Ceridian Corp.

CERIDIAN CORP. 343 NLRB No. 70 571 Ceridian Corporation and Service Employees Inter- national Union Local 113. Case 18–CA–17123 November 12, 2004 DECISION AND ORDER BY MEMBERS LIEBMAN, WALSH, AND MEISBURG On August 5, 2004, Associate Chief Judge William N. Cates issued the attached decision. The Respondent filed exceptions, a supporting brief, and an answering brief, and the General Counsel filed exceptions and a support- ing brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Ceridian Corporation, Eagan, Minnesota, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. Substitute the attached notice for that of the adminis- trative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1 In adopting the judge’s finding that the Respondent has violated Sec. 8(a)(5) and (1) as alleged, Member Meisburg notes that if an em- ployer is concerned about the loss of employee services because of the employee’s presence in negotiations, the employer may insist on a reasonable alternative; however, it cannot simultaneously demand that bargaining take place during work hours and refuse reasonable unpaid leave requests. See Milwhite Co., 290 NLRB 1150, 1152 (1988). Here, the six employee-members are from among different work groups and departments among the Respondent’s 130 bargaining unit employees, thus minimizing the impact of their absence from the work force during negotiations. Significantly, the Respondent’s witness, Noreen Miller, admitted that the Respondent never explored with the Union whether there were times available when all the negotiators could be present and acknowledged the possibility that all employee-members could have been present without any impact on their work schedules during week- end days, when the Respondent refused to meet. 2 We shall substitute a new notice in accordance with Ishikawa Gas- ket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with Service Employ- ees International Union Local 113 by failing and refusing to grant unpaid leave to employee members of the Un- ion’s bargaining committee for the purpose of attending bargaining sessions, while refusing to meet at times when the Union’s bargaining committee is not scheduled to work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, on request, grant employee members of the Union’s bargaining committee unpaid leave for the pur- pose of attending bargaining sessions, or in the alterna- tive meet for bargaining at times when employee mem- bers of the Union’s bargaining committee are not sched- uled to work. WE WILL restore the personal days off taken by em- ployee members of the Union’s negotiating committee for those occasions when we insisted negotiations take place during the normal work day and at the same time refused to grant the employee members of the Union’s negotiating committee unpaid leave to attend negotia- tions. CERIDIAN CORPORATION Pamela W. Scott, Esq., for the General Counsel.1 Donald W. Selzer Jr., Esq., and Sandro M. Garofalo, Esq., for the Respondent.2 DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. I heard this case in trial in Minneapolis, Minnesota, on June 15, 2004. The case originates from a charge, filed by Service Employees In- ternational Union Local 113 (Union) on December 19, 2003, and amended on February 26, 2004, against Ceridian Corpora- tion (Company). The prosecution of this case was formalized 1 I shall refer to counsel for General Counsel as Government counsel or the Government. 2 I shall refer to the Respondent as the Company. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 572 on March 30, 2004, when the Regional Director for Region 18 of the National Labor Relations Board (Board), acting in the name of the Board’s General Counsel, issued a complaint and notice of hearing (complaint) against the Company. The complaint alleges the Company has violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) by since on or about September 22, 2003, failing and refusing to bargain collectively and in good faith with the Union. Specifi- cally it is alleged the Company has refused to grant unpaid leave to employee-members of the Union’s bargaining commit- tee for the purpose of attending bargaining sessions, and by insisting that employee-members of the Union’s negotiating committee must use their paid time off time for time spent at negotiations, while the Company refuses to meet at times when employee-members of the Union’s bargaining committee are not scheduled to work. The Company admits that employee-members of the Union’s bargaining committee are, as are all other employees, subject to its personal days off (PDO) policy and that it declines to accord employee-members of the Union’s collective-bargaining com- mittee preferential treatment, as compared to other employees, with respect to its PDO policy. The Company denies it violated the Act in any manner alleged in the complaint. The parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and cross-examine wit- nesses, and to file briefs. I carefully observed the demeanor of the three witnesses as they testified. I have studied the whole record, the parties’ briefs, and the authorities they rely on. Based on more detailed findings and analysis below, I conclude and find the Company violated the Act substantially as alleged in the complaint. FINDINGS OF FACT3 I. JURISDICTION AND LABOR ORGANIZATION STATUS The Company is a Delaware corporation with an office and place of business located in Eagan, Minnesota, where it pro- vides payroll and human resources-related solutions and IT services. During the past 12 months ending March 24, 2004, a representative period, the Company derived gross revenues in excess of $1 million and during that same time purchased and received goods and materials valued in excess of $50,000 di- rectly from points located outside the State of Minnesota. The evidence establishes, the parties admit, and I find the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties admit and I find the Union is a labor organization within the meaning of Section 2(5) of the Act. II. OVERVIEW On June 5, 2003, the Union was certified by the Board as the exclusive collective-bargaining representative of Company employees in an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The appropriate unit is as follows: 3 The essential facts are not significantly disputed. Unless I indicate otherwise, my findings are based on admitted or stipulated facts, docu- mentary exhibits, or undisputed and credible testimony given by the three witnesses herein. All full-time and regular part-time production employees em- ployed at the Company’s Eagan facility in the following clas- sifications: Clinical Coaches, Referral Specialists, Affiliate Network Manager, Network Development Specialists, and LifeWorks Consultants, including those with responsibility for consulting in the areas of Financial, Legal, Adoption, Education, Substance Abuse, Triage, Substance Abuse Case Management, Critical Incident and Management Line; ex- cluding all other employees, including researchers, office clericals, and guards and supervisors as defined in the Act as amended. At all times since June 5, 2003, the Company has recognized the Union as the exclusive collective-bargaining representative of the unit employees. There are approximately 130 employees in the unit. III. ALLEGED UNFAIR LABOR PRACTICES A. Facts The Company is an information services company providing a wide range of services, such as payroll and human resources solutions, to other companies throughout the United States. One of the specific services the Company provides to its cus- tomers (companies utilizing its services) is a call-in employee assistance program. Customer employees utilizing the em- ployee assistance program can access information and referrals covering various services. Company Vice President of Service Delivery Noreen Miller, testified for example that, Company customer employees may, among other areas, seek and obtain advice and referrals related to financial and/or legal matters, substance abuse programs and assistance, mental health and/or emotional well-being assistance, as well as, child and/or paren- tal or elder care. The Company’s employee assistance program call-in center is staffed 24 hours per day, 7 days per week, 365 days per year. The employee assistance program call-in center is staffed ex- clusively by the unit employees herein. The unit employees are exempt professional and/or specialists employees from among the areas of expertise referred to above. According to Com- pany Vice President of Service Delivery Miller, the call-in center must be fully staffed at all times in order to promptly respond to customer employees’ calls. Miller testified 90 per- cent of employee assistance program telephone calls are an- swered within 20 seconds of the call coming into the call-in center. Miller explained there are performance guarantees with financial penalties if calls are not expeditiously answered and responded to. The Union and Company commenced negotiations toward a first collective-bargaining agreement for the unit employees on September 22, 2003. According to Union Business Representa- tive Jayne Hetchler, one of the first topics discussed was ac- counting for time spent by employee-members of the Union’s negotiating team attending negotiations. The Union requested that employee-members of its negotiating committee be al- lowed to take leave without pay to attend bargaining sessions and the Union would compensate those members directly or reimburse the Company if the Company paid the employees through the payroll system. The Company, however, insisted CERIDIAN CORP. 573 that absences incurred by employees while attending contract negotiations be charged against the employees’ PDO accounts, in full-day segments, in the same manner as any other personal leave taken. Company Vice President of Service Delivery Miller explained the Company did not give unpaid time off for personal reasons under any circumstances and would not treat employee negotiators any differently. The Company further explained that due to scheduling concerns regarding the call-in center, it was unwilling to permit employees on the negotiating committee to simply take unpaid leave in lieu of PDO. The Company maintained, at negotiations, that the efficient opera- tion of its call-in center depended, for the most part, on depend- able staffing. The Company offered to allow employees to take PDO time in one-half day increments on those occasions when bargaining only lasted a half day. The Company also offered to allow employees to borrow PDO time from their next year’s allocation if they exhausted their current year’s allotment. The Union continued to seek to have its employee negotiators be permitted to take leave without pay for time spent participating in negotiations. The parties scheduled additional bargaining sessions after their initial session on September 22, 2003. Tentatively, one or two sessions were scheduled outside the normal workday, how- ever, those sessions were canceled. All sessions have been held during the normal workday. The Union employee committee members have been required to utilize PDO for negotiations. In an October 3, 2003 letter to Union Business Representa- tive Hetchler the Company, by its labor counsel, indicated it wished to “repeat and clarify” its position regarding the re- quired use of PDO by the Union’s negotiating team members. The letter in pertinent part stated: As you know, the Eagan service center employees re- spond to client Employee calls 24 hours a day. Counselors with specific skills and specialties are needed 24 hours a day so that our clients’ employees can be served. . . . . Because we cannot anticipate how long any of our ne- gotiating sessions will take, it is impossible for Ceridian to allow six of seven employees designated by the SEIU to be gone [from] their job without them taking PDO. If we agree in advance to limit a negotiating session to three and a half hours, Ceridian will allow the employees on the team to take one-half day PDO instead of a full day. The demands of Ceridian’s business do not permit it to give these seven employees more time away from the job than its generous PDO policy already affords them. If any team member uses all their allotted PDO Ceridian will allow them to borrow from next year’s allotment, which is cred- ited to their account in total at the beginning of the year and then is accrued as the year progresses—see the PDO policy provided to you in response to the SEIU informa- tion request. With respect to our next meeting for negotiations, I can confirm October 16 as an acceptable date to Ceridian. However it is Ceridian’s desire that all such meetings be conducted during normal business hours. All of the team for Ceridian and all but two of the SEIU employee team- work business hours and scheduling negotiations outside of those hours is an unwarranted intrusion into personal time and family commitments. We are flexible concerning whether to commence the next meeting in the morning or in the afternoon. Please advice [sic] concerning your pref- erence on this. Union negotiating committee member, employee Gerald Buchko, testified union-negotiating members volunteered to serve. Buchko said a number of employees declined to serve because they were required to use their PDO for negotiations. Buchko indicated he has utilized over 100 hours of PDO and two floating holidays participating in negotiations. Buchko has attended 17 of the 18 bargaining session held to date. Inasmuch as leave status for employee negotiators plays the central role in this case an overview of the Company’s leave policies is helpful in understanding the parties’ positions. In the Company’s written leave policy the stated intent for PDO is “Employees earn paid time off to be used for absences such as leisure, personal business, short-term personal or family illness, and emergency facility closings.” PDO is accrued based on length of company service with 1 to 10 years company service earning 4 weeks of PDO per year. Five additional PDO are awarded to employees who observe the 10th and 20th service anniversary of employment. Employees can carry over a bal- ance of 40 hours of PDO into the next year. According to Company Vice President of Service Delivery Miller PDO oper- ates on a “no fault” type arrangement where employees can take PDO for any or no reason. The Company provides 10 paid holidays in addition to PDO. Six of the holidays (New Years Day, Memorial Day, Independ- ence Day, Labor Day, Thanksgiving, and Christmas) are desig- nated while 4 are floating holidays selected by the employee. The Company also provides one paid “Community Involve- ment” day each year. As applicable the Company allows up to 12 weeks unpaid family and medical leave per year. The Com- pany provides parental leave of 5 paid days off “after the birth of a child or placement in the home for adoption.” The Com- pany provides 3 paid days of funeral leave “if there is a death of an individual significant to the employee.” The Company grants reasonable paid time for employees to vote in general elections and grants paid time off for jury duty. The Company also has a “Personal Leave of Absence Pol- icy” the stated intent of which is “to recognize that reasonable requests for periods of time off beyond those provided by paid time off programs will be honored, providing that accommoda- tion of the requests will not impact normal business opera- tions.” After a year of employment employees are eligible for 12 months of unpaid leave (which may be extended to 24 months) “for reasons such as full-time education programs, family relocations, serious personal problems, campaigning for political office, or other reasons with management approval.” The Company’s military leave policy provides it will main- tain an employee’s current level of compensation for up to 10 working days each military training year and for 6 months of involuntary call to active duty. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 574 B. Analysis and Concluding Findings As noted earlier the complaint alleges the Company failed to grant unpaid leave to employee-members of the Union’s bar- gaining committee to attend bargaining sessions insisting they utilize PDO for time spent at negotiations and refused to meet at times when employee-members of the Union’s bargaining committee were not scheduled to work. It is alleged the Com- pany’s actions constitute a violation of Section 8(a)(5) and (1) of the Act. 1. Legal principles Both parties reviewed the Board’s holdings in Indiana & Michigan Electric Co., 229 NLRB 576 (1977); and Milwhite Co., 290 NLRB 1150 (1988). The Government argues the two cases are controlling herein and demonstrate the Company has violated the Act. The Company, on the other hand, argues the two cases do not stand for the proposition the Government advances and are otherwise distinguishable. A review of the two above-cited cases is informative prior to setting forth the positions of the parties. In Indiana & Michigan Electric Co., 229 NLRB 576 (1977) [reconsidered sua sponte and affirmed 235 NLRB 1128 (1978)], enfd. 599 F.2d 185 (7th Cir. 1979), cert. denied 444 U.S. 1014 (1980), the Board considered the issue of an employer not granting uncompensated leave for union committee members to attend bargaining sessions while at the same time refusing to meet for bargaining at times other than the normal workday. The Board reasoned as follows: The General Counsel alleged that the Respondent vio- lated Section 8(a)(5) and (1) if the Act by (1) refusing to meet with the union representatives outside working hours, and by (2) simultaneously refusing to allow mem- bers of the bargaining committee leave without pay to travel to and participate in negotiations with respect to units in which they are not employed. The Respondent de- fended its actions principally on the theory that at least one “traveler” and member of the committee, VanAman, was a troubleshooter whose presence could not be spared for the aggregate of 11 days requested to participate in these ne- gotiations. The alleged violation was not pinned to one or the other of the Respondent’s actions, but resulted from the application of both actions together, which effectively deprived the Union of the assistance of the bargaining rep- resentatives it desired. We find that the Respondent’s re- fusal to grant members of the Union’s negotiations com- mittee uncompensated leave to permit them to engage in bargaining during working hours, while at the same time refusing the Union’s request to bargain during nonworking hours, is an unlawful interference with the Union’s selec- tion of its bargaining representatives. We do not suggest that an employer is compelled to yield to a union’s request for negotiations outside normal business hours. It is free to insist on bargaining during the working day, if it prefers, as the Respondent did here. If it makes this choice, however, it cannot at the same time re- fuse to allow unpaid time off to union representatives on the bargaining committee because they are employed in another unit. Alternatively, the Employer is free to acqui- esce in the Union’s request to bargain during nonworking hours in order to reduce the amount of uncompensated leave for travelers and to minimize the effects of the un- availability during their regular working hours of emer- gency troubleshooters. However, the Respondent cannot have it both ways. That is, if, as here, the Respondent makes the choice to bargain during the working day, it cannot lawfully refuse to allow union employee representatives time off. But, if it does refuse to give such employees time off, then it is obligated to make itself available for negotiations at a time—even outside working hours—when the representa- tive can attend. It is the Respondent’s attempt here to have it both ways that constitutes the violation of the Act. The Board in Milwhite Co., 290 NLRB 1150 (1988), adopted Judge Pargen Robertson’s decision addressing, in part, the issue of whether an employer could lawfully refuse to negotiate with its employees’ chosen bargaining representative who happened to be one of its two employee bulldozer operators whose job it was to remove overburden from clay that the remaining em- ployees processed. The employer in Milwhite asserted it could not afford to have one of its two bulldozer operators absent from work for negotiations because it would throw approxi- mately 50 percent of its production employees out of work. In response to the employer’s concerns the union offered to bar- gain during nonwork periods; however, the employer con- tended long bargaining sessions at night would likely result in the bulldozer operator not being able to perform his work in an acceptable fashion the next workday. The employer refused to negotiate with the bulldozer operator present at negotiations. Judge Robertson, quoting at length from Indiana & Michigan Electric Co., 229 NLRB 576 (1977), concluded, among other things, an “employer may not simply refuse to negotiate on the grounds that a valuable employee is included on the negotiating committee.” Judge Robertson noted that if an employer is con- cerned with loss of an employee’s services as a result of the employee’s presence at negotiations during normal work hours there exists a possibility the employer may insist on a reason- able alternative. Judge Robertson observed, however, that when the union attempted to reconcile the employer’s problem concerning the loss of the services of its bulldozer operator it offered to meet and negotiate during nonworking times. The employer refused. Judge Robertson concluded “the [employer] cannot have it both ways. It cannot refuse to meet both during work and non-work times on its assertions that it cannot afford to lose [one of its two bulldozer operators] during work.” Judge Robertson found an 8(a)(5) violation of the Act. Judge Robertson also concluded, “[the employer’s] argument that negotiations would interfere with production if [one of its two bulldozer operators] is present regardless of whether the nego- tiations occurred during work or non-work times is unreason- able.” 2. Positions of the parties The first position advanced by the Government is that the guarantee of free choice contained in the Act encompasses the right of employees to select, absent extraordinary circum- stances, whomever they wish to represent them in collective CERIDIAN CORP. 575 bargaining with an employer. NLRB v. Indiana & Michigan Electric Co., 599 F.2d 185 (7th Cir. 1979), citing NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937). The Government notes an employer has the burden of showing the existence of such extraordinary circumstances or it violates the Act by inter- fering with its employees’ choice of negotiators. The Govern- ment argues a case of unlawful interference in the selection of bargaining representatives is established where an employer takes the position that it will only bargain during the working day and forbids employees from taking unpaid time to partici- pate in negotiations. The Government notes the employer in Indiana & Michigan Electric Co., 229 NLRB 576 (1977), re- fused to permit employee-members of the union’s bargaining committee who were located at distant plants, referred to as “travelers,” to attend negotiations other than those scheduled in their own locations. The union refused to proceed with further negotiations until the employer altered its position. The union proposed meeting outside normal work times but the employer refused to set any night or weekend bargaining times. The Government argues the employer’s reasoning is similar to the Company’s position in the instant case, that it would be unrea- sonable to ask its managers to devote their nights and weekends to negotiations. The Government asserts the theory of a viola- tion in Indiana & Michigan Electric Co., supra, was “not pinned to one or the other of the Respondent’s actions, but resulted from the application of both actions together, which effectively deprived the Union of assistance of the bargaining representative it desired.” Government counsel states “[t]he same theory is advanced by [Government counsel] in the in- stant matter.” The Government notes the Board in Indiana & Michigan Electric Co., supra, found the employer’s actions violated the Act and issued an affirmative bargaining order: We find that the Respondent’s refusal to grant members of the Union’s negotiation committee uncompensated leave to per- mit them to engage in bargaining during working hours, while at the same time refusing the Union’s request to bargain dur- ing nonworking hours, is an unlawful interference with the Union’s selection of its bargaining representative. Government counsel points out the Board’s rationale was simply that an employer cannot have it both ways; it may not insist on bargaining during the workday, and at the same time refuse employee representatives’ requests for time off for nego- tiations. Government counsel notes the Board held that if an employer refuses to grant time off then the employer is obli- gated to make itself available for negotiations at a time, even outside working hours, when the representatives can attend. Government counsel asserts the Board followed its Indiana & Michigan Electric Co., supra, rationale in Milwhite Co., 290 NLRB 1150 (1988). Government counsel notes the Board was faced with a situation where an employer refused to negotiate with the union in the presence of a specific employee who was an elected member of the Union’s negotiating committee. The Government notes the employer in Milwhite Co., supra, con- tended it could not afford to have the specific employee attend bargaining because his absence from work would throw 50 percent of the other employees into a situation where they would be unable to perform their work. Government counsel notes the union in Milwhite Co., supra, as in the instant case, offered to negotiate during nonwork periods but the employer there, as in the instant case, rejected that option. The Govern- ment notes the Board in Milwhite Co., supra, adopted Judge Pargen Robertson’s conclusion that a violation occurred. Judge Robertson explained that if the employer was concerned with the loss of an employee’s services because of the employee’s presence at negotiations the employer may insist on a reason- able alternative such as offering to meet and negotiate during nonworktimes, but the employer could not refuse to meet both during work and nonworking times on its assertions that it could not afford to lose a specific employee during worktime. The Government argues Indiana & Michigan Electric Co., 229 NLRB 576 (1977), and Milwhite Co., 290 NLRB 1150 (1988), “speak of employee-negotiators’ right to take uncom- pensated leave, not paid leave, as [the Company] has granted.” Government counsel further argues, “[the Company’s] conten- tion that it has not violated the Act because ‘the Union’s nego- tiating team members have not been refused any time off to attend negotiations’ is specious. They have been denied unpaid leave to bargain.” The Government argues motivation is irrele- vant in this type violation, asserting it is in the nature of a strict liability violation. The Government asserts that once it is shown that an employer has denied unpaid time to employee- negotiators along with a refusal to meet nights or weekends a violation is established. Government counsel asserts the facts herein are undisputed that the Company would meet only during regular work hours, refused to meet at other times, and refused to allow the em- ployee-negotiators unpaid leave to attend scheduled bargaining sessions. The Government notes the Company had three valid options it could have taken consistent with applicable case law namely: (1) it could have paid employee-negotiators to attend negotiations with no loss of PDO; (2) it could have granted unpaid leave to employee-negotiators to attend bargaining; or, (3) it could have agreed to meet after hours for negotiations. The Government asserts the Company chose none of its legal options. Government counsel argues the Company advanced no extraordinary circumstances to establish why its insistence on penalizing employee-negotiators by charging them PDO was necessary, nor was such circumstances shown for its unreason- able refusal to meet after hours for negotiations. The Govern- ment contends it established a clear violation of the Act. Government counsel argues the absence of the six (or less) employee-negotiators from work to attend bargaining did and will not unduly disrupt the Company’s scheduling because the employee-negotiators involved come from different work groups in a work force of approximately 130. The Government asserts meeting on weekends could have eliminated this con- cern of the Company all together. Government counsel argues the Company’s contention it could not grant employee-negotiators unpaid leave to negotiate because of its past practice with respect to its PDO policy is invalid. Government counsel argues that since there had never been a union at the Company prior to this time there could not have been any past practice with regard to the type of leave that would be appropriate to cover employee absences for the pur- pose of participating in collective bargaining. Government DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 576 counsel argues the Company’s PDO policy is simply not in- tended to cover absences of the type at issue herein but rather that it was intended to cover absences for personal reasons such as vacations. The Company contends it has consistently applied its PDO policy in a lawful manner when dealing with employee ab- sences from work including its requirement that employee- members of the Union’s negotiating committee be charged PDO for the time they spend at negotiations. The Company contends the law is settled that employers are not required to pay employees for time spent attending negotiations. Procter & Gamble Mfg. Co. v. NLRB, 658 F.2d 968, 975 (4th Cir. 1981). The Company asserts no meaningful distinction can be drawn between an employer’s lawful policy of not paying em- ployees for time spent away from work at negotiations and its practice of paying its employees for time spent at negotiations but then deducting PDO for such time pursuant to its long es- tablished policy. The Company notes an employer is free to insist that nego- tiations take place either during business or evening hours. Milwhite Co., 290 NLRB 1150 (1988), and People Care, Inc., 327 NLRB 814 (1999). The Company asserts the only restric- tion placed on an employer in insisting when negotiations take place is it may not interfere with a union’s ability to designate its employee negotiating representatives. The Company argues it has in no way interfered with the Union’s right to designate its representatives by application of its PDO policy to the em- ployee-members of the Union’s negotiating committee. The Company strongly asserts it has never, by any of its actions, attempted to dictate or control which employees the Union chooses to bring to the bargaining table. The Company notes it has agreed to grant employee negotiating representatives as much leave with pay as needed to attend negotiations; but, that it merely requires the leave be charged against the employee representative’s PDO account in the same manner that other employee nonbusiness time off from work is charged. The Company contends it has placed no limitations on the ability of employee representatives to trade shifts with coworkers to at- tend contract negotiations. The Company argues in its post trial brief that Government counsel’s reliance on Indiana & Michi- gan Electric Co., 229 NLRB 576 (1977), and Milwhite Co., 290 NLRB 1150 (1988), to support the proposition the Company is required to give unpaid time off for the Union’s employee rep- resentatives to attend negotiations does not withstand scrutiny. The Company asserts the Government simply reads too much into the two cases. The Company argues the two cases merely hold that an employer is obligated, under the Act, to provide employee representatives time off from work to attend negotia- tions where the employer insists, as is the case herein, on hold- ing bargaining during normal business hours. The Company contends neither of the two cases mandates that the time off granted employee representatives for negotiations be unpaid time off. The Company in expanding its argument regarding the two cases contends that in Indiana & Michigan Electric Co., supra, the employer defended its refusal to grant an employee-member of the union’s bargaining committee unpaid time off to attend negotiations on the grounds the employee was a troubleshooter whose presence could not be spared for the aggregate of 11 days of bargaining. Yet the employer at the same time refused to meet with the union outside working hours. The Company argues the Board’s holding was that the employer’s application of both actions deprived the union of the assistance of the bar- gaining representative it desired and as such violated the Act. The Company argues Indiana & Michigan Electric Co., sim- ply stands for the proposition that an employer that insists on bargaining during working hours cannot simultaneously refuse employees time off to attend negotiations. The Company ar- gues it was the employer’s refusal to give the employee any time off to attend negotiations during working time that was found to violate the Act. The Company contends the Board did not so much as address any distinction between paid and unpaid time off, much less hold that all time off granted must be un- paid time off. The Company asserts it has never denied any employee-member of the Union’s bargaining committee time off for negotiations. The Company notes that in Milwhite Co., 290 NLRB 1150 (1988), the employer resisted bargaining when the union wished to include on its negotiating committee one of the em- ployer’s two bulldozer operators because it would result in a reduction by one-half of the work for its production employees. The Company notes the union therein offered to negotiate dur- ing nonwork periods but the employer refused saying the bull- dozer operator would be too tired to perform his work properly the next day. The Company asserts the Board, relying on Indi- ana & Michigan Electric Co., supra, held it was the employer’s refusal to meet during either work or nonworktimes with its bulldozer operator as a member of the union negotiating com- mittee that violated the Act. The Company argues that Indiana & Michigan Electric Co., supra, and Milwhite Co., supra, both stand for the same propo- sition, namely, that where an employer insists on negotiating during business hours it may not lawfully, at the same time, refuse to allow employee union representatives time off to at- tend negotiations. The Company argues neither case requires an employer to grant unpaid time off in order to avoid violating the Act. The Company contends the allegation it has refused to meet at times when employee-members of the Union’s bargaining committee are not scheduled to work is false as a factual mat- ter. The Company notes the Union’s bargaining committee consists of employees who work all three shifts at the Com- pany, thus there is no time during which all of the Union’s em- ployee representatives are available to attend negotiations dur- ing nonworking times. The Company acknowledges there are two occasions when it grants employees unpaid leave but as- serts neither situation is applicable for attending negotiations. The Company’s two unpaid leave occasions cover family medical leave situations pursuant to the family medical leave act and long-term unpaid personal leave to pursue educational or other long-term endeavors. Finally the Company argues charging PDO for negotiations is necessary to ensure staffing levels remain predictable. The Company projects 33 days of absence per employee per year and plans its staffing needs accordingly. The Company argues if union employee negotiating committee members were al- CERIDIAN CORP. 577 lowed additional unpaid leave it would create unnecessary staffing problems for the Company. 3. Additional conclusions A careful reading of Indiana & Michigan Electric Co., 229 NLRB 576 (1977), fully persuades me that the Government’s position is correct and a violation of the Act has been estab- lished. The Board in that case repeatedly made it clear that it is a violation of the Act for an employer to insist that bargaining taking place during the working day while at the same time refusing to allow employee union negotiating committee mem- bers to take “uncompensated leave” or “unpaid time off” to negotiate. The Company herein has done exactly what Board cases disallow and its actions violate the Act and I so find. The Company’s assertion that it has never denied employee- members of the Union’s negotiating committee time for nego- tiations is correct. However, that does not address the ramifica- tions of the Company’s actions for the employees on the Un- ion’s committee. What the Company’s actions amount to is a requirement that the employee-members utilize what in essence is their vacation time just to be able to participate in negotia- tions. This is an unjustifiable position by the Company in light of Board precedent. The Company’s position that the employ- ees are free to participate in negotiations but may lawfully suf- fer a penalty for doing so may technically be correct. Employ- ees, for example, may be asked to take leave without pay; how- ever, in the instant case the Union has agreed to reimburse its members or if the Company pays them to reimburse the Com- pany. What the Company herein may not lawfully do is un- fairly penalize the employee-members of the Union’s negotiat- ing committee by requiring them to utilize their per- sonal/vacation time to participate in negotiations. To allow the Company to force the employee-members to utilize their per- sonal/vacation leave time for negotiations is dictating who will make up the Union’s committee. Some employees who might otherwise be willing to participate may nonetheless not be will- ing to surrender their vacation time to do so. The Company has a very workable Board approved solution, namely, grant employee-members leave without pay or meet at times when the employee-members are not working. Although the Company contends there is no time when at least some of the employee-members of the Union’s negotiating committee would not be working such contention is refuted by Company Vice President of Service Delivery Miller’s testimony that she was sure there were times during the workweek, particularly on a weekend day, when all of the Union’s employee-members of the negotiating committee could be present for negotiations without impacting their work schedules. The Company’s con- tention it cannot give unpaid leave to the six (or less) em- ployee-members because it would disrupt their scheduling is unpersuasive. First, this is a work force of approximately 130 employees. Second, the employee-members come from differ- ent work groups or departments thus the impact, if any, is minimal, and could be avoided all together by bargaining weekend days for example. Finally, the Company’s contention it cannot give unpaid leave to employee-members of the Un- ion’s negotiating committee because it would violate their PDO policy is likewise unpersuasive. First, it does not appear that the PDO policy contemplates or addresses leave for contract negotiations. Second, it appears absences for negotiations are more in the nature of absences for work-related reasons and thus not applicable to or governed by the PDO policy. In summary I find the Company has violated Section 8(a)(5) and (1) of the Act as outlined in the complaint and as estab- lished by Government counsel at trial. CONCLUSION OF LAW By refusing to grant unpaid leave to employee members of the Union’s bargaining committee for the purpose of attending bargaining sessions and insisting they use their personal days off for time spent at negotiations and refusing to meet at times when the Union’s bargaining committee was not scheduled to work the Company violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Company has engaged in certain un- fair labor practices, I find it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Company, having failed to grant unpaid leave to em- ployee-members of the Union’s bargaining committee for the purpose of attending bargaining sessions and insisting they use their personal days off for time spent at negotiations and refus- ing to meet with the employee members of the Union’s bar- gaining committee when they were not scheduled to work, I shall recommend the Company be ordered to grant unpaid leave to the employee-members of the Union’s bargaining committee for the purpose of attending bargaining sessions, or in the alter- native, on request, meet for bargaining with the Union at mutu- ally agreed-upon times outside the normally scheduled work- day. For those occasions where the Company insisted that bargaining take place during the normal workday and at the same time refused to grant the employee-members of the Un- ion’s negotiating committee unpaid leave to attend the negotia- tions, I shall recommend the Company restore the personal days off taken by the employee-members of the Union’s nego- tiation committee. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Company, Ceridian Corporation, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees International Union Local 113 as the exclusive representative of all employ- ees in the unit by refusing to grant unpaid leave employee- members of the Union’s bargaining committee for the purpose of attending bargaining, or in the alternative, cease and desist from refusing to meet at times when employee-members of the Union’s bargaining committee are not scheduled to work. 4 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 578 (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) Grant employee-members of the Union’s bargaining committee unpaid leave for the purpose of attending bargaining sessions, or in the alternative meet for bargaining at times when employee members of the Union’s bargaining committee are not scheduled to work. (b) Restore the personal days off taken by employee- members of the Union’s negotiating committee for those occa- sions when the Company insisted negotiations take place dur- ing the normal workday and at the same time refused to grant employee-members of the Union’s negotiating committee un- paid leave to attend negotiations. (c) Within 14 days after service by the Region, post at its fa- cility in Eagan, Minnesota, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided 5 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- by the Regional Director for Region 18, after being signed by the Company’s authorized representative, shall be posted by the Company immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Company has gone out of business or closed the facil- ity involved in these proceedings, the Company shall duplicate and mail, at its own expense, a copy of the notice to employees to all current employees and former employees employed by the Company at any time since September 22, 2003. (d) Within 21 days after service by the Region, file with the Regional Director for Region 18 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Company has taken to comply. tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”