Woods Schools

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 171 (N.L.R.B. 1984)

WOODS SCHOOLS
The Woods Schools and Pennsylvania Federation of
Teachers. Case 4-CA-12409
30 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 16 May 1983 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed an answering brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended Order
as modified.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by denying Lois
Altman summer per diem employment. The judge
found a causal connection between Altman's pro-
tected activity as union president and the Respond-
ent's refusal to provide her with per diem work as
a substitute. The Respondent's exceptions contend
that it based its decision with regard to per diem
employment solely on the respective qualifications
of potential substitutes. We find merit in the Re-
spondent's contentions.
As of 1981, Lois Altman had been working with
handicapped students at the Respondent's facility
for almost 20 years. Altman had also been a union
official since 1975. In 1981,3 she was the Union's
president and a key member of the Union's bar-
gaining team for new collective-bargaining agree-
ments.
During the regular school year, Altman had
worked as a full-time or substitute art "teacher"
until 1978, when the Respondent reclassified her as
an art "instructor" because she lacked state certifi-
cation for teacher positions. In August 1981, the
Respondent again had to change Altman's job clas-
sification in order to comply with state require-
ments for 5-1/2 daily hours of certified teacher in-
struction, which included the art and music pro-
The Respondent has requested oral argument. The request is denied.
The record, the exceptions, and the briefs adequately present the issues
and positions of the parties.
I No exceptions were filed to the judge's findings that the Respondent
did not threaten to replace employees in violation of Sec. 8(aX1); did not
require employees to obtain certification in violation of Sec. 8(aX3) and
(1); and did not change its dress code, transfer an employee from one set
of shift hours to another, and install a timeclock for nonprofessionals in
violation of Sec. 8(aX5) and (1).
s All dates are in 1981, unless otherwise indicated.
270 NLRB No. 29
grams. Altman still did not have the requisite certi-
fication. She accepted the option of remaining with
the Respondent in a vocational job.
During 16 summers of her tenure with the Re-
spondent, Altman had worked in summer camp
sessions. From 1975 to 1980, she was an instructor
in the summer art and music program. This pro-
gram was abolished for economic reasons, howev-
er, after the 1980 camp. At the end of the 1981 reg-
ular school year, Altman received notice that no
full-time summer assignments were available for
her. She then placed her name on a per diem sub-
stitute list indicating that she was available to sub-
stitute during the summer session. Her lack of
teacher certification restricted her to work as a
substitute for absent instructors at Holland Voca-
tional School. In the course of the summer, the Re-
spondent called her twice to substitute. Both times
she was unable to work due to prior personal com-
mitments. The other instructor substitutes at Hol-
land Vocation Center, Nancy Waldrich and Carla
Reichman, worked an average of 27 days during
the summer.
The judge inferred from the amount of work
available to other substitutes that mere lack of
work was not the reason Altman was not asked to
substitute. He then concluded that a causal connec-
tion must have existed between Altman's union ac-
tivity and the Respondent's failure to provide her
with work. He concluded that the Respondent had
failed to show that the action would have taken
place in the absence of Altman's protected conduct
and on that basis found a violation.
Contrary to the judge, we find that the record
shows no causal connection between the Respond-
ent's failure to hire Altman as a per diem instructor
and her activity on behalf of the Union.' Although
well aware of Altman's union activity, the Re-
spondent had expressed no animosity against it.
The preponderance of evidence supports the Re-
spondent's contention that its hiring decisions were
based solely on the unique qualifications of the two
other substitutes and the particular needs of the
school population. Waldrich had experience as a
counselor and was asked to work with traumatized
young adults. Reichman had worked with blind
students at another school. Altman's experience as
an art instructor made her less qualified to work
with the special populations that Reichman and
Waldrich could serve. Accordingly, we find that
the Respondent did not violate the Act by failing
to employ Lois Altman as a per diem substitute
' In this regard, our finding is consistent with the judge's finding that
there was no nexus between Altman's union activity and her reclassifica-
tion to a vocational job at the end of the summer of 1981.
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and we dismiss that part of the complaint so alleg-
ing.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The Woods Schools, Langhorne, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Delete paragraphs l(c), 2(b), and 2(c) and re-
letter the remaining paragraphs accordingly.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT change the duties of employees,
or the pension benefits payable upon retirement, or
other terms and conditions of employment, without
bargaining in good faith with Pennsylvania Federa-
tion of Teachers as the exclusive bargaining repre-
sentative of the employees in these appropriate
units:
All teachers, counselors, evaluators and teach-
ers aides employed at our Langhorne, Pennsyl-
vania facility, including teachers at the
"Larchwood" unit, but excluding the part-time
adult education teachers, office clerical, custo-
dial and confidential employees, guards and su-
pervisors as defined in the National Labor Re-
lations Act.
All nonprofessional and nontechnical service
and maintenance employees including house-
keepers, houseparents, drivers, custodians,
cleaners, pantry workers, seamstresses, counter
workers, groundsmen, painters, lifeguards,
laundry workers, stockmen, cooks, plumbers,
mechanics, dishwashers, pantry employees, ap-
prentice masons, carpenters, electricians,
bakers, masons, upholsterers employed at our
Langhorne, Pennsylvania facility; but exclud-
ing all professional, technical, managerial, cler-
ical and confidential employees and guards and
supervisors as defined in the National Labor
Relations Act.
WE WILL NOT unlawfully poll our employees
with regard to their desires for union representa-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain in good faith with
Pennsylvania Federation of Teachers as the exclu-
sive representative of the employees in the above
bargaining units concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and embody any understanding reached in a
signed agreement.
THE WOODS SCHOOLS
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
complaint in this case was issued October 30, 1981,1 and
was later amended. The issues are generally whether the
Respondent conducted a number of specified practices
interfering with, restraining, and coercing employees in
violation of Section 8(aX1) of the National Labor Rela-
tions Act, by discriminating to discourage union mem-
bership in violation of Section 8(a)(3) of the Act, and by
refusing to bargain collectively in violation of Section
8(a)(5) of the Act. The case was tried before me at Phila-
delphia, Pennsylvania, from July 21-26, 1982, inclusive.
On the entire record, including my observation of the
demeanor of the witnesses, and after considering the
briefs filed by the parties on October 18, 1982, I make
the following
FINDINGS OF FACT
A. Business of the Respondent and Description of
Labor Unit
The Respondent is a Pennsylvania corporate nonprofit
health care institution within the meaning of Section
2(14) of the Act, with facilities at Langhorne, Pennsylva-
nia. During the 12-month period prior to the complaint,
the Respondent's gross annual income received in the
course and conduct of providing its services exceeded
$250,000, and during said period it purchased goods
valued in excess of $50,000 from firms located in Penn-
sylvania and said firms received the goods from outside
Pennsylvania. The Respondent admits, and I find, that it
is an employer within the meaning of Section 2(2), (6),
and (7) of the Act, that the Pennsylvania Federation of
Teachers, hereinafter "the Union," is a labor organiza-
tion within the meaning of Section 2(5) of the Act, and
that the following employees of the Respondent consti-
tute units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
I All dates are in 1981 unless otherwise indicated.
172
WOODS SCHOOLS
(a) All teachers, counselors, evaluators and teach-
ers aides employed by the Respondent at its Langh-
orne, Pennsylvania facility, including teachers at the
"Larchwood" unit, but excluding the part-time
adult education teachers, office clerical, custodial
and confidential employees, guards and supervisors
as defined in the Act.
(b) All nonprofessional and nontechnical service
and maintenance employees including housekeepers,
houseparents, drivers, custodians, cleaners, pantry
workers, seamstresses, counter workers, grounds-
men, painters, lifeguards, laundry workers, stock-
men, cooks, plumbers, mechanics, dishwashers,
pantry employees, apprentice masons, carpenters,
electricians, bakers, masons, upholsterers employed
by The Woods Schools at its Langhorne, Pennsyl-
vania facility; but excluding all professional techni-
cal managerial, clerical and confidential employees
and guards and supervisors as defined in the Act.
The Respondent's institution serves mentally, emotion-
ally, and physically handicapped or retarded individuals,
aged from 4 to 70 years. It covers 300 acres with over 70
residential, vocational, and educational facilities, caring
for a population of over 560 persons. It employs almost
100 nonunionized persons, and approximately 650 union-
ized persons of whom about 80 are professional educa-
tional personnel and 550 are houseparents and other non-
professionals. The Union was certified as representing
the professional unit on September 15, 1975, and the non-
professional unit on October 6, 1980. A contract between
the Respondent and the professional unit of the Union
was negotiated effective May 31, 1978, to June 30, 1981,
and was extended through September 15. As hereinafter
discussed, negotiations did not result in a further agree-
ment with the professional unit, or in an original agree-
ment with the nonprofessional unit, and the Union initiat-
ed a strike on October 19. Negotiations continued to De-
cember 16.
B. Interfering With, Restraining or Coercing
Employees
1. Polling
Upon receipt of the March 26 request of the Union's
professional unit to commence negotiation of a contract
to succeed the expiring one, the Respondent's director of
finance Richard Braksator met with other administrative
officers to review what they considered a lack of interest
in the Union among the unit members, and to develop a
list of some 10 unit members who were said to have such
a negative interest.2 Braksator phoned counsel and re-
quested that an "RM" petition be filed, which was ac-
complished on March 31. The Regional Director dis-
missed the petition, finding there were insufficient crite-
ria to support a belief that the Union was no longer rep-
resentative.
On April 7, after the Board had declined investigation
of the RM petition, teachers and instructors were in-
formed by the public address system, about 2 p.m., that
I Actually, 2 of the 10 were on the Union's negotiating committee.
they were to report to the cafeteria at the conclusion of
the formal education program at 3 p.m., to meet with Di-
rector of Program Services Kenowitz. There they were
addressed by Kenowitz, who introduced the school's
president Dr. Harold Barbour who, paraphrasing from a
prepared text, advised them that a decertification petition
had been filed because a number of employees did not
want the Union, that the Board had required additional
information, and that a "straw vote" would be taken
then and there to determine whether the employees still
favored union representation.
Ballots were distributed, and the Respondent's repre-
sentatives moved away from where the employees sat at
the cafeteria tables while the ballots were marked,
folded, and placed in a carton. Employees had been told
that a number of them were against the Union, but the
method of marking ballots permitted employees to ob-
serve how other employees were voting. The ballots
were tabulated by representatives of both the Respond-
ent and the Union, and there were 64 votes in favor of
the Union and 6 against. The RM petition was with-
drawn by the Respondent.
Discussion
The General Counsel alleges that the safeguards re-
quired for polling, as established in Struksnes Construc-
tion Co., 165 NLRB 1062, 1063 (1967), were absent here,
in that (I) the purpose was not to determine the truth of
the Union's claim to a majority but, particularly in view
of the alleged unfair labor practices later discussed and
of the lack of reasonable cause for doubt of the Union's
bona fides, was intended as an indication to employees of
the Respondent's union animus, and that (2) the balloting
in view of fellow employees, particularly after they had
been informed that some of the fellow employees were
against the Union, did not constitute a secret vote. The
Respondent of course argues that all of the Struksnes
safeguards were provided.
As later discussed, I do not find that the Respondent
engaged in most of the unfair labor practices alleged, and
do not find that the act of polling was another manifesta-
tion of existing union animus. The polling of employees
here, however, grossly violated the secrecy principles of
Struksnes. The employees were specifically told by the
Respondent that there were some among them who were
antiunion, and yet they knew that fellow voters were
able to see how they voted. In Justus Co., 199 NLRB
422, 423 (1972), "Precautionary measures to insure the
secrecy of the ballots were not taken and employees
were able to observe how others voted." In this case, as
in that, such a nonsecret poll of employee sentiments vio-
lates Section 8(a)(Xl1) of the Act.
2. Threats to replace employees
In the June 22-28 issue of Management Notes, a
weekly newsletter distributed by the Respondent to its
supervisors, Braksator informed supervisors that they
could advise employees that "if a job action is com-
menced, the Wood Schools can and will permanently re-
place employees on strike." In late September or early
October, several employees asked Supervisor Beaumont
173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what had transpired in a supervisors' meeting. One em-
ployee testified that Beaumont responded "that Dr. Bar-
bour said if we go out on strike we're going to be fired."
Beaumont denied having made such a response, testify-
ing that he said only that striking employees would have
to be replaced so that the Woods schools could continue
to function. Another employee testified that on October
5 Beaumont explained to a meeting of employees the dis-
tinction between economic and unfair labor practice
strikes.
During a negotiating session, Braksator told the
Union's negotiators to "tell your people that if they go
out on strike they will be fired and permanently re-
placed." Braksator admitted making the comment, but
testified that he had done so in the context of the
Union's having threatened a strike if the Respondent did
not give in to economic demands, and that the comment
was followed by a discussion between the parties as to
the differences between economic strikes and unfair labor
practice strikes.
After the Union had given the required 10-day notice
of intent to strike, the Respondent directed a letter to all
employees, advising:
. . .The Schools intends to replace striking work-
ers.... The law provides that ... employees who
engage in an economic strike may be permanently
replaced, but they are entitled to reinstatement if
they offer to return to work unconditionally and if
their jobs have not been permanently filled ....
You should be aware that if, in the unlikely situa-
tion, we commit an unfair labor practice which pro-
longs the strike, strikers must be restored to their
jobs if they ask for unconditional reinstatement.
A similar statement was made to supervisors in a memo-
randum outlining procedures to be followed in the event
of the strike.
Discussion
The issue here is whether the message received by the
employees was ". . . that if they engaged in an economic
strike they would be replaced and would lose their jobs
permanently. As the Board has frequently held, such in-
struction to employees is not an accurate statement of
the law, and 'could have no other than a coercive
effect...."', Under the circumstances here I find that
no such threat was made to the employees.
Though the statement made in Management Notes re-
garding permanent discharge was obviously incorrect by
reason of being incomplete, there is no evidence that
such an incorrect statement was repeated to unit mem-
bers so as to coerce them, other than the testimony re-
garding a statement made by Supervisor Beaumont. I
credit Beaumont's denial. The alleged statement was
made over 2 months after the Management Notes in
question was distributed, and it has been undeniably
shown that at a time contemporaneous with the alleged
statement Beaumont was explaining to employees the dif-
ference between economic and unfair labor practice
St. Anthony's Center. 227 NLRB 1777, 1785 (1977).
strikes. Equally, Braksator's statement at. the August 5
meeting would be likewise improper if there were no
more than the statement. The undisputed explanation
that the statement was made in response to the threat of
an economic strike, and the undisputed testimony that
the statement was followed by discussion of economic
versus unfair labor practice strikes, places the statement
in a noncoercive context where no violation of the Act
took place.
3. Requiring certification as a condition of
continued employment
Louise Altman, a 20-year employee of the Respondent,
active in the Union and its president at the times men-
tioned herein as well as being on the negotiating team,
had been classified as a "teacher" until 1978, and thereaf-
ter as an "instructor," the difference being that teachers
are state certified. The Respondent pays certified teach-
ers more than instructors. Certificates are awarded by
the State to holders of bachelor's degrees with 24 addi-
tional postgraduate educational credits. A provisional,
temporary certificate valid for I year can be obtained by
an individual enrolled in a program to obtain certifica-
tion. At her personal preference, Altman was enrolled at
her alma mater, Antioch University, at a cost of $1500
per semester of which $350 per year was reimbursable
from the Respondent, rather than at the State University,
where up to one-half of tuition was reimbursable.
Beginning about 1976, state statute4 provided for reim-
bursable assignment of resident handicapped children to
approved private schools. This "third party financing" of
instruction and maintenance fees required, inter alia, that
at least 5-1/2 hours of instruction daily be by certified
teachers. A state audit in 1979 cited the Respondent for
improper certification5 and when Director of Program
Services Kenowitz was employed by the Respondent in
January 1980, he was specifically given the task of seeing
that the Respondent complied with these requirements
for third-party financing. Kenowitz determined that
there were a number of individuals not certified and,
prior to the summer of 1980, he directed a subordinate to
contact the instructors and advise that they should do
something about obtaining certification. In August 1981
letters were sent to eight instructors, including Altman,
reaffirming that certification was required. 8 Both art and
music were at this time included in the program of in-
struction to make up the 5-1/2 hours per day, and thus
required certified teachers. Altman was given the option
4 22 Penn. Code, Ch. 18, HJ 181.11 through 181.23 inclusive.
' The 1979 audit was not introduced into evidence or produced at the
hearing, but correspondence from the State Department of Education
dated April 12, 1982, states that "The Pennsylvania Department of Edu-
cation, although per previous correspondence, telephone conversations
and on-site visits, brought to your attention our concern regarding the
certification of several employees" and that it had "alerted the Woods
School on numerous occasions that appropriate penalties would be forth-
coming for the failure to utilize appropriate certified individuals for
teaching assignments."
s Of these, several obtained certification, one did not and left the Re-
spondent's employ, one did not and was transferred to a nonteaching
function, and Altman, when she did not, was to be offered a transfer to a
nonteaching function.
174
WOODS SCHOOLS
of remaining in the employ of the Respondent, in a voca-
tional as opposed to teaching capacity.
Discussion
The General Counsel argues that requiring employees
to obtain certification was a pretext used to discourage
membership in a labor organization, in violation of Sec-
tion 8(aX3) of the Act. The evidence is that this require-
ment was imposed upon some eight employees, of whom
only Altman was shown to have some involvement with
the Union. There is no evidence of a nexus between en-
forcement of this requirement and union membership or
activity. Even if there were such evidence, so that the
first portion of the causation test enunciated in Wright
Line' was met and a prima facie case established, the Re-
spondent has demonstrated that the same action would
have taken place even in the absence of the protected ac-
tivity by reason of the requirements of the Pennsylvania
legislature and department of education. I find no viola-
tion of the Act.
4. Denying Altman summer employment
During her 20 years of employment with the Respond-
ent Altman had worked for 16 summers, and continuous-
ly since 1967 or 1968, as a full-time teacher or substitute
teacher or instructor. In March, Altman signed a list of
those desiring summer employment. She did not hear
further, for it was ordinarily the case not to receive as-
signments till the start of summer. On the last day of the
school year Altman inquired as to her summer assign-
ment, and was told that she had not been given full-time
summer employment but that she might put herself down
for per diem substitute work, which she did. She was
phoned at 8:30 a.m. the first day of the summer session
to report to work immediately. Having made other plans
for the day, Altman declined. She received no further
work offers during the summer. The Respondent at-
tempted to use certified teachers as substitutes for certi-
fied teachers and therefore Altman could only have been
used as a substitute instructor at the Holland Vocational
Center. The average number of per diem substitute days
over the summer was 16, though in Holland Vocational
Center it was slightly over 21 days, and for those work-
ing as instructors rather than teachers the average was 27
days.
Discussion
The General Counsel has established that positions for
which Altman qualified did in fact exist, as summer per
diem substitute to work as an instructor at the vocational
center. Though the Respondent's director of education
testified that others who signed the employment list also
did not work, she was unable to specify who any of
those others might have been other than that they might
have worked as per diem substitutes. It is clear that
Altman was not denied summer employment as per diem
substitute instructor by reason of lack of work. Consider-
ing Altman's union position and her activity in ongoing
negotiations, I believe that a causal connection has been
7 Wright Line, 251 NLRB 1083 (1980).
established between the protected activity and the refusal
to provide summer per diem employment. The Respond-
ent has failed to meet the shifted burden established in
Wright Line, supra, of demonstrating that the same action
would have taken place in the absence of the protected
conduct, and I find that a violation of Section 8(a)(1) and
(3) took place.
C. Refusal to Bargain
1. The Respondent's unilateral actions
The General Counsel alleges the Respondent refused
to bargain in violation of Section 8(a)(5) of the Act
through unilaterally affecting changes in the conditions
of employment by modifying the dress code, changing
shift hours, increasing work duties, installing timeclocks,
changing retirement benefits, and implementing wage
offers.
a. Dress code
In July, Supervisor Chiavachi held a meeting of teach-
ers in the Gardener unit and advised them as to dress.
He said that no clogs were to be worn, and sandals only
with back straps; that dungarees were permitted if not
too patched or worn and not cut off; that slacks and tops
were preferred; that women were not to wear short-
shorts or bare midriffs, and unless swim suits were con-
servative it was suggested that a T-shirt also be worn;
and, that men were not to wear open neck shirts show-
ing a bare chest, or racing-type bikini swimsuits. Men
and women teachers were cautioned against dressing so
as to arouse students sexually.
The employees' manual contained the following nota-
tion entitled "How Do I Look?-Manners and Dress":
One of the major functions of all staff members is to
operate as an appropriate model on which students
can pattern their own behavior and appearance. It is
for this reason that staff members are asked to avoid
behavior and language which would not be accepta-
ble for the students to imitate. For the same reason,
staff members are asked to keep in mind that dress
and grooming should be in good taste and not "far
out" or unusual. For safety reasons, sensible shoes
are required at all times while working. Elevated
and clog-type footwear are undesirable and not ac-
ceptable for persons employed as drivers. Consult
your supervisor in case of doubt in these areas.
Staff members improperly attired were required to
change clothes on their own time prior to being permit-
ted to start work. There were no discussions of the dress
code during then-current or prior negotiations.
Discussion
The Board has found that the unilateral change of a
dress code violates the Act.8 In the matter at hand, how-
a Concord Docu-Prep, Inc., 207 NLRB 981 (1973).
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, I find that Chiavachi's instructions did not consti-
tute such a change. The original dress code in the em-
ployees' manual is very general, using such standards as
"good taste and not 'far out' or unusual" and "sensible,"
with issues of doubt being referred to supervisors. While
there is no specific admonition in the code to avoid sexu-
ally arousing students, I believe that the reference to
"safety," albeit in reference to footwear, makes clear that
certain modes of dress might constitute a threat to the
safety of both teacher and student. I find that there was
no change in the dress code, and no violation of the Act.
b. Shift hours and cleaning duties
In March, employee Moyer complained to Union
President Altman that her shift as houseparent in Rose-
wood residential unit was being increased by 2 hours,
from 11 p.m. to 7 a.m. to 11 p.m. to 9 a.m., and asked
Altman to intercede. Altman phoned Mather and re-
minded him that shift hours were subject to negotiation.
Mather took the position that since a shift of 11 p.m. to 9
a.m. existed in other residential units the change at Rose-
wood was not a unilateral change in working conditions,
but that if Moyer phoned him he would "see what he
could do about it." Moyer never recontacted Altman,
and Altman assumed that Moyer and Mather had
"worked it out."
Harewood, a new residential unit, was opened in July,
to replace the Rosewood and Elmwood units. The new
unit was to be a "behavior modification" unit, equipped
with kitchen facilities. While houseparents at Rosewood
and Elmwood had no cooking or cleaning duties, that
work being done by separate pantry workers and clean-
ing help, upon moving to Harewood they were to be re-
quired to additionally prepare breakfast, and to clean
bathrooms, windows, and floors. The Respondent appar-
ently offered those houseparents involved the option of
transferring to other positions, but it is not clear when
the offer was made, what other positions were offered,
or whether the employees would lose by the transfer.
Discussion
It is undisputed that unilateral changes in working
conditions are unlawful and violate Section 8(aX5) of the
Act. However, the Board will not interfere with unilater-
al actions where within the realm of management pre-
rogatives or authorized by a "management prerogatives
clause" of an existing contract, where a continuation of
past practices retains the status quo, where of a trivial,
de minimis nature, or where required by a necessary
promptness to meet a business requirement. 9 The transfer
of an employee from one set of shift hours to another,
when both sets of hours previously coexisted, is a part of
the managerial prerogative, and I find that in this case it
did not constitute a violation of the Act.
The change in working conditions upon transfer of
houseparents from Rosewood and Elmwood to
Harewood, however, is quite another circumstance. The
Respondent argues that the increased duties came within
the extremely broad job description of a houseparent as
9 Postal Service, 203 NLRB 916, 919 (1973).
being "responsible for complete physical care of a group
of multiple handicapped students.... Responsible for
continuing educational and therapeutic programs....
Responsible for assisting in educational, vocational and
recreational programs.... Responsible for maintaining a
warm, homelike environment throughout the residence."
In the Respondent's view, the assignment of cleaning and
cooking duties, which it refuses to recognize as "addi-
tional," comes within "management prerogatives" of as-
signing any work within the job description. However,
there is nothing in the record to indicate that a residen-
tial "behavioral modification" program existed prior to
the opening of the Harewood residence, and the testimo-
ny of the houseparents makes it appear that, rather than
the program being a training benefit to the students it
was no more than additional drudgery for the staff. The
additional duties imposed were transferred from other
classes of employees, were new to these employees, were
of a highly demanding nature, and should have been ne-
gotiated rather than unilaterally imposed. The action of
the Respondent in unilaterally assigning these addtional
duties without negotiation constitutes a violation of Sec-
tion 8(aX5) of the Act.
c. Implementation of timeclocks
In early April, the Respondent announced at a teach-
ers' meeting that timeclocks were to be installed, and
about the same time Altman was told that "timeclocks
were coming." The first, and apparently only, discussion
of timeclocks during negotiations was for the nonprofes-
sional unit, on March 31, where the use of timeclocks
was explained and comments requested. There is evi-
dence that the Union welcomed the idea, and that a typi-
cal comment was that this would stop nonprofessional
employees from being cheated out of time. There was
also testimony that after installation some machines were
sabotaged by stuffing them with paper. About March 26
the clocks were installed and use began for all of the Re-
spondent's employees. Prior to installation of the time-
clocks, both professional and nonprofessional unit em-
ployees signed in and out of work even though only the
nonprofessional unit employees were paid on an hourly
basis. Professional unit employees were thereafter re-
quired to punch in and out whenever entering or leaving
campus rather than merely noting time of daily arrival
and departure.
Discussion
The Board has previously found that a change in work
rules regarding clocking in and out of work, without
notice and bargaining, to be a violation of Section 8(a)(5)
of the Act.10 In the case of the nonprofessional unit em-
ployees, however, the timeclock here was no more than
a change in the system of existing recordkeeping, and the
status quo was retained without meaningful change. New
use of the timeclocks for the professional staff, on the
other hand, was a change in that it required the clocking
in and out each time the employee left campus during
o0 Schraffts Candy Co., 244 NLRB 581 (1979); Anchortank Inc., 239
NLRB 430, 433 (1978).
176
WOODS SCHOOLS
the day. However, the union representatives knew of the
plan to install timeclocks as early as March 31, the instal-
lation took place May 26, and the Union raised no com-
plaint until June 15.
A union cannot charge an employer with refusal to ne-
gotiate when it has made no timely attempts to bring the
employer to the bargaining table.' Thus, in the final
analysis, the Respondent's action in installing and imple-
menting timeclocks under the circumstances described
did not constitute a violation of Section 8(aX5) of the
Act.
d. Changes in pension benefits
The Respondent's pension plan was established in 1958
and benefits have been from time to time improved. The
Respondent contacted the plan's actuaries during the
summer of 1980 to determine whether existing benefits
could be increased without additional cost to the Em-
ployer. By early 1981 it had a response that this could be
done, since return from investment was much greater
than had been originally anticipated. On June 15, at a ne-
gotiating session, Braksator told the union representatives
that he would like to discuss possible improvement in the
pension program. Plans and actual data were requested
by and provided to the Union, but the issue was not ne-
gotiated. On August 1, the Respondent's board of trust-
ees approved the revision and improvement of the plan,
effective retroactively to July 1.
Discussion
Citing Chemical Workers v. Pittsburgh Glass Co., 404
U.S. 157 (1971), the Respondent argues that its action
was not a violation of the Act since it affected only the
rights of retired employees, a group not protected by the
Act's collective-bargaining requirements. While it is cor-
rect as to the holding of that case, the Respondent has
not considered that the benefits which it caused to be in-
creased without negotiation also inure to the benefit of
current employees. As stated by the Court in the Pitts-
burgh Glass decision, supra at 180, "future retirement
benefits of active workers are part and parcel of their
overall compensation and hence a well established statu-
tory subject of bargaining." Thus, I find that the Re-
spondent's failure to negotiate pension increases even
though such benefits would not be payable to employees
until they retired and could no longer be represented by
the Union in collective bargaining to be a violation of
the Act.
e. Unilateral implementation of wage increases
The Union was certified as bargaining representative
of the nonprofessional unit on October 6, 1980, and bar-
gaining for that unit commenced January 29. It was the
Respondent's position that noneconomic issues were to
be disposed of before bargaining on economic issues, but
the Union made a wage demand on August 25 for a 30-
percent across-the-board increase. On September 17 the
Respondent made its offer, an across-the-board increase
1' NLRB v. Alva Allen Industries, 369 F.2d 310, 321 (8th Cir. 1966);
Carpenter Sprinkler Corp., 238 NLRB 974, 983 (1978).
of 25 cents per hour. On October 5, the Union responded
with a decreased demand for a 25-percent across-the-
board increase. At an October 14 meeting the Respond-
ent increased its original offer by adding a provision for
a supervisory merit review increase, said by the Re-
spondent to be a 13-percent increase and said by the
Union to have been 4- to 6.5-percent increase. On Octo-
ber 19 the Union's strike began, and on October 22 the
Respondent directed a letter advising the Union that ef-
fective October 26 it was unilaterally implementing its
last wage offer.
The Union had previously been certified to represent
the professional unit and had negotiated a contract expir-
ing in June 1981. On March 23, the Union requested that
bargaining on a new contract begin. There was a similar
understanding that the Respondent would not consider
economic issues until the noneconomic matters were dis-
posed of. Negotiations had reached a point where a Fed-
eral mediator was called in and, on December 16, the
mediator announced to the Union that she had prevailed
upon the Respondent to make a salary offer. The offer
was for a sliding scale of increases resulting in a first
year increase of $1395 for most unit members. The most
senior members of the unit, those already close to maxi-
mum salary, including Union President Altman, would
receive an increase of only $200. The Union rejected the
proposal as being unfair to those already close to maxi-
mum. The Respondent came forward, through the medi-
ator, with a revised offer which, although more generous
overall, contained an even greater disparity between
those at the minimum salary and those at the maximum
salary. The Union asked the mediator to explain to the
Respondent that it was the sliding scale concept, rather
than the amount of the increase which was objectionable,
and that the Union would accept an increase of $1000
across the board, which would result in less expense to
the Respondent. There was no agreement, however, and
the mediator dismissed the parties. The Union decided to
transmit the Respondent's last offer to its membership,
which it did 2 nights later, on December 18, at which
time the membership rejected the offer. On December 22
the Respondent directed a letter advising the Union that,
effective January 1, 1982, it was unilaterally implement-
ing its last wage offer.
At the start of these negotiations the Respondent was
represented by an individual whose strategy admittedly
was "to negotiate for a year and then walk away." That
individual was discharged, and the Respondent's current
counsel was retained. In private notes at negotiations, the
Respondent sometimes made reference to the I-year an-
niversary of union certification for the nonprofessional
unit, and that after impasse it would be free to implement
wage increases. In June 1982, the Respondent advertised
for a personnel specialist, specifying that "Experience in
managing a union free environment a plus."
Discussion
The freedom to grant a unilateral wage increase is lim-
ited to situations where there has been a bona fide but
unsuccessful attempt to reach an agreement with a union,
or the union bears the guilt for having broken off rela-
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions.12 The Board recognizes that while an impasse may
be, and frequently is only temporary, it "permits the em-
ployer to place into effect those wage increases or bene-
fits it has heretofore offered."13 In determining whether
an impasse has been reached the Board has looked to
such issues as the bargaining history and length of nego-
tiations, other aspects of good faith, the importance of
remaining disputed issues, and the contemporaneous un-
derstanding of the parties. 1 4
In the previous single instance in which this Union and
Respondent were required to negotiate, they did so suc-
cessfully and concluded an agreement. The bargaining
here for the nonprofessional unit commenced January 29,
almost 9 months prior to unilateral implementation of the
wage offer. That implementation came only after a union
demand, the Respondent's counteroffer, and the Union's
counterdemand and its strike. The bargaining here for
the professional unit commenced March 27, over 9
months before the unilateral implementation of the wage
offer. This bargaining saw the appeal to the Federal Me-
diation Service, which was unable to bring the parties to
an agreement, and a final disagreement not on the in-
creased amount of total wages but on the more basic
issue of the manner in which the increase was to be allo-
cated. As discussed earlier herein, during these negotia-
tions there were a number of instances of unfair labor
practices by the Employer, but that is only one criterion
of impasse. Finally, it is obvious that whatever noneco-
nomic issues had been settled or remained disputed, the
unresolved dispute as to wages constituted a major ob-
struction to agreement.
There is evidence that the Respondent was aware that
its obligations under the Act might be different a year
after certification if a contract had not been negotiated.
That evidence itself does not prove the Respondent to
have falsely engineered a situation to be labeled "im-
passe." On the contrary, I find that the Respondent has
fulfilled its obligation to undertake collective bargaining
in good faith, over a sufficient time, until both parties
were deadlocked by significant and unresolved differ-
ences as to the basic issue of wages. The advertisement
stressing experience in a union-free environment must be
viewed first in the context of a work force of which 13
percent was not unionized, and secondly being placed at
a time when the strike had been ineffective for 6 months
leading to obvious conclusions as to the Union's future. I
find the Respondent's unilateral implementation of previ-
ously offered wage increases not to constitute a violation
of its obligation under Section 8(a)(5) of the Act to
engage in collective bargaining.
D. Unfair Labor Practice or Economic Strike
The General Counsel alleges that the strike by both
units, which began October 19, was caused by those uni-
lateral actions claimed to have been the Respondent's
above-considered unfair labor practices.'1 The Respond-
iI Herman Sausage Ca v. NLRB, 275 F.2d 229 (5th Cir. 1960).
is Charles D. Bonanno Linen Service, 243 NLRB 1093, 1094 (1979).
" Taft Broadcasting, 163 NLRB 475, 478 (1967).
" The General Counsel made an eleventh-hour motion to amend the
complaint to add an allegation of generally failing to engage in bargain-
ing. The motion was denied as untimely.
ent, on the other hand, alleges that the sole basis of the
strike was the failure of the Union to obtain the econom-
ic gains for which it bargained.
The first time these labor practices were raised by the
Union was on June 15.16 At that time there was a nego-
tiating session at which the matter of pension increases
had been raised. The Union called for a caucus, at which
the union representative asked the members of the team
if there were "other activities that they could recall
where the management had made unilateral decisions
without dicussing them either at the bargaining table or
somewhere else." The representative gave a short expla-
nation of employee rights "and we compiled a list of
about six or seven items." The negotiations reconvened,
and the union representative told the Respondent:
That I felt they had committed a number of unfair
labor practices, which were impeding our progress
at the bargaining table, and that as long as they
were going to unilaterally make changes in condi-
tions of employment while we were here trying to
negotiate conditions of employment, we would not
reach an agreement.
The Respondent's reaction was one of "surprise," and
they requested a caucus, from which they returned to
state that they had consulted counsel, whose opinion was
that the items mentioned, being the changes involving
timeclocks, duties, shifts, and retirement increase, were
not unfair labor practices.
The Union filed unfair labor practice charges as to
these and other items on September 16. In late Septem-
ber it took a strike vote of its members, and on October
2 it directed a letter to the Respondent requesting resto-
ration of conditions of employment "as they existed prior
to April 1" advising that "Your compliance with this re-
quest would avoid [the] pending strike scheduled for Oc-
tober 19." After the strike there were additional negotia-
tions, culminating in the Federal mediation and economic
offers and rejections discussed above.
Discussion
The unfair labor practice complaints were made to the
Respondent by the Union on June 15. Economic bargain-
ing did not begin until the first union demand on August
25. The unfair labor practice charges were filed with the
Board on September 16. The Respondent's first econom-
ic offer was made on September 17. The strike vote was
held in late September, with union members specifically
being advised that the strike issue was the unfair labor
practices. On October 2 the Union directed a letter to
the Respondent advising that the strike could be avoided
by a return to the conditions of employment which exist-
ed prior to the unfair labor practices charged. The Re-
spondent did not agree to such a return, and the strike
began October 19. Economic negotiations continued, and
on October 22 the Respondent claimed an impasse re-
garding wages on which it based the implementation of
16 An exception is the change in shift hours, which occurred in March
and was the subject of a single phone conversation between Altman and
Mather.
178
WOODS SCHOOLS
its last offer to the nonprofessional unit. It was not until
December 22 that the Respondent claimed an impasse re-
garding wages on which it based the implementation of
its last offer to the professional unit. The economic nego-
tiations were thus in the most formative of stages at the
time of the strike vote, while the unfair labor practice
charges had been discussed and fully considered by both
sides. The Union's final statement on the unfair labor
practice charges was its offer to call off the forthcoming
strike if those specific issues were settled. This was a
clear demonstration that the Union considered the unfair
labor practice charges the complete reason, even more
than a contributing cause, for the strike of October 19. It
is well settled that "If an unfair labor practice is a con-
tributing cause of a strike, then, as a matter of law, the
strike must be considered an unfair labor practice
strike."1 It is equally well settled, by the Board and by
the courts, that an unfair labor practice strike does not
result merely because the strike follows an unfair labor
practice, but that a causal connection must necessarily be
shown to exist between the two. 18 Thus, I find the strike
to have been an unfair labor practice strike.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of the Respondent consti-
tute units appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
(a) All teachers, counselors, evaluators and teach-
ers aides employed by the Respondent at its Langh-
orne, Pennsylvania facility, including teachers at the
"Larchwood" unit, but excluding the part-time
adult education teachers, office clerical, custodial
and confidential employees, guards and supervisors
as defined in the Act.
(b) All nonprofessional and nontechnical service
and maintenance employees including housekeepers,
houseparents, drivers, custodians, cleaners, pantry
workers, seamstresses, counter workers, grounds-
men, painters, lifeguards, laundry workers, stock-
men, cooks, plumbers, mechanics, dishwashers,
pantry employees, apprentice masons, carpenters,
electricians, bankers, masons, upholsterers employed
by The Woods Schools at its Langhorne, Pennsyl-
vania facility; but excluding all professionals, techni-
cal, managerial, clerical and confidential employees
and guards and supervisors as defined in the Act.
4. By failing to maintain secrecy of balloting in a poll
of employees concerning their union sentiment, the Re-
spondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1) of the Act.
l' NLRB v. Colonial Haven Nursing Home, 542 F.2d 691, 704 (7th Cir.
1976).
' T7yposervice Corp., 203 NLRB 1180 (1973); Cagle', Inc. v. NLRB,
588 F.2d 943, 950 (5th Cir. 1979); NLRB v. Proler International Corp., 635
F.2d 351, 354 (5th Cir. 1981).
5. By denying Lois Altman summer per diem employ-
ment, the Respondent has engaged in an unfair labor
practice within the meaning of Section 8(aXI) and (3) of
the Act.
6. By modifying the duties of certain of its employees
in the unit referred to above in paragraph 3(b) by requir-
ing said employees to perform additional cleaning duties,
without prior notice to the Union and without having af-
forded the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the Respondent's
employees, the Respondent has engaged in an unfair
labor practice within the meaning of Section 8(aX)(1) and
(5) of the Act.
7. By increasing pension benefits without prior notice
to the Union and without having afforded the Union an
opportunity to negotiate and bargain as the exclusive
representative of the Respondent's employees, the Re-
spondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (5) of the Act.
8. The strike which began on October 19, 1981, is an
unfair labor practice strike.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(1), (3), and (5) of the Act, I recommend that it be
required to cease and desist therefrom, and in any other
manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights under Section 7 of
the Act.
Having found that the Respondent unlawfully failed to
provide Lois Altman with summer per diem employ-
ment, I recommend that the Respondent be ordered to
make her whole for any loss of earnings she may have
suffered as a result thereof by paying her the amount she
normally would have earned, less net earnings, to which
shall be added interest to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).'1
Having found that the Respondent changed the duties
of employees and changed the pension benefits payable
upon retirement without bargaining in good faith with
the Union, I recommend that, on request, the Respond-
ent be required to bargain in good faith with the Union
and, if an understanding is reached, to embody such un-
derstanding in a written, signed contract.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended2 0
'9 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
'o If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, The Woods Schools, Langhorne,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Changing the duties of employees, or the pension
benefits payable upon retirement, or other terms and
conditions of employment, without bargaining in good
faith with the Union.
(b) Unlawfully polling its employees with regard to
their desires for union representation.
(c) Discriminating against employees in regard to hire
or tenure of employment because they engaged in union
activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to engage in or refrain from engaging in any or all
of the activities specified in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) On request, bargain in good faith with the Pennsyl-
vania Federation of Teachers as the exclusive bargaining
representative of the employees in the unit described
above and, if an understanding is reached, embody such
understanding in a written, signed contract.
(b) Make Lois Altman whole for any loss of earnings
she may have suffered as a result of discrimination
against her in the manner set forth in the section of this
decision entitled "The Remedy."
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, timecards, social security payment records,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at the Respondent's facility at Langhorne,
Pennsylvania, copies of the attached notice marked "Ap-
pendix."' 1 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed
by the Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS ALSO ORDERED that the complaint be dimissed in-
sofar as it alleges violations of the Act not specifically
found.
"1 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
180