United Cerebral Palsy of New York City

National Labor Relations Board - Board Decisions

Jul 27, 2006

347 N.L.R.B. 603 (N.L.R.B. 2006)

UNITED CEREBRAL PALSY OF NEW YORK CITY
347 NLRB No. 60
603
United Cerebral Palsy of New York City and Local 2,
United Federation of Teachers, American Fed-
eration of Teachers, AFL–CIO. Case 29–CA–
26927
July 27, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 7, 2005, Administrative Law Judge
Howard Edelman issued the attached decision. The
General Counsel filed exceptions and a supporting 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 brief, and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The complaint in this case alleges that the Respondent
violated Section 8(a)(5) and (1) of the Act: (1) by dis-
tributing to employees a handbook that changed their
terms and conditions of employment without notifying or
bargaining with the Union, and (2) by direct dealing with
employees by requiring them to sign a statement agree-
ing to comply with the handbook and acknowledging that
they understand that the Respondent may make future
changes without providing advance notice. The judge
found, in agreement with the Respondent, that the case
was suitable for deferral under Collyer Insulated Wire,
192 NLRB 837 (1971). Contrary to the judge we find, in
agreement with the General Counsel, that deferral is not
warranted and that, on the merits, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act as alleged.
Facts
The Respondent provides services to individuals with
cerebral palsy and other disabilities. On August 21,
2000, following a representation election, the Board cer-
tified the Union as the representative of medical assis-
tants and support personnel at the Respondent’s Law-
rence Avenue facilities (Lawrence Avenue unit). In ad-
dition, on April 5, 2002, the Board certified the Union as
the representative of program specialists and other em-
ployees working in the Respondent’s residential pro-
grams (Residences unit). The Respondent and the Union
thereafter entered into collective-bargaining agreements
for both units, effective from May 15, 2003 through Au-
gust 28, 2005. Although the two units are covered by
separate agreements, these agreements are largely identi-
cal. Both collective-bargaining agreements contain com-
prehensive work rules and other terms and conditions of
employment.
On April 1, 2005, the Respondent distributed an em-
ployee handbook to employees working at both the
Lawrence Avenue and residential locations. The
handbook was issued to both unit and nonunit employ-
ees, with unit employees receiving a copy specifically
designated for “unionized” employees. The Respon-
dent gave no advance notice to the Union of its intent
to issue the handbook, nor did it negotiate over any
handbook provisions that differed from terms and con-
ditions specified in the collective-bargaining agree-
ments.
In its introductory section, entitled “About this
Handbook,” the handbook states the following:
This handbook supersedes all previous UCP/NYC
Employee Handbooks, management memoranda and
practices that may have been issued on subjects cov-
ered in the Handbook or in effect at UCP/NYC and
is intended to incorporate individual policies that will
be issued in the future. In case of a conflict among
individual UCP/NYC policies, the Agency’s most
recently issued policy will control.
The handbook thereafter sets forth a complete set of
work rules. The policies listed in the handbook depart
from those in the collective-bargaining agreements in
the following areas:
1. Vacations:1 The collective-bargaining agree-
ments require that employees who wish to use accumu-
lated vacation time must submit a written leave request
in advance to their supervisor. The collective-
bargaining agreements also state that, when consider-
ing such requests, supervisors will take into account
employee preference and agency need, but that if the
Respondent is unable to accommodate all vacation
requests, it will follow, “an equitable rotation among
Employees in the same title . . . based on UCP service.
The most senior employee who did not receive his/her
preference in the preceding vacation period shall be
granted preference in the subsequent vacation period.”
The relevant handbook provision states that employ-
ees shall submit a written leave request to their super-
visor, and that supervisors will make “every effort to
consider employee preferences while meeting any
agency needs.” However, the handbook does not pro-
vide for the seniority-based selections, as outlined
above, in the event that the Respondent is unable to
approve all vacation requests.

1 The relevant provisions appear in art. 10 of the collective-
bargaining agreements and on pp. 21–22 of the handbook in the
section entitled “Hours of Work.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD604
2. Holiday leave:2 The collective-bargaining agree-
ments list the following as floating holidays: New
Year’s Day, Martin Luther King Day, President’s Day,
Good Friday, Memorial Day, Independence Day, Labor
Day, Yom Kippur (weekday only), Presidential Election
Day, Thanksgiving Day, Friday after Thanksgiving, and
Christmas Day. The handbook also contains a list of
floating holidays. That list, however, does not include
Presidential Election Day.
3. Hours of work:3 The collective-bargaining agree-
ments contain a number of provisions governing hours of
work. In the event that certain work requires the Re-
spondent to change employees’ work schedules or shifts,
the collective-bargaining agreements require the Respon-
dent to first seek volunteers to perform the work. If there
are insufficient volunteers, the collective-bargaining
agreements require that the Respondent first change the
schedule of the least-senior employee. Further, in the
event that an employee’s shift is involuntarily changed,
the collective-bargaining agreements give that employee
the right to return to his/her previous schedule if such a
position opens up within 1 year of the involuntary
change.
By contrast, the handbook states that “Work schedules
are regularly subject to change based on program needs.
Efforts will be made to discuss any changes sufficiently
in advance to give an employee time to make any neces-
sary arrangements.” The handbook includes no language
requiring the Respondent to seek volunteers to cover a
shift, to base involuntary schedule changes on seniority,
or to allow employees affected by an involuntary sched-
ule change the right to return to their original shifts if an
opening occurs within 1 year of the change.
4. Posting vacancies:4 The collective-bargaining
agreements require that the Respondent “post vacancies
for bargaining unit positions for at least five days.” By
contrast, the handbook’s provision on vacancies includes
no similar posting requirement, and states only that
“every effort will be made to advise employees of pro-
motion and transfer opportunities that become available
within the Agency through job posting.”

2 The relevant provisions appear in art. 11 of the collective-
bargaining agreements, and on p. 23 of the handbook in the section
entitled “Holiday Leave.”
3 At issue here are the “Hours of Work” provisions listed as art.
20(A)(5) of the Residences collective-bargaining agreement and art.
21(6) of the Lawrence Avenue collective-bargaining agreement. The
handbook’s provision appears on p. 15 in the section entitled “Working
Hours and Schedules.”
4 This provision is set forth in art. 21(A) of the Residences collec-
tive-bargaining agreement and art. 22(A) of the Lawrence Avenue
collective-bargaining agreement. The relevant provision in the hand-
book appears on p. 29, in the section entitled “Promotions and Trans-
fers.”
5. Transfers within the unit/transfers out of the
unit:5 As with involuntary shift changes, the collec-
tive-bargaining agreements require that, before making
an involuntary transfer, the Respondent must first seek
volunteers. If there are no qualified volunteers, the
collective-bargaining agreements require the Respon-
dent to transfer the least-senior employees first, and to
allow involuntarily-transferred employees to transfer
back as soon as practical. The collective-bargaining
agreements also provide that employees transferred out
of the bargaining unit will suffer no reduction in fringe
benefits.
The handbook states only that “UCP/NYC reserves
the right to determine all assignments and reassign-
ments of employees based on the needs of the program
participants and of the Agency.” It does not require
that the Respondent: seek volunteers before involuntar-
ily transferring employees, transfer the least-senior
employees first, permit transferred employees to return
to the unit, or preserve fringe benefits for employees
transferred out of the unit.
6. Discipline and discharge:6 The collective-
bargaining agreements provide that the Respondent
shall have the right to “discharge, suspend or discipline
any Employee for just cause.” By contrast, the hand-
book reserves to the Respondent the right to discipline
any employee for behavior “deemed inappropriate by
the Agency.” There is no mention in the handbook of
just cause as a prerequisite for discipline.
7. Grievance and arbitration procedure:7 The griev-
ance procedure under the collective-bargaining agree-
ments is initiated by the employee’s submission of a
grievance form to the Union. The submission of that
form initiates a 3-step process by which an employee’s
grievance is submitted to the Respondent’s designee
(step 1). If the grievance is denied, the employee may
appeal to the Respondent’s executive director (step 2)
and, if the appeal is denied, the employee may take the
grievance to arbitration.

5 These provisions are set forth in art. 21(D) of the Residences
collective-bargaining agreement and art. 22(D) of the Lawrence
Avenue collective-bargaining agreement. The relevant handbook
provision appears on p. 20 in the section entitled “Promotions and
Transfers.”
6 This provision appears in the due process section of the collec-
tive-bargaining agreements, which is art. 22 in the Residences col-
lective-bargaining agreement and art. 23 of the Lawrence Avenue
collective-bargaining agreement. The relevant handbook provision
appears on p. 39 in the “Codes of Conduct” section.
7 These provisions appear in art. 23 of the Residences collective-
bargaining agreement and art. 24 of the Lawrence Avenue collec-
tive-bargaining agreement. The relevant handbook provision ap-
pears on p. 44 in the section governing “Grievance Policy and Pro-
cedure.”
UNITED CEREBRAL PALSY OF NEW YORK CITY 605
The handbook states that, prior to filing a grievance,
employees must first consult with their supervisor, and
then with the Respondent’s program director. Only after
completing these two steps can an employee proceed to
the contractual grievance procedures. The collective-
bargaining agreements do not include any similar re-
quirement.
8. Personnel files:8 The collective-bargaining agree-
ments provide that “Each Employee shall have free ac-
cess (which shall not be abused) to his/her file for the
purpose of examination and making copies of materials
within the file.” The handbook’s section requires that a
human resources representative be present while em-
ployees examine their personnel files. The handbook
also includes a provision, not found in the collective-
bargaining agreements, allowing employees to add
statements to their personnel files.
9. Separation from employment:9 The collective-
bargaining agreements require employees to give 2 (for
“non-exempt” employees) or 4 weeks’ (for “exempt”
employees) written notice prior to voluntarily terminat-
ing their employment. Employees who do not abide by
this provision may forfeit accrued but unused vacation
pay. The collective-bargaining agreements also state that
an employee may receive an exception from the notice
requirement in cases of hardship. The handbook’s sec-
tion governing separation from employment similarly
requires 2 or 4 weeks’ notice to avoid forfeiture of un-
used vacation pay, but it includes no hardship exception.
10. Absences: The handbook’s section on attendance
and punctuality, on page 18, states that “Employees may
be asked to submit medical documentation for any ab-
sence due to illness, and non-medical documentation for
non-medical absences.” The collective-bargaining
agreements do not include a similar requirement.
11. The handbook also includes a provision reserving
to the Respondent the right to change its terms and con-
ditions of employment at any time, without notice:
UPC/NYC’s personnel policies, practices and benefits
are periodically reviewed and are subject to change.
The Agency may change, cancel or suspend any of its
personnel policies at anytime [sic] without advance no-
tice, although where and when practical, UPC/NYC

8 These provisions appear in art. 24 of the Residences collective-
bargaining agreement and art. 25 of the Lawrence Avenue collective-
bargaining agreement. The section on employee files appears on p. 13
of the handbook.
9 These provisions appear in art. 26 of the Residences collective-
bargaining agreement and art. 27 of the Lawrence Avenue collective-
bargaining agreement. The handbook’s provision on separation from
employment appears on p. 20.
will notify employees of significant changes through
Administrative Memoranda or by another means.
In addition, upon receiving the handbook, the Re-
spondent required that employees sign a receipt certi-
fying that:
I realize that it is my responsibility to become famil-
iar with the Handbook, to comply fully with the poli-
cies and procedures contained in the Handbook and
that such policies may be revised from time to time,
with or without prior notice to me. I further realize
that if there is a conflict between one or more
Agency policies, the most recently issued policy will
apply.
The Judge’s Findings
The judge found that this case was appropriate for
deferral under Collyer, supra. In so finding, the judge
rejected the General Counsel’s contention that the Re-
spondent’s unilateral changes, as set forth in the hand-
book, amounted to a rejection of the collective-
bargaining agreements. Although the judge acknowl-
edged that the handbook’s change of the grievance
procedure was “troubling,” he found that it nonetheless
did not amount to a rejection of the collective-
bargaining agreements. The judge’s analysis of the
deferral issue did not address the General Counsel’s
direct-dealing allegation. Having concluded that de-
ferral was appropriate, the judge did not reach the mer-
its of this case.
Contrary to the judge, and for the reasons set forth
below, we find that this case is not appropriate for de-
ferral. We also find, on the merits, that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by
making the alleged unilateral changes to mandatory
subjects of bargaining and by directly dealing with
employees.
Discussion
Under Collyer, supra, and United Technologies
Corp., 268 NLRB 557, 558 (1984), the Board will de-
fer unfair labor practice allegations to arbitration
where: (1) the dispute arose within the confines of a
long and productive bargaining relationship; (2) there
is no claim of employer animosity to the employees’
exercise of protected statutory rights; (3) the parties’
agreement provides for arbitration of a very broad
range of disputes; (4) the arbitration clause clearly
encompasses the dispute at issue; (5) the employer has
asserted its willingness to utilize arbitration to resolve
the dispute; and (6) the dispute is eminently well suited
to such resolution.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD606
As to whether a dispute is well suited to resolution
through arbitration, the Board will defer where the dis-
pute “aris[es] over the application or interpretation of an
existing collective-bargaining agreement.” Commercial
Cartage Co., 273 NLRB 637, 640 (1984), quoting Col-
lyer, 192 NLRB at 840. Where, however, an employer’s
actions amount to a repudiation of the contract or strike
at the very heart of the collective-bargaining relationship,
deferral is not appropriate. Id. at 641. Thus, the Board
has stated that it will not defer in instances where the
respondent’s “conduct constitutes a rejection of the prin-
ciples of collective bargaining.” Kenosha Auto Trans-
port Corp., 302 NLRB 888 fn. 2 (1991).10 In those in-
stances, “[i]t is unlikely that an arbitrator, whose function
is limited to problems of contractual interpretation,
would resolve or remedy, if necessary, allegations of
statutory wrongs, or address such issues as the Union’s
status as a labor organization and authorized collective-
bargaining representative in accordance with the Act or
Board precedent.” Postal Service, 302 NLRB 767, 774
(1991); Rappazzo Electric Co., 281 NLRB 471 fn. 1
(1986); AMF Inc., 219 NLRB 903, 912 (1975).11
Applying the principles set forth above, we find that
the Respondent’s conduct in the instant case amounts to
a rejection of the collective-bargaining process and, as
such, deferral is not appropriate. Although the handbook
does not explicitly repudiate the collective-bargaining
agreements, it clearly states that it supersedes all other
“handbooks, management memoranda and practices” on
any matter also covered by the handbook. The practices
established by the collective-bargaining agreements are
clearly encompassed by that broad language. Further, as
set forth in the facts recited above, the handbook encom-
passes many matters that are covered by the contract.
Finally, to the extent that the handbook encompasses
matters that are not covered by the contract, it nonethe-
less deals with mandatory subjects of bargaining. The
handbook thus conveys to employees that they can no

10 For example, the Board has refused to defer where an employer
denied that it was bound by the collective-bargaining agreement whose
applicability to the dispute was central to the controversy. See, e.g.,
Rappazzo Electric Co., 281 NLRB 471, 478 (1986); Mountain State
Construction Co., 203 NLRB 1085 (1973), enfd. mem. 510 F.2d 966
(4th Cir. 1975).
11 In other cases, the Board has refused to defer where an employer’s
unilateral action constitutes more than “a mere breach of the contract,
but amounts, as a practical matter, to the striking of a death blow to the
contract as a whole, and is thus, in reality, a basic repudiation of the
bargaining relationship.” Oak Cliff-Golman Baking Co., 207 NLRB
1063, 1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974), cert.
denied 423 U.S. 826 (1975) (Board refused to defer allegation that
employer unilaterally lowered employees’ wages, because wage rate
provision was a pivotal contract term, and thus repudiation of that term
amounted to repudiation of the contract as a whole).
longer rely on the collective-bargaining agreements or
the collective-bargaining process with respect to the
terms and conditions of their employment.
The Respondent’s rejection of the collective-
bargaining relationship is further evidenced by the
handbook’s provision reserving to the Respondent the
right to “change, cancel or suspend any of its personnel
policies at anytime without advance notice.” By this
statement, the Respondent effectively announced that
it was no longer bound by the collective-bargaining
agreements and that it no longer intended to bargain
over terms and conditions of employment prior to
making such changes. Indeed, the Respondent has not
only declared that it reserves the right to make changes
without prior notice, it has required individual employ-
ees to acknowledge, in writing, their understanding
and acceptance of the Respondent’s declaration. We
therefore find that this case involves more than mere
changes to some terms of the collective-bargaining
agreements; it involves allegations of conduct amount-
ing to a de facto rejection of the bargaining relation-
ship between the Respondent and the Union. We
therefore reverse the judge’s finding that deferral is
appropriate.12
Accordingly, we now turn to the substantive allega-
tions of this case.
The 8(a)(5) Allegations
A. The Handbook Provisions
It is well established that an employer violates Sec-
tion 8(a)(5) and (1) of the Act if it makes material uni-
lateral changes during the course of a collective-
bargaining relationship on matters that are mandatory
subjects of bargaining. NLRB v. Katz, 369 U.S. 736
(1962). As explained below, we find that the Respon-
dent’s handbook made a number of significant unilat-
eral changes to mandatory subjects of bargaining:
1. The handbook unilaterally changes the Respon-
dent’s vacation policy by eliminating seniority as a
consideration in granting vacation requests. We find
this to be a material change in a mandatory subject of
bargaining. In Blue Circle Cement Co., 319 NLRB
954 (1995), enfd. mem. in relevant part 106 F.3d 413
(10th Cir. 1997), the Board found that an employer’s
unilateral change in its vacation scheduling from a
system based on seniority to one based on the alloca-
tion of vacation slots by department involved a manda-
tory subject of bargaining and therefore violated the
Act. We find that the Respondent’s unilateral elimina-

12 Having found that this case is not well-suited to arbitration, we
find that it is unnecessary to pass on whether the other deferral crite-
ria set forth in Collyer are satisfied in this case.
UNITED CEREBRAL PALSY OF NEW YORK CITY 607
tion of seniority in vacation scheduling similarly impli-
cates a mandatory subject of bargaining and therefore
violates Section 8(a)(5) and (1) of the Act as alleged.
2. The Respondent’s handbook eliminated Presidential
Election Day from the list of paid floating holidays. It is
well settled that an employer’s unilateral change to the
list of holidays that it observes implicates a mandatory
subject of bargaining. See, e.g., E. I. du Pont & Co., 259
NLRB 1210, 1211 (1982) (finding that the employer
violated the Act by unilaterally establishing an additional
paid holiday without bargaining with the union). We
therefore find that the Respondent violated the Act by
unilaterally removing this holiday from the list of ob-
served holidays.
3. The Respondent’s handbook eliminated several
procedures utilized when making involuntary schedule
changes. It is well established that issues affecting em-
ployee schedules constitute mandatory subjects of bar-
gaining. Meat Cutters, Local 189 v. Jewel Tea Co., 381
U.S. 676, 691 (1965) (noting that “the particular hours of
the day and the particular days of the week during which
employees shall be required to work are subjects well
within the realm of ‘wages, hours, and other terms and
conditions of employment’ about which employers and
unions must bargain”). Here, the Respondent’s hand-
book fails to include several key provisions relating to
involuntary schedule changes that were included in the
collective-bargaining agreements. Omitted from the
handbook’s section on involuntary schedule changes are
the requirements that the Respondent first seek volun-
teers, that the Respondent use seniority as a basis for
selecting candidates for involuntary schedule changes,
and that involuntarily-transferred employees receive
preference to return to their former shifts. The omission
of these procedures in the handbook’s discussion of in-
voluntary schedule changes constitutes a significant uni-
lateral change in violation of Section 8(a)(5) and (1).
4. The handbook’s provision on promotions and trans-
fers does not include the collective-bargaining agree-
ments’ provisions requiring that the Respondent post
vacancies of unit positions for at least 5 days. The Board
has found that unilateral changes to procedures by which
employers post vacancies violate Section 8(a)(5) of the
Act. See U.S. Ecology Corp., 331 NLRB 223, 227–228
(2000), enfd. 26 Fed. Appx. 435 (6th Cir. 2001) (finding
that an employer’s posting of position openings without
consulting with the Union, as required by the contract,
violated Section 8(a)(5) of the Act). Here, the Respon-
dent’s handbook substantially alters its vacancy an-
nouncement policy by not including the contractual post-
ing requirement. The unilateral elimination of the post-
ing requirement violated Section 8(a)(5) and (1) of the
Act as alleged.
5. We also find that the Respondent violated the Act
by unilaterally eliminating seniority as a consideration
when selecting employees for involuntary transfers.
Such changes affecting employee transfers implicate
mandatory subjects of bargaining. See generally Indu-
lac, Inc., 344 NLRB 1075 (2005) (finding that trans-
ferring an employee without bargaining is an unlawful
unilateral change). Here, as with the rules governing
involuntary schedule changes discussed above, the
handbook’s policy for involuntary transfers fails to
include several significant provisions included in the
collective-bargaining agreements. Specifically, the
handbook’s policy on involuntary transfers does not
include the requirements that the Respondent first seek
volunteers, that the Respondent consider seniority in
selecting employees for involuntary transfers, that
transferred employees be given priority to return to
their former positions, and that employees transferred
out of the unit not lose their fringe benefits. The omis-
sion of these requirements fundamentally changed the
transfer policy, and thus violated Section 8(a)(5) and
(1).
6. The Respondent’s handbook changes its discipli-
nary policy from a policy that gives the Respondent
the right to suspend or discipline employees for cause
to a policy that gives the Respondent the right to disci-
pline employees for conduct “deemed inappropriate by
the Agency.” Thus, under the handbook’s policy, the
Respondent need not show the existence of just cause
to discipline or suspend employees, as the collective-
bargaining agreements require. It is well established
that rules governing the imposition of employee disci-
pline are mandatory subjects of bargaining. See
Toledo Blade Co., 343 NLRB No. 51 (2004) (finding
that an employer’s unilateral decision to depart from
its progressive disciplinary system and decide issues of
discipline on a case-by-case basis violated the Act).
We therefore find that, by unilaterally changing the
just cause provision in its disciplinary policy, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
7. The Respondent’s handbook adds a new re-
quirement to the grievance procedure. Specifically,
the handbook’s grievance procedure requires that em-
ployees must first discuss potential grievances with a
supervisor, and then with the Respondent’s director of
human resources, before filing a grievance with the
Union. The collective-bargaining agreements include
no such requirements. The Board has found that uni-
lateral changes to the process by which employees file
grievances implicate mandatory subjects of bargaining.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD608
Arizona Portland Cement Co., 302 NLRB 36, 43 (1991)
(finding that an employer’s substitution of a dispute reso-
lution policy for its existing grievance-processing system
constituted an unlawful unilateral change). We therefore
find that the Respondent has violated Section 8(a)(5) and
(1) of the Act by unilaterally changing its grievance pro-
cedure.
8. The Respondent’s handbook changes the contract’s
absenteeism policy by stating that the Respondent may
require documentation of both medical and nonmedical
absences. The collective-bargaining agreements do not
include provisions allowing the Respondent to require
documentation of absences. The Board has previously
found that changes to an employer’s leave policies, such
as requiring documentation of absences, violates the Act.
See Bethea Baptist Home, 310 NLRB 156, 188–189
(1993) (unilaterally changing sick leave policy to require
a physician’s statement found to be unlawful). We there-
fore find that by implementing this provision through its
handbook, the Respondent unilaterally changed its ab-
senteeism policy in violation of Section 8(a)(5) and (1)
of the Act.
9. Finally, the Respondent’s handbook violates the
Act by reserving to the Respondent the right to make
future changes without notice. As noted above, the
handbook’s preface states that: “UPC/NYC’s personnel
policies, practices and benefits are periodically reviewed
and are subject to change. The Agency may change,
cancel or suspend any of its personnel policies at anytime
[sic] without advance notice.” As evidenced by the uni-
lateral changes outlined above, these “policies, practices
and benefits” encompass mandatory subjects of bargain-
ing. In Heck’s, Inc., 293 NLRB 1111 (1989), the Board
found that a similar handbook provision13 was unlawful
because it “disparages the collective-bargaining process
and improperly undermines the status of the Union as the
designated and recognized collective-bargaining repre-
sentative of [the employer’s] employees.” Id. at 1118.
We therefore find that the Respondent violated Section
8(a)(5) and (1) of the Act by its purported reservation of
the right to make future changes to terms and conditions
of employment without prior notice.
B. The Direct-Dealing Allegation
It is undisputed that the Respondent required employ-
ees to sign a receipt acknowledging that they had re-
ceived the handbook and that they agreed to comply with

13 In Heck’s, as in this case, the employer circulated a handbook that
set forth comprehensive work rules and made a number of unilateral
changes to working conditions. In addition, employees were required
to sign a statement that said, “I understand that the company reserves
the right to make changes in the guidelines or their application as it
deems appropriate.”
its terms. The General Counsel argues that, by this
conduct, the Respondent has engaged in unlawful di-
rect dealing.14 We agree.
An employer’s attempt to bypass the union and bar-
gain directly with employees constitutes a violation of
Section 8(a)(5) and (1) of the Act. See, e.g., Heck’s,
Inc., supra at 1120 (finding that an employer’s re-
quirement that employees sign an antiunion statement
constituted unlawful direct dealing). Here, the lan-
guage of the receipt the Respondent required employ-
ees to sign essentially requires the employees to agree
that the Respondent may unilaterally change terms and
conditions of employment. Specifically, it states that
“it is my responsibility to become familiar with the
Handbook, to comply fully with the policies and pro-
cedures contained in the Handbook and that such poli-
cies may be revised from time to time, with or without
prior notice to me. I further realize that if there is a
conflict between one or more Agency policies, the
most recently issued policy will apply.” Thus, by tak-
ing its changes directly to its employees, requiring
them to agree to those changes, and also requiring
them to agree that the Respondent could make future
changes without prior notice, the Respondent bypassed
the Union and dealt directly with its employees.
Heck’s, Inc., supra at 1120. We therefore find that this
conduct violates Section 8(a)(5) and (1) of the Act as
alleged.
In sum, we find that deferral to arbitration is not ap-
propriate in this case. We further find that by distrib-
uting the handbook to employees, the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by making uni-
lateral changes in terms and conditions of employment,
and by directly dealing with its employees.15
ORDER
The National Labor Relations Board orders that the
Respondent, United Cerebral Palsy of New York City,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall

14 The judge did not address this allegation.
15 We grant the General Counsel’s request that the Respondent be
ordered to rescind the entire handbook designated for unionized
employees, rather than only those portions of the handbook that
unilaterally change provisions of the collective-bargaining agree-
ment. As in Heck’s, Inc., supra, 293 NLRB at 1121, the Respondent
required employees, without union participation, to agree in writing
that the Respondent was permitted to make unilateral changes to
employees’ terms and conditions of employment, not only in the
initial version of the handbook but also on an ongoing basis, and that
the employees would be bound by any policies established through
such unilateral action. Comparable assertions were found in the
handbook’s introduction. We thus conclude that only the rescission
of the entire handbook will fully remedy the Respondent’s unlawful
conduct.
UNITED CEREBRAL PALSY OF NEW YORK CITY 609
1. Cease and desist from
(a) Making unilateral changes to the following terms
and conditions of employment which differ from those
set forth in the 2003–2005 collective-bargaining agree-
ments: (i) vacation scheduling policy; (ii) floating holi-
days; (iii) involuntary schedule changes; (iv) vacancy
posting; (v) involuntary transfers; (vi) discipline or dis-
charge for cause; (vii) grievance and arbitration proce-
dures; (viii) employees’ access to their personnel files;
(ix) separation from employment; and (x) documentation
of absences.
(b) Reserving to itself the right to make future changes
in terms and conditions of employment without notice to
or bargaining with the Union.
(c) Dealing directly with unit employees with respect
to their terms and conditions of employment as long as
the employees are represented by the Union for the pur-
pose of collective bargaining within the meaning of the
Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, at the
Lawrence Avenue and Residences locations, rescind the
entire employee handbook designated for the Respon-
dent’s unionized employees.
(b) Within 14 days from the date of this Order, remove
from its files any statements signed by employees in
which they agree to comply fully with the policies and
procedures in the handbook and acknowledge that the
Respondent may revise such policies without prior no-
tice, and within 3 days thereafter notify the employees in
writing that this has been done and that the statements
will not be used against them in any way.
(c) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative in
the following bargaining units:
All full-time and regular part-time physician as-
sistants, computer training specialists, occupational
therapists, physical therapists, registered nurses,
physicians, psychologists, speech pathologists, audi-
ologists, dieticians, social workers, assistant teach-
ers, habilitation assistants, program assistants, ad-
ministrative assistants, recreation assistants, social
worker assistants, certified occupational therapy as-
sistants, physical therapy assistants, licensed practi-
cal nurses, custodians, and supportive employment
specialists employed by the Employer at its 160 and
175 Lawrence Avenue, Brooklyn, NY facilities,
excluding all other employees including confiden-
tial employees, office clerical employees, manage-
rial employees, supervisory employees and
guards.
All full-time and regular part-time Senior Resi-
dential Program Specialists, Residential Program
Specialists, Cooks, Housekeepers, Licensed Prac-
tical Nurses, Administrative Assistants, Physical
Therapist Assistants, excluding all other employ-
ees including Managerial Employees, Confidential
Employees, Supervisors, and Guards, as defined
by the Act.
(d) Within 14 days after service by the Region, post
at its Lawrence Avenue and Residences locations, cop-
ies of the attached notice marked “Appendix.”16 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able 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 pend-
ency of these proceedings, the Respondent has gone
out of business or closed a 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 April 1, 2005.
(e) 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.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD610
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 make unilateral changes to the following
terms and conditions of employment which differ from
those set forth in the 2003–2005 collective-bargaining
agreements: (1) vacation scheduling policy; (2) floating
holidays; (3) involuntary schedule changes; (4) vacancy
posting; (5) involuntary transfers; (6) discipline or dis-
charge for cause; (7) grievance and arbitration proce-
dures; (8) employees’ access to their personnel files; (9)
separation from employment; and (10) documentation of
absences.
WE WILL NOT reserve to ourselves the right to make fu-
ture changes in terms and conditions of employment
without notice to or bargaining with the Union.
WE WILL NOT deal directly with our unit employees
with respect to their terms and conditions of employment
as long as they are represented by the Union, Local 2,
United Federation of Teachers, American Federation of
Teachers, AFL–CIO, for the purpose of collective bar-
gaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, at the Lawrence Avenue and Residences loca-
tions, rescind the entire employee handbook designated
for the Respondent’s unionized employees.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any statements signed by
employees in which they agree to comply fully with the
policies and procedures in the handbook and acknowl-
edge that we may revise such policies without prior no-
tice, and WE WILL, within 3 days thereafter, notify em-
ployees in writing that this has been done and that the
statements will not be used against them in any way.
WE WILL, before implementing any changes in wages,
hours or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive in the following bargaining units:
All full-time and regular part-time physician as-
sistants, computer training specialists, occupational
therapists, physical therapists, registered nurses,
physicians, psychologists, speech pathologists, audi-
ologists, dieticians, social workers, assistant teach-
ers, habilitation assistants, program assistants,
administrative assistants, recreation assistants, so-
cial worker assistants, certified occupational ther-
apy assistants, physical therapy assistants, licensed
practical nurses, custodians, and supportive em-
ployment specialists employed by us at our 160
and 175 Lawrence Avenue, Brooklyn, NY facili-
ties, excluding all other employees including con-
fidential employees, office clerical employees,
managerial employees, supervisory employees and
guards.
All full-time and regular part-time Senior Resi-
dential Program Specialists, Residential Program
Specialists, Cooks, Housekeepers, Licensed Prac-
tical Nurses, Administrative Assistants, Physical
Therapist Assistants, excluding all other employ-
ees including Managerial Employees, Confidential
Employees, Supervisors, and Guards, as defined
by the Act.
UNITED CEREBRAL PALSY OF NEW YORK
CITY
Nancy Reibstein, Esq., for the General Counsel.
Glenn Rickles, Esq., for the Respondent.
Angela Pace, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. Upon
charges filed by Local 2, United Federation of Teachers,
American Federation of Teachers, AFL–CIO (the Union),
unfair labor practice charges were filed against United Cere-
bral Palsy of New York City (Respondent). A complaint
issued on June 16, 2005 alleging that Respondent violated
Section 8(a)(1) and (5) of the Act by unilateral changes in
connection with collective-bargaining agreements between
the Union and Respondent. The complaints were amended
during the trial of this case on August 17, 2005 in Brooklyn,
New York.
Briefs were filed by counsel for the General Counsel and
by counsel for Respondent. Based upon the entire record in
this case, I make the following findings of fact and conclu-
sions of law.1

1 Respondent called Alan Seiler, director of human resources for
Respondent as a witness. He testified briefly as to the issuance of
the present employee handbook and prior handbooks which had
issued over the years.
Counsel for General Counsel objected on the grounds only the
contents of the Union’s collective-bargaining agreement and the
contents of the present employee handbook were relevant. I sus-
tained the objection. General Counsel introduced the collective-
bargaining agreements in issue and Board certifications and Respon-
dent introduced the employee handbook in issue.
UNITED CEREBRAL PALSY OF NEW YORK CITY 611
At all material times, Respondent, a domestic corporation,
with its principal office and place of business located at 80
Maiden Lane, New York, New York, and with treatment facili-
ties in various locations including those located at 160 and 175
Lawrence Avenue, Brooklyn, New York (the Lawrence Avenue
facilities), and with residences in various locations in New
York City (the Residences), is engaged in providing treatment
and other services to people with cerebral palsy and other dis-
abilities. During the past year, which period is representative
of its annual operations generally, Respondent, in the course
and conduct of its business operations described above, pur-
chased and received at its Brooklyn facilities products, goods,
and materials valued in excess of $5000 directly from points
located outside the State of New York.
During the past year, which period is representative of its
annual operations generally, Respondent, in the course and
conduct of its business operations described above, derived
gross revenues in excess of $500,000.
It is admitted, that Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
On August 21, 2000, after the conduct of an election, the Un-
ion was certified as the exclusive collective-bargaining repre-
sentative of the following appropriate unit of Respondent’s
employees employed at its facilities located on Lawrence Ave-
nue, Brooklyn, New York (the Lawrence Avenue unit):
All full-time and regular part-time physician assistants, com-
puter training specialists, occupational therapists, physical
therapists, registered nurses, physicians, psychologists, speech
pathologists, audiologists, dieticians, social workers, assistant
teachers, habilitation assistants, program assistants, adminis-
trative assistants, recreation assistants, social worker assis-
tants, certified occupational therapy assistants, physical ther-
apy assistants, licensed practical nurses, custodians, and sup-
portive employment specialists employed by the Employer at
its 160 and 175 Lawrence Avenue, Brooklyn, NY facilities,
excluding all other employees including confidential employ-
ees, office clerical employees, managerial employees, super-
visory employees and guards.
On April 5, 2002, the Board certified the Union as the exclu-
sive collective-bargaining representative of the following ap-
propriate unit of Respondent’s employees employed at its resi-
dential programs (the Residences unit);
All full-time and regular part-time Senior Residential Pro-
gram Specialists, Residential Program Specialists, Cooks,
Housekeepers, Licensed Practical Nurses, Administrative As-
sistants, Physical Therapist Assistants, excluding all other
employees including Managerial Employees, Confidential
Employees, Supervisors and Guards, as defined in the Act.
On or about May 15, 2003, Respondent and the Union en-
tered into collective-bargaining agreements covering the em-
ployees in the Lawrence Avenue and the Residences bargaining
units. Article 3 of these agreements (effective date and dura-
tion) provides that the agreements were effective from May
15, 2003 through August 28, 2005.
Respondent Unilaterally Implements and Distributes an
Employee Handbook to Lawrence Avenue and Residences
Unit Employees
It is admitted that on or about April 1, 2005, Respondent
unilaterally implemented and distributed an employee hand-
book to employees of both the Lawrence Avenue and Resi-
dences units.
Analysis and Conclusion
Counsel for General Counsel contends that Respondent
violated Section 8(a)(1) and (5) of the Act by the issuance of
an employee handbook to the employees of Respondent’s
Lawrence and Residences unit employees which contained
alleged unilateral changes in the parties bargaining agree-
ments.
Counsel for Respondent contends that the Board should
defer such unilateral changes to arbitration, pursuant to Col-
lyer Insulated Wire, 192 NLRB 837 (1931). Respondent
contends that there is a legislative and court mandate to defer
the case because the charge and complaint relates to alleged
unilateral changes in an employee handbook which changes
and alters certain provisions of the parties collective-
bargaining agreement.
The practice of deferring to arbitration is founded on
broad foundations. First, the courts having recognized a
national policy of encouraging resolution of labor disputes
through the grievance-arbitration machinery; second, that it
is keeping with the statutory policy of the LMRA to encour-
age the parties to resolve such disputes through the “method
agreed upon by the parties”; and third, that “disputes such as
these can better be resolved by arbitrators with special skill
and experience in deciding matters arising under established
bargaining relationships than by the application by [the]
Board of a particular provision of the [NLRA].” Collyer,
192 NLRB at 839.
Under Collyer and United Technologies Corp., 268 NLRB
557 (1984), deferral is appropriate when the following fac-
tors are present: the dispute arose within the confines of a
long and productive collective-bargaining relationship;2 there
is no claim of employer animosity to the employees’ exercise
of protected statutory rights; the parties’ agreement provides
for arbitration of a very broad range of disputes; the arbitra-
tion clause clearly encompasses the dispute at issue; the em-
ployer has asserted its willingness to utilize arbitration to
resolve the dispute; and the dispute is eminently well suited
to such resolution. See also Wonder Bread, 343 NLRB 55
(2004); University Moving & Storage Co., 2005 WL
2104289 (NLRB 2005).
Counsel for General Counsel contends that Respondent’s
unilateral changes, alleged in the complaint, amount to a
rejection of the parties’ collective-bargaining agreement.

2 The collective-bargaining agreements in this case are initial
agreements. Counsel for the General Counsel does not contend that
this is an issue in the case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD612
Where there is no stable collective-bargaining relationship,
or where the Respondent’s conduct indicates a rejection of
collective-bargaining and the organizational rights of employ-
ees, the Board will ordinarily not defer under Collyer. North
Shore Publishing Co., 206 NLRB 42 (1973). However, where
there is “effective dispute-solving machinery available, and if
the combination of past and present alleged misconduct does
not appear to be of such character as to render the use of the
machinery uncompromising or futile.” The Board will apply its
“usual deferral policies.” United Aircraft Corp., 204 NLRB
879 (1972) (where occasional first-level supervisory miscon-
duct does not outweigh the fact that the parties’ agreed-upon
grievance and arbitration machinery has worked fairly in the
past).
This balancing test has weighed towards deferral in a line of
cases where the employer had allegedly committed unfair labor
practices. In Postal Service, 270 NLRB 1022, 1023 (1984), the
General Counsel argued that deferral was not appropriate be-
cause after the parties settled a grievance by the employer’s
acceptance of the union’s position on the grievance, the em-
ployer basically repeated his prior action. The General Counsel
alleged that this constituted a rejection of basic collective-
bargaining principles. The Board found, however, that the
employer’s action was not “a broad rejection of the applicabil-
ity of the grievance-arbitration process.” The Board also noted
that “there is no contention that the parties are not continuing to
process and resolve grievances on other matters.” In United
Beef Co., 272 NLRB 66, 67 (1984), a grievance was filed alleg-
ing that a shop steward was harassed and discharged for proc-
essing grievances. The Board deferred to arbitration, citing
language from United Technologies that this alleged miscon-
duct “does not appear to be of such character as to render the
use of [the grievance-arbitration] machinery . . . futile.”
Deferral to arbitration has occurred in cases in which charges
of illegal unilateral changes by employers have been filed. For
example, in Southwestern Bell Telephone Co.,198 NLRB 569,
570 (1972), the Board overruled the trial examiner’s decision
that the employer’s unilateral action precluded the arbitration
process by finding that the “dispute arguably arises from the
collective-bargaining agreement between the parties and that it
should be submitted for resolution under the grievance and
arbitration provisions set out therein.” Furthermore, the Board
has held Collyer prearbitral deferral of unfair labor practice
charges challenging unilateral changes is appropriate even
where no specific contractual provision’s meaning is in dispute.
See, e.g., Inland Container Corp., 298 NLRB 715 (1990) (uni-
lateral imposition of drug-testing program); E. I. du Pont &
Co., 275 NLRB 693 (1985) (unilateral changes in certain work
schedules); Standard Oil Co., 254 NLRB 32, 34 (1981) (fact
that examination is not pinpointed in contracts as a conceded
management prerogative is insufficient reason for disregarding
proof, if any, that parties intended to permit employer to give
such tests when appropriate).
In light of the presumption towards deferral to arbitration if
it is part of the parties’ collective-bargaining agreement, unfair
labor practices, if effective grievance machinery is in place, this
case should be deferred to arbitration.
Alleged Unfair Labor Practices—Unilateral Activities
of Respondent
It is well-established Board law that it is a violation of
Section 8(a)(5) of the National Labor Relations Act for an
employer to unilaterally institute changes regarding matters
that are subjects of mandatory bargaining under Section 8(d).
NLRB v. Katz, 369 U.S. 736 (1962). Under Civil Service
Employees Assn., 311 NLRB 6 (1993), in order for the em-
ployer’s unilateral action to be determined unlawful there
must be “a material, substantial and significant change” in
those terms in conditions. (See also Murphy Diesel Co.,184
NLRB 757 [1970]).
Respondent does not dispute that it unilaterally imple-
mented and distributed an employee handbook on April 1,
2005, which is during the time that the agreements between
the Respondent and the Union (covering the Lawrence Ave-
nue and the Residences bargaining units) were in effect.
Respondent does dispute that the relevant provisions,
which are alleged in the complaint, in the employee hand-
book constitute mandatory subjects of bargaining under Sec-
tion 8(d). The General Counsel contends that the differences
between the employee handbook and the collective-
bargaining agreements were in the areas of vacation days,
holiday leave, hours of work, vacancy posting, transfers in
and out of units, disciplinary standards, grievance and arbi-
tration procedure, personnel files, and separation from em-
ployment.
The General Counsel contends that the unilateral changes
regarding vacation scheduling, floating holidays, hours of
work, job postings, transfers, disciplinary standards, and the
grievance and arbitration procedure all constituted subjects
of mandatory bargaining under relevant Board precedent,
and such unilateral changes establish a rejection of the col-
lective-bargaining agreement.
The unilateral changes alleged are:3
1. Vacation scheduling has been held to constitute a sub-
ject of mandatory bargaining in Migali Industries, 285
NLRB 820, 825–826 (1987); see also Blue Circle Cement
Co., 319 NLRB 954, 960 (1995) (where “the Company’s
new restriction on its plant employees’ freedom to schedule
vacations was a substantial change affecting a condition of
employment.”).
2. Changing floating holidays has been held to be a man-
datory subject of bargaining. E. I. du Pont De Nemours &
Co., 259 NLRB 1210, 1211 (1982). This was an issue in
collective-bargaining negotiations.
3. Hours of work and work schedules have been held to
be subjects of mandatory bargaining in a long line of Board
cases, including Carpenters Local 1031, 321 NLRB 30, 31
(1996); and Sheraton Hotel Waterbury, 312 NLRB 304, 307
(1993), in which the Board held specifically that changes in
employees’ hours of work are mandatory subjects of bargain-
ing.
4. Elimination of job postings have been held to be a sub-
ject of mandatory bargaining in Beverly Health & Rehabili-
tation Services, 335 NLRB 635, 656 (2001) (where “failing

3 These violations are alleged specifically in the complaint.
UNITED CEREBRAL PALSY OF NEW YORK CITY 613
to post a new . . . position” was considered a term or condition
of employment).
5. Changes regarding transfers have been held to be subjects
of mandatory bargaining under Southwestern Bell Telephone
Co., 247 NLRB 171, 173 (1980) (where “Inplant promotions . .
. and transfers, as well as nondiscrimination provisions, are
mandatory bargaining subjects.)
6. Changes to the disciplinary standards are found to be
mandatory subjects of bargaining. See Toledo Blade Co., 343
NLRB 385, 387 (2004); see also Migali Industries, 285 NLRB
820, 821 (1987) (progressive discipline system held to be man-
datory subject of bargaining); Electri-Flex Co., 228 NLRB 847
(1977) (written warning system of discipline held to be manda-
tory subject of bargaining).
7. Changes in the grievance and arbitration procedures have
also been held to be mandatory subjects of bargaining. See,
e.g., U.S. Gypsum Co., 94 NLRB 112 (1951); Electrical Work-
ers UE v. NLRB, 409 F.2d 150 (D.C. Cir. 1969), enfd. 164
NLRB 563 (1967).
I find these unilateral changes are not sufficient to establish a
rejection of the collective-bargaining agreements in issue.
The most troubling unilateral change is the handbook’s
grievance provision. Respondent inserted in its handbook, two
preconditions before applying the grievance procedures as set
forth in the parties’ collective-bargaining agreement. These
preconditions are that (1) the employees must discuss with their
immediate supervisors any questions or complaints, and (2) if
not satisfied, the employee should then talk to their program
director. If the grievance is not resolved, then the employees
can file a grievance with the Union pursuant to the grievance
procedure set forth in the parties’ collective-bargaining agree-
ment.
This unilateral change is troubling because the employees
must try to resolve their grievance, as set forth above, without
union participation, and before a formal grievance can be filed
with the Union. However, an employee still has the ultimate
right to invoke the contractual grievance procedures. I find
Respondent’s unilateral change in the grievance procedure
troubling, but not sufficient to establish a rejection of the col-
lective-bargaining agreement for the reasons set forth above.
Counsel for the General Counsel also contends that a hand-
book provision requiring that employees may be asked to sub-
mit medical documentation for any absence due to illness, and
non-medical documentation for nonmedical absences is viola-
tive of Section 8(a)(1) and (5) of the Act, and evidence of a
rejection of the collective-bargaining agreement.
In view of the broad scope of Collyer, I find this unilateral
change does not amount to a rejection of the Collyer doctrine
for the reasons set forth above.
The General Counsel further contends that Respondent had
the right to change and or eliminate employees’ terms and con-
ditions at any time, and without advanced notice. Specifically,
the handbook states in relevant part:
UCP/NYC’s personnel policies, practices and benefits are pe-
riodically reviewed and are subject to change. The Agency
may change, cancel or suspend any of its personal policies at
anytime without advance notice, although where and when
practical, UCP/NYC will notify employees of significant
changes through Administrative Memoranda or by another
means. However, no individual supervisor or administrator
may independently alter the personnel practices described
in the Handbook.
Additionally the handbook states:
I realize that it is my responsibility to become familiar with
the Handbook, to comply fully with the policies and proce-
dures contained in the Handbook and that such policies
may be revised from time to time, with or without prior no-
tice to me. I further realize that if there is a conflict be-
tween one or more Agency policies, the most recently is-
sued policy will apply.
I find such unilateral change is within the scope of Collyer
and I find it is not sufficient to establish a rejection of the
collective-bargaining agreement for the reasons set forth
above.
Counsel for the General Counsel relies on Heck’s, Inc.,
293 NLRB 1111 (1989), to establish that the above unilateral
changes should not be deferred because they establish a re-
jection of the parties’ collective-bargaining agreement.
Heck’s is a case involving two facilities, a union facility
and a nonunion facility. In this connection the Board stated:
The consolidated amended complaint alleges that certain
conduct of the Respondent was unlawful at both of the Re-
spondent’s facilities involved in this case: Its unionized re-
tail store in Wheeling and its non-unionized warehouse in
Nitro. Thus, only some of the issue[s] before us could be
deferred to the contractual “Dispute Procedure” in effect at
the Wheeling location. Because we must determine at least
a part of the instant dispute, there is no compelling reason
for deferring other aspects of the dispute to the grievance
arbitration machinery at Wheeling, and we decline to do so.
Thus, I find a reliance on Heck’s is inapplicable to the al-
leged unilateral changes in the instant case.
In conclusion I find, that in the instant case there are no
impediments to deferral. I also find that deferral will fulfill
the Act’s mandate to foster the practice and procedure or
collective bargaining.
CONCLUSIONS OF LAW
1. At all times material herein Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent and the Union are parties to collective-
bargaining agreements with the Residences facility concern-
ing an appropriate unit within the meaning of Section 9(c) of
the Act:
All full-time and regular part-time Senior Residential Pro-
gram Specialists, Residential Program Specialists, Cooks,
Housekeepers, Licensed Practical Nurses, Administrative
Assistants, Physical Therapist Assistants, excluding all
other employees including Managerial Employees, Confi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD614
dential Employees, Supervisors and Guards, as defined in the
Act.
and with the Lawrence Avenue unit covering:
All full-time and regular part-time physician assistants, com-
puter training specialists, occupational therapists, physical
therapists, registered nurses, physicians, psychologists, speech
pathologists, audiologists, dieticians, social workers, assistant
teachers, habilitation assistants, program assistants, adminis-
trative assistants, recreation assistants, social worker assis-
tants, certified occupational therapy assistants, physical ther-
apy assistants, licensed practical nurses, custodians, and sup-
portive employment specialists employed by the Employer at
its 160 and 175 Lawrence Avenue, Brooklyn, NY facilities,
excluding all other employees including confidential employ-
ees, office clerical employees, managerial employees, su-
pervisory employees and guards.
4. This case should be deferred pursuant to Collyer Insu-
lated Wire, 192 NLRB 837 (1971).
REMEDY
Jurisdiction of this proceeding is retained for the limited
purpose of entertaining an appropriate and timely motion for
further consideration on the proper showing that either (a)
the dispute has not, with reasonable promptness after the
issuance of this Decision, been either resolved by amicable
settlement in the grievance procedure or submitted promptly
to arbitration, or (b) the grievance or arbitration procedures
have not been fair and regular or have reached a result that is
repugnant to the Act.
[Recommended Order omitted from publication.]