Goddard College Corporation

372 NLRB No. 85 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Goddard College Corporation and United Auto Work- ers Local 2322. Case 03–CA–283012 May 3, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY On August 24, 2022, Administrative Law Judge Mi- chael A. Rosas issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 For the reasons stated by the judge, we affirm the judge’s conclusion that the Respondent violated Sec. 8(a)(5) and (1) of the Act by imple- menting a return-to-campus policy that included a return-to-campus date of September 27, 2021, and a change from a mask mandate to a mask recommendation without first bargaining with the Union to agreement or an overall good-faith impasse. In affirming the judge’s conclusion that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally changing employee Dechen Albero’s full- time remote work status to in-person, thereby effectively terminating his employment, we find no merit to the Respondent’s contention on excep- tion that Albero abandoned his job by not appearing for work in-person and thus is not entitled to any backpay remedy. We further note that any issues relating to the amount of backpay owed to Albero may be deter- mined in the compliance stage of this proceeding. We additionally observe, with respect to the unilateral change in Al- bero’s remote work status, that the Respondent has not argued—either to the judge or in its exceptions to the Board—that the change was a core entrepreneurial decision exempt from the duty to bargain. See First Na- tional Maintenance Corp. v. NLRB, 452 U.S. 666, 678–679 (1981) (find- ing core entrepreneurial decisions exempt from decisional bargaining). The argument, therefore, is waived. See MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing, LLC, 365 NLRB No. 76, slip op. at 2 (2017) (argument waived where the party failed to raise it on exception) (citing Sec. 102.46(a)(1)(ii) and (f) of the Board’s Rules and Regulations); Yorkaire, Inc., 297 NLRB 401, 401 (1989) (argument waived where the party failed to raise it to the judge), enfd. 922 F.2d 832 (3d Cir. 1990). Moreover, even had the Respondent timely raised this argument, we would find it without merit, as the record does not show that the Respondent’s decision was one that involved the investment of capital or that altered the scope of the Respondent’s enterprise. See Fi- breboard Paper Products Corp. v. NLRB, 379 U.S. 203, 223 (1964) (ex- plaining that a core entrepreneurial decision is one that “concern[s] the commitment of investment capital and the basic scope of the enterprise”). Instead, the record shows that the Respondent’s new president Dan 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,1 and conclusions,2 and to adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board orders that the Re- spondent, Goddard College Corporation, Plainfield, Ver- mont, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Changing the terms and conditions of employment of its unit employees while engaged in collective bargain- ing without having reached agreement or a lawful overall impasse. (b) Changing the terms and conditions of employment of its unit employees without first notifying United Auto Workers, Local 2322 (the Union) and giving it an oppor- tunity to bargain over those changes. Hocoy changed Albero’s work status because Hocoy believed Albero could engage donors more effectively by working in-person. As the Re- spondent itself emphasized on exception, the change was extremely lim- ited, affecting only Albero’s work location without changing any of his job duties or any of the Respondent’s operations. See O.G.S. Technolo- gies, Inc., 356 NLRB 642, 645–646 (2011) (finding that an operational change of limited scope does not amount to a core entrepreneurial deci- sion). 3 We shall modify the judge’s recommended Order to conform to the unfair labor practice findings, to the Board’s standard remedial language, and in accordance with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996), Cascades Containerboard Packaging—Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), and Paragon Systems, Inc., 371 NLRB No. 104 (2022). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we have also amended the make-whole remedy and modified the judge’s recommended order to provide that the Respondent shall also compensate the employees for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful furloughs, including reasona- ble search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We shall substitute a new notice to conform to the Or- der as modified. The Respondent’s exceptions noted an inadvertent error in the remedy section of the judge’s decision, wherein the judge referred to the Re- spondent’s termination of Albero as a “discriminatory discharge.” We accordingly correct that reference to reflect the judge’s conclusion of law, which we adopt, that the Respondent terminated Albero due to its unilateral change of his full-time remote work status. The judge’s inad- vertent error does not otherwise affect the disposition of this case. Because the Respondent did not except to the judge’s recommended affirmative bargaining order, we find it unnecessary to provide a justifi- cation for that remedy. See Scepter v. NLRB, 280 F.3d 1053, 1057 (D.C. Cir. 2002); Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 978 (D.C. Cir. 1998), cert. denied 525 U.S. 1067 (1999); SKC Electric, Inc., 350 NLRB 857, 862 fn. 15 (2007); Heritage Container, Inc., 334 NLRB 455, 455 fn. 4 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 (c) Discharging unit employees due to its unlawful uni- lateral changes. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time, and temporary adminis- trative, clerical, technical, maintenance and service em- ployees employed by the Respondent at its Plainfield, Vermont campus but excluding all faculty, managerial and confidential employees, guards and supervisors as defined by the Act. (b) On request by the Union, rescind the changes in the terms and conditions of employment for its unit employ- ees that were unilaterally implemented on September 15, 2021, specifically the return-to-campus policy that in- cluded a return-to-campus date of September 27, 2021, and a change from a mask mandate to a mask recommen- dation. (c) Rescind the change in the terms and conditions of employment for its unit employees that was unilaterally implemented on November 3, 2021, specifically the change in Dechen Albero’s full-time remote work status to in-person. (d) Within 14 days from the date of this Order, offer Dechen Albero full reinstatement to his former job with full-time remote work status or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (e) Make Dechen Albero whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful ter- mination, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (f) Compensate Dechen Albero for the adverse tax con- sequences, if any, of receiving a lump-sum backpay 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facilities reopen and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic award, and file with the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). (g) File with the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Dechen Albero’s corresponding W-2 form(s) re- flecting the backpay award. (h) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter, notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (j) Post at its Plainfield, Vermont facility copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted [Mailed] by Order of the National Labor Relations Board” shall read “Posted [Mailed] Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” GODDARD COLLEGE CORP. 3 employees employed by the Respondent at any time since September 15, 2021. (k) Within 21 days after service by the Region, file with the Regional Director for Region 3 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. May 3, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vi- olated 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 ac- tivities. WE WILL NOT change your terms and conditions of em- ployment while engaged in collective bargaining without having reached agreement or a lawful overall impasse. WE WILL NOT change your terms and conditions of em- ployment without first notifying United Auto Workers, Local 2322 (the Union) and giving it an opportunity to bargain. WE WILL NOT discharge you due to our unlawful unilat- eral changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time, and temporary adminis- trative, clerical, technical, maintenance and service em- ployees employed by the Respondent at its Plainfield, Vermont campus but excluding all faculty, managerial and confidential employees, guards and supervisors as defined by the Act. WE WILL, on request by the Union, rescind the changes in the terms and conditions of employment for our unit employees that were unilaterally implemented on Septem- ber 15, 2021, specifically the return-to-campus policy that included a return-to-campus date of September 27, 2021, and a change from a mask mandate to a mask recommen- dation. WE WILL rescind the change in the terms and conditions of employment for our unit employees that was unilater- ally implemented on November 3, 2021, specifically the change in Dechen Albero’s full-time remote work status to in-person. WE WILL within 14 days from the date of the Board’s Order, offer Dechen Albero full reinstatement to his for- mer job with full-time remote work status or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed. WE WILL make Dechen Albero whole for any loss of earnings and other benefits resulting from his unlawful termination, less any net interim earnings, plus interest, and WE WILL also make him whole for any other direct or foreseeable pecuniary harms suffered as a result of the un- lawful termination, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Dechen Albero for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 3, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year(s). WE WILL file the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Dechen Albero’s corresponding W-2 form(s) re- flecting the backpay award. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Dechen Albero, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. GODDARD COLLEGE CORPORATION The Board’s decision can be found at www.nlrb.gov/case/03-CA-283012 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington D.C. 20570 or by calling (202) 273-1940. Alicia Pender Stanley, Esq., for the General Counsel. Joseph P. McConnell, Esq. (Morgan, Brown & Joy, LP), of Bos- ton, Massachusetts, for the Respondent. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried virtually on June 15, 2022, via Zoom videoconference tech- nology. The amended complaint (the complaint) alleges that Goddard College Corporation (the Respondent) violated Section 158(a)(5) and (1) of the National Labor Relations Act (the Act)1 by: (1) implementing a return-to-work policy for bargaining unit employees and changing from a mask mandate to a mask recom- mendation, without first bargaining with United Auto Workers Local 2322 (the Union) to an overall good faith impasse; (2) uni- laterally changing the full-time remote work status of the associ- ate director of development position without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct and the effects of this conduct; and, (3) unilaterally changed the full-time re- mote work status of the associate director of development posi- tion on November 4, 2021,2 effectively terminating employee Dechen Albero. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following: 1 29 U.S.C. §§ 151–169. FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, operates a nonprofit educa- tional institution in Plainfield, Vermont, where it annually de- rives gross revenues in excess of $1 million, and purchases and receives products, goods, and materials valued in excess of $5000 directly from points outside the State of Vermont. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Respondent’s Operations The Respondent is a nonprofit liberal arts college that pro- vides educational services at three locations: Plainfield, Ver- mont, and Seattle and Port Townsend, Washington. The Re- spondent educates students in individually designed courses of instruction in a low-residency model. This instruction is orga- nized into educational “programs.” Each semester, students and faculty attend a ten-day “residency” for their program on the Plainfield (or Washington) campus. There, the students associ- ate with individual faculty members for the semester and develop an individualized learning pathway for their academic semester. Most of the Respondent’s administrative staff is based at the Plainfield campus (the campus). The relevant statutory supervi- sors include Dan Hocoy, president; Leesa Stewart, chief finan- cial and administrative officer; and Mary Willems, the former director of development. B. Albero’s Terms and Conditions of Employment Sometime before he was hired on September 28, 2020, Al- bero, an alumnus, expressed interest to Willems about the adver- tised opening for the position of assistant director of develop- ment. Albero, who resides full-time in Sanibel, Florida was only interested in working remotely from home. After Willems con- firmed that the position was remote work-eligible, Albero ap- plied and was hired on September 28, 2020. The only reference in the offer of employment to Albero’s re- mote work was under compensation: “$22.00 per hr., with an ad- ditional Remote Worker Stipend of $50.00 per month (paid pe- riodically).” The Respondent’s job description for the position listed the basic function as follows: Reporting to Director of Development, the Associate Director Development is responsible for planning and implementing in- itiatives that strategically engage and steward our alumni and donor base; support all functions of College-wide fundraising and reporting efforts; oversees database operations; and ad- vances the vision and goals of the institution. As part of this charge, the Associate Director of Development serves as its li- aison for the Alumni Association. 2 All dates refer to 2021 unless otherwise stated. GODDARD COLLEGE CORP. 5 Consistent with his job description, Albero supported Willems administratively, worked on small donor campaigns, and served as the liaison between the school and the alumni association.3 C. The Collective-Bargaining Agreement The Union represents separate staff and faculty bargaining units at the Plainfield campus. The staff unit (the bargaining unit) is described as follows: All full-time, regular part-time, and temporary administrative, clerical, technical, maintenance and service employees em- ployed by the Respondent at its Plainfield, Vermont campus but excluding all faculty, managerial and confidential employ- ees, guards and supervisors as defined by the Act. This recognition has been embodied in successive collective- bargaining agreements, the most recent of which was effective from September 8, 2015, to June 30, 2018 (the CBA). The CBA was subsequently extended, with the most recent extension to June 30, 2021. The Respondent meets periodically with the Union’s labor management committee. The Union’s representatives on the la- bor management committee are Patrick Burke, the Union’s pres- ident; Carl Etnier, the Union’s co-chair; and Manuel O’Neill, the Union’s treasurer. Etnier and O’Neill are unit employees. The Respondent is represented at these meetings by Stewart. D. COVID-19 Impacts Working Conditions and Bargaining In March 2020, the Respondent responded to the COVID-19 pandemic by directing all staff bargaining unit members to work remotely, wear masks on campus, socially distance, and refrain from coming to work if sick.4 That same month, the Governor of Vermont followed with similar mandates and recommenda- tions. In June 2021, Vermont rescinded the mask mandate, but recommended the continued wearing of masks in work areas. The Respondent, however, kept its mask mandate in place until September 10. During Summer 2021, the Respondent’s management consid- ered when to have employees return to campus. After Hocoy took over on August 1, the Respondent informed the Union of its intention to have staff bargaining unit members return to campus at the Plainfield campus. Generally, the parties held labor management meetings on the second and fourth Tuesday of each month, in the afternoon. The parties conducted these labor management meetings in Stewart’s office. During the relevant time period, the Union was represented at these meetings by Etnier, O’Neill, and Burke.5 The Respondent was represented by Stewart. Sometime in July, the parties began discussing the process for bringing employees back to campus. However, further discus- sion was deferred until after the new president, Hocoy, started on August 1. After Hocoy started, the executive leadership dis- cussed the process and date for staff to return to campus, and decided on a return date of September 13.6 3 Albero was a credible witness and his testimony was not disputed. (Tr. 79–82.) 4 The Respondent’s employee handbook does not address remote work. In fact, the handbook makes no reference to the location where employees perform work. After Stewart informed the Union about the Respondent’s de- cision to return employees to campus on September 13, the par- ties met on August 10. The Union responded that this was some- thing that had to be negotiated but did not express a specific po- sition at this time. Later that day, Stewart asked to meet again on August 13, “[g]iven September 13 will be upon us soon,” and [d]uring this meeting we would like to hear what you would like to impact bargain over.” Since Burke was on vacation, the parties next met on August 17. During that meeting, the union representatives expressed concerns regarding the continuing impact of the pandemic and proposed a return date of October 18. Stewart rejected that pro- posal, reiterating the Respondent’s intention to have bargaining unit members return to in-person work on September 13. Over the next several weeks, the parties exchanged email pro- posals regarding the return to campus. On August 31, Etnier proposed: (1) maintaining the status quo on COVID-related safety measures; (2) requiring that any changes to safety measures be science-based and data driven; and (3) providing exceptions for employees at high-risk from COVID-19. Etnier also requested information relating to the Respondent’s commu- nications regarding positive COVID tests, definition of close contacts, contact tracing, testing, sick leave, and sanitization measures. On September 3, Stewart rejected the Union’s proposal and stood by the September 13 date for returning to campus, stating that the “change is data driven” because Vermont had reopened and “high numbers of Vermonters” were vaccinated, and pro- vided a link to the health department’s dashboard. Regarding the Union’s proposal for “greater remote work flexibility,” Stewart said that was a matter for bargaining after employees returned to campus. As for “high-risk” staff, Stewart rejected the Union’s proposal to provide greater exceptions than those required under “ADA and FMLA.” Finally, Stewart answered the Union’s re- quest for information regarding various scenarios and safety measures, and explained that the Respondent provides a sick leave bank for the staff who have exhausted their sick leave and need more. The parties met again on September 7. There was only one item on the agenda—a proposal by the Respondent to mandate that all staff be vaccinated against COVID-19. The union repre- sentatives told Stewart that they would caucus and get back to her. Shortly before the start of the next bargaining session on Sep- tember 10, Etnier emailed Stewart a proposed Memorandum of Agreement (MOA) regarding Campus Covid Safety. The MOA included proposals on, among other things: dates employees were to receive their COVID-19 vaccines or give their supervisor weekly proof of a recent negative COVID test; the Respondent’s right to track employees’ vaccination status; that employees who began work before March 2020 return to their pre-COVID work schedule as of October 18; a mask requirement when in public 5 Burke attended via Zoom video conference. 6 The executive leadership team consisted of Hocoy, Stewart, the di- rectors of marketing and admissions, the accreditation liaison officer, and the assistant to the president. (Tr. 116.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 indoor spaces or otherwise together with others indoors on cam- pus while Washington County, Vermont or any adjoining coun- ties were experiencing moderate or greater community transmis- sion of COVID; two additional sick days for unit members who received a vaccine and were incapacitated as a result; and addi- tional sick days for any unit member exposed to an infected in- dividual on campus and unable to work remotely. At the September 10 meeting, Stewart informed the union rep- resentatives that the Respondent wanted to downgrade the mask mandate to a mask recommendation. The union representatives said it “would be a hard sell” to the membership, but Stewart agreed to discuss it further with Hocoy. The parties also negoti- ated over the amount of extra sick leave for unit employees re- quired to quarantine. After the Union modified the language, Stewart agreed to take that back to Hocoy as well. The Union also agreed to reduce its proposal to one extra leave day for em- ployees adversely affected by reactions to the COVID-19 vac- cination, and three hours leave to get vaccinated. Finally, Stewart stated that the Union’s proposed October 18 return date was not acceptable. She did agree, however, to delay the return date until September 27 while discussions with the Un- ion continued. That same day, an email went out to all staff in- forming them that the Respondent “has agreed to delay the return to campus work date to Sept 27, 2021. We are currently finaliz- ing negotiations around return to campus with the staff union and will provide information when negotiations are complete.”7 E. Respondent Implements its Last Best Final Offer Before Bargaining to Impasse Stewart briefed Hocoy on the negotiations at some point after the September 10 meeting. On September 14, Hocoy met Etnier during a meet and greet set up by the Union to welcome Hocoy to the campus. At the end of the reception, Hocoy asked Etnier for his cell phone number. During the morning of September 15, Hocoy called Etnier to inform him that the Respondent would defer to the relevant jurisdictions, which dropped the mask man- date in June. Etnier disagreed and explained the importance of the requirement to unit employees. Etnier then asked why Hocoy was calling him about an issue that was under discussion in the labor management committee. Hocoy replied that this was not a negotiation and the call concluded.8 A few minutes after Etnier’s conversation with Hocoy, at 11:08 a.m., Stewart emailed the Respondent’s last, best, and final offer regarding the return to campus to the Union leadership: Thank you for engaging in dialogue around returning to cam- pus. Goddard College’s last best and final offer around return- ing to campus is in the text below. We believe that these pa- rameters enable us to stay objective, data base in our response to ongoing concerns related to COVID19. 1. The parties agree to continue the terms of the parties’ col- lective bargaining agreement related to health and safety, to the 7 The testimony of Stewart, Etnier and Burke was fairly consistent regarding the parties’ positions. Moreover, Stewart did not dispute the accuracy of Etnier’s meeting notes. (GC Exh. 2; Jt. Exh. 6–7; Tr. 28–29, 35–36, 65–73, 121.) 8 Stewart testified that further negotiations over the masked mandate and return to campus date “would have been completely unfruitful” and extent that they are not modified by this agreement. The parties agree to continue regular joint labor-management discussions as health and safety issues arise, including from more virulent strains of the Covid-19 virus. 2. Employees working on campus are required either to re- ceive a dose of COVID-19 vaccine by September 27, 2021 and a second dose, if required as part of the vaccine regimen they choose, by October 25, 2021, or to give their supervisor proof of a recent negative Covid test weekly. The results of these tests will be maintained by Human Resources and only shared on a need-to-know basis. The parties recognize that testing in- formation and test results are confidential, private, and shared on a need-to-know basis according to relevant public health protocols. 3. GCC will track employees’ vaccination status. GCC has the right to ask for proof of an employee’s vaccination status as well as download vaccination status of employees from the Vermont Department of Health database. Employees who re- ceived their vaccination outside of Vermont will provide proof of their vaccination status through a means determined by GCC. If state or federal vaccination requirements change in a manner more stringent than what is outlined in this agreement, the parties will initiate impact bargaining over said changes. 4. While employees who began work before March 2020 will be expected to return to their pre-Covid work schedule as of September 27, 2021, GCC maintains its commitment to in- creasing the remote work possibilities for local employees. Employees and their supervisors may work out greater remote work possibilities; additional days a week of remote work shall not be denied arbitrarily. 5. Goddard College will follow the mask and vaccination man- dates of the relevant jurisdiction. This may mean the (sic) United States federal government, State of Washington, State of Vermont or municipalities where applicable. 6. GCC shall provide one additional sick day for any unit member who receives a vaccine and who is incapacitated as a result, and up to three hours leave to get vaccinated. 7. GCC shall provide additional sick days for any facilities staff member who is also a bargaining unit member and who is exposed to an infected individual on campus and told to quar- antine by the state contact tracer or a medical professional, and who is unable to work remotely subsequent quarantine, if the employee does not have insufficient sick time to cover the quarantine period. At 11:14 a.m., the Respondent implemented its decision re- garding the return to campus and masks in an email to staff and faculty: Goddard College appreciates the diligent efforts everyone has made over the past eighteen months to continue our work in the midst of rapid change. To enhance organizational efficiency and effectiveness, Goddard College is requiring “I believe I was hearing quite clearly from the Union that they wanted a mask mandate in that they had no ability to move away from that.” Those assertions were not supported by the credible facts, i.e., Etnier’s testi- mony and notes, neither of which Stewart (who was present throughout the hearing), disputed. (Tr. 65–72, 127–128.) GODDARD COLLEGE CORP. 7 employees who were campus based prior to the COVID19 re- mote work directive of March 2020 to return to campus effective September 27, 2021. To enable us to stay objective, data based, nuanced, measured, and apolitical in our response to ongoing concerns related to COVID19, Goddard College will followthemasking andother COVID protocol mandates of the relevant jurisdiction. This may mean the United States federal government, State of Washington, State of Vermont or municipalities, where appli- cable. At the request of the Goddard College StaffUnion, employees working on campus are required either to receive a dose of COVID-19 vaccineby September 27, 2021, and aseconddose, if required as part of the vaccine regimen they choose, by Oc- tober 25, 2021, or to givetheir supervisor proof of a recent neg- ative Covid test weekly. The results ofthesetests will bemain- tained by Human Resources and only shared on a need-to- know basis. The parties recognize that testing information and test results are confidential, private, and shared on a need-to- know basis according to relevant public health protocols. We encourage all employees to wear masks and to be vac- cinated. To enable employees to get vaccination, GCC shall provide one additional sick day for any employee who receives a vaccine and who is incapacitated as a result, and up to three hours leave to be vaccinated. Thank you for all you do on behalf of Goddard College. We look forward to continuing to work with you toward the suc- cess of our institution, our students and our community. At 11:21a.m., Etnier informed Stewart that the Union was meeting that night “to consider this offer.” Stewart replied to Etnier at 3:31p.m.: “It is possible I should have been more clear. This is our last, best and final offer. We do not see this as open to further negotiations.” On September 17, the Respondent emailed all staff and faculty to provide its “perspective on an email sent to all staff and faculty earlier today:” The Goddard College Staff Union and management met on multiple occasions to discuss returning to campus and manage- ment extended the date to return to campus by two weeks, providing a total notice time of six weeks. This extension oc- curred to provide extra time to work with the Union on negoti- ations around returning to campus. Since we were at an im- passe on a couple of matters, management proceeded with the return to work date of September 27, as opposed to agreeing with the Union’s written request that this date be extended to October 18. We all agree that protecting the health and safety of our em- ployees is a priority, which is why management is following the directives of state and municipal experts in following the requirements of the local jurisdiction. Complying with jurisdic- tional requirements allows us to take into consideration 9 While generally consistent and credible, none of the witnesses who attended bargaining on September 21 and 24—Burke, Etnier, and Stew- art—provided extensive detail of the discussions on each of those dates. regional factors such as actual COVID risk for the area and vaccination rates. The language Goddard College provided relating to a vaccine mandate was cut and pasted from a document sent to us by the Union. However, the discussion of a vaccine mandate is soon to be out of our hands, as the Biden Administration is requiring vaccines, or weekly negative COVID tests, for all employers of 100 or more employees. Goddard College would fall under that mandate. GCC does not agree with the Union that there has been a vio- lation of federal labor law, and has consulted with legal counsel through this entire process. The parties met again on September 21. During that meeting, the Union restated its position urging the Respondent to continue the mask mandate on campus. Stewart reiterated that the deci- sion to eliminate the mandate was not subject to negotiation. On September 24, Etnier emailed Hocoy and Stewart, criticiz- ing their decision to eliminate the mask mandate, and expressing frustration that there was “no articulated process for taking [em- ployees’] health and safety into account.” Adding to the uncer- tainty of the threat to employees’ health and safety by the re- moval of masked protection, Etnier noted that the Respondent had not responded to the Union’s inquiry regarding improve- ments to the campus building ventilation systems. Referring to the return to campus directive, Etnier noted that the Respondent “not communicated a process for applying for an accommoda- tion.” He concluded with a request that Hocoy and Stewart meet that day for further discussions. Stewart replied shortly thereafter. She explained that three re- quests had been processed during the previous month for COVID-related accommodations pursuant to the Americans with Disabilities Act and Family and Medical Leave Act. One of the requests were granted, while two were denied. Two ap- plicants were bargaining unit members. Stewart agreed to meet later that afternoon for a “conversation,” but reiterated that “management’s position around a mask mandate remains un- changed.” Regarding the ventilation of campus buildings, Stew- art stated the former facilities director assured me some time ago that our indoor air handling was appropriate to our needs. I can reach out to facilities staff (Brian and Matt) to see if they have a different impression.” When Stewart met with the Union representatives later that afternoon, the parties discussed but continued to disagree about a mask mandate—the Union insisting that it provided vital pro- tection against COVID, while the Respondent asserted that vac- cinations remained the primary protection against COVID and no employee was prohibited from wearing a mask. Asked about the process for employees to request the ability to work remotely, Stewart replied that the Respondent did not have such a policy in place. She did say, however, that such accommodations were possible based on individual circumstances after employees re- turned on September 27.9 With respect to the issue of remote work accommodations for employ- ees, however, Stewart did not refute Burke’s testimony that the issue of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Notwithstanding the Respondent’s position, however, its sub- sequent actions revealed that a return to campus deadline of Sep- tember 27 was not attainable. The Respondent, faced with the reality of a workforce that had become accustomed to working remotely, extended the return to campus until October 13 be- cause it had not yet developed a remote work application form. After the Respondent made such a form available, staff and faculty interested in remote work were required to submit the forms to their supervisors by October, 13. After supervisory ap- proval, the forms were submitted to Stewart and Hocoy for ap- proval. Approved applications included a “list of deliverables,” i.e., the Respondent’s work expectations. Most applications were submitted to management by staff and faculty before re- turning to campus, while some were submitted after they re- turned on September 27. Some remote work applicants were asked to clarify aspects of their applications. However, all re- mote work applications were approved. F. The Respondent Changes Albero’s Work Location On March 4, 2021, Willems emailed Albero a “Self-Review Template” and “official job description” for his position in prep- aration for his 6-month performance evaluation the following week. She asked Albero to review the information, complete the form, and provide “5 goals for the next year, and areas for further training and further development.”10 On June 25, 2021, Willems resigned. Her position remained vacant and Albero continued working remotely in his capacity as assistant director of development. That changed after Hocoy, having inherited a serious budget crises, decided that he wanted the assistant director of development to be on campus in order to engage donors in person. On October 13, Albero received the following email from Stewart: Effective November 3, 2021, Goddard College will require the Associate Director of Development, your current position; to revert to a position located on our campus in Plainfield, Ver- mont. Goddard College is exercising our management right to revoke remote work eligibility for this position, as the remote work arrangement has not been serving the college well. As you know, we have been having many other offices return to campus based work to increase the efficacy of the organization. The Union was not included in Respondent’s initial commu- nication to Albero. However, 2 minutes later, Stewart forwarded her email to Burke, Etnier, and O’Neill with a separate commu- nication stating: This email is being sent to inform you that GCC just informed the Associate Director of Development that the position would be returning to a campus based position effective November 13, 2021. See the email below for additional information. On October 28, hearing no response from Albero regarding her October 13 return to campus email, Stewart sent a follow-up email to Albero asking to confirm receipt of her email, and that remote work was discussed in one of those two meetings. (Tr. 39–43, 75–77, 130–131.) 10 Willems’ portion of the completed evaluation was not provided. However, Albero credibly testified that he was neither disciplined nor told of any issues with his work performance. (Tr. 82–86.) they expected to see him on campus the following week. The following day, Albero replied that the Union filed an unfair labor practice charge challenging the legality of the Respondent’s ac- tions and he would await the outcome of that process. Stewart replied that if he did not report to campus on November 3, the Respondent would consider Albero to have abandoned his job. On November 1, Burke emailed Stewart disputing that Albero could be deemed to have abandoned his position and warned that any adverse action that made it impossible for Albero to report to work would constitute a constructive discharge. On Novem- ber 2, Stewart denied that the Respondent’s action violated the CBA, insisting that the Respondent was entitled to revise “the responsibilities of [Albero’s] position to require it to be campus- based,” noting that the Respondent “has determined that the work of this position will be much better performed based on the College’s Vermont campus.” On November 3, the deadline for him to report to campus, Al- bero was out on sick leave. That morning, Etnier emailed Stew- art about meeting to discuss Albero’s situation later that day. Et- nier noted that he “also received more communication from Mary Willems, who said, ‘I’m happy to provide more infor- mation on why/how Dechen’s position was designed to be re- mote if Management is asking for it’ and it would help the case.” He concluded by suggesting the Respondent take a “time out” for a few weeks before taking “drastic action” regarding Albero. Stewart replied later that morning that she would was willing to meet with Etnier but rejected the idea of a timeout because it “would be detrimental to the institution.” As predicted, the Respondent locked Albero out of the net- work when he failed to report to campus.11 When Albero at- tempted to log into the Respondent’s email system on November 4, he found himself locked out of the network.12 Legal Analysis I. APPLICABLE LAW Section 8(a)(5) of the Act requires an employer to provide its employees’ representative with notice and an opportunity to bar- gain before instituting changes to mandatory bargaining subject matters. NLRB v. Katz, 369 U.S. 736 (1962); Toledo Blade Co., 343 NLRB 385 (2004). For the employer’s unilateral action to be determined unlawful there must be “a material, substantial and significant change” in these terms and conditions. See Crit- tenton Hospital, 342 NLRB 686 (2004); Civil Service Employees Assn., 311 NLRB 6 (1993). A party claiming an impasse as the basis for its unilateral ac- tions bears the burden of proving that an impasse in negotiations actually existed. See Naperville Ready Mix, Inc., 329 NLRB 174, 183 (1999); Serramonte Oldsmobile, 318 NLRB 80, 97 (1995); Tom Ryan Distributors, Inc., 314 NLRB 600, 604 (1994), Wayneview Care Center, 664 F.3d 341, 347 (D.C. Cir. 2011). An impasse exists when, “despite the parties’ best efforts to reach an agreement, neither party is willing to move from its 11 Stewart confirmed that Albero was terminated after the Respondent deemed him to have abandoned his position. (Tr. 144.) 12 Albero confirmed that he would not, in any event, have reported to campus on November 3 because he cared for his parents in Florida and was unable to relocate. (Tr. 87–88.). GODDARD COLLEGE CORP. 9 position.” Excavation–Construction, Inc., 248 NLRB 649, 650, (1980). Factors to be considered include the contemporaneous understanding of the parties as to the state of negotiations, the good faith of the parties, the importance of the disputed issues, the parties’ bargaining history, and the length of their negotia- tions. Taft Broadcasting Co., 163 NLRB 475, 478 (1967). II. THERE WAS NO IMPASSE IN BARGAINING PRIOR TO SEPTEMBER 15 The Respondent and the Union met six times to bargain over the return to work rules—August 10, 17, and 31, and September 3, 7, and 10. On the issue of a vaccination mandate for staff employees, the parties agreed to the Union’s proposal for staff to either be vaccinated or submit to regular testing. The parties also negotiated over the Respondent’s proposed return-to-campus date of September 13, while the Union requested that it be pushed to October 18. On September 10, the Union accepted the Respondent’s pro- posed number of sick days for employees who suffered adverse reactions from the COVID vaccination. The parties also negoti- ated over the amount of extra sick leave for unit employees re- quired to quarantine. The Union modified its proposed language and Stewart agreed to take it back to Hocoy. Stewart countered the Union’s proposal for an October 18 re- turn-to-campus by extending the Respondent’s original target date by 2 weeks, to September 27. The Union asked that “man- agement communicate in writing to all staff why it’s so urgent, in their mind, to get everyone back by September 27.” The par- ties agreed that Stewart “would send out an email this afternoon saying the September 13 implementation date has been pushed back to at least September 27, while discussions with the union continue.” Similarly, the parties continued to disagree over the Respond- ent’s proposal to eliminate the mask mandate. Stewart provided, for the first time, an explanation for the Respondent’s reasons for following the recommendations of local, state, and federal health agencies regarding the use of masks indoors. The union repre- sentatives stated that the Respondent’s position would be a “hard sell” to the membership but, once again, Stewart agreed to take it back to Hocoy. At no point on September 10 did Stewart state or give the Un- ion representatives any indication that the parties had arrived at any impasse on either the return-to-campus of mask mandate is- sues. As such, when the bargaining session concluded, three is- sues were still on the table—the return-to-campus date and the mask mandate, as well as the amount of extra sick leave for staff required to quarantine. Stewart never claimed on or before September 10 that the par- ties were at impasse on any issue. Nor could she, since there was movement between the parties on September 10, with agreement on one issue, tentative agreement on another, and disagreement on two issues. Moreover, on the two issues where they disa- greed, Stewart said she would discuss them with Hocoy. Such bargaining activity, which concluded with a reasonable expecta- tion by the union representatives that they would hear back, pre- cluded any impasse as of that date. See Ead Motors Eastern Air Devices, Inc., 346 NLRB 1060 (2006) (union’s stated intention to return to negotiations following members’ rejection of employer’s offer was a factor in finding that the parties were not at impasse). Moreover, the Respondent’s subsequent decision, after re- ceiving feedback from staff and faculty, to create a process for employees to submit remote work applications and then granted every one submitted, is a significant indication that the parties were not at the end of their rope and there was still room for further negotiations as of September 10. The Respondent char- acterizes that process and the lack of any discipline for failing to return-to-campus, as evidence that no material change occurred. Contrary to the Respondent’s contentions, however, the parties clearly had more to say on that issue as of September 10. See Airflow Research & Mfg. Corp., 320 NLRB 861, 862 (1996) (change in circumstance created a new possibility of fruitful dis- cussion, broke impasse, and restored employer’s duty to bar- gain). Based on the foregoing, the Respondent did not meet its bur- den of demonstrating the existence of an impasse when it de- clared and implemented its last, best, and final offer on Septem- ber 15. Accordingly, the Respondent violated Section 8(a)(5) and (1) of the Act, by implementing a return-to-campus policy for u nit employees that included a return-to-work date of September 27, and a change from a mask mandate to a mask recommendation, without first bargaining with the Union to an overall good-faith impasse. III. ALBERO’S TERMINATION Albero, a full-time Florida resident, was hired in September 2020 to work remotely as the assistant development director. His remote work location was clearly a term and condition of em- ployment. Albero was assured of that he could work remotely by his supervisor, Willems, and confirmed in the Respondent’s offer of employment, which was sent to his Florida residence, and included an “additional Remote Worker Stipend of $50.00 per month.” The job description for the associate director of development does not mention where the position’s work is to be performed. As a staff member in the administrative part of the college, how- ever, Albero was “employed by the Respondent at its Plainfield, Vermont campus,” as defined in the bargaining unit description. As such, Stewart consulted with the Union about hiring Albero to perform his bargaining unit position remotely. The Union did not object. That consultation, however, has no bearing on the fact that Albero was hired, without limitation, to work remotely from Sanibel, Florida. After deciding to take unilateral action on September 15 re- garding staff’s return-to-campus, Hocoy took aim at Albero’s re- mote work accommodation. Having inherited the responsibili- ties of running a college in financial crises, Hocoy decided that he wanted the associate director of development on campus to engage donors more effectively. In contrast to Stewart’s out- reach to the Union regarding Albero working remotely, however, Hocoy decided that he would change that fundamental term of Albero’s employment before consulting the Union. The Union was notified shortly thereafter, but the change had already been implemented. After the Union asked for a timeout in order to bargain over this change, the Respondent unlawfully rejected that overture. See Dodge of Naperville, Inc., 357 NLRB 2252, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 2254 fn. 7 (2012) (employer required to bargain over relocated employees’ work locations). As the Respondent argues, an employer has the right to estab- lish job duties and responsibilities for its employees. The Re- spondent did just that in hiring Albero on September 16, 2020, to work remotely from Florida in performing the duties specified in his job description. Accordingly, the circumstances by which the Respondent modified the work location of Albero, a unit em- ployee, constituted a material change without providing the Un- ion with timely notice and a meaningful opportunity to bargain. See Cascades Containerboard Packaging, 370 NLRB No. 76, at 1 fn. 1 (2021) (employer violated Section 8(a)(5) by unilaterally implementing a 2-week layoff by presenting layoffs to union as a fait accompli); Taft Coal Sales & Associates, Inc., 360 NLRB 96, 100 (2014) (notice was a fait accompli where the union was not notified after the employer advised the affected employees). Moreover, the Respondent’s last, best, and final offer states that “while employees who began work before March 2020 will be expected to return to their pre-Covid work schedule as of Sep- tember 27, 2021, GCC maintains its commitment to increasing the remote work possibilities for local employees.” Thus, by its terms, the Respondent’s return-to-campus directive excluded, Albero, a full-time remote employee hired after March. Under the circumstances, the Respondent violated Section 8(a)(5) and (1) when it unilaterally changed Albero’s work loca- tion without first notifying and bargaining with the Union, effec- tively terminating him on November 4, 2020. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Auto Workers Local 2322 is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(5) and (1) of the Act by implementing a return-to-campus policy for bargaining unit employees that included a return-to-campus date of Septem- ber 27, 2021, and a change from a mask mandate to a mask rec- ommendation, without first bargaining with the Union to an overall good faith impasse. 4. The Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the full-time remote work status of the associate director of development position, without first notifying and bargaining with the Union. 5. The Respondent violated Section 8(a)(5) and (1) of the Act by terminating its employee Dechen Albero due to its unilateral change of the full-time remote work status of the associate direc- tor of development position. 6. The Respondent’s unfair labor practices affected commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent, having unlawfully changed employees’ 13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended terms and conditions on September 15, 2021, by prematurely de- claring an impasse in bargaining, will, at the Union’s request, rescind such changes. The Respondent shall also, at the Union’s request, restore to bargaining unit employees the terms and con- ditions of employment that were applicable prior to September 15, 2021, and continue them if effect until the parties either reach an agreement or a good-faith impasse in bargaining. The Respondent, having effectively terminated Albero due to its unlawful change to his remote work status, must offer him reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with King Soopers, Inc., 364 NLRB 1153 (2016), enfd. in relevant part 859 F.3d 23 D.C. Cir. (2017), the Respondent shall also compensate Albero for his rea- sonable search-for work and interim employment expenses, if any, regardless of whether those expenses exceed interim earn- ings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. Additionally the Respondent shall compensate Dechen Albero for the adverse tax consequences, if any, of receiving lump-sum backpay awards, in accordance with Tortillas Don Chavas, 361 NLRB 101 (2014), and file with the Regional Director for Re- gion 3, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the back- pay award to the appropriate calendar year for each affected em- ployee in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016). The Regional Director will then assume responsibility for trans- mission of the report to the Social Security Administration at the appropriate time and in the appropriate manner. In addition, pur- suant to Cascades Containerboard Packaging, 370 NLRB No. 76 (2021), the Respondent will file with the Regional Director for Region 3 a copy of Albero’s corresponding W-2 form(s) re- flecting the backpay award. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended13 ORDER The Respondent, Goddard College Corporation, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Implementing changes in its unit employees’ terms and conditions of employment without first bargaining with the Un- ion to an overall good faith impasse. (b) Unilaterally implementing changes affecting employees’ wages, hours, or other terms and conditions of employment without providing the Union with prior notice and an oppor- tunity to bargain over those changes. (c) 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. Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. GODDARD COLLEGE CORP. 11 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) On request, bargain with the Union as the exclusive rep- resentative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time, and temporary adminis- trative, clerical, technical,maintenanceandserviceemployees employed bythe Respondent at its Plainfield, Vermont campus but excluding all faculty, managerial and confidential employ- ees, guards and supervisors as defined by the Act. (b) On request, rescind all terms and conditions of employment which it unlawfully implemented on or after September 15, 2021, but nothing in this Order is to be construed as requiring the Respondent to rescind any unilat- eral changes that benefited the unit employees without a re- quest from the Union. (c) At the Union’s request, restore to Unit employees the terms and conditions of employment that were applicable prior to September 15, 2021, and continue them if effect until the parties either reach an agreement or a good-faith impasse in bargaining. (d) Reinstate Dechen Albero to his position, or if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights and privileges previously enjoyed, and make him whole for any loss of wages and benefits he may have suffered as a result of his unlawful termination. (e) Remove from all files any reference to the discharge of Dechen Albero and notify him in writing that this has been done and that it will not be relied on for any future purpose. (f) Compensate Dechen Albero for the adverse tax conse- quences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 3, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a report allocating the backpay award to the appropriate calendar year(s) and a copy of the backpay recipient’s corresponding W-2 form reflecting the backpay award. (g) Compensate Alberofor his reasonable search-for work and interim employment expenses, if any, regardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest. (h) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (i) Post at its facility in Plainfield, Vermont, copies of the at- tachednoticemarked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at its Plainfield, Vermont facility since September 15, 2021. (j) Within 21 days after service by the Region, file with the Regional Director for Region 3 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT interfere with, restrain, or coerce you in the ex- ercise of the above rights. United Auto Workers Local 2322 is the employees’ representa- tive in dealing with us regarding wages, hours and other work- ing conditions of the employees in the following unit: All full-time, regular part-time, and temporary administrative, clerical, technical, maintenance and service employees em- ployed by the Respondent at its Plainfield, Vermont campus but excluding all faculty, managerial and confidential employ- ees, guards and supervisors as defined by the Act. WE WILL NOT fail and refuse to bargain with the Union regard- ing the effects of returning employees to in-person work. WE WILL NOT fail and refuse to bargain with the Union regard- ing changing the full-time, remote work status of the associate director of development. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL, upon request, bargain in good faith with the Union over the effects of our decision to return employees to in-person DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 work, and if an understanding is reached, embody the under- standing in a signed agreement. WE WILL rescind the unilateral changes made to the associate director of development position, these changes having been made without notice to and bargaining with the Union. WE WILL reinstate Dechen Albero to the position of associate director of development. WE WILL pay Associate Director of Development Dechen Al- bero for the wages and other benefits lost because of the changes to terms and conditions of employment that we made without bargaining with the Union. WE WILL pay Alberofor his reasonable search-for work and in- terim employment expenses, if any, regardless of whether those expenses exceed interim earnings. GODDARD COLLEGE CORPORATION The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-283012 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.