
activity but they were dismissed. Hulkower acknowledged
that Meskin never threatened her with violence, but he was
militant and abrasive. Hulkower stated that she has always
been opposed to the Union representing the employees and
that since the organizing started in 1987 she has not wanted
this Union.
Controller Florence Roher also testified about the events of
September 15, 1989. Roher’s office opens directly into
Hulkower’s office and Roher was able to observe and hear
what went on that day in Hulkower’s office. Roher’s testi-
mony generally confirmed that given by Hulkower. Roher
said that there was shouting and that Hulkower was shouting
along with the others, but she heard no threats of violence.
She said Hulkower was ‘‘not in control of her emotions’’
and that she told the group that if they did not leave she
would call the police. Roher stated that Hulkower does not
like dealing with the Union; Hulkower expressed annoyance
about having to do certain things for the Union long before
she ever met Meskin. During the union campaign, Hulkower
told Roher that she did not want to see the Union win. Both
Roher and Hulkower felt harassed when they had to prepare
the report on the payroll changes for the Union, and they feel
that work done as a result of Board processes is a waste of
time.
c. Visitor access
Plenty testified that many visitors come to the Day Care
Center and are admitted without question. Employees such as
the food service manager have visitors almost everyday, in-
cluding her husband, friends, and fellow church members.
Parents enter the Center freely for various purposes including
the setting up of private boutiques in the hallways for the
sale of merchandise. Plenty often sits at the reception desk
when the receptionist is absent; he does not require that all
people entering the Center stop at the desk to state their busi-
ness.
Ellison, who has been employed by Respondent for 18
years, testified that the sign requiring that all visitors stop at
the reception desk is not enforced strictly. She is not aware
of any rule that visitors must seek permission to come to the
Center. She has often seen visitors wandering the halls at the
Center. There are occasions when no one is sitting at the re-
ception desk and visitors walk past the reception area.
Among the visitors Ellison has seen at the Center are John
Bell a jewelry and leather goods salesman who used to come
to the staff room once a week to sell his merchandise to the
staff, and Julian Bond, a jewelry salesman who used to come
to the staff room. Ellison’s girl friend used to come visit her
at lunchtime. Parents may set up boutiques in the halls or
staff room to sell their merchandise several times a year.
Howcott, who has been employed by Respondent for 18
years, has never been told that there is any rule requiring
visitors to check in at the receptionist’s desk. Howcott’s son
often visits her at work without checking in with the recep-
tionist. Howcott has seen visitors enter the Center through
the front door and proceed to visit staff members without
stopping at the receptionist’s desk. If Howcott sees a person
wandering the halls near the classrooms she will direct him
or her to the office, but she would not do so with respect
to a person whom she saw in the staff room. Howcott has
seen various visitors in the Center; these include salesmen,
parents of children, friends of the staff, and people donating
items to the Center.
B. Discussion and Conclusions
1. Change in the net pay of employees
Wages are a mandatory subject of collective bargaining
and it is manifest that Respondent could make no change in
the wages of its unit employees without negotiating with the
Union. Respondent urges that a change in the net pay of em-
ployees, without any change in the gross pay, is not a change
in wages; alternatively, Respondent urges that if it is consid-
ered to be a change, it is de minimis. I find that a change
in net pay received biweekly is indeed a change in wages.
When employees have less or more money in a paycheck,
those employees have less or more money to dispose of as
they see fit for the pay period in question. There is no basis
for holding that the Act forbids a unilateral change in the an-
nual gross wages of employees but that it permits unilateral
changes in the amount of the paycheck received by the em-
ployees and available to them for their use. Nor can I find
that the changes in the net pay were de minimis. These
changes amounted to several dollars for most employees and
to over $20 for at least one. The Center employees are not
523UNION CHILD DAY CARE CENTER
16 Respondent’s exhibit shows that of 43 employees, 29 have net pay under
$400 on a biweekly basis.
17 Respondent’s own witnesses established that Hulkower and Roher were
opposed to the Union even before the election was held and that they did not
want to have to deal with the Union as the representative of their employees.
affluent, highly paid workers.16 Experience teaches that even
small amounts in a paycheck are significant to most employ-
ees. It would be adopting a cavalier attitude to find, without
any evidence, that a few dollars here or there are unimpor-
tant to Respondent’s employees. Finally, Respondent in-
formed the employees of the projected change before it oc-
curred; there was no reason, except Hulkower’s and Roher’s
disinclination to deal with the Union, for Respondent’s fail-
ure to notify the collective-bargaining representative of its
employees that it was planning to change its payroll methods
and that this would cause certain changes in the net pay of
employees.17 Thus, I conclude that Respondent had a duty to
bargain over the effects of its change to a computerized pay-
roll system.
The facts show that Shop Steward Plenty was present at
the staff meeting where Roher announced that due to a
change to ADP payroll services there might be changes in
employees’ paychecks. This does not constitute notice to the
collective-bargaining representative of the employees. Re-
spondent was well aware who were the negotiators on behalf
of the Union and it did not satisfy its duty to bargain by
holding a meeting with its employees and there making cer-
tain vague statements about changes that might be taking
place in a few days. Plenty testified that he called the Union
about the changes after they had taken place and employees
were asking about them. Respondent did not seek to have
Plenty inform the certified representative of the substance of
the staff meeting so that the Union would have prior notice
of the changes and an opportunity to bargain. Moreover, the
staff meeting was held on June 6 and the change was effec-
tive on June 9; thus there was no adequate interval for bar-
gaining even if Plenty had called the Union immediately.
Rust Craft Broadcasting, 225 NLRB 327 (1976), is not ap-
posite. In that case, management decided that its employees
would punch a time clock instead of manually writing in the
hours they worked and the times they reported and left each
day. The Board found that there was no change in working
conditions or wages; the rule that employees must record
their total working time as well as time in and time out on
a daily basis had been in force for a long time. The Board
relied on Wabash Transformer Corp., 215 NLRB 546 (1974),
where it had found that it was not a violation for the em-
ployer to make explicit the penalty for failure to adhere to
certain rules where the penalty had been implicit in the exist-
ence of the rules and standards before the Union came on
the scene. Further, GSM, Inc., 284 NLRB 174 (1987), and
Broyhill Co., 260 NLRB 1366 (1982), relied on by Respond-
ent, do not support a finding that Respondent ‘‘cured’’ its re-
fusal to bargain with the Union by offering the Union infor-
mation about the changes in net pay several months after the
changes had been instituted by Respondent. In GSM and
Broyhill, the employers had unlawfully threatened their em-
ployees but had later disavowed the threats and taken correc-
tive action. Thus, although the conclusions of law in the de-
cisions find violations of the Act, no remedial orders were
issued as to those violations. In contrast to the employers’
actions in the cases relied on by Respondent, the Respondent
has issued no notice to its employees disavowing its unlaw-
ful unilateral changes and it has not restored the status quo
ante.
On August 23, 1990, the Board issued its decision in
WPIX, Inc., 299 NLRB 525. In that case, the union business
representative had ‘‘received actual notice of the [unilateral]
change more than a week prior to the implementation,’’ but
the Union failed to request bargaining prior to implementa-
tion of the change. In that case, there was no fait accomPli,
because the Union had an opportunity to request bargaining
before the change was instituted. In the instant case, no no-
tice to a union representative was given prior to Respond-
ent’s implementation of the changes in the net pay of its em-
ployees. Thus, Respondent’s reliance on WPIX is misplaced.
Respondent urges that it offered the Union an explanation
of each and every change in the net pay of the employees
at the bargaining session of September 26, 1989, but the
Union declined to discuss the matter unless the employees
were also present. Respondent argues that it cured any viola-
tion of law but that the Union refused to bargain over the
changes in the net pay of employees. Respondent misappre-
hends the nature of its unlawful acts. It presented the Union
with a fait accompli in that the Union did not have a reason-
able opportunity to bargain over the changes before they took
effect. Its later offer to explain the changes may be very
well, but it is no substitute for notice to the Union prior to
the effectuation of the changes; only by having prior notice
and an opportunity to bargain about the effects of the change
in payroll methods on the net pay of employees could the
Union have negotiated in any real manner on the effects of
the change. Respondent’s offer to explain the changes on
September 26 was not an offer to negotiate; it was an offer
to tell the Union what it had already done but it provided
the Union no opportunity to bargain. By way of example, I
note that it is entirely possible that the Union could have told
Respondent that despite its use of ADP it preferred that no
changes take place in the net pay of employees, and it is en-
tirely possible that ADP could have accommodated this re-
quest if it had been made in a timely manner. Certainly,
there is nothing in the record to negate this possibility. I find
that Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally changing the net pay of its employees. Cf.
Orange County Machine Works, 147 NLRB 1004, 1006
(1964).
2. Use of Respondent’s vehicles
I credit Plenty’s testimony as to the practice with respect
to use of Respondent’s vehicles during the time he has been
transportation coordinator. Plenty has primary responsibility
for scheduling and overseeing the use of the vehicles and he
has the most direct knowledge of the actual uses to which
the vehicles have been put. From my observation of Plenty
during the trial I am convinced that he testified truthfully
concerning this matter. Further, his testimony was supported
by that of Ellison. Although Hulkower denied any knowledge
that Respondent’s vehicles were used to pick up employee
lunches her denials strain credulity. As the executive director
it is clear from the record that she worked long hours and
was involved in all aspects of the Center’s operation. How-
ever, Hulkower’s knowledge or lack thereof is not determina-
tive of the issue. Based on the evidence, I find that Respond-
ent’s vehicles had been used regularly for all the purposes
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 There is no evidence that Hulkower was specific that the Union organiz-
ers must leave the building; indeed, I am convinced that Hulkower’s request
that they leave could reasonably be interpreted to mean that she wanted to stop
the conversation in her office and that she would call the police if the group
did not leave her office.
testified to by Plenty including transporting employees to the
bank on payday and other days, transporting employees to
pick up lunch on payday and other days, transporting em-
ployees when their usual means of transportation were not
available and making purchases for the sunshine club.
Hulkower and Plenty disagree whether Plenty informed
Hulkower that he had been to a union meeting on September
6, 1989, when he got off the bus with Ellison and Oliva.
Hulkower denied that Plenty either mentioned the Union or
that she noticed some union papers in his possession.
Plenty’s affidavit states that he had union papers in his hands
and that Hulkower saw them; however, Plenty testified that
he told her that he had been to a union meeting. I shall credit
Plenty’s affidavit that he only mentioned lunch to Hulkower,
because the affidavit was given at a time closer to the occur-
rence it describes. I shall credit Hulkower’s testimony that
she did not see any union papers and that she did not know
that Plenty had been to a union meeting. Contrary to Plenty’s
affidavit, he could not know if Hulkower had indeed looked
at the papers he held in his hand. I find that Plenty told
Hulkower that he had used the bus to drive to lunch and that
Hulkower told him he could not use the bus for that purpose
because it was personal business. I find that the vehicles had
been used for many purposes, including those related to pro-
viding employees with lunch, and I find that when Hulkower
told Plenty that he could not use the bus for lunch she was
changing a long established condition of employment. Re-
spondent did not negotiate with the Union concerning this
change and Respondent thus violated Section 8(a)(5) and (1)
of the Act by changing a long standing past practice that
‘‘affected all employees and constituted a substantial modi-
fication of a privilege which had been an existing condition
of employment.’’ Brown & Connolly, Inc., 237 NLRB 271,
281 (1978).
General Counsel urges that Hulkower’s anti union animus
and the fact that Plenty, Ellison and Oliva were shop stew-
ards and sat with the negotiating committee would be a suffi-
cient basis for finding that Hulkower changed the rule relat-
ing to vehicle use for a discriminatory reason in retaliation
against the employees’ union activities. I do not believe that
all the assumptions required by General Counsel’s argument
may fairly be made: Hulkower did not know that the em-
ployees had been to a union meeting and nothing in the evi-
dence shows that she harbored resentments against particular
employees who supported the Union. Based on the record
before me, I can only find that when Hulkower could not lo-
cate Plenty she became annoyed and that she decided to
change the practice that permitted him to use the vehicles for
the employees’ convenience in obtaining lunch.
3. September 15, 1989 denial of access and
threat to arrest
I find that on September 15, 1989, Meskin, Murray, and
several employees met in order to present an agenda to
Hulkower. The group walked into Hulkower’s office, pre-
sented her with the agenda, and at Hulkower’s request left
her office to wait outside until she could complete a tele-
phone call. After the phone call, the group reentered
Hulkower’s office. The General Counsel’s witnesses claim
that Hulkower’s door remained open while she spoke on the
telephone. Hulkower claims that she closed the door and then
opened it again to admit the union group when she was fin-
ished speaking on the phone. According to Hulkower’s ver-
sion of the occurrence, the group asked her about the agenda
and she referred them to her attorney. A heated discussion
ensued during which Meskin shouted at Hulkower and, ac-
cording to Roher, Hulkower shouted back and lost control.
Both Roher and Hulkower claim that Hulkower told the
union agents to leave or she would call the police but Gen-
eral Counsel’s witnesses deny this. All the witnesses agree
that the group of union agents and employees then left
Hulkower’s office. Taking the facts as presented by Re-
spondent, it is clear that the union group complied with
Hulkower’s request that they permit her to finish her tele-
phone call and that they only reentered Hulkower’s office
when she invited them back by opening her door. Hulkower
does not claim that when she reopened her door she imme-
diately told the union group that they should leave the prem-
ises on pain of arrest, or that they should not reenter her of-
fice or that she wished to have no conversation with them
at all. I find that Respondent’s witnesses showed that
Hulkower voluntarily continued talking with the Union group
until she became upset with Meskin’s demands and asser-
tions. Then, she told them to leave and they left.18 It is not
necessary to make any credibility resolution as to whether
Hulkower did indeed mention the police when the group was
in her office since General Counsel does not argue that this
threat to call the police was unlawful.
Although Hulkower testified that she felt threatened and
abused in her office, she did not describe any abusive or
threatening conduct on the part of any individual member of
the union group. It is clear that she disliked Meskin because
he was vigorous in pressing the employees’ demands. But
the Act sanctions the methods used by Meskin; it was en-
tirely proper for him to picket and to contact governmental
agencies and charitable organizations. Indeed, in setting up
an adversarial system which tests relative economic and
other strengths, the Act contemplates that union agents will
‘‘make trouble’’ for management. Meskin, an unathletic indi-
vidual, talked loud and fast, but Hulkower also shouted dur-
ing her encounter with him.
Although Hulkower testified that the union group should
have checked with the receptionist prior to entering her of-
fice, she did not testify that on seeing the group she imme-
diately told them to go back out and make a proper appoint-
ment with her. Nor was the receptionist called by Respond-
ent to testify that she strictly monitored those entering
Hulkower’s office, a significant omission in view of Plenty’s
testimony that he often walked into Hulkower’s office with-
out obtaining permission from the receptionist. Based on this
state of the record, the only convincing evidence before me
shows that the receptionist did not enforce any rule respect-
ing access to Hulkower’s office. Indeed, there is no credible
evidence that the receptionist enforced any rule regarding ac-
cess to the rest of the building.
Hulkower also testified that the union group was causing
a disturbance that was visible to children and parents; as I
have found above, there was no disturbance and there is no
525UNION CHILD DAY CARE CENTER
evidence that any parents or children were anywhere near
Hulkower’s office.
Turning to the incident in the staff room, Hulkower testi-
fied that she went to the staff room and told Meskin and
Murray that she would have them arrested if they did not
leave. Hulkower stated that the union officials were not
doing anything disruptive in the staff room. But Hulkower
also testified that she threatened to call the police because
Meskin and Murray were disrupting nap time. I note that
there is no evidence that any children were near the staff
room nor was it shown how nap time could have been dis-
rupted. The facts recited above at great length show that par-
ents, salesmen, and relatives of employees have free access
to the staff room for both social and business purposes. I
find that for many years Respondent has not limited access
to the staff room to employees only. Further, as discussed
above, there is no evidence that the receptionist controlled
access to the staff room; relatives, parents and other visitors
are permitted to enter the Day Care Center and proceed to
the staff room without checking with the receptionist.
It is clear from the testimony of Respondent’s own wit-
nesses that Hulkower has opposed this Union since 1987,
that she does not like to deal with and does not want to deal
with this Union, and that she can lose control when con-
fronted with the legal representative of Respondent’s em-
ployees. I find that when Hulkower told Meskin and Murray
that they were prohibited from remaining in the staff room
to meet with the employees she was enforcing the prohibition
in a disparate manner and I find that Respondent was re-
straining and coercing its employees in the exercise of their
Section 7 rights. Respondent thereby violated Section 8(a)(1)
of the Act. Southern Maryland Hospital Center, 293 NLRB
1209 (1989). Finally, Hulkower’s threat to have Murray and
Meskin arrested while they were meeting with employees
was made for the purpose of inducing employees to refrain
from supporting the Union; Respondent thereby violated Sec-
tion 8(a)(1) of the Act. See Harvey’s Resort Hotel, 236
NLRB 1670, 1677–1681 (1978), enfd. 106 LRRM 2547 (9th
Cir. 1978).
CONCLUSIONS OF LAW
1. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
Included: All full-time and regular part-time teachers,
assistant teachers, teachers’ aides, assistant social work-
ers, business office assistant, assistant building super-
intendent, food service aide, nurse, bus driver, recep-
tionist, cook, transportation coordinator, building and
grounds coordinator, and food service coordinator em-
ployed by Respondent.
Excluded: The Executive Director, Comptroller, As-
sistant to Executive Director, Executive Secretary, So-
cial Service Coordinator, Health and Infant Coordinator,
Therapeutic Nursery Coordinator, Educational Coordi-
nator, and guards, professional employees and super-
visors as defined in the Act.
2. At all times material herein, District Council 1707,
Community and Social Agency Employees Union, AFSCME,
AFL–CIO has been the exclusive representative of all em-
ployees within the appropriate unit described above for pur-
poses of collective bargaining within the meaning of Section
9(a) of the Act.
3. By unilaterally changing the net pay of its employees
and by unilaterally changing the practice of permitting use of
its vehicles to obtain lunch for its employees without notice
to the Union and without affording the Union an opportunity
to bargain concerning the changes, Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
4. By disparately prohibiting union agents from meeting
with its employees in the staff room, Respondent violated
Section 8(a)(1) of the Act.
5. By threatening to cause the arrest of union agents while
they were meeting with its employees, Respondent violated
Section 8(a)(1) of the Act.
6. Respondent did not engage in unfair labor practices
other than those found herein.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
I shall not order that Respondent rescind the changes it
made in its employees’ net pay as, after the passage of time,
such a change would be disruptive to the unit employees.
[Recommended Order omitted from publication.]