United Federation of Teachers Welfare Fund

National Labor Relations Board - Board Decisions

Nov 26, 1999

330 N.L.R.B. 122 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
United Federation of Teachers Welfare Fund and
Daniel Barton and United Industry Workers
Local 424 and Regina Tovbin. Cases 2–CA–
28334, 2–CA–28414, 2–CA–28511, 2–CA–28597,
2–CA–31414, 2–CA–28388, 2–CA–28389, 2–CA–
28444, 2–CA–28726, 2–CA–29125, 2–CA–29239,
2–CA–29240, 2–CA–29745, 2–CA–29762, 2–CA–
29985, 2–CA–30493, 2–CA–31379, 2–CA–29094,
and 2–CA–29361
November 26, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 10, 1999, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The Respon-
dent 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 and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Federation of Teach-
ers Welfare Fund, New York, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

Judith M. Anderson, Esq. and Gregory P. Davis, Esq., for the
General Counsel.
Joel Spivak, Esq. and Arthur J. DiBerardino, Esq. (Mirkin &
Gordon, P.C.), of Great Neck, New York, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on 11 days between
May 4 and June 23, 1998. The complaint alleges that Respon-
dent United Federation of Teachers Welfare Fund violated
Section 8(a)(1), (3), and (5) of the Act in numerous ways. Re-
spondent denies that it has engaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent on October 20,
1998, and the reply brief filed by the Respondent on November
6, 1998, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office in New York, New
York, is engaged in the business of administering benefits to
New York City teachers. Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that United Industry
Workers Local 424 is a labor organization within the meaning
of Section 2 (5) of the Act.

1 I granted the General Counsel until January 20, 1999, to file a reply
brief.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The United Federation of Teachers Welfare Fund provides
supplementary benefits to New York City teachers. The Fund
supplements the teachers’ medical plan, it provides disability
and death benefits and it runs programs for retired teachers.
Jeff Kahn was the director of the Fund until September 1995.
Arthur Pepper is now the director of the Fund.2 The Fund has
several departments: a Disability and Death Benefit unit, a
claims unit, an accounting department, a member services unit,
a retiree division and an information services unit. A total of
less than 100 people work at the Fund. Of those, approximately
35 employees have been represented by Local 424 since 1993,
and about 35 others have been represented by Local 153,
OPEIU since sometime in the 1960s.
Local 424 was certified as the representative of the following
unit:

All full-time and regular part-time employees of the
Employer, excluding all employees covered by the current
collective-bargaining agreement between the Employer
and Office and Professional Employees International Un-
ion, Local 153, AFL–CIO; all professional employees, su-
pervisors and guards as defined in the Act.

The Welfare Fund and Local 424 negotiated a contract with
a term from May 15, 1994, through November 30, 1996. Local
424’s area director with responsibility for employees of the
Fund is Frank DeFilippi. Members of the bargaining unit who
were shop stewards and served with DeFilippi on the negotiat-
ing committee were Daniel Barton, John Amato, Richard
Schluger, Eric Stone, and Regina Tovbin.
The Fund is a separate entity from the United Federation of
Teachers. The UFT is the Union which represents New York
City teachers.
The record shows that there is a history of acrimony in the
relations between Local 424 and the Respondent Fund. In Oc-
tober 1994 Local 424 leafleted a UFT delegate meeting and
distributed a document accusing the Respondent Fund of many
unfair labor practices and “union busting.” The document at-
tacked the then president of the UFT and the UFT leadership.
The president of the UFT is a trustee of the Respondent Fund.
Other trustees of the Fund are employees of the UFT. Pepper,
who did not attend the delegates’ meeting, heard that there had
been leafleting from a trustee of the Fund. The trustee was
disturbed and told him that there was something going on at the
Fund and that the employees seemed very upset. Pepper testi-
fied that when he came to the Fund in October 1994 as assistant
director, one of the purposes for which he was brought in by the
trustees was to get an accurate picture of what was going on
and to settle the labor relations problems.3 Pepper meets with
the trustees of the Fund four times a year. He does not report to
2 Pepper joined the Fund as assistant director in November 1994 and
he was named director in September 1995.
3 Pepper had been an advocate for the UFT and was familiar with la-
bor relations.
330 NLRB No. 25
UNITED FEDERATION OF TEACHERS WELFARE FUND 123
them on a daily basis. Shortly after he came to the Fund in
1994 Pepper met with Local 424 Agent Frank DeFilippi and
settled seven charges pending at the NLRB. Pepper settled an
insubordination matter involving Barton that was then pending.
In September 1995 right after Pepper became director of the
Fund, there was a news broadcast featuring interviews with
Barton, Tovbin, DeFilippi, Amato, and Pepper. Pepper could
not recall much about the content of the broadcast by the time
he testified in 1998, but he recalled that he was not happy about
it. However, none of the trustees criticized his job performance
and Pepper was not embarrassed.
B. Credibility of the Witnesses
Daniel Barton had excellent recall of the facts necessary to
prove the General Counsel’s case but he was uncooperative and
resistant on cross-examination by counsel for the Respondent.
Barton even tried to avoid giving the names of his direct super-
visors when asked to do so by counsel for the Respondent.
Barton constantly had to be pinned down to give the most obvi-
ous kind of information. Barton insisted on giving a version of
the facts that was favorable to the General Counsel even when
confronted with documentary evidence that showed his testi-
mony to be inaccurate. I formed the impression that Barton
would testify to anything that fit his view of the issues in the
instant case without regard to the actual facts. I shall not rely
on Barton’s testimony where it is contradicted by more credible
evidence.
Frank DeFilippi denied most facts that might be helpful to
the Respondent and he often had to be prodded with documents
that revealed the true state of his knowledge. DeFilippi was
unwilling to recall the answers to questions posed by counsel
for the Respondent and he constantly changed his answers in an
effort to avoid being pinned down to a single answer. When
testifying about certain events, DeFilippi admitted that what
had occurred was different from what he had set down in writ-
ing concerning the events. I conclude that DeFilippi will write
or say anything, no matter how outrageous the departure is
from the facts as he knows them, and then he will change his
testimony when confronted with the truth. I will not rely on
DeFilippi’s testimony where it is contradicted by more credible
evidence.
Regina Tovbin was not a credible witness. She denied cer-
tain facts even when she was confronted with their existence in
documents she herself had written. Tovbin resisted recalling
facts that might be helpful to Respondent. After observing her
closely during her very lengthy testimony, I came to the con-
clusion that she viewed her testimony as an acting exercise
rather than as a serious occasion requiring accurate statements
under oath. I shall not rely on Tovbin’s testimony where it is
contradicted by more reliable evidence. I note that Tovbin’s
testimony was replete with hearsay because she insisted on
giving long, rambling and unresponsive answers.
Reuben Torres provided a resume to the Fund inaccurately
claiming that he was the holder of a Bachelor of Science degree
granted in 1990 by Jersey State College. When questioned
about this, Torres said that he did not know how his resume
came to be written in that manner. He characterized his false
claim to a college degree as a “typo.” Torres stated that he had
not read his resume before he provided it to the Fund. I con-
clude that Torres does not understand the need to testify accu-
rately. I shall not credit Torres’ testimony where it is contra-
dicted by more reliable evidence.
Pamela Wood was the most impressive witness to testify.
She was responsive to the questions and cooperative with all
counsel who questioned her. Her demeanor reflected her re-
solve to testify fully and accurately without any attempt to
evade cross-examination. I shall credit Wood’s testimony.
The other witnesses impressed me as cooperative and truth-
ful. They recalled events to a greater or lesser degree, but it is
expected that witnesses will recall some details imperfectly. I
am convinced that these witnesses testified to the best of their
recollections at the time of the hearing.
C. The Building Policy Issue
John Amato was employed as a computer programmer ana-
lyst in the information systems unit from 1989 to 1995. Amato
was active in support of Local 424; he was a shop steward and
he participated in the negotiations for a collective-bargaining
agreement after the Union was certified. His direct supervisor
was Pamela Wood, the manager of applications development at
the Fund. Amato testified that in November 1994 Greta War-
shaviak, director of the information systems unit, conducted a
meeting during which someone said that there was a building
policy that employees had to leave the building as quickly as
they could after their shifts ended. Amato asked Warshaviak if
there was a memorandum setting forth this building policy.4
She replied that a memo had been issued a long time ago and
that she would try to find it. Amato never received a copy of
this document. He did not recall being told that a memorandum
did not in fact exist, nor could he recall whether there had been
a meeting of the entire department to discuss the building pol-
icy. Local 424 Area Director DeFilippi testified that he had
instructed Amato to make a request for information after Amato
informed him that some employees were being told to leave the
building at quitting time. DeFilippi testified that he attended a
June 1995 conference with Fund Director Arthur Pepper and
Amato where Pepper informed him that there was no building
policy in writing. On direct examination by counsel for the
General Counsel, DeFilippi testified that at this meeting he
asked if the policy applied to all employees or just to his mem-
bers and that Pepper gave him an evasive answer. On cross-
examination by counsel for Respondent, DeFilippi recalled that
he had a series of conversations with Pepper about the building
policy after Amato filed his written request. After much prod-
ding, DeFilippi acknowledged that Pepper had informed him
shortly after November 1994 that there was no written policy
and that employees had to leave at the end of the workday.
DeFilippi did not ask Pepper to withdraw the policy and he did
not demand negotiations about the policy.
Pepper testified that soon after he came to work at the Fund,
Warshaviak informed him of a series of thefts of personal prop-
erty and computer equipment. Warshaviak said that employees
stayed around the workplace after hours. Pepper learned that
other departments did not permit employees to stay after hours,
and he told Warshaviak that employees should not be in the
workplace without supervision. No employees should be per-
mitted to remain after the office was locked at the end of the
day. Pepper conducted a meeting with department employees
in December 1994 where he told them to leave after their quit-
ting time unless a supervisor was there and gave them permis-
sion to stay. This policy applied to all employees, not just to

4 Amato also sent a written request to Warshaviak dated November
18, 1994.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
members of Local 424. Pepper stated that after he received a
request for a copy of the policy he told Amato and then De-
Filippi that no written policy existed. Pepper told both of them
that all employees were supposed to leave at the end of the day
unless a supervisor stayed with them.
The General Counsel alleges that Respondent unlawfully
failed to furnish a written policy and unlawfully delayed re-
sponding to the Union’s request for a copy of the policy. I
credit Pepper that there was no written policy and that he
promptly informed both Amato and DeFilippi of that fact. As
shown above, DeFilippi admitted that shortly after the Novem-
ber 1994 request for information, Pepper told him that no writ-
ten policy existed but that all employees had to leave the work-
place at the end of the workday. I find that there was no delay
and that the appropriate information was furnished to the Un-
ion. The General Counsel alleges that Respondent unilaterally
announced and implemented a new building access policy
without bargaining with the Union and discriminatorily applied
the policy to union members. The evidence shows that other
departments in which Local 424 members worked had required
their employees to leave after their shifts ended, but that this
rule had lately not been enforced in the information systems
unit. Pepper instructed Warshaviak to enforce the rule after a
series of thefts occurred. The evidence is clear that the policy
applied to all Fund employees, not just to union members. I
find that Respondent did not unilaterally institute a new rule
and did not discriminatorily apply it to Local 424 members.
D. Reuben Torres
Reuben Torres worked in the information systems unit pro-
viding personal computer (PC) user support from November
1993 to April 1996. Torres was a shop steward from January to
April 1996. On February 17, 1996, Torres filed a grievance
alleging that he had been discriminatorily denied a promotion
to end user/PC specialist. He requested promotion and retroac-
tive backpay. Torres recalled that there was a first-step griev-
ance meeting with Pepper and Shop Steward Barton at which
Pepper promised to review the grievance and get back to Bar-
ton. On March 3, 1995, Shop Steward Amato filed a request
for information in connection with Torres’ grievance. Amato
requested any documents which would show that Torres was
not performing adequately, copies of any resumes received
from job applicants for the position and the Fund’s EEO-1 re-
port. On March 28, Amato wrote to Pepper repeating his re-
quest for the information so that a step-2 grievance could be
held. Amato testified that he got no response to his requests.
Amato could not recall attending a meeting with Pepper about
the Torres’ grievance.
Pepper testified that after he received the March 3 informa-
tion request, he informed DeFilippi that he had copies of the
resumes but that the other documents requested by Amato did
not exist. At about this time, Amato was away on jury duty.
Following Amato’s return to work in May, Pepper met with
Torres, DeFilippi, and Amato. Pepper showed them the re-
sumes that the Fund had received. He informed those present
that Torres had lied about his education on his resume and that
that Torres did not have the skills for the job. In spite of this,
Pepper offered to give Torres the title he wanted without a sal-
ary increase, and he said that the Fund would pay for training to
improve Torres’ skills. All present shook hands on that settle-
ment. On July 13, DeFilippi wrote to Pepper asking for a writ-
ten settlement agreement. Pepper replied with a letter stating
that the agreement had been faxed to DeFilippi on June 21.
Pepper again sent DeFilippi a copy of the agreement and stated,
“Please read the attached settlement, propose any changes and
return it to me for signature.” DeFilippi returned a signed copy
of a rewritten settlement which contained a number of changes.
Among the changes was a provision that “in the event the em-
ployer grants a pay increase to others in the title PC End Use
Support Specialist, Mr. Torres will receive an equal amount.”
Torres testified that he discussed the settlement with Barton.
The documentary evidence shows that he and Barton drafted a
third proposed settlement agreement which provided that Tor-
res would receive a raise along with the higher title. Torres
stated that after he discussed the settlement with DeFilippi and
Barton, he received a telephone call from Pepper. According to
Torres, Pepper asked how he felt about the grievance and then
said that he could not accept the settlement that Local 424 had
provided and that the Union had lied and stolen.
Pepper testified that Torres had called him at the office and
requested that Pepper telephone him at home. In response to
Torres’ request, Pepper called him on August 8, 1995, and
spoke to him for 22 minutes. Torres told Pepper that he was
not happy with the settlement because he wanted more money.
Pepper replied that the settlement was what he had offered at
the table and what they had all shaken hands on. Pepper said,
“I don’t believe you guys, you lie, we shook hands, everyone
agreed, you looked me in the face and said you would accept
the settlement.” Pepper said he would abide by the settlement
and that Torres would not get more money. Torres spoke about
his relationship with his supervisor, Sonny Kapoor, and Pepper
advised him to talk to Kapoor and learn from him. Pepper de-
nied offering Torres more than the original settlement, he de-
nied telling Torres that it was futile or bad to work with Local
424 and he denied threatening Torres.
Torres’ failure to receive a promotion was never brought to
arbitration and the Union filed no further requests for informa-
tion. Eventually, Torres took a job with another organization.
The General Counsel asserts that Respondent refused to pro-
vide the union information relevant to the Torres grievance. I
credit Pepper that he informed DeFilippi that the only informa-
tion in the possession of the Fund consisted of resumes submit-
ted for the disputed position. I credit Pepper that as soon as
Amato returned from jury duty and a meeting was held, he gave
the requested information to Local 424. The General Counsel
alleges that Pepper told Torres that it would be futile to resolve
pending grievances through the Union and that Pepper by-
passed the Union and bargained directly with Torres. I credit
Pepper that he telephoned Torres at home at Torres’ request. I
credit Pepper that Torres said that he was not happy with the
settlement because he wanted more money. I credit Pepper that
he told Torres that he would abide by the settlement they had
shaken hands on and that Pepper expressed his exasperation
that Local 424 was apparently not abiding by the agreement
and had lied about its intention. Pepper’s comments were not a
threat that it was futile for Torres to rely on the Union. Indeed,
Pepper told Torres that he fully intended to stick to the bargain
that Local 424 had made on Torres’ behalf.
E. Valquiria Green
The complaint alleges that the Fund bypassed the Union and
dealt directly with Green and entered into a settlement agree-
ment with Green providing that she cannot discuss the terms of
the agreement with the Union.
UNITED FEDERATION OF TEACHERS WELFARE FUND 125
In United Federation of Teachers Welfare Fund, 322 NLRB
385 (1996), the administrative law judge found that the Welfare
Fund had violated Section 8(a)(1) of the Act by threatening
Valquiria Green with reprisals and discharge if she utilized the
Union to represent her and that the Fund had violated Section
8(a)(3) of the Act by decreasing Green’s responsibilities and
terminating her because she used the Union to represent her in a
meeting with the Fund. Green had been a communications
coordinator for the Fund since 1993, planning retiree events
and writing documents to be sent to retirees. Green claimed
that she was being harassed and discriminated against because
she was a “foreigner.” It is clear from the judge’s decision that
Green was subject to repeated criticisms regarding her work.
Green’s efforts to work things out with various supervisors and
managers did not produce a solution.5 In January 1994, Green
filed a charge with the New York City Human Rights Commis-
sion and she requested a meeting with the UFT general man-
ager and her union representative, DeFilippi.6 The judge found
that the general manager of the UFT threatened Green in con-
nection with the requested meeting. Many of Green’s duties
were given to other employees to perform. In April 1994,
Green was terminated by the Welfare Fund and she was given a
position at the UFT. Local 424 filed various charges in connec-
tion with actions taken against Green beginning in February
1994. In May 1995, Green was rehired by the Welfare Fund in
an attempt to settle the case. According to the judge’s May
1996 decision, the Charging Party Union and the Welfare Fund
had entered into a non-Board settlement agreement pursuant to
which Green was rehired by the Fund. The Regional Director
had not approved the settlement agreement and the Union had
not withdrawn the charges. Therefore, the judge found that the
Regional Director was not barred from proceeding with the
unfair labor practice proceeding. The record before the judge
showed that Green had not suffered any loss of earnings or
benefits. The Board affirmed the judge’s findings. On June 27,
1997, the Regional Office found that there had been compli-
ance with the Board Order in the cases relating to Green and
the cases were closed.
In the instant case, Green testified that after she was rehired
by the Welfare Fund she went on maternity leave in November
1996. Green did not return to work at the Fund. On May 28,
1997, Green and the Welfare Fund entered into an agreement
settling Green’s complaints with the Equal Employment Oppor-
tunities Commission, the New York City Human Rights Com-
mission and the NLRB. Green received an undisclosed sum of
money from the Fund and she signed a general release. Green
agreed that her job with the Fund was terminated as of May 15,
1997. Green and the Fund agreed not to disclose the terms of
the settlement agreement to any nonparty, with certain excep-
tions not material herein. Green was represented by a law firm
in the settlement agreement process.
Green testified that Shop Steward Barton and some people
from Region 2 of the NLRB had asked her about the settlement
agreement and that she had replied that she could not discuss it.
Green said, “I was afraid to discuss it.” Green was not asked
who or what she was afraid of. I do not find that the record

5 These managers and supervisors are not individuals involved in the
instant case.
6 The judge found that Mel Hester, general manager of the UFT, had
apparent authority to act on behalf of the Welfare Fund in its dealings
with Green.
contains any reliable testimony from which I can make any
assumptions about Green’s fear. There is no basis for the asser-
tion in General Counsel’s brief that Green was afraid of repri-
sals from the Fund if she discussed her settlement. DeFilippi
testified that he telephoned Green and left a message asking for
information about the settlement, but Green did not return his
call. DeFilippi wrote to Pepper requesting information about
the settlement. In response, he was informed that his request
had been forwarded to Green’s attorney. On July 31, 1997,
Green’s attorney wrote to Joel Spivak, Esquire, attorney for the
Fund, describing an authorization obtained from Green. Ac-
cording to her attorney, Green

authorized me to permit you to waive the confidentiality pro-
visions as contained in . . . the Settlement Agreement . . . for
the limited purpose of making a copy of same available to the
NLRB, provided however that any such copy made available
to the NLRB be redacted as to the amount of payment she in
fact received in settlement of the matter.
It is not her intention nor am I authorized to permit the
release of a copy of the Agreement to her union.

I note that Joint Exhibit 2 in this proceeding is a copy of the
settlement agreement and that the actual amount of the payment
has been redacted from the exhibit.
As noted above, in May 1995 the Union herein entered into
the informal settlement pursuant to which Green was rehired by
the Fund. That settlement dealt with the unfair labor practice
charges which the Union had filed on Green’s behalf. Al-
though the case went to trial because the Union did not with-
draw the charges, the only practical remedies afforded by the
judge’s decision and the subsequent Board Order were the
cease and desist language and the posting of a notice. Thus,
any money Green received from the May 1997 settlement
agreement with the Fund was on account of Green’s out-
standing claims with the EEOC and the City Human Rights
Commission.
DeFilippi testified that he wanted to see a copy of the May
1997 settlement because he wanted to police the severance pay
and out-placement provisions of the collective-bargaining
agreement between the Union and the Fund. In fact, the Local
424 collective-bargaining agreement contains no such provi-
sions. No showing has been made that the settlement agree-
ment of May 1997 is presumptively relevant to the Union’s
duties as the representative of the unit.
The record does not show that Respondent requested the
nondisclosure language in the settlement agreement and it is
entirely possible that Green’s attorney inserted the provision.
Further, the record does not show that Respondent urged Green
to refuse to furnish a copy of the agreement to the Union. All
that appears on the record is that Green’s attorney told the
Fund’s attorney that Green did not authorize release of the
document to the Union. Thus, there is no evidence that Re-
spondent coerced Green into abandoning union representation.
Moreover, when Green was negotiating the settlement agree-
ment with the Fund, her focus was on settlement of the EEOC
and City Human Rights cases in which there is no evidence that
the Union was representing her. The NLRB case was about to
be closed. Green’s part in the negotiations was conducted by
her private lawyer. The General Counsel seems to take the
position that it was incumbent on the Fund to bring the Union
into these negotiations. It is hard to understand what practical
use this would have been to Green: since she did not request the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
Union’s participation I must assume that she did not think the
Union’s presence would enhance her chances of a favorable
outcome. The focus of the negotiations was on the non-NLRB
matters and I can see no reason why the Fund would need the
Union’s approval to settle these cases. It is important to em-
phasize that the Union had already participated in the non-
Board settlement of the NLRB case it had brought on behalf of
Green. Indeed, the compliance phase of that case was closed
by the Regional Office on June 27, 1997.
F. Voluntary Early Retirement Incentive Program
The General Counsel urges that the Fund took unilateral ac-
tion in violation of Section 8(a)(1) and (5) of the Act by insti-
tuting an early retirement plan without giving notice to or bar-
gaining with Local 424. The Respondent urges that Local 424
waived its right to negotiate over the terms of the plan.
The collective-bargaining agreement between Local 424 and
the Fund provides that:

Employees in the bargaining unit who meet the eligi-
bility requirements are covered by the UFT and UFT Wel-
fare Fund Employees Pension Plan.

During the negotiations for the contract, Local 424 had been
presented with a summary description of “The United Federa-
tion of Teachers and the United Federation of Teachers Welfare
Fund Employees Pension Plan.” This Pension Plan covers
employees of the UFT and employees of the Respondent Wel-
fare Fund. Some of these employees are not represented and
the rest are represented by varous unions including Local 424.
The summary description of the plan stated that the Pension
Plan is administered by a pension committee appointed by the
administrative committee of the UFT, by the board of trustees
of the Welfare Fund and by the Teachers Representative Union.
There is a separate Pension Fund established to pay the benefits
specified in the plan. The pension committee also administers
the Pension Fund.
DeFilippi testified that during the negotiations for the collec-
tive-bargaining agreement he requested and received a sum-
mary plan description and the actual trust document of the Pen-
sion Plan. DeFilippi testified that he was informed that there
was a pension committee that made decisions with respect to
the Pension Plan. DeFilippi stated that he was aware that the
Pension was an independent organization and that it was con-
trolled by trustees. DeFilippi testified that he knew that Re-
spondent Welfare Fund and its director did not control the Pen-
sion Plan.
The summary plan description given to the Union during the
negotiations provided:

The Pension Committee reserves the right to amend or mod-
ify the Plan (in whole or in part) at any time and from time to
time.

There is no dispute that during the negotiations, Local 424
informed Respondent in writing that, “The union accepts the
Funds current pension plan on behalf of unit employees.” (Sic.)
Pepper testified that in August 1996, Jeff Goldstein, the ad-
ministrator of the Pension Plan, told him that the trustees of the
Pension Fund were considering an early retirement incentive
and asked whether Pepper had any objection. Pepper did not
object. Thereafter, Goldstein gave Pepper a list of people eligi-
ble to participate in the early retirement scheme. Pepper tele-
phoned DeFilippi to inform him that the Pension Plan was of-
fering the incentive and Pepper told DeFilippi which unit mem-
bers would be eligible. DeFilippi did not demand bargaining
over this benefit nor did he demand that it be withdrawn.
On September 25, 1996, the pension committee of the UFT
and the UFT Welfare Fund Employees’ Pension Plan sent a
letter to employees of both the UFT and the Fund concerning a
voluntary early retirement incentive program. The program
was to be available to participants in the Pension Plan who met
certain age and service criteria. The program offered extra
retirement benefits to those employees who chose to retire early
on a voluntary basis.
DeFilippi stated that neither the pension committee nor the
Respondent Welfare Fund notified Local 424 in advance of
sending this letter to employees. However, DeFilippi said that
before September 25 he had heard “rumors” that an early re-
tirement incentive would be offered. After DeFilippi received a
copy of the committee’s letter, he did not object to the offer of
early retirement benefits and he did not request bargaining
about the offer. In January 1997, Local 424 filed a charge al-
leging a refusal to bargain.
As stated above, I do not find that DeFilippi is a reliable wit-
ness. I credit Pepper that he telephoned DeFilippi and informed
him which of the Local 424 unit members would be eligible to
take advantage of the early retirement benefit. Indeed, this
phone call is probably the “rumor” that DeFilippi testified he
had heard before receiving the letter on September 25.
Respondent asserts that the early retirement incentive offer
was not formulated by Respondent. The incentive was planned
by the pension committee of the Pension Fund and it was of-
fered by them directly to employees. Respondent points out
that during the collective-bargaining negotiations, the Union
accepted the Pension Plan on behalf of the unit employees with
full knowledge that the pension committee reserved the right to
change the plan. According to Respondent, this amounted to a
waiver of the Union’s right to negotiate over changes in the
plan. Finally, Respondent argues that the change effected by
the Pension Plan affected only a few people and was not a ma-
terial change.
The early retirement incentive program offered by the pen-
sion committee of the Pension Plan was clearly a modification
in the terms of the plan. Local 424 had accepted the Pension
Plan during negotiations with full notice that the pension com-
mittee reserved the right to amend or modify the plan. During
the collective-bargaining negotiations Local 424 had the oppor-
tunity to bargain for a different pension plan for its members,
but it chose to accept the plan that currently covered unit em-
ployees. Since that plan included a pension committee which
had the power to amend the Pension Plan, it could be argued
that Local 424 thereby consented to any modifications the pen-
sion committee might make in the future. See Mary Thompson
Hospital, 296 NLRB 1245, 1349 (1989). Moreover, DeFilippi
testified that he had actual knowledge that Respondent Welfare
Fund did not control the pension committee and that the man-
agement of Respondent could not vote on decisions relating to
the Pension Plan. DeFilippi testified with specificity that he is
familiar with the provisions of pension plans and that he knows
that such plans are administered by independent bodies. How-
ever, in Trojan Yacht, 319 NLRB 741 (1995), the Board held
that there was no valid waiver of the right to bargain over
modification of a pension plan because the language of the
consent to future modifications was not incorporated by refer-
ence into the collective-bargaining agreement. I need not de-
UNITED FEDERATION OF TEACHERS WELFARE FUND 127
cide the issue on this basis. As discussed above, I have found
that before September 25, 1996, Pepper notified DeFilippi that
certain unit members would be eligible to take advantage of the
retirement incentive. The Union thus had the opportunity to
bargain about the incentive before it was announced to the em-
ployees. Between the day that Pepper telephoned DeFilippi
and January 1997, DeFilippi did not request that the benefit be
withdrawn nor that there should be bargaining about it. As the
Board held in Associated Milk Producers, 300 NLRB 561, 563
(1990), “The Union’s filing an unfair labor practice charge did
not relieve it of its obligation to request that the Respondent
bargain over the proposed change.” I find that Local 424
waived any right to bargain about the early retirement incentive
by failing to request negotiations for over four months after it
learned of the incentive.
G. Vacation Policy
The General Counsel alleges that on January 20, 1998, the
Fund unilaterally changed its vacation policy without affording
Local 424 an opportunity to bargain, that the Fund failed to
furnish information requested by the Union from April 1
through May 28, 1998, and since May 28 delayed in furnishing
the requested information.
Pepper testified that he attended a grievance meeting in early
January 1998 at which Shop Steward Barton was representing
the grievant. After the meeting, Pepper told Barton that Re-
spondent would change its policies on vacation scheduling.
Pepper told Barton that the week before Christmas, Barton was
the only employee working in members services and that it was
unfair to expect one person to cover the whole unit. On Janu-
ary 20, 1998, Pepper sent a letter to DeFilippi stating:

Pursuant to the last paragraph of Article 22 of the Con-
tract, we have determined that to maintain an efficient and
balanced staff, we can no longer permit four employees to
take vacation at the same time in the Member Ser-
vices/Disability Unit. In the past, up to three employees
have requested and have been granted a full week off and
additional employees have requested and been granted in-
dividual days off, all during the same week. Such
scheduling has resulted in four of the nine employees in
the department being on leave at the same time. This is
particularly critical when there are also employees who
call in sick during the same period, thus leaving the staff
in a position where it cannot perform its job. We have
determined that the foregoing scheduling is inefficient for
the Welfare Fund and burdensome on the remaining staff.
Effective this year, employees will be permitted to
schedule their vacation with one employee allowed to be
off a full week and one or more employees permitted to
take individual and separate days in the same calendar
week. Thus, no more than two employees (rather than
four) may take simultaneous vacations. In addition, em-
ployees may take a maximum of two consecutive weeks
vacation at any time. This scheduling will provide an effi-
cient and balanced staff and is in accord with the opera-
tional requirements of the Welfare Fund.
If you have any questions, please do not hesitate to
contact me.

On January 22, DeFilippi replied with a letter accusing Pep-
per of changing the policy in order to retaliate for a grievance
filed by a unit member and asserting that the previous practice
was not burdensome as claimed in Pepper’s letter. DeFilippi
closed by stating:

If you execute the plan outlined in your letter, further
charges will be filed against the fund with the National la-
bor Relations Board.

On February 3, Pepper wrote to DeFilippi as follows:

Notwithstanding the contract language, I contacted
both you by letter and Dan in person to discuss this matter.
As usual, instead of responding with comments or propos-
als to resolve the issue, you made an apparent attempt of
intimidation by threatening additional NLRB charges. . . .
However . . . if you have something constructive to
add to the issue, contact me in the next few days. Other-
wise, I will assume that you prefer to file charges rather
than resolve the issue to the benefit of the employees and
the Welfare Fund. In the meantime, we must move for-
ward in scheduling vacations to maintain an efficient and
balanced staff at all times.

DeFilippi continued the correspondence on February 5 by
writing:

Your January 20, 1998 letter to us does not ask for any
type of discussion, it appears to mandate a change and you
seek to answer any questions we may have.
Far from being intransigent we have been requesting to
bargain with the fund for more than a year now and the
fund has refused to do so. We would like nothing more
than to discuss and bargain terms and conditions of em-
ployment with the fund of which your vacation scheduling
would be part of. [Sic.]

Article 22 of the collective-bargaining agreement provides,
inter alia:

Requests for vacation time shall be submitted in writ-
ing to the Employer on such advance dates as are estab-
lished by the Employer.
Within each department, seniority will apply to vaca-
tion selection, subject to the operational requirements of
the Employer to maintain an efficient and balanced staff.
The Employer’s discretion in determining its requirements
shall prevail unless it is determined to be arbitrary or ca-
pricious.

Barton testified that in the latter part of March 1998 employ-
ees Romaine Benny and Shirley Jordan complained to him that
the new vacation scheduling policy had prevented them from
scheduling their vacations as they had been used to do.
The General Counsel asserts that Pepper’s letter of January
20 announced a fait accompli and contained no offer to meet or
negotiate about the change. Pepper’s further letter of February
3 was no better, according to the General Counsel, because it
stated that the Fund would “move forward” in scheduling vaca-
tions according to its new policy.
The Respondent argues that it offered to discuss the vacation
scheduling matter with the Union but that DeFilippi did not
accept the offer. Respondent urges that DeFilippi’s letter de-
manded negotiations for a new collective-bargaining agreement
and did not address the vacation issue.
I credit Pepper that in early January 1998 he gave Shop
Steward Barton oral notice that the Fund intended to change
vacation scheduling practices to deal with a perceived problem
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128
created by overlapping employee vacations. I find that Pep-
per’s letter of January 20 gave Local 424 notice of proposed
changes and invited DeFilippi to call to discuss the changes.
Although the letter did not in so many words offer to bargain,
all that is required is that the employer give the Union notice of
proposed changes and an opportunity to bargain. This the letter
certainly did. Then, on February 3 Pepper specifically invited
DeFilippi to attempt to resolve the issue through discussions.
Although Pepper’s letter was not couched in the friendliest
terms, it clearly invited “comments and proposals” from the
Union. I do not agree with the General Counsel’s suggestion
that Pepper’s use of the phrase “move forward” precluded any
bargaining with the Union. I find that the import of the letter as
a whole was to inform Local 424 that although there was still
time to discuss the issue, the Fund would take steps to imple-
ment a new vacation scheduling plan unless it received some
word from the Union. It must be recalled that up to the date
Pepper wrote his letter the Union had not requested a meeting
and discussions; the Union had only threatened to file another
unfair labor practice. Indeed, even after Pepper’s February 3
letter DeFilippi did not request to meet and bargain. He replied
to Pepper on February 5 with a complaint that the Fund was not
negotiating a new contract and he referred to the vacation issue
only in the context of his complaint about a new collective-
bargaining agreement.
The Board has held that a union agent’s subjective impres-
sion that an employer has presented the union with a fait ac-
compli does not relieve a union of its obligation to request bar-
gaining. Only objective evidence, such as implementing a
change before giving notice to a union or informing a union
that a request for bargaining would be futile, excuses a union
from testing an employer’s good faith with a demand to bar-
gain. Haddon Craftsmen, 300 NLRB 789, 790–791 (1990). It
is not unlawful for an employer to present a change in condi-
tions as a decision already made where the decision is still ex-
ecutory and no steps have been taken to implement it. Southern
California Stationers, 162 NLRB 1517, 1543 (1967). In Had-
don, supra, the Board said:

[I]t is not unlawful for an employer to present a proposed
change in terms and conditions of employment as a fully de-
veloped plan or to use positive language to describe it. . . .
[W]hen a union receives notice that a change in terms and
conditions of employment is contemplated, it must fulfill its
obligation to request bargaining over the change or risk a find-
ing that it has lost its right to bargain through inaction. . . . In
this case, the Union waived its right by permitting days to
pass before the notice was posted and weeks to pass before
the change was effected without requesting bargaining. [Cita-
tions omitted.]

In the instant case, the Union had notice by January 20, both
orally and in writing, that the Respondent was working on a
plan to change vacations scheduling practices. But the Union
did not request bargaining over this issue. DeFilippi contented
himself with a sharp exchange of letters threatening an unfair
labor practice and complaining over the failure to negotiate a
complete successor contract, but he did not request bargaining
at any time before March when employees began complaining
of the change. I find that the Union waived its right to bargain
over the change in vacation scheduling practices.
On April 1, Barton sent Pepper a letter requesting certain in-
formation relating to the vacation scheduling dispute; the letter
mentioned preparations for filing an unfair labor practice
charge and a grievance. Pepper replied with a note stating that
he would be out of the office until April 20 and that he would
address the information request when he returned. On April 21,
Pepper denied Barton’s request for information on the ground
that there was no pending grievance relating to vacation sched-
uling and that any new grievance on the issue would be un-
timely. Finally, on June 3, Pepper responded to the information
request.
The information requested by Barton related to the occa-
sions, cited by Pepper, when too many employees were out of
the office and the workload on the remaining employees was
claimed to be burdensome. Barton also requested information
about the vacation policies applicable to nonunit employees of
the Fund. The Respondent asserts that Pepper either furnished
or provided access to all the available information. Neverthe-
less, the Respondent argues that it was under no legal obliga-
tion to provide the information because there was no pending
grievance to which the information was relevant and no griev-
ance could timely be filed by the time Barton made his request.
I have reviewed the documents provided to the Union and I
credit Pepper’s testimony that he complied with the Union’s
request for information to the extent possible. Where docu-
ments did not exist, Pepper explained that fact to the Union.
Some of the documents were in the General Counsel’s custody
and some were too voluminous to duplicate. In those instances,
Pepper offered to arrange for access so that the documents
could be inspected. To date, the Union has not made any effort
to view these documents.
There remains the issue of Pepper’s initial refusal to provide
the documents and the delay in providing them from April 21 to
June 3. Most of the information requested by Barton related to
the scheduling of vacations by unit members. The Union is
presumptively entitled to this information. In addition, Barton
requested information regarding vacation policies applied to
non-Local 424 represented employees of the Fund. This infor-
mation would have been helpful in evaluating the change in
vacation policy being implemented for Local 424 members
especially as it related to the Fund’s claim that too many em-
ployees were on vacation at the same time. I find that the re-
quested information was relevant and that it would have as-
sisted the Union in representing the unit members; therefore,
the Union was entitled to that information. August A. Busch &
Co., 309 NLRB 714, 720 (1992). By initially refusing to pro-
vide the information requested by Barton and by delaying the
ultimate response to the request, Respondent violated Section
8(a)(5) of the Act.
H. Daniel Barton
1. Increase in workload
At the beginning of 1995, Local 424 Shop Steward Daniel
Barton was a benefits specialist for the Respondent Fund in the
disability section. Barton received claims for the Fund, per-
formed an initial review, entered the data on the computer sys-
tem, sent claims for medical review or additional information
and assisted UFT members with problems relating to their
claims. After Barton was transferred to the general member-
ship section of the Fund in November 1995, he answered tele-
phone inquiries about benefits, insurance, and claims and he
dealt with member correspondence.
UNITED FEDERATION OF TEACHERS WELFARE FUND 129
Pepper testified that on March 14, 1995, Barton told him that
his supervisor, Diana Williams, had performed unit work. Ap-
parently, Williams had spoken to a doctor who was a medical
advisor to the Fund concerning a disability claim. Barton said
that Williams should not have spoken to the doctor because it
was his job to make decisions about disability claims and other
benefits. Pepper replied that managers and supervisors had the
right to speak directly to doctors about the claims. After Barton
had continued the discussion for a while, insisting on his point
of view, Pepper asked him if he didn’t have enough work to do
already. The discussion continued back and forth and, finally,
Pepper said, “We’ll have to take a look at the procedures.”
Barton then asked, “are you threatening me?” Pepper replied,
“like I’m going to kick your ass Dan? Dan go back to work.”
Pepper testified that he laughed and that Barton went back to
work. Pepper denied that he told Barton that he was filing an
excessive amount of grievances or spending too much time on
Union activities and he denied saying that someone should look
into Barton’s work.
Barton testified that he had discussed Williams’ performance
of unit work with Pepper and that the two disagreed about Wil-
liams’ right to do certain tasks. According to Barton, Pepper
said that Barton did not have very much work to do because
Barton was able to spend so much time on grievances, and
Pepper said that someone should look into Barton’s work.
Barton asked whether Pepper was threatening him and Pepper
said, “[Y]ou mean like I’m going to kick your ass.” Barton
continued to press his point of view about Williams performing
unit work. Barton testified that Pepper told him to go back to
work and then followed him out of the door twice repeating, “I
don’t think you have enough work to do, I think we need some-
body to look into what you’re doing.”
The General Counsel asserts that by Pepper’s statements,
Respondent threatened Barton with increased scrutiny of his
work in order to discourage him from filing grievances.
Pepper’s testimony and Barton’s testimony about the March
14 incident are remarkably similar. Pepper candidly admitted a
reference to kicking Barton’s ass, an intemperate remark that
does not redound to his credit. I have found that Pepper is a
more credible witness than Barton. I find that Pepper told Bar-
ton that he would look into the medical review procedures in
response to Barton’s complaint that Williams was doing unit
work. I do not find that Pepper said that he would scrutinize
Barton’s work because of his grievance activity.
Barton filed a grievance on April 7, 1995, alleging that as an
administrative benefit specialist it was his function rather than
the job of Supervisor Williams to participate in the medical
review of disability claims. Ultimately, the grievance was sus-
tained.
Barton testified that as a benefits specialist in the disability
section his duties were as follows: he spent 25 percent of his
time entering disability claims data into a personal computer,
he spent 15 percent of his time answering correspondence with
UFT members and doctors, he spent 15 to 20 percent of his
time responding to telephone inquiries and the remaining 35–40
percent of his worktime was devoted to reviewing medical
claims and conducting interviews with UFT members in the
office. Barton testified that correspondence from members was
received by the Fund’s mailroom where a supervisor would
place the initials of an employee on the document. After an
administrative assistant had logged the piece of mail into a
book it would be distributed to the employee who had been
assigned to deal with it. Barton testified that right after his
March 14, 1995, talk with Pepper about Williams performing
unit work, his volume of assigned correspondence increased.
Barton testified that he could tell that his work was increasing
because “I could feel it.” He stated that he took the correspon-
dence log book and did a tally from March 10 to 25 and found
that he was “receiving more correspondence than several of my
fellow workers.” Barton said that until the end of June, “I felt
like I was getting more.” In contrast to this vague testimony
about the correspondence assigned to him, Barton recalled
readily that during the 2-week period he examined he was also
handling 250 disability claims. Barton did not compare his
workload for the 2 weeks he tallied with his workload in any
other periods prior to or after March 10 to 25 nor did he check
to see whether his fellow workers were also receiving more
work than they had received prior to or following the 2-week
period.
Pepper testified that he did not direct Barton’s supervisors to
assign more work to him during this period. Pepper himself
has no role in assigning correspondence to the employees. The
supervisors rotate the daily task of reading letters as they come
in and they assign the work of responding to the letters accord-
ing to the subject matter.
The General Counsel asserts that the Fund assigned addi-
tional work responsibilities to Barton because of his union ac-
tivities.
I cannot find any unfair labor practice based on Barton’s
vague and unsupported feeling that he was assigned more cor-
respondence. Throughout the very lengthy testimony in this
case it was abundantly clear that Barton was exact and meticu-
lous in preserving every scrap of evidence that might prove that
the Respondent engaged in an unfair labor practice. In this
instance, Barton did not give any figures at all about how many
pieces of mail he was being given as opposed to the number of
letters assigned to the other employees.7 I find that the General
Counsel has not shown that the Respondent assigned additional
work to Barton.
2. Grievance handling
Article 4, section 4 of the collective-bargaining agreement
provides:

Employees shall not engage in Union activities on
work time except in connection with the grievance and ar-
bitration procedure, as specifically provided in this
Agreement or as otherwise mutually agreed.

Article 6 provides, inter alia:

DISCIPLINARY INTERVIEWS The Employer recognizes
the reasonably exercised right of an employee, upon request,
to have a shop steward present at a disciplinary interview by
management wherein a response by the employee is required
and wherein it is reasonably anticipated that disciplinary ac-
tion will result to that employee.

Article 7 of the contract provides for meetings among em-
ployees, stewards, and supervisors once a grievance has been
filed.
Barton testified that on April 7, 1995, he wanted to go to the
information services department to assist employee David Mar-
tin with a possible grievance. Martin’s regular shop steward,

7 For aught that appears from Barton’s testimony, he was getting
only one more letter a day than anyone else.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
John Amato, was on jury duty. Barton consulted with Supervi-
sor Williams who told him that he could go to the other de-
partment but not for “too long.”8 Barton went to information
services and told Supervisor Greta Warshaviak that he was
there to see Martin about an investigation. Warshaviak ex-
pressed the opinion that Martin had to use his lunch hour for
the investigation. After asking Barton to wait for about 10
minutes, Warshaviak told Barton that he could speak to Martin
for 20 minutes. Barton went to Martin’s office and the two
discussed Martin’s problem for 20 minutes. Martin resumed
work and Barton continued to sit next to Martin looking
through some papers Martin had given him. Barton testified
that since Warshaviak had said he could speak to Martin for 20
minutes, he was not prohibited from staying in Martin’s office
as long as he was not speaking to Martin. After a while, War-
shaviak came in and told Barton that Pepper wanted him back
right away. Barton testified that he telephoned Pepper and was
told by the latter to return right away, to take his lunch between
1 and 2 p.m. and to present himself at Pepper’s office at 2 p.m.
with a union steward for a disciplinary matter. Barton stated
that he did not get a steward but that he brought three employ-
ees with him as witnesses to Pepper’s office at 2 p.m. Pepper
told Barton that he was only allowed one witness. When Bar-
ton asserted that he could bring as many people with him as he
wished, Pepper said he could not see Barton. No meeting took
place that day.
Pepper testified that on April 7 Warshaviak informed him
that Barton had gone to a grievance in the information services
department. Pepper was surprised because he was not aware of
any grievance and he called Warshaviak to ask whether there
was a grievance he did not know about. Warshaviak said that
there was no grievance but that Barton had come over to meet
with Martin. Pepper instructed Warshaviak to tell Barton that
he could have 20 minutes for his investigation. After 1 hour
had gone by and it was close to Barton’s lunchtime, Pepper
called Warshaviak who informed him that Barton was still in
her department. Pepper telephoned Barton and instructed him
to take his lunch hour because other employees’ lunch sched-
ules would be thrown off if Barton were not at work at his regu-
larly scheduled time. In addition, Pepper asked Barton to see
him at 2 p.m. Pepper wanted to meet with Barton because he
had abused the permission that had been granted to him to meet
with Martin for 20 minutes. After speaking to Barton, Pepper
telephoned DeFilippi. Pepper told DeFilippi that they had a
problem in that Barton had walked off the job saying there was
a grievance when no grievance had been filed. DeFilippi
agreed that he would meet with Pepper and Barton to resolve
the issue in the future. Thus, when Barton came to see Pepper
at 2 p.m., Pepper told him that no meeting would be held at that
time. At a later date, DeFilippi met with Pepper and they
agreed that a shop steward could not walk off the job whenever
he wanted without checking with his supervisor to make sure
there was adequate coverage.
DeFilippi testified that during work hours a shop steward
must have permission to leave his job in order to investigate a

8 Barton testified that he needed supervisory permission to investi-
gate grievances during his worktime.
grievance. According to DeFilippi, Barton could not unilater-
ally decide to meet with other employees.9
Williams is no longer employed by the Fund.
The General Counsel alleges that the Respondent interfered
with Barton’s processing of a grievance when Pepper called
Barton out of the information services department, asserting
that Pepper’s call “was clearly meant to disrupt Barton’s inves-
tigation and processing of the employee’s grievance.”
The testimony shows that both DeFilippi and Barton agree
with the Fund’s position that shop stewards must have permis-
sion to investigate possible grievances during their worktime.
Barton had obtained Williams’ permission to absent himself,
but not for “too long,” and Warshaviak had explicitly told him
that he had 20 minutes to investigate with Martin. Neverthe-
less, Barton continued to sit in Martin’s office past the 20 min-
utes allotted to him. Pepper called Barton away when his ab-
sence threatened to interfere with other employees’ lunch
schedules and with the coverage in the office. Barton’s posi-
tion, that he somehow thought it was permissible to stay in
Martin’s office as long as he did not speak to Martin, is pure
sophistry. A reasonable person would interpret Warshaviak’s
instruction as limiting his time in the information services de-
partment to 20 minutes. The General Counsel has not shown
why 20 minutes was not long enough for Barton to investigate
the possible grievance with Martin. There is nothing on the
record to show that Barton could not have taken the papers
from Martin’s office for future use. Pepper’s instruction that
Barton should leave information services and continue with his
scheduled activities was proper under the contract language. I
do not find that Respondent violated the Act when Pepper di-
rected Barton to leave the information services department.
3. Removal of personal computer and discipline
The General Counsel asserts that the Respondent threatened
to remove and did remove a computer from Barton’s office
because of his activities as a shop steward, and that the Re-
spondent imposed excessive discipline on Barton.
On February 8, 1995, Pepper received a memo from Kathy
Woelfel, a member of the Local 424 bargaining unit in the dis-
ability department:

At 1:00 p.m. today, I received a call from a member
regarding disability. I was unable to help the member be-
cause once again, Dan Barton’s computer was inaccessi-
ble. This time the entire computer was locked. This has
happened on numerous occasions whether Dan is in the of-
fice or out to lunch. I spent almost 15 minutes trying to
locate this claim and did not locate the document.10 I in-
formed the member that I would have to call her back
when I located all of the paperwork. She was very un-
happy with my answer. . . .
This situation is very frustrating to me. It takes me en-
tirely too long to locate files when Dan’s computer is not
available to me either because he in inputting personal
work or it is locked or in a mode that I cannot escape.
I am asking you to please look into this matter. . . .
9 On rebuttal by the General Counsel, DeFilippi gave some testi-
mony about a grievance at the end of April. However, the testimony is
not clear and it does not seem to relate to this incident.
10 There existed a notation on a piece of paper for every claim that
was entered into the computer.
UNITED FEDERATION OF TEACHERS WELFARE FUND 131
P.S. At 1:25 p.m. Anna Jones was at Dan’s computer
and was unsuccessful because it was still locked while
Dan was out to lunch.

Before personal computers were introduced, the Fund func-
tioned with three mainframe computers. When personal com-
puters were acquired, they were not immediately given to all
employees. Barton was one of the first employees to receive a
personal computer because he was entering disability claims
information into such a computer. The personal computer sat
on a corner of Barton’s desk. As office procedures changed, it
became part of the duty of all disability department employees
to consider and review disability claims, and to answer UFT
members’ questions about pending claims.11 Eventually, all
employees required access to the personal computer in Barton’s
office.
As set forth in Woelfel’s memo, there were numerous in-
stances when other people could not gain access to the com-
puter in Barton’s office while a UFT member was on the tele-
phone asking about a pending claim. Further, Pepper testified
that on occasion he himself could not use the computer in Bar-
ton’s office to research a claim when Barton was speaking on
the telephone and the computer was locked up. After Pepper
received Woelfel’s complaint, he spoke to both Woelfel and
Jones about the problem. Pepper told Woelfel that he would
deal with the issue of access to the personal computer on Bar-
ton’s desk. A few weeks after receiving the Woelfel memo,
Pepper spoke to Barton and informed him that there was an
access problem and that the computer would be removed to a
location outside Barton’s office. Pepper told Barton that Woel-
fel and Jones used the computer almost as much as he did and
that they needed access to the computer all day long. Barton
asked how he would do his work, and Pepper replied that he
would speak to the information services department about the
issue. Pepper denied that he moved the personal computer out
of Barton’s office because of his Union activities. Pepper de-
nied telling Barton that the computer was being moved because
Barton filed grievances, and he denied saying that he would put
an end to Barton’s memoranda.
It took quite a while for information services to arrange for a
proper table and new wiring for the personal computer, and the
computer was not moved until about July 11, 1995. On the day
that Pepper was informed by information services that the com-
puter would be moved, Pepper told Barton about the change.
Pepper testified that Barton again asked how he would perform
his work and Pepper said they would talk about it after the
computer was placed in the new location. Later the same day,
Pepper and Barton’s direct supervisor, Diana Williams, went to
Barton’s office and Pepper asked Barton to come over to the
personal computer to discuss how Barton would do his work.
Pepper was intending to tell Barton that the secretary could
hold Barton’s telephone calls while he went over to use the
computer. But, Barton did not want to go with Pepper and
Williams to the new location; he waved Pepper off and said that
Pepper did not have to tell him how to use the computer. Pep-
per asked Barton a few times to come over, but Barton refused.
Then Barton said to Pepper, “Are you asking me or telling me.”
Pepper said, “I’m telling you to come over here now.” When
Barton asked whether he had a choice, Pepper said, “We all

11 Even the Fund pharmacist needed computer access to check
whether a member was truly on disability.
have choices in this life, are you coming, yes or no.” Barton
responded, “No.” Pepper and Williams then walked away.
Pepper suspended Barton for 5 days as a result of this insubor-
dination. Pepper testified that he based his decision to suspend
Barton on a discussion the two had had when Pepper first came
to work at the Fund. At that time, Barton was involved in a
case arising out of a prior act of insubordination against Wil-
liams. Pepper settled the matter after Barton told him that he
knew what insubordination was and that he would not be in-
subordinate in the future.
Barton testified that on May 3, 1995, he typed three requests
for step-2 grievances on the personal computer in his office
while on his break or lunch hour. According to Barton, after
his requests were distributed to management by interoffice
mail, Pepper came to his office and said that the personal com-
puter would be moved out of Barton’s office “so that everyone
can have access to it.” Barton protested that this was not a
good idea and that the move should be negotiated with the Un-
ion, but Pepper answered that the computer would be moved.
Barton testified that Pepper’s only motive for moving the com-
puter was his union activities which were particularly heavy
around May 3, 1995. However, on cross-examination, Barton
conceded that he had produced a steady stream of grievances
and unfair labor practice charges from the time he became a
shop steward in May 1994.
Barton testified that all members of his department required
access to the computer. At first Barton testified that there was
no lock on the personal computer. Then he testified that there
was a key but that the computer was never locked. Then he
said that as far as he knew the computer was never locked.
When asked a direct question whether he had ever locked the
computer, Barton said, “I don’t think so.” Barton, who pro-
fessed to recall the May 3 events with exactitude, was thus
unable to recall with the same precision whether he had ever
locked the computer that sat on his desk.
Barton testified that on July 11, 1995, he was in his office
when Pepper came in followed by Torres. According to Bar-
ton, Pepper said that he was having the personal computer
moved and “I’m going to put an end to this memo nonsense.”
Later, according to Barton, Torres remarked that Barton was
the only one who had ever lost his computer.
Barton testified that after the computer was moved Pepper
and Williams came to his office, and Pepper told Barton to
come to the new computer location saying, “I want to show you
where we set up the computer. And, I want to show you how it
works.” Barton said, “I don’t really want to come back there
with you. Are you asking me to come back there or are you
telling me to come back there?” Pepper said, “I’m asking you.”
Barton replied, “I’d rather not come back there.” At that, Pep-
per left. On cross-examination, Barton recalled that Pepper
said, “I want you to come back . . . where we put your com-
puter.” Barton testified that Pepper did not “direct” him to go
to the computer, “What he said was not an order.” Barton
stated that he did not go over to the computer with Pepper be-
cause he already knew how to work the computer and Pepper’s
request sounded “very strange” and made him “uneasy.” Bar-
ton said he had a “sixth sense” that the request was “unusual”
but he maintained that if Pepper had ordered him he would
have gone.
Barton’s 5-day suspension was grieved and arbitrated. The
arbitrator found that Barton “understood what was expected of
him” and that his defense that Pepper never gave him a direct
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132
order was “semantics.” The arbitrator found that Barton was
insubordinate and that his action constituted grounds for disci-
pline. The arbitrator found that Barton was not being disci-
plined for his political beliefs or union activities. The arbitrator
awarded, without further explanation, that the appropriate pen-
alty for Barton was a suspension without pay for 3 days.12
I do not credit Barton’s evasive answers about whether the
computer was locked nor do I believe that Barton had actual
recall that Pepper spoke to him on May 3 about moving the
computer. I credit Pepper that he moved the computer from
Barton’s office because other employees complained that they
could not gain access to it and because Pepper himself had been
left to cool his heels in Barton’s office when the computer was
locked and Barton was on the telephone.
I note that although Torres testified on behalf of the General
Counsel in the instant case he did not corroborate Barton’s
testimony about Pepper’s alleged retaliatory remark. I credit
Pepper, whom I have found to be a reliable witness, that he did
not tell Barton that the computer was being removed because of
any “memo nonsense.”
The evidence shows that Pepper and Williams, both supervi-
sors of Barton, came to his desk and that Pepper repeatedly
asked Barton to go over to the new computer location but that
Barton refused. Barton’s assertion that he did not go because
he was not given an order is unavailing. There is no require-
ment that Pepper use magic words in order to be obeyed by
Barton. It was clear to Barton that Pepper wanted him to walk
over to the computer. There is nothing in a request to accom-
pany two supervisors to a computer which would reasonably
make an employee feel strange or uneasy. I conclude that Bar-
ton was insubordinate.
The General Counsel urges that the 5-day disciplinary sus-
pension was excessive and was imposed in retaliation for Bar-
ton’s union activities. As stated above, the arbitrator reduced
the suspension from 5 to 3 days but he did not offer any dis-
cussion or rationale to support the reduction. The record does
not show that Barton’s 5-day suspension was disproportionate
to discipline imposed on other employees. I have found above
that Barton was insubordinate. I have also found that the Re-
spondent did not retaliate against Barton for his union activi-
ties. I do not find that the Fund violated the Act by imposing
excessive discipline on Barton because he engaged in union
activities.
4. Rescinding Barton’s leave on May 9, 1995
On April 24, 1995, Barton submitted a request for personal
leave to Supervisor Williams stating that he would be out of the
office from 12:30 to 3 p.m. on May 4. Williams approved the
request on the same day after correcting Barton’s calculation of
the time chargeable to his personal leave and the time charge-
able to his lunchbreak. Barton testified that on May 3 he
passed Pepper in the corridor and told him that he was taking
time off the next day “to go down to the Labor Board . . . to file
charges.” Pepper told him to let the supervisor know and have
it approved and Barton replied that he had already done that.
On May 4 Barton told Supervisor Walter Canteel that he was
leaving at 12:30. Canteel asked whether Williams knew and
Barton said that Williams knew about it already. Barton re-
turned to the office at 4:20 p.m. and he checked in with Wil-

12 Contrary to the assertion in the General Counsel’s brief, the arbi-
trator did not find that the 5-day suspension was “excessive.”
liams. Because Barton had used more time than he had origi-
nally asked for, Williams instructed him to fill out another
leave request. Barton filled out another form which Williams
approved after correcting Barton’s calculation of the chargeable
time. Williams wrote at the bottom of the form that Barton
should be charged 2 hours and 30 minutes and that he did not
sign out. On May 8, Barton received a memo from Pepper
stating that on May 4 both Williams and Canteel had asked him
where Barton was and that neither had been notified of Bar-
ton’s absence. The memo stated that Barton had not signed out
on the daily logsheet. The memo concluded, “Please be re-
minded of the procedures which require log-out. ‘Except for
employees who depart in accordance with their regular work
schedules, employees must sign out showing the time of depar-
ture.’”
Barton testified that the practice required him to sign out
only if he were leaving for the day and not returning to the
office. Accordingly, Barton sent a memo dated May 12 to then
Director Jeff Kahn stating that Pepper had sent him a discipli-
nary memo that was inaccurate. Barton’s memo informed
Kahn that Williams had been notified of his absence by his
request for personal leave. The memo continued:

I have also been advised that departure sign-out has
not been administered in a consistent manner. I believe
that as a Union Steward I am being held to a higher stan-
dard and discriminated against. . . .
In order to verify the fairness and consistency of the
sign-in procedure and prepare for the certain forthcoming
grievance concerning this matter, I am requesting copies
of all sign-in/out sheets for all members of UIW-Local 424
and OPEIU-Local 153 for the period July 1, 1994 to May
10, 1995.
I am also requesting from you the names of all Welfare
Fund employees who have been given written disciplinary
notices by Mr. Pepper for not following sign-out proce-
dures or for not giving prior notice of the use of personal
time to their division supervisor.13
The complaint alleges that on or about May 9, 1995, the Re-
spondent harassed employees by rescinding approval for per-
sonal leave because of their activities as shop stewards for the
Union.
Barton testified that his request for leave was never re-
scinded. Barton was paid for all the time he took as personal
leave. There is no evidence in the record that Barton filed a
grievance relating to the events of May 4 or the subsequent
memo from Pepper.
I do not find that the Respondent harassed Barton by rescind-
ing approval of his personal leave.
5. Refusal to process a grievance
Pepper testified that on May 15, 1995, he and Kahn met with
Barton to discuss a pending grievance about Williams perform-
ing unit work. A few minutes after the meeting ended, De-
Filippi telephoned Pepper and told him that he had heard from
Barton that a step-2 grievance was scheduled for that afternoon.
DeFilippi said that he was 100 miles away and did not want to
drive all the way in to New York City. Pepper replied that he
had not changed his mind since the two had last discussed the
13 Barton testified that he received some but not all of the informa-
tion he had requested. However, the General Counsel has not alleged
any violation of the Act in connection with the information request.
UNITED FEDERATION OF TEACHERS WELFARE FUND 133
grievance. Pepper said that he was going to deny the grievance
at step 2 no matter who represented the Union; in his view it
was a loser. DeFilippi said that he would send Barton to the
step 2 meeting.
Pepper testified that it was his custom to discuss the merits
of a grievance with DeFilippi prior to the step-2 and step-3
meetings. By the time the meeting was held, DeFilippi would
always be familiar with his view of the grievance. Pepper de-
nied telling DeFilippi that if Barton presented the grievance it
would be denied.
DeFilippi testified that on May 15 Pepper telephoned him to
ask about a number of step-2 grievances. DeFilippi told Pepper
that he could not meet with him that day and said that Barton
would handle the grievances. Pepper replied that he did not
want to deal with Barton. He said that if Barton came in he
would reject the grievances. On cross-examination, DeFilippi
said that he and Pepper often discussed step-2 grievances be-
fore the step-2 meeting was held. Pepper would inform De-
Filippi what his position was and what he intended to do unless
he heard something new or different at the step-2 meeting.
Barton testified that he was called to a meeting to discuss a
grievance with Kahn and Pepper. After a while, it became clear
to him that “it sounded like a step 2 grievance.” Barton said
that DeFilippi should be there to handle it or that he should
decide whether Barton could handle it. At Barton’s insistence,
the meeting ended with management intending to contact De-
Filippi. Barton then received a telephone call from DeFilippi
saying that he was too far away to be present at the meeting.
DeFilippi told Barton, “Pepper had told him that if I handled
the grievance they were going to turn it down anyway.” Barton
testified that when he went to the step-2 grievance, Pepper de-
nied the grievance without further discussion
The complaint alleges that Respondent threatened to refuse
to process employee grievances if they were presented by Bar-
ton and summarily denied grievances without regard to merit
because they were presented by Barton.
I have found above that Pepper was a reliable witness and
that DeFilippi and Barton were not credible witnesses. I find,
based on Pepper’s testimony, that he and DeFilippi had dis-
cussed the grievance on prior occasions and that on May 15
Pepper informed DeFilippi that he had not changed his mind
about the merits of the grievance. I find that Pepper told De-
Filippi that it did not matter whether DeFilippi came to the
step-2 meeting because Pepper was going to deny the grievance
in any event. I do not find that Pepper said that he did not want
to deal with Barton and that if Barton came to the meeting he
would deny the grievance. I do not find that Pepper denied the
grievance for the reason that Barton was present at the step-2
meeting.
Although basing my finding solely on the credibility of the
witnesses, I must point out the inherent contradiction in the
General Counsel’s position. Barton’s testimony was very clear
that Kahn and Pepper had asked to meet with him to discuss a
grievance on May 15 and that the discussion ended only be-
cause he said that he was not authorized to handle step-2 griev-
ances. Manifestly, management was willing to discuss griev-
ances with Barton and management took the lead in scheduling
grievance meetings with him.
6. Directing shop steward to stop discussing terms and condi-
tions of employment
Michael Dubin has been the chief financial officer of the
UFT for 12 years.14 At one time Dubin had been the controller
of the Respondent Welfare Fund and in that capacity he had
worked with Barton. Dubin testified that as chief financial offi-
cer of the UFT he is not involved in negotiations with the Re-
spondent’s employees and he exercises no managerial authority
over them.
Dubin often walked with Barton from Pennsylvania Station
to the building housing the UFT and the Fund offices. On one
such occasion in June 1995, Dubin and Barton were walking to
work when Barton began telling Dubin about the Union and
mentioned a new collective-bargaining contract. Barton asked
Dubin whether he had heard about “outsourcing” at the Fund
and Dubin answered that it was a possibility. Dubin had heard
that the Fund had prepared a request for proposal in an effort to
procure a new computer system for the Fund. One of the re-
sponses received by the Fund was a suggestion by IBM for the
outsourcing of computer time. Under this scheme, employees
of the Fund would dial in to use a computer rather than using
the computer onsite. This proposal had nothing to do with the
removal of employees or any subcontracting.
Dubin testified that on June 14, 1995 Fund employee Kathy
Woelfel told him that Barton was quoting him as speaking
about outsourcing employee jobs at the Fund. Then, Dubin’s
assistant Angela Paino heard a similar rumor from someone
else at the Fund. Later on June 14, Dubin met Barton in the
office building lobby near the elevator. Dubin asked Barton to
stop misquoting him and to stop using his name in connection
with the outsourcing of employee jobs at the Fund. Barton
replied, “What are you going to do about it?” Dubin again told
Barton to stop, saying that he could speak on his own behalf
and did not need anyone to speak for him. Barton replied,
“Let’s go outside, I’ll kick your ass.” Dubin responded in kind.
Then Barton blocked the entrance to the elevator. Dubin asked
Barton to step aside and told Barton to stop using his name and
misquoting him. Barton refused to move aside so that Dubin
could enter the elevator. Dubin brushed past Barton to get on
the elevator. Finally, both Dubin and Barton were restrained by
the building attendants.
Dubin denied that he said that the Union would never get an-
other collective-bargaining agreement and he denied telling
Barton that the Fund would remove employees from the unit
before they ever got a contract. In fact, Dubin has never dis-
cussed outsourcing employee jobs at the Fund.
Barton testified that on June 10 Dubin told him that he be-
lieved the Union would never get another contract. According
to Barton, when he insisted that they would get another con-
tract, Dubin replied that he “understood they’re going to out-
source the work . . . before they’d ever let us have another con-
tract.” Later that afternoon, Barton called DeFilippi and told
him that Dubin said they would never get another contract and
the Fund would outsource the work if necessary. Barton testi-
fied that on June 14 he said good morning to Dubin at the ele-
vator when Dubin said, “I hear you’ve been quoting me all over
the place. . . . . you better keep your mouth shut and stop quot-
ing me all of the time.” Barton said that when the elevator
arrived Dubin told him to get out of the way and pushed him.
Barton grabbed Dubin and pushed back, saying, “You better

14 Dubin is an accountant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134
keep you god damn hands off of me.” Barton stated that he told
Dubin either, “If you ever do that again, I’m going to smash
your face in” or “I’m going to push your face through the back
of your head.” After a security guard intervened, Dubin told
Barton that he would “regret this.” According to Barton, he
replied, “Get fucked.”
On cross-examination, Barton acknowledged that he had
seen a letter from IBM to Information Services Supervisor Pam
Wood dated June 9, 1995. The letter had been given to De-
Filippi who had then shown it to Barton. The letter stated,
“[O]utsourcing will only allow UFT access to the Claims proc-
essing system, UFT personnel must, themselves, continue to
run and use the application.” Barton evaded questions related
to the actual state of his knowledge about outsourcing, but he
acknowledged that the Union did not grieve the subcontracting
of unit work. Barton estimated the size of the unit at 35 to 40
employees, of whom 6 or 7 do work on computers. Barton
could not explain how the purported subcontracting of six or
seven jobs could relieve the Respondent of the necessity of
bargaining for a new contract.
DeFilippi testified that he received a copy of the IBM letter
to Wood about outsourcing computer time. In addition, Pepper
told DeFilippi that the Fund was not subcontracting work.
The General Counsel does not allege that Respondent en-
gaged in any unfair labor practices as a result of Dubin’s con-
versation with Barton on June 10, 1995. Thus, there is no alle-
gation relating to Dubin’s purported comment that Respondent
would outsource the jobs rather than enter into a new contract
with the Union. The complaint alleges that Dubin unlawfully
told Barton on June 14 to cease discussing the terms and condi-
tions of employment of unit employees.
I credit Dubin. I find that on June 10 Barton asked Dubin
whether he had heard about outsourcing and that Dubin told
Barton what he knew about the IBM outsourcing proposal. I do
not find that Dubin said that unit employees’ jobs would be
outsourced or that he said that Respondent would avoid signing
a new contract with the Union. I credit Dubin that on June 14
he told Barton to stop misquoting him. Dubin’s demand that
Barton cease misquoting him was clear: there was no sugges-
tion that Barton should cease inquiring about outsourcing or
cease discussing outsourcing with the employees. Dubin only
wanted Barton to stop linking his name with a fake story about
subcontracting jobs. Moreover, Dubin is not an agent of the
Welfare Fund; Dubin is not employed by the Fund and does not
participate in bargaining with Fund employees. The record
does not show generally that officials of the UFT have any
control over the Respondent’s labor relations. There is no sug-
gestion in the record that Dubin could affect Barton’s job in any
way. It is not controlling in this case that in 1994 the general
manager of the UFT was given apparent authority to deal with
Valquiria Green in an unrelated matter.15 The evidence shows
that Dubin and Barton had often walked together from the train
station to the office. When Dubin told Barton to stop misquot-
ing him, he was doing it as an acquaintance and not as a super-
visor or manager. I do not find that Respondent engaged in any
violation of the Act by Dubin’s demand that Barton stop mis-
quoting him.

15 That case is set forth above in the discussion about the Green set-
tlement agreement.
7. Transfer of Barton, reduction of his duties and
surveillance
On July 21, 1995, DeFilippi wrote to Pepper complaining
that the computer, which Barton used, had been moved to 3 feet
from Woelfel’s workstation. The letter said that Woelfel had
written letters to the Union requesting limited contact with
Barton and that Barton had also requested limited contact with
Woelfel.16 DeFilippi asked that the computer be moved.
Barton testified that until November 3, 1995, his office was a
cubicle located inside a larger office. The cubicle consisted of
two walls about 5-1/2-feet high enclosing a space bounded by
two other walls. Before November 3, Pepper notified Barton
that he was being transferred from the disability unit to the
general members services unit. Pepper told Barton that the
reason for the move was a conflict with Woelfel who was be-
coming a supervisor in the disability unit. Barton said that he
had no idea what Pepper was referring to. Pepper responded
that he did not want Woelfel supervising Barton. Barton’s new
workspace was a cubicle. The major difference from his old
location was that one of the solid walls enclosing the space had
a window that looked into John Medrano’s office. Medrano
was a supervisor, but not Barton’s supervisor. However,
Medrano had the authority to sign Barton’s leave slips. The
window was covered with vertical blinds which were kept
closed except for a space Barton calculated as measuring about
three inches at the bottom center of the window where the
blinds met. Barton testified that Medrano could thus see the
back of his head and could see whether anyone was in the of-
fice talking to him. In particular, according to Barton, Medrano
could see whether any bargaining unit members were in his
office discussing problems they were having on the job. There
is no indication that Medrano could hear anything through the
glass window. At the new location, Barton’s desk was next to
those of other administrative benefits specialists like himself.
Barton testified that while he worked in the disability sec-
tion, 25 percent of his time was spent typing information about
incoming claims, 15 percent of his time went to correspon-
dence, 15 to 20 percent of his time was devoted to answering
telephone inquiries and the rest of the time he worked on medi-
cal claims. All of the work Barton did with respect to claims
was reviewed by a Fund medical advisor with the exception of
routine maternity claims. After November 3, when Barton
worked in the general membership services unit, he answered
telephoned questions on all Fund matters, he advised members
on insurance, he handled correspondence and he assisted mem-
bers with claims problems. Barton described the difference
between his disability work and his general member services
work as follows: he no longer was required to type claims into
a personal computer and he handled general claims rather than
just disability claims. Barton stated that at both jobs he was
responsible for answering members’ questions and dealing with
correspondence. Barton testified that he felt that the workload
in the new area was easier and the work itself was less difficult.
Barton could not give any specifics to substantiate his feeling
except that he had a little more free time on the new job.
Pepper testified that as a result of a conversation with De-
Filippi about the personality clash between Barton and Woelfel,
he had decided that Woelfel should not be Barton’s direct su-
pervisor when she became the supervisor of the disability unit.
Pepper decided to move Barton to general members services on
16 Woelfel was a member of the bargaining unit.
UNITED FEDERATION OF TEACHERS WELFARE FUND 135
the other side of the floor away from Woelfel. Pepper stated
that his decision was not based on Barton’s activities as a shop
steward. Pepper testified that the old work cubicle and the new
work cubicle are much the same. He stated that Medrano’s
vertical blinds may not meet exactly in the middle of the win-
dow because they are broken. Pepper said that Barton’s new
job was much like his old job except that it involved fewer
clerical functions and more interaction with UFT members.
Both jobs involve answering the same general questions by
telephone and by mail.
Barton testified that there was no union or shop stewards’
meeting on November 3, 1995. Pepper testified that he did not
know of any shop stewards’ meeting near Medrano’s desk on
November 3, 1995.
The General Counsel alleges that the Respondent Fund trans-
ferred Barton to another work area and decreased his work
responsibilities because of his activities as a shop steward. The
complaint alleges that on November 3, 1995, Pepper and
Medrano engaged in surveillance of the union activities of em-
ployees attending a shop steward’s meeting.
I credit Pepper and I find that the Respondent transferred
Barton out of the disability unit because both Barton and
Woelfel had requested limited contact with each other and be-
cause Woelfel was about to become the supervisor of the unit.
Barton’s new duties may have been slightly less onerous than
his former ones, as claimed by Barton, but I also credit Pepper
that the new duties were less clerical and involved more inter-
action with members. I do not find that the new duties involved
a decrease in responsibility, although they may have involved a
change. I do not find that Barton’s move from disability to
general member services was due to Barton’s union activities.
Although Barton testified that he believed that Medrano
could see him through a 3-inch gap in the vertical blinds, I do
not believe that Medrano could engage in surveillance of Bar-
ton while he was speaking to other employees in the manner
claimed. I credit Pepper that the blinds were defective and I do
not credit Barton that they were being deliberately held open
with a paper clip. The picture of the blinds introduced by the
General Counsel does not show any paper clip. If Medrano
could see the back of Barton’s head in a 3-inch gap, then the
entire open space would have been filled by Barton’s head
which was surely wider than 3 inches. In order to see whether
anyone else was speaking to Barton, Medrano would have had
to put his head close to the blind-obstructed window, and he
surely would have been observed by anyone sitting in Barton’s
office. I do not find that Barton’s new desk location was cho-
sen so that supervisors could engage in surveillance.
8. Interrogating Barton on March 15, and denying personal
leave on March 18, 1996
On March 15, 1996, Barton gave Supervisor Diana Williams
a request for 1 day off with pay for “Union Business–NLRB.”
Williams approved the request. Pepper testified that his secre-
tary informed him that Barton had put in a form for union busi-
ness at the NLRB and she asked whether Pepper had something
on his calendar. Pepper said that he was not aware of a case at
the NLRB, and he instructed his secretary to ask Barton
whether there was an NLRB case.17 Pepper stated that the
Fund granted employees a day off with pay to attend NLRB

17 If there had been a hearing, Pepper would have been expected to
attend.
hearings and arbitration hearings. Barton informed Pepper’s
secretary that there was no NLRB hearing but that he was just
going to the NLRB. Pepper then decided that Barton’s request
for 1 day’s leave with pay should be denied because there was
no hearing at the NLRB. Pepper returned Barton’s form with
the notation “Day Denied.” Later on March 15, Barton pre-
pared another form requesting time off with pay for March 22.
The form asked for 3-1/2 hours for “Union Business–NLRB.”
Barton gave the form to supervisor Lorna Baptiste who ap-
proved the request. Barton was suspended from work before
March 22, 1996.
Barton admitted that he was always given paid leave to at-
tend arbitrations and NLRB hearings. When Barton requested
time off to file charges or give affidavits, he would request
personal leave time or vacation time and his leave bank would
be charged for the hours he spent away from work. Barton
recalled that Pepper’s secretary had asked him whether there
was a hearing scheduled for March 22. Barton testified that no
one interrogated him about his NLRB activities on March 15.
Barton testified that he did not request personal leave on March
18.
The General Counsel alleges that on March 15, 1996, the
Respondent interrogated Barton about his activities before the
NLRB and on March 18, 1996, denied Barton personal leave in
violation of the Act.
I do not find that the Respondent interrogated Barton on
March 15, 1996. I find that Barton’s request for time off with
pay was properly denied because he was not attending an arbi-
tration or an NLRB hearing. Barton did not submit a request
for personal leave, that is a request for time off to be charged to
his leave bank, and thus no such leave was denied.
9. Surveillance, refusal to admit shop steward and excessive
discipline
Joseph Vigilante testified that in 1996 he was the operations
manager of the Fund, with responsibility for computer hard-
ware and software. At that time, Vigilante’s superior was Hugo
Kiendl, the director of the information services unit. Pam
Wood was the manager of applications development, with re-
sponsibility for computer programming, training, and support.
In March 1996, Kiendl was concerned about employee tardi-
ness and he asked Vigilante and Wood to look at employee
timesheets for the last 6 months. Kiendl asked for a report on
repeated employee lateness. Vigilante and Wood prepared a
report covering the entire staff of the information services unit,
including employees represented by Local 424 and by the other
union. The report showed that four employees were repeatedly
tardy: these were Ed Opong, Reuben Torres, Regina Tovbin,
and Nigel Reid. On March 18, 1996, Vigilante and Kiendl
scheduled meetings with the four employees to tell them of
their findings. No discipline was contemplated; management
merely wanted to inform the employees of its findings.18 First,
Vigilante and Kiendl met with Opong who was accompanied
by Shop Steward Torres. Opong questioned the accuracy of
some of the dates and Vigilante asked Wood to check them.
The second meeting concerned Torres who was accompanied
by Shop Steward Tovbin. After a discussion about some of the
dates, the meeting ended. At this point, Wood reported to Vigi-
lante that there had been typographical errors in two of the
18 Torres testified that management was going to take lateness more
seriously in the future.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136
dates supplied to Opong. Vigilante wanted to give Opong this
information and he asked Opong to go to Kiendl’s office. Vigi-
lante then went to fetch Shop Steward Torres who had been
present at the first meeting with Opong. The glass door to Tor-
res’ office was closed and Vigilante could see that Torres was
in his office with Tovbin and Barton. Vigilante opened the
door and asked whether there was a problem.19 Barton replied
that he was the grievance coordinator and that he was gathering
information. Vigilante said that he was not aware of any griev-
ance and then he asked Torres to join the group in Kiendl’s
office for a continuation of the meeting with Opong. At this
point, Barton told Vigilante to use Tovbin. Vigilante replied
that he wanted Torres to come in because he had been present
for the first part of the meeting. It would be simpler to have the
same shop steward present for the continuation of the earlier
meeting. Barton raised his voice and insisted that Tovbin go to
the meeting. Then Barton said that he himself would attend.
Vigilante did not object to Barton’s presence.
Vigilante and Barton went to Kiendl’s office.20 Kiendl was
seated behind his desk, with Wood standing to his right. Barton
stood on one side of the door. Opong sat on a small chair just
inside the door. Vigilante, who was the last person to enter the
office, closed the door and stood in front of it. There was no
other place left for him to stand. After a few moments there
was a knock on the door; when Vigilante opened the door he
saw Tovbin. Vigilante told her that there was already a shop
steward present and he shut the door. Barton said that Tovbin
must be let in. Screaming, “I’m not going to let you do this to
me. You can’t lock my shop steward out of the meeting,” Bar-
ton lunged towards Vigilante and pushed him away from the
door into the adjoining wall. Vigilante caught his foot on the
door stop affixed to the wall and he stumbled. The door stop
broke. Barton tried to open the door but by this time Vigilante
had righted himself and resumed his position in front of the
door. Wood told Barton to sit down and to calm down. Barton
screamed at her that she should calm down. Vigilante then told
Opong about the typographical errors in some of the dates
given to him earlier that day and the meeting ended with Barton
yelling that he would report Vigilante to the NLRB.
Wood testified that during this meeting she saw Barton step
forward and grab Vigilante by the shoulders, throwing him to
the side of the door. Barton may have succeeded in opening the
door a few inches before Vigilante rebounded off the wall ad-
joining the door and the door was slammed shut.
After this incident, Vigilante and Wood told Pepper what
had happened and he instructed them to put it in writing.
The next day, all of the participants except Barton met with
Pepper separately and told him about the incident. Later, Pep-
per met with all those present with the exception of Barton and
they reenacted the confrontation. After this, Pepper met with
Barton and a shop steward. Barton told Pepper that he had
never touched Vigilante and that Vigilante had opened the door
and it had hit him, causing him to stumble. Pepper testified that
because of Barton’s physical assault on Vigilante, he suspended
Barton for 30 days.
Barton’s testimony about the events of March 18 was gener-
ally at odds with the testimony of all the other witnesses. I

19 Vigilante testified that he was asking whether there was a work re-
lated problem, not a union problem.
20 Kiendl’s office was small, with room for a desk, a few chairs and a
few people standing against the wall and door.
have found above that Barton was not a credible witness and I
shall not rely on his testimony with respect to the March 18
events. Tovbin also testified about March 18. I have explained
above that I do not find Tovbin to be a credible witness and I
shall not rely on her testimony. I note in passing that the testi-
mony of Tovbin and Barton differed in very important respects
concerning the events of March 18, including what happened in
Torres’ office and in Kiendl’s office.
A grievance was filed about Barton’s suspension. Barton
was awarded reinstatement with full backpay. The arbitrator
credited Tovbin, a witness whom I find to be unreliable, and he
apparently based his decision on a decision by another arbitra-
tor in an unrelated case with facts that differ markedly from the
instant case. Interestingly, the arbitrator noted that Opong’s
testimony supported the Fund’s version of the facts.21
Article 6 of the collective-bargaining agreement provides, in-
ter alia:

The Employer recognizes the reasonably exercised right of an
employee, upon request, to have a shop steward present at a
disciplinary interview by management wherein a response by
the employee is required and wherein it is reasonably antici-
pated that disciplinary action will result to that employee. The
Union recognizes that this right does not extend to non-
disciplinary meetings between an employee and management
for the purpose of consulting, advising, counseling, evaluat-
ing, supervising or directing the employee in his/her work.

The complaint alleges that Vigilante engaged in surveillance
of a grievance meeting in Torres’ office, unlawfully refused to
admit Shop Steward Tovbin into a grievance meeting, and un-
lawfully imposed a 30-day suspension on Barton.
I do not find that Vigilante engaged in any surveillance of
Barton, Tovbin, and Torres in Torres’ office on March 18.
Torres’ office had a glass door and I find that Vigilante walked
right in and asked whether there was a problem. Vigilante had
no way of knowing what the three shop stewards were discuss-
ing and it was not unreasonable for him to assume that they
were talking about work. Vigilante did not inquire whether
they were discussing union business and he did not ask for
specifics of their discussion. Vigilante had a legitimate purpose
for entering Torres’ office; he had to invite Torres to the con-
tinuation of the meeting with Opong in order to give Opong an
answer concerning dates he had questioned.
The meeting with Opong to which Tovbin wished admit-
tance was not a grievance as stated in the complaint.22 Fur-
thermore, there is no evidence in the record that Opong could
reasonably expect discipline to be imposed as a result of the
meeting. The credible evidence shows that management
wished to draw certain of its employees’ attention to the fact
that they had been late repeatedly, but there is no evidence that
warnings would be placed in personnel files nor that any other
action would take place. Nevertheless, management did permit
Opong to be accompanied by a shop steward. The General
Counsel apparently believes that two shop stewards were nec-
essary despite the fact that the parties’ own contract provides
that “a shop steward” shall be present at disciplinary meetings.
Barton was present in Kiendl’s office; he is manifestly a shop
steward. Not one witness stated that Opong himself had re-
quested that Tovbin be present at the meeting. It is clear that
21 Opong did not testify in the instant case.
22 The General Counsel’s brief calls it an “investigatory meeting.”
UNITED FEDERATION OF TEACHERS WELFARE FUND 137
the right to union representation in a disciplinary meeting is
“triggered only” by an individual employee’s request. Pruden-
tial Insurance Co., 275 NLRB 208, 209 (1985). This incident
is not one where the Respondent refused to meet with the Un-
ion’s designated representative as in Missouri Portland Cement
Co., 284 NLRB 432 (1987), cited by the General Counsel. In
that case, the employer agreed that it had to meet with various
employee committees but it argued that the union officers could
not be on the committees. The Board found that the Union had
never waived its right to designate who should serve on the
committees. In the instant case, the Union has agreed that “a
shop steward” shall represent employees in disciplinary meet-
ings. Even if I had found that the meeting was a disciplinary
meeting, I would find that Opong was indeed represented by a
shop steward since Barton had designated himself to represent
Opong. The contract did not give the Union the right to have
more than one shop steward in the meeting.
I find that Barton put his hands on Vigilante’s shoulders and
pushed Vigilante away from the door in order to open it and
admit Tovbin. I find that as a result of this assault by Barton
Vigilante stumbled and broke the door stop. I do not credit
Barton that Vigilante hit himself with the door and stumbled
into the wall, breaking the door stop. The General Counsel has
not presented any evidence that other employees who pushed a
supervisor received a lesser discipline than that imposed on
Barton. Indeed, many collective-bargaining agreements pro-
vide that an employer may bypass a progressive discipline pro-
vision and may immediately discharge an employee for assault-
ing another person on the job.
10. Removing materials from a bulletin board
Barton testified that there are three bulletin boards at the
Fund. On direct examination by vounsel for the General Coun-
sel, he stated that one is a general board on which both man-
agement and employees can place articles, one is for Local 153
members and one is for Local 424 information. Barton said
that he is responsible for maintaining the Local 424 board and
that he alone determines what material can be posted on it. In
early September 1996 Barton saw a “Federal Labor Board no-
tice” on the Local 424 unit employees’ bulletin board which he
believed to be either a decertification notice or an election no-
tice. Barton removed the notice because he had not put it up.
Within a half hour, Supervisors Lorna Baptiste and Joe Wohl
called the employees into the corridor and said that someone
had removed the decertification notice. Baptiste said that it was
a Federal offense to remove the notice and that anyone caught
doing that would be severely disciplined. Barton testified that
soon after this meeting ended he saw a photocopy of the origi-
nal notice on the bulletin board and he again removed that
document from the bulletin board.
The collective-bargaining agreement provides in article 15:

The Fund agrees to grant the Union reasonable access to Em-
ployer bulletin boards normally utilized by employees for an-
nouncements to its members.

On cross-examination, Barton testified that the Respondent
routinely placed its postings for job openings and its bid sheets
for vacation schedules on the Local 424 unit employees bulletin
board. Barton acknowledged that the bulletin board in question
would be the place normally used if the Fund were directed to
post a notice aimed at Local 424 unit employees.
The General Counsel does not discuss the fact, which Barton
freely admitted in his testimony, that the notice was an official
notice of the NLRB notifying unit employees of a decertifica-
tion petition. The General Counsel urges that Barton alone
controlled the material to be placed on the bulletin board. The
General Counsel argues that the Fund violated Section 8(a)(1)
when it posted an official NLRB notice on the bulletin board
utilized by Local 424, and that it violated Section 8(a)(1) when
it announced that any person caught removing the notice would
be severely disciplined.
I find, based on Barton’s testimony and on the language of
the collective-bargaining agreement, that the bulletin board was
an employer bulletin board on which the Respondent regularly
posted various materials for the use and information of the
Local 424 unit members. The Union did not have exclusive
control over what was posted on the bulletin board. To the
contrary, the contract speaks in terms of providing the Union
with “reasonable access to Employer bulletin boards.” Thus, it
was entirely appropriate for the Respondent, when directed by
the NLRB to post a decertification notice for the Local 424
unit, to place that notice on the Local 424 unit employees’ bul-
letin board. It was not an interference with the rights of em-
ployees to threaten to discipline anyone caught removing the
official notice.
I. Regina Tovbin
1. Training and assignments
Regina Tovbin was a senior programmer analyst for the Re-
spondent Fund from November 1985 until May 1996. Tovbin
worked in the information systems department, sometimes
referred to as the IS department. Her direct supervisor at the
time relevant to the instant case was Pamela Wood, the man-
ager of applications development. Wood supervised four pro-
grammers, one trainer, and one person who wrote functional
specifications. Wood was the person responsible for assigning
work to Tovbin at the time relevant to the instant complaint.
Wood’s superior was Greta Warshaviak, the director of the IS
department. At some point, Hugo Kiendl replaced Warshaviak.
Regina Tovbin served as a shop steward. According to
Tovbin’s supervisor, Pamela Wood, many employees spoke to
her about problems on the job and wrote memoranda about
work-related issues, but Tovbin wrote more memoranda than
the other employees complaining about working conditions.
Tovbin filed grievances concerning insubordination and over-
time. Tovbin filed a grievance about out of title work; this
grievance was upheld in arbitration after Tovbin resigned from
the Fund. Wood acknowledged that she hoped employees un-
der her supervision would speak to her about their problems.
On one occasion in August 1995, Wood had asked Tovbin to
make a presentation to her fellow employees about a course she
had taken. Tovbin had complained directly to the Union which
then wrote to Respondent stating that Tovbin did not want to
speak about her course work and that it was not her responsibil-
ity to do so. Wood would have preferred that Tovbin come to
her first and try to work out the difficulty. She sent a memo-
randum to Tovbin stating, “I wish you had spoken to me about
it before you felt the need to involve your Union.”
Wood testified that the information services department pro-
vides services to the other departments from 8 or 8:30 a.m. to 6
p.m. Wood had to be sure that there was constant coverage in
the department because some users of information need imme-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138
diate help. When a request for services comes to Wood, she
gives the task to a programmer based on her evaluation of the
skills required to do the job and the existing workload of all the
programmers. Wood determines the priorities for the pro-
grammers’ work. An employee who keeps changing his work
schedule makes it hard for her to maintain complete coverage.
Wood testified that when she began work at the Fund in
January 1994, three mainframe computers ran the business of
the Fund. The mainframe computers stored all the data re-
quired by the Fund, all the programs that were used to update
the databases and all the programs used to request information
from the databases. At that time, the personal computer (PC)
was just being introduced into the office. A personal computer
is a self-contained unit that can produce spreadsheets and it can
run word processing and data bases. The PC can be used as a
“dumb terminal,” that is, the PC can be hooked to the main-
frame computer to show a screen from the mainframe but not to
process data from the mainframe. A personal computer can
also run without being attached to a central mainframe com-
puter.
The complaint alleges that Respondent failed to provide
Tovbin with training necessary to perform her job responsibili-
ties on the PC from October 15, 1995, through April 25, 1996;
that on February 14, 1996, Respondent assigned a PC task to
Tovbin with an unrealistic completion date, required skills in
which she had not been trained, and for which she did not have
appropriate software; and on February 1, 1996, failed to give
PC work assignments to Tovbin.
Wood stated that all employees in the information systems
department were given a PC because she wanted them to be-
come familiar with the PC and what it was capable of doing. In
addition to the PC installed in each employee’s office, all pro-
grammers had access to the common PC which was connected
to a mainframe computer. The common PC could do download
projects, that is, it could take information from the mainframe
into the PC and then it could create reports using the informa-
tion. A software package called P.K. Harmony was used to
download information from the mainframe to a PC. The com-
mon PC was configured with P.K. Harmony already installed
so that it could perform download projects. If a programmer
wished to use his or her own PC to access the mainframe, the
P.K Harmony software could be installed with a diskette. The
programmers were not given training in downloading. Accord-
ing to Wood, a person in a senior programmer analyst title has
the capability to analyze business problems and to design soft-
ware and write a computer code that will solve those problems.
A programmer is the most knowledgeable person about com-
puters. Such a person can read the user manual for download-
ing and figure out how to perform the task. If extra help is
needed, the software manufacturer has a hotline which the pro-
grammer can call. Furthermore, Supervisor Sonny Kapoor had
shown Tovbin where to find the icon that ran P.K. Harmony on
her PC. Wood recalled that Tovbin had complained that P.K.
Harmony was not working on her PC. Wood could not tell
what was causing the problems and she twice gave Tovbin a
new PC to deal with the situation.
Wood testified that a PC comes equipped with a commercial
software package tailored to the user. One does not need a lot
of formal training to use a PC. Because PC operating systems
are user friendly the average person can figure out how to use a
PC without a class.23 According to Wood, most of the pro-
grammers were comfortable using a PC after 3 weeks.
Wood stated that each programmer’s office had two direct
lines from the mainframe computers. Most programmers had
two lines to the Ultimate central computer where information
was stored. Tovbin had one line to the Ultimate machine and a
second line to the Spirit computer which ran the accounting
systems for the UFT and the Fund.24 These lines were con-
nected to a dumb terminal on her desk.25 The dumb terminal
displayed information from the mainframe computers and it
could be used to enter data on the mainframes, but the dumb
terminal did not do the work of the mainframes. Tovbin had
chosen to use her PC as a stand alone; that is, it was not con-
nected to the mainframes and it only ran PC programs. In the
spring of 1995 Tovbin asked for a third line from her office to
the Ultimate machine. Wood had been denying all requests for
more Ultimate lines because there were over 650 users of the
Ultimate machine and there was no more room to add lines.
Eventually a way was found to connect the single Ultimate line
to Tovbin’s PC as well as to the dumb terminal on her desk.
After this, Tovbin could work on the mainframe either at her
PC or at the dumb terminal on her desk. Because she had only
one line to the Ultimate computer, she could not have two ses-
sions running on the mainframe at one time.
On cross-examination by counsel for the General Counsel,
Wood explained that Tovbin had chosen to have both lines
from the mainframe computers connected to the dumb terminal
on her desk because she did not want to sit at her PC to work on
the main system. Tovbin wanted to keep both mainframes
attached to the dumb terminal. She wanted the capacity to have
two mainframe sessions running on the terminal so that she did
not have to get up from her desk and cross the office to her PC
to look at another session. Because Tovbin did not want to give
up the two mainframe lines connected to the dumb terminal on
her desk, she asked for a second line from the Ultimate com-
puter to her PC. The first request written by Tovbin in May
1995 asked for another line from the Ultimate mainframe to her
PC and an “AB box” to switch the line to her PC. This request
was denied because there were no more lines available. On
October 22, 1995, Tovbin submitted a second request. This
time Tovbin asked to have the Ultimate and Spirit machines
connected to the PC while also keeping them connected to the
terminal on her desk. Tovbin would be able to work on one
mainframe on her desktop terminal and one mainframe on her
PC at the same time. A technical employee named Carlos Ro-
man figured out how to do this and the job was completed on
November 21, 1995.
Wood testified that the IS department sent its programmers
to seminars and training programs. Tovbin received the follow-
ing training relevant to the issues herein:

May 1995 Introduction to PC/Windows
June 1–2, 1995 Microsoft Visual Basic
August 14–17, 1995 IBM Technology College
February 1996 COMMON Regional Event

23 A technical person who must support the hardware on a PC re-
quires special training in a school. The programmers at the Fund were
not required to work on the hardware of the PC.
24 Tovbin was responsible for more work on the Spirit machine than
other programmers.
25 These terminals, which were present in each programmer’s office,
were not PC machines.
UNITED FEDERATION OF TEACHERS WELFARE FUND 139
May 1996 Microcomputer Concepts26

The record shows that this is a greater amount of training
than that received by other senior programmer specialists in the
IS department. Wood testified that she never refused any re-
quest by Tovbin for any specific class or other form of training.
Wood denied that she based any decision about providing train-
ing on the fact that Tovbin engaged in union activities.
Wood testified about the work assignments she distributed to
the programmers. When Wood came to the IS department,
Amato had been doing sporadic PC tasks and he continued
doing all of the PC tasks for a while. Programmer Gabe Rut-
kowski was given his first PC task in late 1994 or early 1995.
According to Wood, there were not that many PC tasks to be
done. Tovbin filed a grievance in August 1995 over her lack of
PC assignments and Wood attended a grievance meeting in
October. Wood gave Tovbin her first PC assignment on Octo-
ber 20, 1995. PC assignments involved downloading informa-
tion from a mainframe computer. Wood knew that Tovbin
wanted to do a downloading task and Wood had decided that
she would give Tovbin at least one such assignment before the
technology became obsolete. Wood knew that the Fund would
soon be using new AS400 computers with a different download
technology.
In October 1995, Tovbin’s PC did not yet have the connec-
tion from the mainframe computer so that material could be
directly downloaded to the PC. Wood testified that Tovbin
could use the common PC that was available to all program-
mers who had to download from a mainframe machine. Wood
directed Tovbin to Amato who would explain to her that she
could use the common PC or a PC borrowed from another pro-
grammer. The PC task requested Tovbin to produce a PC disk-
ette report of information stored on the mainframe. Wood
stated that this was a typical downloading assignment. Tovbin
was given a few days to perform the task although Wood be-
lieved it would take less than 1 hour of working time. The
assignment was given on October 20 and Tovbin closed it out
on October 26. Tovbin did not tell Wood that she needed more
training and she did not say that she did not understand the task
and that she had not been able to perform it. Tovbin’s
memorandum about the assignment shows that she performed
the work on Amato’s PC.

Amato, who testified on behalf of the General Counsel, said
that he helped Tovbin with this October assignment. Amato
stated that Tovbin performed the task on the PC in his office.
He recalled that she found the job difficult because her level of
PC knowledge was very limited.
Wood testified that the next few PC assignments were given
to other programmers for various reasons: Tovbin was on an
extended trip out of the country, other programmers had ex-
perience in providing specialized information and after Tovbin
returned from her trip she was busy completing other assign-
ments. On February 14, 1996, Wood received a request from
the communications department to download a data base to a
diskette so that it could be placed on a Microsoft access data
base. This was exactly the same type of job Tovbin had per-
formed in October. Although the source of the data was differ-
ent, the technology and the format of the file were exactly the
same. Wood gave the job to Tovbin who completed it on Feb-
26 Tovbin resigned before she could attend this scheduled training
event.
ruary 28. Wood testified that after Tovbin received the assign-
ment, she told Wood that she could not do it, that she did not
have the proper equipment and that she had not been trained
properly. Wood reminded Tovbin of the previous assignment
and said that she should be able to do it. She told Tovbin to ask
the other programmers for help and she told her to call the
software hotline. Wood denied that she criticized Tovbin or
discouraged her. Although Wood had given Tovbin 2 days to
complete the job, she did not discipline Tovbin for taking much
longer than the allotted time.
In the period from October 20, 1995, to April 12, 1996, the
evidence shows that Tovbin received two PC assignments,
Tang received three such assignments, Amato received one PC
assignment, and Rutkowski received six PC assignments.27
Tovbin was away from the office from December 6, 1995,
through January 19, 1996, during which time three requests for
PC work were received by the IS department.
On February 28, 1996, Wood gave Tovbin a “batch assign-
ment.” The IS department was preparing for the new AS400
computer system and it was necessary to insure that the new
computer matched the functionality of the three existing main-
frame computers. To that end, Wood asked Tovbin to prepare
file layouts of the tapes that IS received from and sent back to
the Board of Education, the Teachers Retirement System, and
the city of New York. Tovbin was to record the layout of each
tape and provide a brief description of what the tape repre-
sented so that IS would know what information came in on
each tape and what information was sent to the various gov-
ernment entities. Wood gave Tovbin details about each tape
she was to examine. Wood testified that Tovbin was asked to
provide discrete information, not an indefinite amount of mate-
rial. Furthermore, each tape that came to an IS mainframe
computer was unloaded with a utility that provided details on
exactly what information was contained in each separate field
of a tape. Tovbin could thus go to the tape unload process and
print it out; this would provide exactly the information that
Wood had asked for. There was no necessity for Tovbin to
read thousands of lines of data; at the most Tovbin had to read
10 or 20 lines of code from the top of each program.
Wood spoke to Tovbin a number of times about the assign-
ment. She instructed Tovbin how to access the load utility in
order to find the definition of the records on each tape. Accord-
ing to Wood, any programmer knows how to use the load pro-
gram. Wood emphatically denied that there was any misunder-
standing on Tovbin’s part about exactly she was being asked to
do. For example, Tovbin was not asked to document the pro-
gramming logic of the Ultimate system. Wood testified that
Tovbin had performed similar batch processing tasks in the
past. She had performed jobs on the Spirit system that required
tape handling to see what was on a tape. Wood said that as the
person who had written the program that created tapes from the
accounting system, Tovbin was capable of doing the job and
she understood all along what the project entailed. Wood testi-
fied that she reached the conclusion from reading various
memoranda prepared by Tovbin that she understood the task
but that she was asking other people to do parts of the job for
her. In fact, Tovbin’s ability to communicate to others what
parts of her assignment she wanted them to do proved that
Tovbin actually knew what was being asked of her.
27 Amato left the Fund in December 1995.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 140
Wood testified that the two weeks she gave Tovbin in which
to complete the assignment was a reasonable amount of time.
Wood believed that Tovbin could have done the job in one
week. Wood gave Tovbin certain back up material and she told
Tovbin that Vigilante and Warshaviak were prepared to help
her with the assignment. Tovbin complained to Wood that a
previous similar project assigned to Tang had taken a long time
to complete, but Wood said that was because IS did not have all
the information about what services had been requested and the
project stayed open for a long time. Wood said that the actual
work was completed quickly by Tang once he knew what he
was required to supply.
In the event, Tovbin never completed the batch assignment
and Wood took it back from her. The work was not completed
for long time; there was no one available to do it due to the
press of other assignments. Tovbin was not disciplined for her
failure to complete this assignment.
Tovbin testified at great length about the batch job. Tovbin’s
testimony was obfuscating and often incoherent. Many times
Tovbin’s testimony was at odds with documents she herself had
prepared. I came to the conclusion that Tovbin engaged in a
deliberate attempt to confuse the trier of fact. I credit Wood,
based on her testimony and on the documents written by
Tovbin and others. I find that Tovbin understood the batch
assignment. Tovbin wrote several memoranda to her co-
workers asking them to perform parts of the assignment for her.
Although the task was somewhat difficult and time consuming,
Tovbin had the skills and was being provided with information
and assistance so that she could do the job successfully.
I do not find that the Respondent failed to provide Tovbin
with necessary training, that the Respondent assigned her a task
with an unrealistic completion date, required skills in which she
had not been trained and for which she did not have software. I
do not find that the Respondent unlawfully failed to give PC
assignments to Tovbin.
2. Schedule changes and time off
From June 13, 1994, to April 26, 1996, Tovbin made ap-
proximately 84 requests to take time off or to adjust her hours
of work in some manner. The vast majority of these requests
were granted.
Wood testified that prior to the fall of 1995, employees could
request an adjustment to their hours without giving a specific
reason.28 Although the form used to request an adjustment to
working hours had a blank space for a “reason” Wood often
approved the requests without any written reason being sup-
plied. After the fall of 1995, Wood’s supervisor Warshaviak
told her that from then on employees must give a specific rea-
son in writing on the form. Employees could no longer write
“personal” in the blank space.29
On February 15, 1996, Tovbin gave Wood a request for ad-
justment form asking to leave early the following day and giv-
ing as a reason “Personal–very urgent–just came up!!” Wood
testified that she denied this request because Tovbin refused to
give a reason other than “personal” and because Tovbin was
proposing to skip lunch altogether. According to Wood, em-
ployees were permitted to make up time by working through

28 An adjustment to normal working hours occurred when an em-
ployee took time off during normal working hours and made up the
time by working extra hours during the same week.
29 Tovbin’s records show that even before the fall of 1995 she was
writing a reason for each of her requests.
part of the lunchbreak, but they had to take at least one-half
hour off for lunch.
On February 27, 1996, Tovbin requested to adjust her hours
for March 5, the religious holiday of Purim.30 On February 29,
Wood approved Tovbin’s request to arrive late at 9:45 a.m. and
to leave early at 2:45 p.m. Tovbin had originally proposed to
make up the time by skipping lunch altogether and by skipping
both of her 15 breaks. Wood approved the request after Tovbin
changed it so that she would take one-half hour for lunch and
take both of her breaks. The rest of the time would be deducted
from Tovbin’s paycheck. Wood explained that employees are
not permitted to skip breaks to make up for anticipated ab-
sences.31 On February 29, Tovbin submitted another request
for adjustment of hours on March 5. This request proposed that
Tovbin would come to work at 9:30 a.m. and depart at 3:30
p.m. and skip lunch altogether. Wood denied this request be-
cause Tovbin was requesting that she not take any lunch hour at
all.
On March 7, 1996, Tovbin gave Wood a request to take 3
days of religious leave without pay and 1 day of vacation with
pay. Wood told Tovbin that she did not have the authority to
approve requests for leave without pay and she instructed
Tovbin to speak to Pepper about the matter.32 Pepper testified
that he denied Tovbin’s request because she still had accrued
vacation days in her bank. Pepper explained that employees
who have accrued vacation days are not granted leave without
pay; they must use up their vacation time first. When Tovbin
protested to Pepper that he had permitted her to take leave
without pay for religious purposes the preceding September,
Pepper told her that he had done so only because she lied to
him and said that she had no more vacation days in her bank.
Later, Pepper found out that Tovbin had vacation days to her
credit and she was saving them so that she could go away at the
end of the year.
On March 15, 1996, Tovbin submitted a request for adjust-
ment to normal working hours. Tovbin proposed that on March
18 she would leave 1 hour early and that on March 19 she
would arrive 2-1/2 hours late. Tovbin wanted to make up the
time by taking only one-half hour for lunch and adding extra
hours of work on various days from the March 18th to the 22d.
Tovbin gave as a reason that she wanted to see two doctors
before a new medical plan took effect. There is no evidence
that Tovbin was subject to a medical emergency. Wood denied
the request telling Tovbin that she had a lot of work and that
she was not getting her work done. Wood said that Tovbin
could speak to Pepper about the matter.
When Wood became Tovbin’s manager, she learned that
Tovbin had to leave early on Fridays to observe the Sabbath.
Tovbin informed Wood that she always left 2 hours before
sunset. Wood asked Tovbin to check an almanac and inform
her in advance what her hours would be in the wintertime so
that Wood could plan ahead for coverage in the department.
No other employee has been asked to furnish this type of in-
30 On this day observant Jews are required to attend a reading of the
Book of Esther in the morning and to partake of a festive meal begin-
ning before sundown.
31 However, employees can use breaktime to make up for lateness
due to transportation delays.
32 The evidence shows that only Pepper had the authority to approve
leave without pay.
UNITED FEDERATION OF TEACHERS WELFARE FUND 141
formation. The record does not show that any other employee
has the same type of exactly predictable need to leave early.
Both Wood and Pepper denied that Tovbin’s union activities
played a part in their decision to deny any of Tovbin’s requests
for time off.
The complaint alleges that Respondent unlawfully denied
Tovbin’s requests on February 15, 16, and 17 and March 7 and
15, 1996. I credit the testimony of Pepper and Wood about the
way they dealt with Tovbin’s requests. The evidence shows
that Tovbin’s requests were handled in accordance with Re-
spondent’s procedures in effect at the relevant times. Despite a
valiant attempt to show disparate treatment, the General Coun-
sel has not convinced me that the Respondent discriminated in
its treatment of Tovbin. Indeed, the voluminous documentary
evidence shows that Tovbin requested more adjustments and
time off than any other employee and that the vast majority of
her requests were granted as a matter of routine.
3. Denial of information
On June 16, 1995, DeFilippi sent Pepper a letter about in-
formation requests from Local 424. The letter concluded:

In order to provide a more systematic approach which
will better serve our members needs, I will direct our shop
stewards to request information that is relevant to a spe-
cific grievance directly from you, verbally and by certified
mail back-up.
In the event the information is not forthcoming, I will
contact you directly to ascertain what the delay is . . . .

Copies of DeFilippi’s letter were sent to Shop stewards John
Amato, Dan Barton, and Richard Schluger. DeFilippi testified
that he instructed the shop stewards to direct their information
requests to Pepper.
DeFilippi stated that despite his agreement with Pepper to
transmit all information requests directly to Pepper, the shop
stewards reported that he was refusing to provide information.
According to DeFilippi, he then told the shop stewards to re-
quest the information directly from the supervisors.
Barton testified that he probably saw DeFilippi’s letter of
June 16, 1995, but he could not recall anything about it. Barton
stated that he had no idea what the letter pertained to. Barton
said he never followed the steps outlined in the letter.33 Ac-
cording to Barton, he always sent a request for information to a
first line supervisor even though there was not one instance
where a supervisor directly responded to his request for infor-
mation. Barton testified that only Pepper or his predecessor
Kahn had ever provided information in response to the Union’s
request. Barton said that he persisted in sending a first request
to the supervisor knowing that there would be no response; then
he sent a second request to Pepper about one week later.
On February 21, 1996, Barton sent a memorandum to Kiendl
requesting information pertaining to a grievance filed by
Tovbin about the failure to permit her to use breaktime in order
to leave early. Barton asked Kiendl to provide attendance re-
cords, which would show the reason for early departure of other
employees, and how their time was made up. Barton wanted
the information for a step-2 grievance regarding Tovbin.
Kiendl did not provide the information because the policy re-
quired that information requests be made to Pepper. Barton
33 I note that in much of the correspondence to management, Barton
styles himself “grievance chairperson.”
testified that on March 11 he sent a request for the same infor-
mation to Pepper via the interoffice mail. Barton stated that he
never spoke to Pepper about the grievance or the request for
information. Barton was out of the office on suspension from
March 20 to April 22.34 Tovbin resigned on April 25 and the
Union did not pursue the grievance nor make any further re-
quest for information.
On February 21, 1996, Barton requested records for employ-
ees in the IS department relating to a possible grievance con-
cerning disparate overtime assignments. Again, he sent the
request to Kiendl, again he received no response, and again he
directed his request to Pepper on March 11 via interoffice mail.
This grievance related to an alleged denial of overtime to
Tovbin.
On February 21, 1996, Barton wrote to Kiendl stating that
Tovbin was being denied training and that the Union would be
filing a grievance. He requested information pertaining to
training for each employee in the IS department.
On March 11, Barton addressed a memorandum to Pepper
complaining that Tovbin had been denied the use of the office
fax machine for her correspondence. Barton said that a griev-
ance alleging discrimination would be filed and he requested
information regarding the transmittal documentation for the fax
machine.
Pepper testified that he received copies of Barton’s informa-
tion requests after March 11. He was surprised to see that Bar-
ton had addressed the requests to Kiendl because of his agree-
ment with DeFilippi that all requests for information would be
sent to him directly. Pepper did not speak to Barton about all
of the requests because he was suspended on March 19. In-
stead, Pepper telephoned DeFilippi to discuss the requests and
to inform him that the Fund was putting together the documents
for the Tovbin grievances. Pepper was going to wait until Bar-
ton returned from his suspension to deliver the information. In
the event, Tovbin resigned 3 days after Barton returned to the
office. The Union did not renew the request for information
after Tovbin’s resignation.
The complaint alleges that the Respondent refused to provide
the Union with requested information relating to Tovbin’s
grievances.
I credit Pepper that he and DeFilippi had an agreement, me-
morialized in the latter’s letter, that all requests for information
would be made directly to Pepper. Barton testified that despite
his consistent attempts, he never received information from
supervisors and that he got all the responses to information
requests from Pepper. I do not credit DeFilippi’s testimony that
the written agreement was not effectuated. Thus, I do not find
that the Fund refused to provide information where the requests
were improperly directed to line supervisors. I credit Pepper
that he started to gather the information requested by the Union
after March 11 and that he told DeFilippi that he would give the
material to Barton after he returned from his suspension. I
credit Pepper that he did not turn over the material because the
Union did not ask for it after Tovbin resigned and because the
Union did not further pursue Tovbin’s grievances. I find that
the requests for information were directly related to Tovbin’s
grievances. Tovbin submitted her resignation on April 25 and
the Union did not tell Pepper that it nevertheless wanted the
information. If Pepper’s belief that the Union was no longer
34 As discussed above, Barton was told that he was suspended on
March 19.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 142
interested in the material had been wrong, surely one telephone
call from DeFilippi or a single memorandum from Barton
would have alerted him. Pepper’s telephone call to DeFilippi
about the matter when Barton was suspended shows his good-
faith willingness to supply the requested information. I do not
find that the Respondent violated the Act by failing to turn over
information relating to Tovbin’s grievances.
4. Constructive discharge
The complaint alleges that the Respondent caused Tovbin’s
“termination” by assigning her tasks for which she did not have
adequate training and did not have the appropriate software; by
assigning her a task with an unrealistic completion date; by
failing to provide her with necessary training; by failing to give
her PC work assignments; by denying her requests to alter her
hours, for emergency leave, for schedule changes and for reli-
gious days off without pay; by refusing to provide information
to process her grievances; and by refusing to admit her to a
grievance meeting.
Tovbin testified that she resigned because she saw files in
Wood’s office with her name on them and she saw her name
next to some dates on Wood’s PC. Tovbin believed that Wood
was gathering information about her. When asked by counsel
for the General Counsel why she had resigned, Tovbin testified:

I resigned because I had just really basically had enough.
When I saw the folders there and I was sick to my stomach
that people were plotting against me, and I . . . had been see-
ing my doctor in recent months and I wasn’t sleeping well, I
wasn’t eating, I couldn’t concentrate that well. I felt very hu-
miliated many times over the course of the past few months. I
felt I just couldn’t take it anymore.

I have not found proof of any antiunion animus in Respon-
dent’s actions regarding Tovbin. I have found above that the
Respondent did not engage in the unfair labor practices alleged
with respect to Tovbin, and I conclude that the Respondent did
not unlawfully cause Tovbin to resign.
I note that to support the assertion that the Respondent con-
structively discharged Tovbin, the General Counsel’s brief
relies on events not alleged in the complaint herein as unfair
labor practices. In addition, the brief cites some testimony by
Tovbin that I clearly indicated that I would not consider be-
cause it was hearsay. I shall not consider reasons for construc-
tive discharge which were not alleged in the complaint and as
to which the Respondent was not on notice.
5. Delaying payment of accrued sick leave
On April 12, Tovbin requested that a balance of 120 days of
sick leave be paid to her in cash. On the morning of April 19,
Tovbin addressed a memorandum to Pepper stating that she had
been told that there was a discrepancy in her actual entitlement
and that some days were in dispute. Tovbin claimed that Pep-
per would not release her check until he saw her in a discipli-
nary meeting.
DeFilippi testified that he was getting many telephone calls
from Tovbin claiming that she was being persecuted; she was
under stress and seeing people about her health. Tovbin told
DeFilippi that she wanted to quit and that she wanted to cash in
her sick leave. DeFilippi stated that he spoke to Pepper about
the problem. Pepper informed him that there was a dispute
over the number of days Tovbin was owed and that he wanted
to meet with her to straighten it out.35 Pepper told him that the
only question was how many days Tovbin was entitled to; he
did not want to discuss anything else with Tovbin. Tovbin had
informed DeFilippi that she did not want to meet with Pepper.
She believed that that there was a vendetta against her and that
the meeting was a “trap” with the sick leave issue as “bait.”
However, she was willing to meet with a supervisor. Even
though DeFilippi knew that Pepper wanted to see Tovbin for
the sole purpose of determining the sick leave entitlement issue,
DeFilippi wrote Pepper a letter on April 18 asserting that Pep-
per was conditioning Tovbin’s ability to cash in sick days upon
a “disciplinary meeting.” DeFilippi asserted that Pepper was
violating the Americans with Disability Act and that he could
have “catastrophic results on Ms. Tovbin’s well being.” Pepper
replied on April 19 stating:

If Ms. Tovbin wants to cash in her accumulated sick days,
please have her contact me. This has nothing to do with any
disciplinary meeting. However, her attendance record will be
reviewed to determine how much sick leave she has remain-
ing.”

On April 19, DeFilippi suggested to Pepper that the Fund
pay Tovbin for 100 days and argue about the rest later. He told
Tovbin that she would get a check for 100 days sick leave. In
fact, Tovbin received a check for 100 days before 11:30 a.m.
Tovbin sent Pepper a second memorandum at that hour, com-
plaining that she had only been paid for 100 days; she was sure
that DeFilippi said that she would get a check for more than
that number of days.36 On April 25, Tovbin again wrote to
Pepper complaining that she had not been paid for the amount
being held due to a discrepancy. This was the day that Tovbin
submitted her resignation later. On May 1, Tovbin again sent a
memorandum to Pepper stating that she had been informed that
she would not get the balance of her sick pay until she arranged
a meeting with Pepper. She demanded interest at the prime rate
from April 18.
The Fund paid Tovbin for the full amount of the 20 days in
dispute on May 8.
The complaint alleges that the Respondent delayed payment
of accrued sick leave to Tovbin because of her union activities.
I have found no evidence of antiunion animus with respect to
Tovbin’s activities. The evidence is clear that Tovbin re-
quested payment of her sick leave accumulation on April 12.
Although the Respondent had a question about her entitlement
to the full 120 days she claimed, Pepper readily acceded to
DeFilippi’s suggestion of April 19 that Tovbin be paid for 100
days pending resolution of a possible discrepancy. Pepper
wanted to meet with Tovbin to figure out her actual entitle-
ment; this was not an unreasonable request. Tovbin refused to
discuss the problem with Pepper; she was told the purpose of
the meeting but she persisted in characterizing it as a discipli-
nary meeting called to “trap” her. Tovbin’s reasoning is not
clear. By May 8, even though Tovbin was not cooperating with
the Respondent’s reasonable request that she help straighten out
the questions relating to her sick leave balance, the Respondent

35 The question about sick days arose from an overseas vacation trip
that was extended when Tovbin claimed to be sick. Tovbin had made
certain statements to the Respondent that led it to believe that she had
not been sick.
36 Although I will not try to describe the dispute in detail, a reading
of Tovbin’s memos shows that even she was confused as to the number
of days owed to her. She variously claimed 20 days or 23 days.
UNITED FEDERATION OF TEACHERS WELFARE FUND 143
had paid her the full amount she claimed. Thus, it took less
than a month to pay Tovbin everything she wanted. I find that
Respondent did not unlawfully delay paying Tovbin for her
accumulated sick leave.
J. Refusal to Schedule Contract Negotiations
On September 11, 1996, DeFilippi wrote to the Respondent
requesting negotiations for a successor agreement to the con-
tract expiring on November 30, 1996.
On October 1, the Fund’s labor counsel replied to DeFilippi.
The letter stated:

On September 9, 1996, the Welfare Fund was pre-
sented with a Petition signed by a majority of the bargain-
ing unit employees which stated that they no longer
wanted to be represented by Local 424. In addition, the
employees filed a petition for an election at the National
Labor Relations Board. Accordingly, until Local 424’s
representation status has been resolved, it does not make
sense to open contract negotiations. Of course, the Wel-
fare Fund will continue to recognize your union and the
existing contract until the employees’ choice has been
determined.

I have found that the Respondent engaged in an unlawful re-
fusal to provide information and a delay in providing the in-
formation from April 21 to June 3, 1998. This unfair labor
practice could not have affected the employee petition pre-
sented to the Respondent on September 9, 1996. Thus I cannot
find that the employee petition was tainted by any unfair labor
practices. It was thus not unlawful for the Respondent to refuse
to negotiate a new collective-bargaining agreement with Local
424 because a majority of the unit employees stated that they
no longer wished to be represented by the Union.
CONCLUSIONS OF LAW
1. By refusing to provide information about vacation sched-
uling to the Union on April 21, 1998, and by delaying in pro-
viding the information from April 21 to June 3, 1998, Respon-
dent violated Section 8(a)(5) and (1) of the Act.
2. The General Counsel has not proved that the Respondent
engaged in any other violations of the Act as alleged in the
complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. I have found that the Respondent
furnished the requested information to the Union after a period
of delay. Therefore, I need not order it to do so.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, United Federation of Teachers Welfare
Fund, New York, New York, its officers, agents, successors,
and assigns, shall
37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1. Cease and desist from
(a) Refusing to furnish requested information and delaying in
furnishing to the Union requested information about vacation
policies.
(b) 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 effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
marked “Appendix.”38 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 21, 1998.
(b) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to provide information to United Indus-
try Workers Local 424.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

38 In the event that the Board’s Order is enforced by a judgment of
the United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall be
changed to 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 BOARD 144
UNITED FEDERATION OF TEACHERS WELFARE FUND