Universal Health Services, Inc. and George Washington University d/b/a The George Washington Univer

372 NLRB No. 109 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. District Hospital Partners, L.P. d/b/a The George Washington University Hospital, A Limited Part- nership, and UHS of D.C., Inc., General Partner and 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Re- gion a/w Service Employees International Union. Cases 05–CA–216482, 05–CA–230128, and 05– CA–238809 July 25, 2023 ORDER VACATING DECISION AND ORDER1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On July 14, 2022, the National Labor Relations Board issued a Notice to Show Cause in this proceeding, which invited any party to show cause why the Board’s April 30, 2021 Decision and Order, reported at 370 NLRB No. 118, should not be vacated, and why the Board should not re- adjudicate this case, following the Board’s acceptance of a determination by the Designated Agency Ethics Official (DAEO) that then-Member Emanuel, who participated in 1 Member Wilcox did not participate in the consideration of this case. 2 At relevant times, Member Emanuel owned more than $50,000 in shares of the Health Care Select Sector SPDR Fund EFT, which in turn owned Universal Health Services, Inc. common stock. Universal Health Services, Inc. is the parent company of Respondent UHS of DC. Mem- ber Emanuel did not timely disclose his ownership of this sector mutual fund, which prevented a disqualification determination from being made before Member Emanuel participated in this case and before the Board order was issued. In ExxonMobil Research & Engineering, 371 NLRB No. 128 (2022), the Board explained that “[i]n violation of his ethics agreement with the Government, Member Emanuel failed to inform himself of potential fi- nancial conflicts based on his sector-fund holdings” and that his “con- flicts instead were discovered by the DAEO and the Inspector General, and then were publicly disclosed by the Board when it issued notices to show cause in this case and others.” Id., slip op. at 1 (footnotes omitted). See also id. at 7 & fn. 34 (describing findings of Inspector General); CVS/Pharmacy, 372 NLRB No. 1, slip op. at 1 fn. 2 (2022) (recounting Member Emanuel’s ownership of the same sector fund at issue here and rejecting a “benign characterization of the circumstances underlying [the CVS] decision, which involved misconduct that the Board should take seriously”). The Respondents “acknowledge that Member Emanuel’s ownership of stock in a parent corporation is considered a financial interest in its subsidiaries” and that Respondent “UHS DC is a wholly-owned subsid- iary of Universal Health Services, Inc.” Respondents’ Response to NTSC at 18 fn. 20. Respondents argue, however, that the Health Care Sector Fund did not own stock in either Respondent. Id. But having accepted the Inspector General’s and DAEO’s conclusions, we reject the Respondents’ suggestion that their relationships with the corporate par- ent of a Respondent, whose stock the sector mutual fund owned, were too remote to justify disqualification. the decision along with Chairman McFerran and Member Ring, should have been disqualified. As the Notice ex- plained, the DAEO’s determination was based on an in- vestigation conducted by the Board’s Inspector General, who concluded that then-Member Emanuel’s participation violated a criminal statute, 18 U.S.C. § 208(a), and its im- plementing regulations, 5 C.F.R. § 2640.201(b)(2)(i), be- cause of his ownership of a conflicting financial interest in a sector mutual fund.2 The Notice observed that the “presumptively appropriate remedy for Member Eman- uel’s unlawful participation in this case is to vacate the April 30, 2021 Decision and Order and to re-adjudicate the Respondent’s October 16, 2019 exceptions to the admin- istrative law judge’s decision de novo.” In response to the Notice, the Respondents filed a brief arguing that the Board should not vacate its prior decision and order.3 The General Counsel and the Charging Party each filed reply briefs arguing for vacatur and re-adjudication. For the rea- sons explained below, the Board has decided to vacate and set aside the prior decision and order for the purpose of further proceedings before the Board.4 I. As a preliminary matter, we set forth the procedural ba- sis for our authority to act in this case.5 As we explained Our dissenting colleague states that he “decline[s] to pass on whether the majority’s assertion that the Designated Agency Ethics Official (DAEO) made an official ‘determination’ in this case is accurate or whether the DAEO has the authority to make determinations regarding a Board member’s participation in a case.” The Board’s decision in Exx- onMobil Research & Engineering Co., Case No. 22–CA–218903 (Notice to Show Cause dated January 7, 2022) (attached to this Order), “ac- cept[ed] the DAEO’s determination that Member Emanuel should have been disqualified.” Id. at 1. In a footnote to the Board’s decision, our dissenting colleague explained that “he reserve[d] judgment as to whether vacatur is appropriate, presumptively or otherwise, in the par- ticular circumstances of th[at] case.” Id. at 2 fn. 4. Member Ring dis- sented. 3 The Respondents also argue that if the Board vacates the prior de- cision and order, the case must be decided by a Board panel that includes only individuals who were Board Members at the time the initial decision issued (i.e., Chairman McFerran and then-Member Ring, both of whom participated previously, plus Member Kaplan), in order to avoid suggest- ing bias and the possibility that, on re-adjudication, the Board might reach a different result. (Member Ring’s Board term ended on December 16, 2022.) We need not reach today the Respondents’ arguments regard- ing the composition of a Board panel for a future decision, and we have already responded to the Respondents’ March 29, 2022 motion for the recusal of Members Wilcox and Prouty. As reflected in footnote 1, above, Member Wilcox did not participate in this case; and, as explained in Member Prouty’s separate opinion issued with the Notice to Show Cause, after consideration, he has determined not to recuse himself. 4 The Board has delegated its authority in this proceeding to a three- member panel. 5 In so doing, we reject the Respondents’ unsupported contention that vacatur violates the Administrative Procedures Act, 5 U.S.C. § 706(2)(c), as exceeding our statutory jurisdiction or authority. See Respondents’ Response to NTSC at 22 fn. 23. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in ExxonMobil, above, “it is clear under Section 10(d) of the National Labor Relations Act that, provided the Board gives reasonable notice, it has the authority to ‘set aside, in whole or in part, any finding or order made or issued by it,’ so long as the Board retains jurisdiction in the case (i.e., the Board has not lost jurisdiction because a party is seeking judicial review of its order and the record has been filed in a court of appeals).” Id., slip op. at 2. As we fur- ther stated, “Sec[tion] 10(d) of the Act provides that ‘[u]ntil the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.’ 29 U.S.C. § 160(d). Sec[tion] 102.49 of the Board’s Rules and Regulations in- corporates this statutory authority. 29 CFR § 102.49.” Id. fn. 12. Here, unlike ExxonMobil and other cases in which for- mer Member Emanuel improperly participated, a party had sought judicial review of the Board’s initial decision: The Union’s July 18, 2021 petition for review brought the case before the United States Court of Appeals for the Dis- trict of Columbia Circuit. 1199SEIU United Healthcare Workers East v. National Labor Relations Board, Case No. 21-1152. Further, the Respondents had successfully moved to intervene on August 4, 2021, and that motion was granted on August 31, 2021. Significantly, the Board had filed the record with the court on August 30, 2021, which divested the Board of jurisdiction under Section 10(d) of the Act, as explained above. Because the court had exclusive jurisdiction over the case, the General Counsel filed a motion “request[ing] remand so that the Board may consider the appropriate course of action to ad- dress Member Emanuel’s disqualification.” Motion for Remand filed October 26, 2021. The Respondents filed a response opposing remand on November 1, 2021. On January 19, 2022, upon consideration of the remand motion, the Respondents’ opposition, and the Board’s Jan- uary 13, 2022 letter submitting supplemental authority,6 the court granted the General Counsel’s motion to re- mand.7 On March 21, 2022, the court denied the 6 Perhaps in response to the Respondents’ opposition to the motion for remand, which contended that the General Counsel had provided in- sufficient information about the facts underlying the motion, the General Counsel’s January 13, 2022 letter drew the court’s attention to the Board’s January 7, 2022 issuance of notices to show cause in ExxonMo- bil and two other cases in which former Member Emanuel participated despite his disqualification. The General Counsel attached to her letter those notices to show cause, to which, in turn, the Board had attached the Inspector General report that identified this case among the disqualifica- tion cases. Explaining in her letter that the Board, in the attached notices to show cause, proposed to vacate the underlying decisions, subject to the parties’ arguments that the Board should not do so, the General Coun- sel stated, “[i]f the Court grants the Board’s motion to remand this case, Respondents’ motions for rehearing and rehearing en banc, and on March 29, the court issued its formal man- date in conjunction with its January 19, 2022 order re- manding. Those court proceedings returned the case to the Board’s jurisdiction for further action, including the July 14, 2022 notice to show cause and today’s order. II. As set forth in ExxonMobil, 371 NLRB No. 128, slip op. at 2, which was decided after the notice to show cause is- sued in this case, the Board has concluded that vacatur “is the proper remedy . . . where a violation of 18 U.S.C. § 208(a) is established. That remedy is well within the Board’s discretion (even if not compelled) to preserve public confidence in the integrity and impartiality of the Board’s decision making.” For the reasons we set forth in detail in ExxonMobil, we conclude here that vacating the April 30, 2021 decision is within the Board’s discretion and appropriate.8 We further find that doing so here is consistent with ExxonMobil. The Respondents offer a lengthy list of arguments against vacatur in this case, some of which the dissent finds meritorious. We will address each in turn, below. First, however, we respond to the Respondents’ general argument about the analytical framework applicable here. A. The Respondents’ primary argument, with which the dissent agrees, is that we should consider this case under the judicial recusal statute, 28 U.S.C. § 455 (Section 455), and the harmless error analysis described in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), rather than under 18 U.S.C. § 208(a) (Section 208(a). We considered and rejected this argument in ExxonMobil: Section 208(a), and not Section 455, applies to Board members. In sharp contrast to Section 455, Section 208(a) provides for criminal penalties for violations, em- phasizing the clear intention of Congress to deal with Executive Branch financial conflicts strictly. It is the purpose of Section 208(a) that must primarily guide the Board in this case. the Board will have jurisdiction to determine whether to issue a similar notice in this case.” 7 The court also dismissed as moot the General Counsel’s related mo- tion to suspend the briefing schedule. 8 In this regard, the Board in ExxonMobil properly relied on Berkshire Employees Assn. of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941), and Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 592 (D.C. Cir. 1970). See ExxonMobil, above, slip op. at 3–4. The dissent’s effort to distinguish those cases is unavailing. The dissent is also incorrect in stating that we rely on them “to argue that vacatur should be presumptively appropriate.” For the reasons explained in ExxonMobil, id. at 2 fn. 11, and as discussed below, we do not apply such a presumption. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 3 *** But even if the Board were required to look to Section 455 for guidance—putting aside the Supreme Court’s holding in Williams [v. Pennsylvania, 579 U.S. 1 (2016)], that harmless-error review is inappropriate in certain cases involving the disqualification of a single judge on a multimember panel—we would reach the same result here, examining the considerations identi- fied by the Supreme Court in Liljeberg. . . . While noting that there is no statutorily prescribed remedy for a viola- tion of Section 455(a), the Liljeberg Court explained that “in determining whether a judgment should be vacated for a violation of Section 455(a), it is appropriate to con- sider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injus- tice in other cases, and the risk of undermining the pub- lic’s confidence in the judicial process.” 486 U.S. at 864. For reasons already explained, we do not believe that va- cating the prior decision and order poses a substantial risk of injustice to the Respondent. In addition, as ex- plained above, we believe that vacating the prior deci- sion is an appropriate remedy that is within the Board’s discretion. Indeed, not ordering vacatur (even assuming this did not risk injustice to the General Counsel or the Charging Party) might set a dangerous precedent, threat- ening injustice in other cases where a Board member’s participation violated 18 U.S.C. § 208(a). Our overrid- ing concern, however, is that not ordering vacatur would seriously undermine public confidence in the Board’s decision-making process. The public surely would find it difficult to understand how the Board could permit a decision to stand when the participation of a Board member violated a Federal criminal statute. . . . We simply try to see the situation presented here from the perspective of the public. Id., slip op. at 6 (footnotes omitted). For the reasons stated above and explained in greater detail throughout 9 The dissent states that “several Board members have cited [Section 455] for guidance in determining whether to recuse from cases before them.” We have previously addressed that argument, too. See, e.g., Exx- onMobil, above, slip op. at 5. 10 The dissent would find Member Emanuel’s ethical violation to be harmless error, notwithstanding its “undeniably serious” nature. In so finding, the dissent assumes that Member Emanuel lacked knowledge of his conflict of interest and finds the ethical violation harmless because, pursuant to the assumed lack of knowledge, the outcome in this case as- sertedly could not have been affected. As set forth above, however, Liljeberg’s harmless-error analysis includes considerations that encom- pass a broader range of harms potentially caused by Member Emanuel’s error. 11 We firmly reject, however, the Respondents’ suggestion that the Board could have acted “as early as May 27,” 2021, when the Inspector General began his investigation, Respondents’ Response to NTSC at 11, ExxonMobil, Section 455 is inapplicable to Member Eman- uel’s disqualification from this case.9 Nevertheless, even if we were to apply Section 455 and the Liljeberg harmless er- ror analysis, we would conclude that vacatur is the appropri- ate remedy here, as we concluded it was in ExxonMobil.10 B. We now address the Respondents’ other arguments against vacatur. None, individually, or in the aggregate, outweighs the important principles fulfilled by vacatur. 1. The Respondents contend throughout their brief that there is no basis for a presumption of vacatur. See Re- spondents’ Response to NTSC, passim. As we explained in ExxonMobil, although the Notice (both there and here) described vacatur as the “presumptively appropriate” rem- edy, we consider the issue today without applying a pre- sumption against any alternative remedy, including the possibility urged by the Respondents and the dissent of letting the Decision and Order stand notwithstanding for- mer Member Emanuel’s disqualification. The Respond- ents have not been required to rebut a presumption or to bear some particular evidentiary burden. Instead, our aim is to determine (giving appropriate consideration to the parties’ briefs) the best remedy for the Board to adopt un- der the factual and legal circumstances of this case. Id., slip op. at 2 fn. 11. Because we have not applied a pre- sumption, the Respondents’ and the dissent’s arguments against a presumption of vacatur are misplaced. 2. The Respondents argue that the Board waived its right to vacate by unreasonably delaying the proceedings. See Respondents’ Response to NTSC at 11–15. We acknowledge that this decision has been pending for some time.11 We disagree, however, that the delay has been un- reasonable or that it constitutes a waiver of the Board’s right and duty to take appropriate action in response to the extraordinary circumstances warranting vacatur and re- consideration. The Respondents rely on cases arising in very different circumstances or involving federal judges, to whom the judicial recusal statute applies.12 Those cases or at any other time before the investigation was complete. Even assum- ing that agency offices other than that of the Inspector General were aware of the confidential investigation while it was underway, it does not follow that the Board should have taken public action then, thereby re- vealing the investigation (which could theoretically have determined that Member Emanuel had not engaged in misconduct) while it was still pending. The Respondents’ implications that the Board acted improperly or unreasonably, see, e.g., id. at 12 fn. 15 and accompanying text, disre- gard the legitimacy of the Board’s efforts to maintain confidentiality re- garding an Inspector General investigation that at the time had yet to de- termine that any wrongdoing had occurred. 12 As explained above, we do not apply the judicial recusal statute, Section 455. Nonetheless, we consider the Respondents’ arguments, al- though raised in the context of Section 455 case law, to the extent that they may be relevant under Section 208(a). 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD include Mazaleski v. Treusdell, 562 F.2d 701 (D.C. Cir. 1977), in which the court stated that a federal agency may reconsider its decision “within a short and reasonable time.” Id. at 720 (citation omitted). The Respondents highlight the court’s elaboration that “the time period would be measured in weeks, not years.” Id. But the Re- spondents fail to address both the context in which that case arises and the context in which the quoted phrase ap- pears. As to the former, the case involved a federal em- ployee challenging his discharge, where the agency inad- vertently failed to provide him a procedurally required statement of the specific basis for the decision to terminate him; upon notice of its error, the agency reconsidered the termination’s immediate effect and offered to allow the employee to resume the administrative process challeng- ing his discharge and to continue working during the pro- cess. The court accepted the agency’s prompt cure of its clear and simple procedural error. Even assuming that those facts are in any way analogous to the Board’s recon- sideration of a lengthy and fact-dependent legal analysis, the full language of the sentence that the Respondents quote in part is illuminating. The court stated, “What is a short and reasonable time period will vary with each case, but absent unusual circumstances, the time period would be measured in weeks, not years.” Id. at 720 (emphasis added). There can be little doubt that a disqualified Board Member’s participation in a case constitutes exceedingly unusual circumstances, and the complexity of the Board’s decision about how to remedy those circumstances (even setting aside the complexity of the underlying Board deci- sion to be re-adjudicated) makes resolution over a time pe- riod longer than “weeks” entirely reasonable.13 13 We disagree with the Respondents’ argument that vacatur and re- adjudication here “potentially threatens to undo countless other Board decisions years or even decades later based solely on after-acquired evi- dence of inadvertent financial or related improprieties.” Respondents’ Response to NTSC at 14. Such speculation is unfounded and unwar- ranted. There is no reason to believe that there are undiscovered, long- ago cases involving conflicts of interest like the one here. If such cases somehow were to surface, however, the Board would of course consider the timing and subsequent events in deciding how to proceed. Cf. CVS/Pharmacy, 372 NLRB No. 1, slip op. at 1–2 (entering Board’s re- adjudicated order nunc pro tunc to avoid disturbing Board’s and parties’ subsequent actions, where all parties agreed that Board should not un- ravel parties’ labor-relations progress that followed Board’s decisions). Further, as we explain, we anticipate that vacatur and re-adjudication here will help to deter future occurrences. 14 We reject the Respondents’ attempt to shift to the Board any re- sponsibility for the delay resulting from their motion to recuse Members Wilcox and Prouty. Id. at 12 fn. 16 (arguing that the Board “could have avoided the Motion altogether by assigning Member Kaplan to the panel as he was not subject to a recusal request”). The Respondents filed the recusal motion, and the Board and its Members were required to care- fully consider it before proceeding. 15 We also note that the Respondents have been asserting delay as a defense to Board reconsideration since their November 1, 2021 response We note, further, that at least some portion of the delay in today’s decision that the Respondents characterize as both “inexplicabl[e]” and “inexcusable” (Respondents’ Response to NTSC at 12) is a consequence of the Re- spondents’ own actions, including opposing the General Counsel’s motion for remand by the court, petitioning the court for rehearing and for rehearing en banc after the mo- tion was granted, and, after the court rejected those mo- tions and remanded the case to the Board, moving for the recusal of Members Wilcox and Prouty.14 We do not question the legitimacy of the Respondents’ procedural ef- forts to oppose remand and potential vacatur, or the legit- imacy of their right to take any or all of the above actions. But we cannot ignore that those efforts materially contrib- uted to the delay in the issuance of today’s decision.15 Most importantly, as we explained in ExxonMobil, The principal reason for delay here, unfortunately, was Member Emanuel’s failure to recognize and disclose his conflict to the DAEO and the Board. It would be con- trary to the policies of Sec. 208(a) to allow the prior de- cision and order to stand based on such a failure. Id., slip op. at 6 fn. 32. Thus, as we said there, “[i]nsofar as the passage of time since the original decision and order is a relevant factor, . . . we reiterate our view that the Board acted promptly, consistent with [its] decision-making process as a multi-member agency, once it became aware of Member Emanuel’s financial conflict and violation of Sec. 208(a).” Id.16 3. The Respondents argue, and the dissent agrees, that they have operated in reliance on the prior Board decision. That decision dismissed allegations that the Respondents to the General Counsel’s motion to remand. The General Counsel filed her remand motion on October 26, 2021, only 2 months after the Inspec- tor General submitted his August 26, 2021 report to the DAEO. During the intervening 2 months, the DAEO reviewed the report and reached her determination that Member Emanuel had participated in the identified cases while disqualified, and the Board deliberated on how to proceed in response to the unprecedented circumstances and instructed the General Counsel to seek remand in this case. 16 The Respondents emphasize, among other points, that the Board still had concurrent jurisdiction with the court over this case on August 26, 2021 (a Thursday), when the Inspector General sent his report to the DAEO, and they argue that the Board improperly caused delay by sub- sequently filing the Certified List of the Record with the court on August 30, 2021 (the following Monday), as required by the court’s July 14, 2021 order. Even assuming that the court would have considered an emergency motion to remand or hold the case in abeyance only 2 busi- ness days before the Certified List’s filing date, we do not find that the Board was somehow required to instruct the General Counsel to do so immediately, without first assessing the facts and law and determining an appropriate course of conduct in response. Allowing the court to take exclusive jurisdiction over the case by timely filing the Certified List may well have led to some delay in these proceedings, but we cannot agree with the Respondents that the Board acted unreasonably by doing so. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 5 had acted unlawfully by failing to bargain in good faith during 2 years of contract negotiations, from November 2016 through October 2018; by withdrawing recognition from the Union on October 26, 2018; by thereafter unilat- erally implementing new terms and conditions of employ- ment; and by refusing to bargain over those terms in re- sponse to the Union’s November 1, 2018 request. As in ExxonMobil, however, the Respondents have not estab- lished how they have detrimentally relied on the Board’s prior decision. See id. at 4. Nor would reliance, detrimental or otherwise, be rea- sonable in the circumstances here. The Respondents have apparently operated without recognizing the Union since their October 2018 withdrawal of recognition, but the law- fulness of their actions has been in litigation throughout the time that followed. Unfair labor practice charges re- lated to the contract negotiations were pending before the Board even before the Respondents’ withdrawal of recog- nition, and additional charges were filed thereafter, lead- ing to the issuance of a consolidated complaint in early 2019, a hearing before the administrative law judge in mid-2019, and a September 2019 decision by the admin- istrative law judge. In that decision, the judge recom- mended finding the unfair labor practices as alleged and recommended remedies that included reversing the with- drawal of recognition and unilaterally implemented terms and conditions and returning the parties to the bargaining table. The Respondents’ exceptions led to the Board’s April 30, 2021 decision, on which the Respondents pur- port to have relied, but the Union filed its petition for re- view in court on July 18, 2021. The Respondents, there- fore, could reasonably have relied on the Board’s decision as potentially the final word and outcome for, at most, 2½ months of the past 4–6 years. Relatedly, the Respondents argue that vacating that de- cision would disrupt their current stable labor relations. We disagree. We acknowledged in ExxonMobil that, “[a]s a general matter, of course, preserving the finality of the Board’s orders, if and as appropriate, is an important con- sideration.” Id., slip op. at 4. Nonetheless, as we further explained, 17 Our dissenting colleague states that “[r]eadjudication and the po- tential reversal of the underlying decision, which the Respondent con- tends is likely, would reintroduce the Union to a workforce that legiti- mately rejected it four-and-a-half years ago as of this writing.” Our col- league thus appears to be troubled by the possibility that the Board’s ear- lier decision may be (or, as the Respondents contend, is likely to be) re- versed. In addition, our colleague contends that vacatur would “prolong litigation to the point of a potentially unenforceable Order should the un- derlying decision be reversed.” Our colleague plainly concludes that the risk of these consequences from vacatur “is wholly unwarranted.” To the extent that the dissent’s concern relates to the unfortunate delay, we [i]n vacating the prior decision and order, however, we have not yet reached any conclusion contrary to the con- clusions reached before, nor is today’s decision based on any view of the merits of the prior decision. We leave the issues previously addressed by the Board open for reconsideration. Id. Although a decision reaching a different conclusion on the substantive issues could potentially affect the Respond- ents’ assertedly stable labor relations, today’s order vacating the prior decision and providing for reconsideration of the case changes nothing regarding the Respondents’ labor rela- tions. In any event, the circuit court proceedings that were underway could similarly have resulted in vacatur, remand, and Board re-adjudication of the issues in this case. For essentially the same reasons, we reject any sugges- tion that vacatur is inappropriate here because the Board might ultimately reach a different result than it did origi- nally.17 Our decision regarding the appropriate procedural response to remedy Member Emanuel’s misconduct is en- tirely independent of the merits of the underlying case. The Board has now vacated every other decision in which Member Emanuel improperly participated in violation of 18 U.S.C. §208.18 It would be inappropriate for us to take a different procedural course in this case simply because the merits of the underlying case were the subject of disa- greement among Board Members.19 4. The Respondents next argue that Member Emanuel had no actual knowledge of his financial conflict of inter- ests when he participated in the earlier decision and, relat- edly, that there is no evidence or assertion that Member Emanuel was biased or exerted undue influence when he participated. Our dissenting colleague agrees. We re- jected a similar argument in ExxonMobil, however, ex- plaining, “Section 208(a) prohibited Member Emanuel’s participation here, based on his conflicting financial inter- est. The statute was violated regardless of whether Mem- ber Emanuel was actually biased or acted on that bias in the course of his participation.” Id., slip op. at 6. Further, in ExxonMobil we set forth the Inspector General’s deter- mination that “‘Member Emanuel’s position that he lacked knowledge of the conflicting financial interest is without merit’” because “‘[h]aving certified that he is too would have preferred if the case had not required extra processes as a result of Member Emanuel’s improper participation in the earlier deci- sion. 18 See ExxonMobil, 371 NLRB No. 128; CVS/Pharmacy, 372 NLRB No. 1; and Marathon Petroleum Co., 372 NLRB No. 53 (2023). 19 Given the Board’s normal changes in composition, as Members’ terms expire and new Members are appointed, it is inevitable that in some instances, a different set of Members, perhaps with different views, will be called on for good reason to re-decide a case. Contrary to our col- league, we see no reason why this possibility, which is outside of the Board’s control, should harm public confidence in the Board. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD monitoring his investment purchases, . . . he cannot now disavow knowledge when it becomes apparent that he acted in matters that he had a financial interest. Also, even though individual shareholders do not control a sector fund’s portfolio, they are charged with having knowledge of the holdings.’” Id., slip op. at 7 fn. 34 (quoting Inspec- tor General’s Report at 2–3). We further explained that “permitting a Board decision to stand when even a single participating Member has violated a Federal criminal stat- ute threatens to undermine public confidence. That other Members were not disqualified themselves is immaterial, just as their own lack of bias or prejudgment would be im- material if Member Emanuel had been disqualified on that basis.” Id., slip op. at 5.20 As the Supreme Court explained, “We must continu- ously bear in mind that to perform its high function in the best way, justice must satisfy the appearance of justice.” Liljeberg, 486 U.S. at 864 (internal quotations omitted). Member Emanuel’s conflict of interests compromises that fundamental value. See also ExxonMobil, above, slip op. at 5 (“[W]hile the [r]espondent decries the possibility of vacatur even in the absence of any actual bias or the ap- pearance of impropriety, the violation of a Federal crimi- nal statute surely creates the appearance of impropriety.”) (quotations and footnotes omitted).21 5. The Respondents contend, with little explanation or support, that vacatur would have no deterrent effect, or at most a minimal deterrent effect. They argue that “the ex- isting Board members have all been involved in at least one case related to the DAEO’s disqualification decision regarding Member Emanuel, and they are aware of the grounds for his disqualification. There should be no risk that similar violations will occur going forward, should the Board decline to vacate the Decision.” Respondents’ 20 Moreover, an additional fact present in this case reinforces our con- clusion that vacatur is proper: Here, Member Emanuel’s participation was necessarily essential to the outcome of the case, given the split vote of the Board panel. 21 The Respondents challenge the Board’s characterization of Mem- ber Emanuel’s participation in this case as violating a criminal statute, because the U.S. Attorney for the District of Columbia declined to pros- ecute Member Emanuel after he had already departed from the Board. Our dissenting colleague makes essentially the same point. Member Emanuel’s conduct is not disputed, however, and Section 208(a)—which the documents plainly show he violated, and which the Inspector General found he violated—is by definition a criminal statute. To be precise, what the Inspector General reported was that his inves- tigation had “substantiated an allegation that Member William Emanuel participated in matters in which he had a conflicting financial interest” and referred to “an 18 U.S.C. § 208 financial conflict of interest” that would be triggered by stock holdings above the regulatory limit. Inspec- tor General’s Report at 1. Our concise characterization of the Inspector General’s conclusions is thus not inaccurate. We further reject the dissent’s related but also unavailing argument that we have taken it upon ourselves, as if we were “an Article III court,” Response to NTSC at 19. We disagree with this reason- ing. Although each otherwise appropriate instance of va- catur likely heightens the deterrent effect for current Board Members, the Board also has a compelling interest in deterring violations of Section 208(a) by future, as well as current, Board Members. The Respondents argue further that, in the absence of a deterrent effect, vacatur merely penalizes the parties and the Respondents’ employees. Id. In addition to rejecting their premise that vacatur will have no (or minimal) deter- rent effect, we also reject the claim that the parties or the Respondents’ employees are being penalized. The Re- spondents present this argument as relating somehow to the argument that vacatur will produce injustice in other cases. We see no logic in the conflation of those separate concepts. Further, as we stated in ExxonMobil, “vacating the prior decision is an appropriate remedy that is within the Board’s discretion. Indeed, not ordering vacatur (even assuming this did not risk injustice to the General Counsel or the Charging Party) might set a dangerous precedent, threatening injustice in other cases where a Board mem- ber’s participation violated 18 U.S.C. § 208(a).” Id., slip op. at 6. 6. Lastly, the Respondents argue that vacatur and re- consideration, with the possible effect of reimposing un- ion representation on a workforce that rejected it, would undermine public confidence in the Board. Respondents’ Response to NTSC at 20–22. The dissent expresses agree- ment with this argument. Initially, we reiterate that we reach no conclusion today on the merits of the complaint allegations, let alone order the Respondents to recognize the Union as a remedy for the alleged violations. Accord- ingly, we reject the Respondents’ contention that today’s vacatur decision will create labor relations instability. In to judge Member Emanuel’s “criminal liability” for a Section 208(a) vi- olation. That assertion is simply incorrect: we have not imposed, nor sought to impose, criminal liability on Member Emanuel. Rather, the Board has appropriately accepted the Inspector General’s conclusion, based on his investigation, that Member Emanuel was disqualified. Member Emanuel’s improper participation in the earlier decision in this case was unquestionably a serious violation of his ethical responsibili- ties, as the dissent agrees, and that violation is the foundation of our va- catur decision today. See ExxonMobil, 371 NLRB No. 128, slip op. at 5 (“The question before us is not whether Member Emanuel was disquali- fied, but whether the Board should vacate its prior decision and order.”). Finally, we also are not persuaded by the dissent’s contention that the Board errs by accepting the Inspector General’s investigation and con- clusion without an “independent[] review” of the statute and precedent. To the contrary: it would be the second-guessing of the independent In- spector General’s findings that would surely invite concern. Our deci- sion that vacatur is the appropriate remedy to restore public confidence in the integrity of the Board’s decisional process is indisputably both within our discretion and consistent with the Inspector General’s conclu- sion that Member Emanuel was disqualified. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 7 any event, any uncertainty that may result from vacatur, while a new decision on the merits is pending, is not ma- terially different from the uncertainty potentially created by the Union’s petition for judicial review of the Board’s initial decision.22 Further, as we have explained above, the failure to va- cate a decision tainted by the participation of a disqualified Member is a threat to public confidence in the Board. That is, we strongly disagree with the Respondent’s contention that it is vacatur of the underlying decision here—which was issued by a split panel in which the decisive vote was provided by a Board Member who should have disquali- fied himself from participating—rather than leaving that decision standing that threatens the Board’s legitimacy in the eyes of the public. As we observed in ExxonMobil, “any public controversy surrounding ethics issues affects confidence in the Board.” Id., slip op. at 2; see also id. fn. 10. Having (quite properly) disclosed that former Mem- ber Emanuel had improperly participated in several Board decisions, including the underlying decision in this case, we see no logic in the Respondents’ or the dissent’s view that we would restore confidence in the Board’s integrity by failing to remedy the error. III. For all the reasons explained, we will vacate the Board’s prior decision and order in this case and proceed to re- adjudicate the issues addressed there. ORDER The Board’s decision and order of April 30, 2021, in this case, reported at 370 NLRB No. 118, is vacated and set aside for the purpose of further proceedings before the Board. Dated, Washington, D.C. July 25, 2023 ______________________________________ Lauren McFerran, Chairman ______________________________________ 22 We have addressed, above, several other arguments that the Re- spondents raise in this portion of their brief. Moreover, Member Prouty previously addressed the Respondents’ motion for his recusal, which the Respondents revive to suggest that Member Prouty’s decision not to recuse himself is inconsistent with our conclusion that Member Eman- uel’s failure to recuse himself should be remedied by vacatur of the un- derlying decision. The Respondents argue that that supposed incon- sistency would undermine public confidence in the Board. Respondents’ Response to NTSC at 21. We are confident, however, that the public will understand that not all cases in which the recusal of a Board Member is sought are the same. Member Prouty notes that, as he already thoroughly explained in re- sponse to the motion for his recusal, there is a material difference David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. On April 30, 2021, the Board issued the underlying de- cision dismissing the complaint in this case. 370 NLRB No. 118. Former Members Ring and Emanuel formed the majority and Chairman McFerran dissented. After the Board’s Decision and Order issued, the Board’s Desig- nated Agency Ethics Official (DAEO) determined that former Member Emanuel should have been disqualified from participating in this case based on an investigation conducted by the Board’s Office of the Inspector General (OIG). The OIG found that Member Emanuel held shares in the Health Care Select Sector SPDR Fund, which in turn held common stock in the Respondent’s parent company, Universal Health Services, during some of the time that this case was pending before the Board.1 Based on the evidence in the record, after the case was transferred to the Board, the sector fund sold some or all of its shares in the parent company. The case was processed over the next year. Then, on April 19, 2021, the fund initiated a pur- chase of shares in the parent company, which settled April 21, 2021. The Decision and Order issued on April 30, 2021. The OIG report specifically highlights the April 19, 2021 purchase, noting that the Decision and Order issued on April 30, 2021. As the report states, Member Emanuel was provided monthly statements detailing his financial investments, which he was obligated to review for con- flicts of interest. Due to the timing, however, I note that the sector fund would not likely have provided its share- holders the April 2021 monthly statement showing the above purchase at a time when the case was still pending at the Board.2 Nevertheless, federal officials are strictly obligated to monitor their investment holdings, and invest- ments in sector funds present unique challenges and re- strictions. The OIG report noted that former Member Emanuel agreed in 2017 to monitor his investments for between the documented financial conflict of interest based on stock ownership that is the basis of Member Emanuel’s disqualification, on the one hand, and the absence of a conflict of interest—based on Member Prouty’s prior employment by a union that is not involved in this case— on the other. 1 I decline to pass on whether the majority’s assertion that the DAEO made an official “determination” in this case is accurate or whether the DAEO has the authority to make determinations regarding a Board mem- ber’s participation in a case. 2 Aside from the above transactions, the record of the investigation does not indicate whether the sector fund owned any shares of the Re- spondent’s parent company during the year between the sale of shares and the April 2021 purchases. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD financial conflicts, but that he denied knowledge of the conflict in this and other cases. When the OIG referred the matter to the Office of the United States Attorney for the District of Columbia (USADC Office), the USADC Office declined to prose- cute, thus concluding the alleged criminal allegation. Nevertheless, after the USADC had so acted, this Agency’s DAEO determined that then-Member Eman- uel’s participation would have required recusal had it come to light at a time when the case was still pending.3 As the Charging Party had petitioned for review with the United States Court of Appeals for the District of Colum- bia Circuit on July 18, 2021,4 the Board’s General Coun- sel filed a motion to remand the case back to the Board to consider appropriate corrective action for Member Eman- uel’s ethics violations. The court granted the motion on January 19, 2022. On July 14, 2022, the Board, over Member Ring’s dissent, issued a Notice to Show Cause in this proceeding, which invited any party to show cause why the Board’s April 30, 2021 decision and Order should not be vacated.5 My colleagues now vacate the underlying decision for re-adjudication by a new panel, primarily as- serting that Member Emanuel violated 18 U.S.C. § 208(a), a criminal statute aimed at executive officials’ financial conflicts of interests. As explained below, I dissent from the decision to va- cate. First, my colleagues err in repeatedly declaring with- out support that Member Emanuel’s participation in this case established a violation of 18 U.S.C. § 208(a). We are not an Article III court that would have had the authority to hear a criminal case and make appropriate findings had the USADC not declined to prosecute, and in any event my colleagues provide no legal support for their claim that Member Emanuel had the requisite knowledge to be liable under the statute. Second, because Member Emanuel lacked knowledge of his conflict and there was no pro- spect that his participation tainted the decision in this case, his participation was harmless error and does not require vacatur. Contrary to my colleagues’ unsupported claim that vacatur is “presumptively appropriate” here, vacating the decision would unnecessarily destabilize the relation- ship between the employees and the Employer, prolong this already drawn-out litigation that is now in its fifth 3 The DAEO did not provide the Board with a written document ex- plaining her determination. 4 1199SEIU United Healthcare Workers East v. National Labor Re- lations Board, Case No. 21-1152. 5 I did not participate in the Notice to Show Cause. 6 Prior to this case, I concurred in three related Notices to Show Cause only insofar as I agreed with “providing the parties an opportunity to brief the issue of an appropriate remedy for Member Emanuel’s disqual- ification from participation.” Marathon Petroleum Co. d/b/a year, and undermine public confidence in the finality of Agency decisions. My colleagues fail to support their claim that Member Emanuel violated the criminal conflict-of-interest statute applicable to executive branch employees (18 U.S.C. § 208(a)). My colleagues justify vacating the underlying Decision and Order by claiming that Member Emanuel’s participa- tion in this case violated 18 U.S.C. § 208(a), the criminal conflict of interest statute applicable to executive branch employees. I question that conclusion.6 18 U.S.C. § 208(a) provides: (a) Except as permitted by subsection (b) hereof, who- ever, being an officer or employee of the executive branch of the United States Government, or of any inde- pendent agency of the United States … participates per- sonally and substantially as a Government officer or em- ployee, through decision, approval, disapproval, recom- mendation, the rendering of advice, investigation, or oth- erwise, in a judicial or other proceeding, application, re- quest for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particu- lar matter in which, to his knowledge, he, his spouse, mi- nor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning pro- spective employment, has a financial interest— Shall be subject to the penalties set forth in section 216 of this title.7 My colleagues assert that the OIG “concluded that Member Emanuel’s participation [in this case] violated a criminal statute, 18 U.S.C. § 208(a) … because of his ownership of a conflicting financial interest in a sector mutual fund.” I do not believe this is an accurate repre- sentation of the OIG’s report. In the report, the OIG opines that “Member Emanuel meets the knowledge re- quirement for 18 U.S.C. § 208” because he failed to mon- itor his investments as he agreed and was required to do and thus cannot disavow knowledge of his holdings. But the Inspector General did not affirmatively draw the Catlettsburg Refining, Case 09–CA–162710 (2022); ExxonMobil Re- search & Engineering Co., Case 22–CA–218903 (2022); CVS/ Pharmacy, Case 13–UC–266228 (2022). Moreover, as explained below, upon further review of the precedent applying and interpreting 18 U.S.C. § 208(a), on which my colleagues rely, I do not believe that the Agency can reasonably claim that Member Emanuel violated that statute. 7 18 U.S.C. § 208(a). Section 216 of Title 18 sets forth the penalties for a violation of § 208, including imprisonment and/or a fine. 18 U.S.C. § 216. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 9 conclusion of a violation as my colleagues repeatedly as- sert. Nor did he base his statement on the statutory lan- guage or cases applying it. Rather, the report cites a 1993 informal advisory letter from the Office of Government Ethics (OGE) answering queries from a federal employee that states that individual share owners “are charged with having knowledge of [their fund’s] holdings.”8 This is a correct statement of ethical obligations, as the OIG report observes. But it is not authoritative on the criminal statute or case law applying it and does not advise the employee that knowledge may be imputed for the purpose of finding criminal liability.9 In any event, the OGE, like this Agency, is not a United States Attorney authorized to bring criminal charges nor an Article III court with the competence or authority to make findings that an individ- ual has violated a criminal statute. Based solely on the above, the majority appears to assert that Member Emanuel’s ethical obligation to monitor his sector-fund holdings establishes imputed or constructive knowledge of his financial conflict of interest, and that the obligation and agreement to remain informed, even if ac- tual knowledge is lacking, satisfies the knowledge require- ment of 18 U.S.C. § 208(a). With this apparent finding in hand, my colleagues go on to conclude—repeatedly—that Member Emanuel is a criminal. As noted above, my colleagues and I do not sit on an Article III court with the authority to make such legal dec- larations. Even assuming arguendo that we had such au- thority, my colleagues would be obligated to show that the statute and the federal court decisions applying it permit a showing of knowledge based on a constructive fiction, as they claim here. They have failed to do that, and I do not believe the case law supports it. Although we should not be making affirmative legal conclusions under a criminal statute, my observation of the relevant precedent indicates that 18 U.S.C. § 208(a) expressly requires proof of knowledge of the conflicting financial interest before criminal liability may attach. The United States Court of Appeals for the Eleventh Circuit explained in United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990), that knowledge can be inferred for certain ele- ments of § 208(a), but knowledge of a financial conflict must be proven: 8 OGE Informal Advisory Letter 93X37 (O.G.E), 1993 WL 721257. 9 OGE does have authority to advise federal employees of their ethics obligations and, under § 208(d)(2), to issue regulations for determining when certain financial interests will be exempt from criminal and civil liability under § 208(a). Physicians for Soc. Responsibility v. Wheeler, 359 F. Supp. 3d 27, 40 (D.D.C. 2019). [T]he statute specifically places the mental state require- ment of knowledge in the last element and thus requires that the government official have knowledge of the con- flicting financial interest. As to the other elements, the individual should know that: (1) he is an officer and/or employee, (2) he is participating personally and substan- tially, and (3) he is negotiating or having an arrangement for employment. Id. at 1401; see also United States v. Stadd, 636 F.3d 630, 640 (2011) (D.C. Cir. 2011) (affirming § 208(a) conviction where the jury “specifically found that [defendant] had sufficient knowledge to act ‘willfully.’”); United States v. Selby, 557 F.3d 968, 977 (9th Cir. 2009) (affirming § 208(a) conviction where evidence was sufficient for jury to conclude defendant “specifically knew” of conflict based on husband’s financial interest); United States v. Gorman, 807 F.2d 1299, 1304 (6th Cir. 1986) (explaining standard in § 208(a) case “is that the defendant [government official] must have known that the person with whom he was negotiating concerning employ- ment had a financial interest in the defendant’s official work”), cert. denied 484 U.S. 815 (1987).10 I also find relevant guidance in the Supreme Court’s ex- planation of the purpose of § 434, the predecessor to § 208, in United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961): The obvious purpose of the statute is to insure honesty in the Government’s business dealings . . . . The statute is thus directed not only at dishonor, but also at conduct that tempts dishonor. This broad proscription embodies a recognition of the fact that an impairment of impartial judgment can occur in even the most well-meaning men when their personal economic interests are affected by the business they transact on behalf of the Government. 364 U.S. at 548–549. In my view, the Court’s references to honesty, dishonor, temptation, and impairment of impartial judgment unmis- takably indicate a specific state of mind: actual knowledge of a conflict of interest rather than a lesser ethical breach by which a defendant ought to have known of a conflict. Importantly, the OIG did not find that Member Emanuel, by failing to monitor transactions occurring in a third- party managed sector fund, had actual knowledge of any conflict of interest.11 10 See also United States v. Nevers, 7 F.3d 59 (5th Cir. 1993) cert. denied 510 U.S. 1139 (1994); United States v. Bouchey, 961 F.2d 964 (D.C. Cir. 1992) (unpublished table decision) (“[T]he statute [208(a)] explicitly requires knowledge … of the financial interest.”). 11 Lastly, I believe that if Congress intended to permit imputations of knowledge or constructive fictions to establish knowledge, it would have made that clear as it has done in other statutes. In companion conflict- 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thus, my colleagues’ vacatur decision and the General Counsel’s and Charging Party’s briefs in support of vaca- tur rely on the unsupported claim that Member Emanuel engaged in criminal conduct based on a constructive fic- tion that the criminal conflict of interest statute applies even in the absence of actual knowledge. I am aware of no federal court decisions finding that constructive knowledge, imputed knowledge, a finding that a defend- ant “should know” of a conflict, or anything less than ac- tual knowledge can satisfy the “mental state requirement” that a defendant must know of their conflicting financial interests to be criminally liable under 18 U.S.C. § 208(a). Nor am I aware of relevant authority suggesting that indi- viduals’ failures to adhere to ethical obligations to inform themselves of financial conflicts arising from their invest- ment portfolio can satisfy the knowledge requirement of that statute.12 I do not dispute the Inspector General’s opinion as a reflection of the ethics obligations of execu- tive officials and employees. But my colleagues lack au- thority to “conclude” that an individual is a criminal un- less an Article III court has made that finding. And not- withstanding their lack of authority, their unexamined ac- ceptance of the OIG’s statement as a matter of law and their failure to independently review any governing au- thority would reasonably undermine public confidence in the Board’s decisional process. My colleagues do not disagree that the relevant prece- dent provides no support for their claim that Member Emanuel violated 18 U.S.C. § 208(a). Instead, they sug- gest that the Board would be “second-guessing . . . the In- spector General’s findings” if it conducted an independent review regarding whether Member Emanuel violated 18 U.S.C. 208(a) and further suggest that such review “would surely invite concern.” With all due respect, their vacatur decision is based on their finding that Member Emanuel violated 18 U.S.C. § 208(a); they assert that vacatur “is the proper remedy . . . where a violation of 18 U.S.C. § 208(a) is established.” They go on to cite 18 U.S.C. § 208(a) more than a dozen times in their decision. Further, I do not in any way “second guess” the Inspec- tor General’s investigation, which he performed, in my view, diligently and fairly. I disagree with my colleagues’ characterization of the Inspector General’s legal of-interest statutes, Congress has expressly distinguished what a putative defendant must know from what they “reasonably should know.” Com- pare 18 U.S.C. § 207(a)(1), restricting former executive branch employ- ees from “knowingly” representing parties before the government in mat- ters they were substantially involved in during their government tenure, with 18 U.S.C. § 207(a)(2)(B), restricting former employees for 2 years from representing parties in matters the former employee “knows or rea- sonably should know” was pending under their official responsibility. 18 U.S.C. § 207 et seq. conclusions, but my disagreement with the legal footing of my colleagues’ conclusions is solely about their deci- sion. It is not about the Inspector General, it is not about the DAEO. Suggestions to the contrary have no relevance to the disposition of this case or to any legitimate argu- ment they may have with my dissenting opinion. Nor can they excuse their failure to independently re- view the statute and precedent that they rely on by shifting the focus of my opinion from themselves, where it be- longs, onto the Inspector General, where it does not. Fi- nally, I cannot seriously entertain my colleagues’ view that accurately setting out relevant precedent invites pub- lic concern about the Agency. Because Member Emanuel was unaware of his financial conflicts during the pendency of this case, I find that his ethical failure posed no risk to the parties and amounts to harmless error that does not require vacatur. This case was derailed from the start by the majority’s unsupported claim that Member Emanuel’s failure to monitor purchases by his sector fund was criminal activ- ity. In my view, the majority has forced its own hand by repeatedly and publicly asserting this and has made an ap- propriately balanced resolution all but impossible. Never- theless, the salient fact is that Member Emanuel was una- ware of the financial conflict during the time he partici- pated in this case. For this reason, I find that his failure to adequately monitor his sector-fund holdings including the purchase identified in the OIG report amounted to harm- less error. I agree with the Respondent that the appropri- ate corrective action should be guided by the Supreme Court decision in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988).13 Although Liljeberg con- cerned 28 U.S.C. § 455(a), the judicial recusal statute pri- marily aimed at the appearance of impropriety and the public’s confidence in the judiciary,14 it provides a clear lens on the question of vacatur here due to the similar ad- judicative roles of NLRB members and federal judges. For this reason, I share former Chairman Liebman’s view that the standards defining the circumstances for the dis- qualification of federal judges set forth in 28 U.S.C. § 455 “should apply as well to officials of administrative agen- cies, such as Members of the National Labor Relations 12 The Board has vacated decisions in which Member Emanuel im- properly participated based the claims of imputed or constructive knowledge. Marathon Petroleum d/b/a Catlettsburg Refining, 372 NLRB No. 53 (2023); CVS/Pharmacy, 372 NLRB No. 1 (2022); Exx- onMobil Research & Engineering Co., 371 NLRB No. 128 (2022). Of course, Board decisions opining on the Board’s own interpretation of federal criminal statutes have no value as precedent. 13 See also ExxonMobil Research & Engineering, 371 NLRB No. 128, slip op. at 8, 10 (2022) (Member Ring, dissenting). 14 486 U.S. at 865. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 11 Board.” Overnite Transportation Co., 329 NLRB 990, 998 (1999) (Member Liebman, denying motion). Several Board members have cited it for guidance in determining whether to recuse from cases before them.15 In Liljeberg, the Supreme Court held that vacatur is not automatically required where a judge has participated in a case from which they should have but failed to recuse due to a conflict of interest. As the Court said, “[a]s in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance.” Id. at 862. In determining whether a decision by a judge who overlooked a disquali- fying circumstance should be vacated, the Liljeberg Court stated that “it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial pro- cess.” Id. at 864. As for the last consideration, the Court recognized that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’” Id. (quoting In re Murchison, 349 U.S. 133, 136 (1955)).16 Regarding the risk of injustice to the parties in this case, “the party seeking vacatur bears the burden of proving that potential bias on the part of the judge presented a risk of injustice to it.” United States v. Cerceda, 172 F.3d 806, 813 (11th Cir. 1999) (en banc). The court there observed that vacatur may cause the public to “lose confidence in the judicial process . . . because the parties and the courts would be forced to relitigate the case even though the pro- ceedings leading to those judgments seemed completely fair.” Id. at 816. In determining whether vacatur is appro- priate, the inquiry should consider “whether the party seeking vacatur has pointed to particular circumstances that may indicate a risk of injustice to that party” and “the seriousness of the violation.” Id. at 814. Here, as expected, the General Counsel and Charging Party contend that vacatur is necessary. The Respondent contends that it would do injustice to the stability of its labor relations and the decisions it has taken in the nearly 2 years since the dismissal of the complaint and the four- and-a-half years since it lawfully withdrew recognition from the Union. 15 Service Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB 234, 244 (2010) (Member Becker, denying mo- tions); Caterpillar, Inc., 321 NLRB 1130, 1133 (1996) (statement of Chairman Gould); id. at 1135, 1137 (statement of Member Browning). 16 See also Shell Oil Co. v. United States, 672 F.3d 1283, 1292–1293 (Fed. Cir. 2012) (“mandatory recusal does not require mandatory vaca- tur,” citing Liljeberg). 17 370 NLRB No. 118, slip op. at 10. 18 Accordingly, while I express no opinion about the merits of this case, I believe that vacatur threatens to destabilize the workplace and In her brief in response to the Show-Cause notice, the General Counsel primarily relies on the assumption that Member Emanuel’s duty to monitor his sector fund’s in- vestments was sufficient to establish actual knowledge and that, therefore, he engaged in criminal activity by par- ticipating in this case. As I have shown above, a federal agency should not be persisting in claims that an individ- ual engaged in criminal activity after the USADC has de- clined to prosecute, and in any event the General Counsel, like my colleagues, fails to support this claim on the mer- its. Further, only actual knowledge of the financial con- flict and the resulting potential for partial and biased deci- sion-making would risk injustice should the decision stand. On the other hand, vacatur would undoubtedly dis- rupt the stability of the workplace despite my colleagues’ suggestion that, because the Charging Party appealed the Board’s decision to the D.C. Circuit, the Respondent and its labor force should not expect workplace stability. That is a dim view of the Board’s express purpose which is pre- cisely to facilitate such labor stability. It also disregards the fact that in 2020, approximately 86 percent of Board decisions on appeal before the United States courts of ap- peal were enforced in full or in part. Further, the Respond- ent lawfully withdrew recognition from the Union on Oc- tober 26, 2018,17 and since that time it has implemented numerous operational decisions affecting the terms and conditions of employment. Re-adjudication and the po- tential reversal of the underlying decision, which the Re- spondent contends is likely, would reintroduce the Union to a work force that legitimately rejected it four-and-a-half years ago as of this writing, a time span that will have stretched far longer once this case is redecided and poten- tially makes its way back to the court. Based on the above, vacatur would throw uncertainty into the work force and further prolong litigation to the point of a potentially un- enforceable Order should the underlying decision be re- versed. In my view the risk of these consequences is wholly unwarranted.18 Turning to the seriousness of the ethics violation here, Member Emanuel failed to fulfill his obligation to suffi- ciently monitor his sector fund’s transactions. Although I do not believe that my colleagues have a basis for con- tending that his breach of duty was criminal, it was disrupt labor relations by sending the litigation back to square one; that it will interpose unnecessary uncertainty and delay in reaching a final resolution in a case that has already dragged on for 5 years; that vacatur under these circumstances may undermine public confidence in the sta- bility of our decisions; and that it will raise the possibility of an order that will be unenforceable due to the time that has passed since the al- leged unfair labor practices. Finally, as I have explained, I believe that my colleagues’ rationale for vacatur is based on an unsupported legal rationale. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD undeniably serious. Nevertheless, this is not a situation in which Member Emanuel had actual knowledge that the Health Care Select Sector SPDR Fund held shares in the Respondent’s parent company while the case was before him. The fact that he should have kept himself informed does not make the potential impact of his ethical violation any greater, where there is no indication that he was aware of his conflict of interest.19 The standards the Supreme Court set out in Liljeberg are uniquely suited to determining whether vacatur is ap- propriate here, and because Member Emanuel lacked knowledge of his financial conflict, his participation in this case posed no risk of prejudgment, bias, or other harm to the parties. Although I do not excuse his ethics viola- tions, I find that they amounted to harmless error and that vacating the Decision and Order is unwarranted. CONCLUSION Member Emanuel’s failure to inform himself of his sec- tor-fund holdings was unquestionably a serious violation of his ethical responsibilities. Nonetheless, the majority’s repeated, public claims that Member Emanuel violated a criminal statute also represent a serious accusation against a former colleague, especially considering that the plain language of 18 U.S.C. § 208(a) and the governing case law do not clearly support that conclusion. The majority’s re- frain of criminality has consequences, and in my view the majority bears significant responsibility for contributing to the appearance of wrongdoing and the potential erosion of public trust. I share my colleagues’ concern about the effects of Member Emanuel’s ethics violations and the public perception of our impartiality, but I fear that my colleagues’ accusatory zeal for overstated claims may damage the Agency. For all the above reasons, I find vacatur to be an inap- propriately disruptive remedy for Member Emanuel’s harmless error. Accordingly, I respectfully dissent. Dated, Washington, D.C. July 25, 2023 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD 19 My colleagues and the General Counsel rely on two inapposite cases to argue that vacatur should be presumptively appropriate: Berk- shire Employees Assn. of Berkshire Knitting Mills v. NLRB, 121 F.2d 235 (3d Cir. 1941) (court remanded for Board to vacate if it were proven that participating Board member urged boycott of respondent to pressure it into accepting union demands) and Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 592 (D.C. Cir. 1970) (court vacated order where FTC commissioner made public statements indicating he had prejudged case). These cases are inapposite. They indicate that va- catur is appropriate in the event that actual prejudgment, partiality, or bias is found; none of these were found in the instant matter. 1 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD EXXONMOBIL RESEARCH & ENGINEERING COMPANY, INC. and Cases 22-CA-218903 22-CA-223073 INDEPENDENT LABORATORY EMPLOYEES 22-CA-232016 UNION, INC. NOTICE TO SHOW CAUSE On September 28, 2020, the National Labor Relations Board issued a Decision and Order in this proceeding. 370 NLRB No. 23. Then-Chairman Ring and Members Kaplan and Emanuel participated in the case. Subsequently, the Board’s Designated Agency Ethics Official (DAEO) determined that Member Emanuel (whose term on the Board has since ended) should have been disqualified from participating in this proceeding, based on an investigation conducted by the Board’s Inspector General.1 The Inspector General concluded that Member Emanuel’s participation violated a criminal statute, 18 U.S.C. § 208(a), and its implementing regulations, 5 C.F.R. §2640.201(b)(2)(i), because of his ownership of a conflicting financial interest in a sector mutual fund.2 The Board has accepted the DAEO’s determination that Member Emanuel should have been disqualified. The presumptively appropriate remedy for Member Emanuel’s 1 The results of the Inspector General’s investigation are reflected in an August 26, 2021 memorandum to the DAEO. As appropriately redacted, the memorandum with relevant attachment is appended to this notice to show cause. 2 At relevant times, Member Emanuel owned more than $50,000 in shares of the Energy Select Sector SPDR Fund ETF (XLE), which in turn owned Exxon Mobil Corporation common stock. Member Emanuel did not timely disclose his ownership of this sector mutual fund, which prevented a disqualification determination from being made before Member Emanuel participated in this case and before the Board’s decision and order was issued. 2 unlawful participation in this case is to vacate the Board’s Decision and Order and to re- adjudicate the exceptions to the administrative law judge’s decision de novo. See e.g., Berkshire Employees Assn. of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941); Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583, 592 (D.C. Cir. 1970).3 NOTICE IS GIVEN that any party seeking to show cause why the Board’s Decision and Order should not be vacated, and why the Board should not re-adjudicate this case, must do so in writing, filed with the Board in Washington, D.C., on or before January 28, 2022 (with affidavit of service on the parties to this proceeding).4 If a response to this Notice to Show Cause is filed, a party may file a reply to the response within 14 days of receipt of the response (with affidavit of service on the parties to this proceeding), but further responses will not be permitted except where there are special circumstances warranting leave to file such a response. 3 Our dissenting colleague acknowledges, as he must, that Member Emanuel should not have participated in this case and that soliciting the views of the parties as to the appropriate remedy here is proper. We reject our colleague’s assertion that in describing vacatur of the earlier decision as presumptively appropriate we have somehow prejudged matters or “slanted the playing field.” We have not. The conduct compelling this notice to show cause involves the Board’s interests and reflects on the Board and its integrity as an institution. For this reason, we believe the federal appellate decisions involving possible bias by federal administrative-agency adjudicators (including a prior Board member) that we cite above provide more relevant guidance than the cases construing the disqualification requirement for individual judges that our colleague cites. Because the Board’s institutional interests are at stake—and at risk—it is entirely appropriate that we convey our belief to the parties that, presumptively, vacatur is the right response to the events uncovered by the Inspector General. As today’s notice is a procedural step, not a decision on the merits, we do not otherwise engage with our colleague’s arguments. Nor do we suggest that our colleague himself has prejudged the issue of whether a Board decision can stand, despite the fact that a Board member’s participation in the case violated a federal criminal statute applicable to employees of the Executive Branch. 4 Member Kaplan concurs in providing the parties an opportunity to brief the issue of an appropriate remedy for Member Emanuel’s disqualification from participation. Pending review of arguments made in response to this notice, he reserves judgment as to whether vacatur is appropriate, presumptively or otherwise, in the particular circumstances of this case. 3 Dated, Washington, D.C., January 7, 2022 Lauren McFerran, Chairman Marvin E. Kaplan, Member Gwynne A. Wilcox, Member David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Member Ring, dissenting in part: The right to an impartial decisionmaker is one of the core principles of American law. Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009). Like my colleagues, I believe that the Board must ensure that it adheres to exacting standards of integrity and impartiality. Unfortunately, the high standards applicable to federal employees were not complied with in this case. My colleagues and I agree that Member Emanuel should not have participated in this case, based on a conflicting financial interest. I also agree that the parties are entitled to an opportunity to be heard before the Board decides whether to vacate its prior decision in this case, ExxonMobil Research & Engineering Company, Inc., 370 NLRB No. 23 (2020). But my agreement with the majority must end there. The majority has concluded that the “presumptively appropriate” remedy for Member Emanuel’s participation in this case is to vacate the Board’s Decision and Order and to re- adjudicate the case de novo. I cannot agree, and I am wholly unpersuaded by the inapposite caselaw upon which the majority relies in this matter of first impression for the Board. In 4 addition, I strongly disagree with the majority’s unprecedented decision to hold that vacatur is presumptively appropriate even before the parties have had an opportunity to brief that very question. The Board should not presume that vacatur is warranted and issue a Notice to Show Cause why it is not. It should provide the parties an opportunity to be heard through an open- ended invitation for briefing. The question posed by Member Emanuel’s participation in this case has no obvious answer, as no controlling statute or legal precedent directly answers it. For these reasons, the Board should decide what standard to apply in determining whether the prior decision in this case should be vacated after the parties have briefed the issue, not before. DISCUSSION The Board’s Designated Agency Ethics Official (DAEO) has determined that Member Emanuel should not have participated in the adjudication of this case because at the relevant time, he held a greater-than-$50,000 interest in the Energy Select Sector SPDR Fund ETF (XLE) (the “Fund”), which in turn held shares in ExxonMobil. The Board’s Inspector General determined that Member Emanuel’s participation in this case under those circumstances violated 18 U.S.C. § 208(a) and one of its implementing regulations, 5 C.F.R. § 2640.201(b)(2)(i). The Inspector General’s memorandum to the DAEO concerning this matter discloses the following additional information: (1) Member Emanuel received statements from his investment advisor disclosing his investment in the Fund, but those statements did not disclose the Fund’s underlying holdings; (2) there has been no finding that Member Emanuel had actual knowledge of the Fund’s underlying holdings at the time he participated in this case.1 1 As discussed below, no one disagrees there was a violation. The issue presented now, however, is the appropriate remedy for that violation. Accordingly, it is irrelevant to this case that “[t]he Inspector General concluded that Member Emanuel’s participation violated a criminal statute,” as the majority notes. In any event, as the IG report explains, upon referral by the IG, the U.S. Attorney’s Office declined criminal prosecution in this matter. 5 Member Emanuel should have disqualified himself under the circumstances described above, and his participation in this case was an ethics violation. There is no question about this. The issue presented here, however, is what the Board should do about that violation now. This is indisputably an issue of first impression for the Board. Diligent research has not unearthed any prior case in which the Board has specified the standard to be applied in determining whether to vacate a decision because a participating member should have disqualified him- or herself based on a conflicting financial interest. This does not deter the majority from peremptorily announcing that vacatur is the presumptively appropriate remedy, and doing so without first affording the parties a meaningful opportunity to brief that issue. The majority’s approach both deprives the parties of the opportunity to dispute whether vacatur is presumptively appropriate here and puts any party that might oppose vacatur to the uphill task of overcoming an adverse presumption. The Board should give the parties a level, presumption-free playing field by inviting them to brief the issue of what standard should apply here and, when applied, what outcome should be reached, rather than compelling them to prove that the Board’s prior decision should not be vacated and the case re-adjudicated.2 Moreover, the cases cited by the majority provide no support for the proposition that vacatur is presumptively appropriate in the circumstances presented here. To the contrary, the courts that decided Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583, 592 (D.C. Cir. 1970), and Berkshire Employees Ass’n of Berkshire Knitting Mills v. NLRB, 121 F.2d 235 (3d Cir. 1941), cited by the majority in support of this proposition, determined that vacatur was appropriate where an agency decisionmaker should have been disqualified based on actual bias 2 The Board’s undisputed interest in protecting the integrity of its processes will be vindicated by its decision on whether or not to vacate the prior decision. Accordingly, there is no merit to the majority’s view that those concerns justify holding vacatur “presumptively appropriate” now, before the parties have briefed the issue. 6 or prejudgment.3 Those cases did not deal with disqualifications based on a conflicting financial interest, as is the case here. Nor is it at all clear how actual bias or prejudgment can be found in this instance, absent any basis for concluding that Member Emanuel was aware, at the time he participated in the decision in this case, that the Fund held shares of ExxonMobil stock.4 The issue of conflicting financial interests is addressed in 28 U.S.C. § 455. Although Section 455 applies by its terms to federal judges, several Board members have taken it into consideration when addressing recusal motions.5 That statute relevantly states: 3 In Cinderella Career & Finishing Sch., Inc. v. FTC, the court held that the Chairman of the Federal Trade Commission should have recused himself from the case after he gave a public speech that either demonstrated actual prejudgment or created “the appearance that the case ha[d] been prejudged.” 425 F.2d at 590. In Berkshire Employees Ass’n of Berkshire Knitting Mills, the court addressed an allegation that, prior to his participation in the case, a member of the Board had written a letter to a customer of the respondent employer that in substance urged the customer to boycott the respondent in order to pressure it into acceding to union contract demands. The court held that “[i]f the circumstances alleged are proved Berkshire did not have a hearing before an impartial tribunal, but one in which one member of the body which made exceedingly important findings of fact had already thrown his weight on the other side.” 121 F.2d at 239. Member Emanuel’s situation does not remotely resemble either case. 4 The Administrative Procedure Act (APA) also provides no clear guidance here. It specifies procedures administrative agencies must follow when adjudicating cases, including a provision regarding impartiality, but does not specify the remedy for violations of this requirement. See 5 U.S.C. § 556(b)(3). 5 See Service Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB 234, 238-246 (2010) (recusal ruling of Member Becker); Overnite Transportation Co., 329 NLRB 990, 998-1000 (1999) (recusal statement of Member Liebman); Detroit Newspapers, 326 NLRB 700, 710-713 (1998) (recusal opinion of Chairman Gould); Cedars-Sinai Medical Center, 224 NLRB 626, 626-627 (1976) (opinion of Member Walther). Member Becker observed that although he was not bound by Sec. 455, “the standards set forth therein as well as their construction by the courts offer useful guidance in the application of the . . . standards applicable to executive branch employees.” 355 NLRB at 239. Chairman Gould observed that Sec. 455 includes both “actual bias” and “appearance of impropriety” standards, and he agreed with the holding of the Second Circuit that the “appearance of impropriety” standard does not apply to administrative officials. 326 NLRB at 710-711 (citing Greenberg v. Board of Governors of the Federal Reserve, 968 F.2d 164, 167 (2d Cir. 1992)). Nevertheless, Chairman Gould stated that he took “the standards applicable to judges seriously,” and he expressed confidence that he was acting in conformity with those standards. Id. at 711. In contrast, Member Liebman concluded that both standards set forth in Sec. 455—actual bias and appearance of impropriety—“should apply . . . to officials of administrative agencies, such as Members of the National Labor 7 (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: *** (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding. As this provision makes clear, scienter is not required for disqualification under Section 455(a), but is required for disqualification under Section 455(b)(4), where a conflicting financial interest is involved, as is the case here. As with the APA, Congress did not prescribe a remedy for violations of the 28 U.S.C. § 455 disqualification requirement. And the Supreme Court has plainly held that vacatur is not automatically required whenever 28 U.S.C. § 455 is violated, even for disqualifications under § 455(a). Rather, “[a]s in other areas of the law, there is surely room for harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance. There need not be a draconian remedy for every violation of § 455(a). It would be equally wrong, however, to adopt an absolute prohibition against any relief in cases involving forgetful judges.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862 (1988). In determining whether a judgment should be vacated for a violation of § 455(a), the Court did not say that vacatur was presumptively appropriate. Instead, the Court held that it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process. We must continuously bear in mind that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’” In re Murchison, 349 U.S. 133, Relations Board.” 329 NLRB at 998. Member Walther’s views were similar to Member Liebman’s. See 224 NLRB at 626. 8 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (citation omitted). Liljeberg, supra, 486 U.S at 864. See also Shell Oil Co. v. United States, 672 F.3d 1283, 1292- 1293 (Fed. Cir. 2012) (recognizing rule, and holding that “mandatory recusal does not require mandatory vacatur”); Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1420 (Fed. Cir. 1989) (finding vacatur inappropriate). In the current posture of this case, I need not, and do not, decide whether the Liljeberg standard should apply, or whether vacatur would be warranted under that standard if it did apply. For present purposes, it suffices to say that it is far from obvious that the Board should vacate a decision in circumstances under which vacatur would not be required for a decision by a federal judge. If there is room for consideration of “harmless error committed by busy judges who inadvertently overlook a disqualifying circumstance,” it is not clear why the same standard would not apply to—or at least be considered for—members of the National Labor Relations Board as well. Liljeberg, supra, 486 U.S at 864.6 Nor is it clear why the Board should, or may, disregard the factors identified by the Supreme Court in Liljeberg before invoking “the draconian remedy” of vacatur in this case. Liljeberg, supra at 861. The majority’s peremptory conclusion that vacatur is “presumptively appropriate,” without grappling with these considerations, is wholly unjustified. CONCLUSION My colleagues and I agree that safeguarding the integrity of the Board’s processes is a 6 The majority says they choose not to engage with my argument that Sec. 455 may furnish useful guidance here, but in reality they choose to ignore Sec. 455 and precedent applying it altogether. This is despite the fact that Sec. 455 has been applied in cases involving financial conflicts of interest, which this is, and the further fact that it has been invoked by a number of former Board members. They instead declare, without analysis, that the two cases they cite are more relevant. One might wonder: if a presumption in favor of vacatur is not required in order to protect the integrity of the judicial process, it is not clear why such a presumption is required in order to protect the integrity of the Board’s processes. 9 paramount consideration. I disagree, however, with the majority’s decision to make vacatur the presumptively appropriate remedy here, and with their unprecedented adoption of this standard in a Notice to Show Cause. This is an issue the Board should decide after the parties have had a chance to brief it, not before. While I join the majority in giving the parties an opportunity to be heard, I cannot agree with their decision to prejudge the standard to be applied, slanting the playing field in advance by making vacatur the presumptively appropriate remedy. Accordingly, in this regard, I respectfully dissent. Dated, Washington, D.C., January 7, 2022 John F. Ring, Member NATIONAL LABOR RELATIONS BOARD 2 funds and that he may not participate in any particular matter involving the underlying holdings of the funds. We compared our compiled list of entities in which the sector funds held an equity interest, to a list of cases pending before the Board during the period January 1, 2020 to June 17, 2021. For each case that matched with a sector fund equity interest, we then reviewed documentation to determine if Member Emanuel participated in the matter as a Member, if his participation in the matter was both personal and substantial, and whether Member Emanuel held an interest in the sector fund in excess of $50,000 at the time of his participation. Through that process, we determined that Member Emanuel participated both personally and substantially in five matters involving an entity held by a sector fund and, at the time of that participation, Member Emanuel had a financial interest in the sector fund that exceeded $50,000. Documentation is provided as attachment (1). On August 19, 2021, Member Emanuel participated in an interview after being provided assurances that the statements he made could not be used against him in a criminal proceeding. Prior to providing those assurances, the OIG presented the matter to the U.S. Attorney’s Office for the District of Columbia. On August 9, 2021, the U.S. Attorney’s Office declined prosecution. During the interview, Member Emanuel generally denied knowledge of his sector fund investments and responsibility for his investment decisions. Member Emanuel also denied understanding the ethics agreement that he signed. A copy of the transcript is provided as attachment (2). Member Emanuel’s position that he lacked knowledge of the conflicting financial interest is without merit. As discussed above, Member Emanuel was provided with monthly statements that detailed his financial investments. When questioned about the statements, Member Emanuel acknowledged that he received the monthly statements and that he reviewed them to determine the overall performance of investments. Member Emanuel, however, denied that he reviewed the statements in detail and denied any knowledge of the sector fund investments. Transcript starting at page 23. An Executive Branch employee cannot avoid knowledge of his financial interests by failing to review information that is provided to the employee by his financial representative. On October 18, 2017, Member Emanuel signed a document titled Certification of Ethics Agreement Compliance that was marked “yes” to a box containing the following statement: If I have a managed account or use the services of an investment professional, I have notified the manager or professional of the limitations indicated in my ethics agreement. In addition, I am continuing to monitor purchases. (Emphasis added) Member Emanuel was provided the necessary information by his financial advisor to monitor his purchases. Given the duty to monitor his financial investments purchases and the information that was provided to him monthly, Member Emanuel meets the knowledge requirement for 18 U.S.C. § 208. Having certified that he is monitoring his investment purchases, and he cannot now disavow knowledge when it becomes apparent that he acted in matters that he had a financial interest. Also, even though individual shareholders do not 3 control a sector fund’s portfolio, they are charged with having knowledge of the holdings. See, OGE Informal Advisory Letter 93X37 (O.G.E), 1993 WL 721257. Member Emanuel also stated that he relied upon the DAEO staff to ensure that his investments complied with OGE requirements. Transcript starting at page 70. That position is without merit. It is clearly established that the DAEO staff did not have knowledge of Member Emanuel’s sector fund investments until Member Emanuel filed his annual financial disclosure form. The assistance that the DAEO staff provided to Member Emanuel, through his financial advisor, was with disclosure requirements. In addition to the 18 U.S.C. 208 issues, it is our understanding had concerns regarding Member Emanuel’s compliance with the Ethics Agreement. Those specific concerns were whether Member Emanuel had a plan in place that required his approval of purchases. We determined that Member Emanuel had no plan in place. Additionally, based on Member Emanuel’s responses during the interview, he took no steps to comply with that requirement of the agreement. Transcript pages 40 to 42. In addition to not complying with the agreement, Member Emanuel took the position that the Ethics Agreement was superseded by other DAEO memorandums. Transcript starting at page 45. We were not persuaded by these statements, and we determined that Member Emanuel did not comply with the Ethics Agreement. Our investigative efforts did not disclose gaps or failures in the NLRB’s ethics program or that the DAEO program did not meet the requirements as set out in 5 C.F.R. 2638.104. We observed that the DAEO staff acted promptly to address Member Emanuel’s recusal obligations and notified the OIG. We also documented that the NLRB’s financial disclosure filers are reminded annually of the sector fund threshold for a financial conflict of interest. Given the nature of the extensive jurisdiction of the NLRB, you may want to consider consulting with OGE to determine if other agencies have taken steps to limiting employee investments in sector funds or if there is a standard notice that can be provided to an employee to then provide to their financial advisor. We note, however, that because sector fund investments are not subject to the periodic reports required by the Stop Trading on Congressional Knowledge (STOCK) Act of 2012, enforcement of any restrictions would remain an annual process and would not address the risk between annual disclosure reports. Because the DAEO has the regulatory responsibility to assist the Board in its enforcement of ethics law and regulations, including corrective action, the OIG is reporting this information to you so that you can advise the Board regarding what, if any, corrective action is necessary to remedy the financial conflict of interest violations regarding the five matters identified above. See, 5 CFR 2638.104(c)(9)(ii). Attachments cc: Chairman 1 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD CVS/PHARMACY Employer/Petitioner and Case 13-UC-266228 TEAMSTERS LOCAL 272 Union ORDER GRANTING REVIEW AND REMANDING Pursuant to Section 102.67 of the Board’s Rules and Regulations, the Employer’s Request for Review of the Regional Director’s Dismissal of the unit-clarification (UC) petition is granted as it raises substantial issues concerning the Regional Director’s departure from officially-reported Board precedent.1 The petition seeks to exclude the Team Leader position from the bargaining unit on the basis that the employees holding that classification are allegedly supervisors under Section 2(11) of the National Labor Relations Act. The Regional Director found the petition untimely because the parties’ expired contract expressly included Team Leaders in the unit, Team Leaders had been historically included in the unit, and the Employer did not assert that there have been substantial changes in the Team Leaders’ duties. In so doing, the Regional Director rejected the Employer’s reliance on Washington Post Co., 254 NLRB 168 (1981), finding that, unlike the present case, the employer-petitioner in that case filed the UC petition immediately after an election in which the employer raised the issue of the challenged employees’ supervisory status and the employer did not waive that issue. The Regional Director erred in interpreting Washington Post Co. so narrowly. In Goddard Riverside Community Center, 351 NLRB 1234, 1234–1235 (2007), the Board interpreted Washington Post Co. as providing that, “where timely filed, a UC petition seeking to exclude a classification based on supervisory status may be processed even though the disputed classification has been historically included,” and that as long as the petitioner can establish that the employees holding the disputed classification are Section 2(11) supervisors, the Board clarifies the unit to exclude those employees even “where the employees sought to be excluded by a UC petition have long been included under previous contracts, and the job duties have remained unchanged[.]” 351 NLRB at 1235, citing Washington Post Co., supra, and Bethlehem Steel Corp., 329 NLRB 243, 244 fn. 5 (1999). Nor did the Regional Director find that the parties stipulated to the inclusion of the Team Leader position in a representation case proceeding, which would be a “clear exception” to the 1 The Board has treated the Regional Director’s dismissal letter as the equivalent of a decision in reviewing the Employer’s Request for Review under Sec. 102.67 and 102.63(c) of the Board’s Rules and Regulations. 2 Board’s general policy that a UC petition is appropriate when the petitioner, as is the case here, seeks to exclude a historically-included position based on alleged Section 2(11) status. Goddard Riverside Community Center, 351 NLRB at 1235 (this “clear exception” is also known as the “relitigation rule”), citing and discussing Premier Living Center, 331 NLRB 123 (2000), and I.O.O.F. Home of Ohio, Inc., 322 NLRB 921 (1997). As Goddard Riverside Community Center makes clear, the fact that the Team Leaders have been included in the unit by way of past contracts, as the Regional Director found, is not sufficient to support dismissal under these circumstances.2 351 NLRB at 1235 & fn. 6 Accordingly, we reinstate the petition and remand it to the Regional Director for further analysis consistent with Goddard Riverside Community Center.3 LAUREN McFERRAN, CHAIRMAN MARVIN E. KAPLAN, MEMBER WILLIAM J. EMANUEL, MEMBER Dated, Washington, D.C., February 5, 2021. 2 The parties have no active contract and have not executed a successor agreement or otherwise reached an entire agreement in principle on the same; therefore, there is no current contract or agreement that would serve as a bar to processing the petition. Cf. Edison Sault Electric Co., 313 NLRB 753, 753 (1994). 3 The Employer filed a Request for Special Leave to File A Reply in Support of Request for Review, which the Board’s Office of the Executive Secretary granted. Thereafter, the Union Filed an Opposition to the Employer’s Request for Special Leave to File a Reply and Request for Reconsideration of the decision to grant the Employer’s Request for Special Leave. In granting review and remanding, the Board finds it unnecessary to consider the Employer’s Reply. Therefore, the Union’s Request for Reconsideration is moot. United States Government NATIONAL LABOR RELATIONS BOARD Office of the Executive Secretary 1015 Half Street, SE Washington, DC 20570 Re: CVS/Pharmacy Case 13-UC-266228 ORDER GRANTING REQUEST THAT THE BOARD TRANSFER THE EMPLOYER’S MAY 11, 2021 REQUEST FOR REVIEW TO THE REGIONAL DIRECTOR FOR RECONSIDERATION On May 11, 2021, the Employer filed with the Board a Request for Review of the Regional Director’s dismissal of the UC-petition in the above-referenced case. On May 24, 2021, the Acting Regional Director for Region 13 filed a Request that the Board Transfer the Employer’s Request for Review to the Regional Director for Reconsideration.1 The Acting Regional Director’s request is granted. Accordingly, the Employer’s May 11, 2021 request for review is transferred to the Regional Director for reconsideration and will not be ruled on by the Board. Dated, Washington, D.C., May 25, 2021. /s/ Mark G. Eskenazi Associate Executive Secretary cc: Parties Region 13 1 The Acting Regional Director’s request is dated May 20 but it was not filed until May 24. 370 NLRB No. 23 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. ExxonMobil Research & Engineering Company, Inc. and Independent Laboratory Employees Union, Inc. Cases 22–CA–218903, 22–CA–223073, and 22–CA–232016 September 28, 2020 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL On June 12, 2019, Administrative Law Judge Michael A. Rosas issued the attached decision. The Respondent filed exceptions and a supporting brief.1 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 exceptions2 and brief and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.3 I. BACKGROUND The Independent Laboratory Employees Union (Union or ILEU) has represented employees at Respondent Exx- onMobil’s Annandale, New Jersey research facility since 1941. The current bargaining unit is comprised of approx- imately 165 employees, and the parties’ most recent col- lective-bargaining agreement was effective from June 1, 2013, through May 31, 2018. During the term of this agreement, several divisive issues arose between the par- ties. In November 2015, the Respondent began to perma- nently subcontract some unit jobs, believing that the par- ties’ collective-bargaining agreement allowed such sub- contracting. The Union filed a grievance, which went to an arbitration hearing in October 2017, in which it argued that the contract barred permanent subcontracting of unit positions. In mid-2016, the Union filed an unfair labor practice charge alleging that a supervisor had denied an em- ployee’s personal time request in retaliation for the Un- ion’s filing of grievances. The Union alleged that the su- pervisor stated that he would not grant the request because the Union had become too aggressive. This charge was 1 The General Counsel’s answering brief was rejected as untimely filed. 2 No party has excepted to the judge’s dismissal of allegations that the Respondent violated the Act by insisting that the Union hold a ratifi- cation vote, by insisting on bargaining noneconomic issues to completion before negotiating economic ones, by insisting that the Union waive cer- tain arbitration rights, or by foreshadowing impasse. informally settled in August 2016. Shortly thereafter, the Respondent issued a letter to employees formally rescind- ing supervisory discretion to grant personal time off. The Union then filed another charge alleging, among other things, that the rescission of such supervisory discretion was in retaliation for the earlier charge. In affirming the Region’s dismissal of that charge, the General Counsel’s Office of Appeals noted that the plan to eliminate super- visory discretion had been in the works before the prior charge was filed. The Office of Appeals further found that the change in supervisory discretion was part of an effort to ensure companywide consistency in supervisory deci- sion-making rather than a response to union activity. In November 2017, the Respondent instituted, company wide, a policy providing 8 weeks of Paid Parental Time Off (PPTO) for all its unrepresented employees. Repre- sented employees, however, did not automatically receive the benefit. The Union requested bargaining for PPTO on behalf of unit employees in early 2018, but the Respond- ent insisted on deferring the issue to the upcoming contract negotiations. On March 7, 2018, the Respondent notified the Union of its plan, in the works since December, to modify the evaluation procedure for unit employees. Among other changes, the Respondent planned to eliminate a multi-tier rating system for evaluating employees’ performance and replace it with a single binary rating (meets require- ments/does not meet requirements). The parties held two meetings on this change, but no consensus was reached. At the end of March, the Respondent fully implemented the change, over the Union’s strong objection. Bargaining for a new contract began on May 7, 2018.4 The negotiations were protracted, covering 23 sessions lasting through early 2019, and at times acrimonious. Ap- proximately 54 issues were discussed, with the Union rais- ing the great majority of new proposals. Although the par- ties successfully resolved a significant number of these is- sues, the unresolved issues were significant enough to pre- vent overall agreement. The Respondent made its pur- ported last, best, and final offer on June 29—although it did not implement any changes at that time—and it pushed repeatedly for the Union to conduct a membership vote on the offer. From the outset of bargaining, the Union sought limits on the Respondent’s right to subcontract. Then, a month 3 The Respondent’s motion to expedite processing of Respondent’s Exceptions to the Administrative Law Judge’s Decision is denied as moot. 4 Most of the relevant events in this case took place in 2018 (although significant background events occurred before then), and thus, where not otherwise indicated, dates herein refer to 2018. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 into bargaining, the arbitrator issued her ruling on the sub- contracting grievance the Union had filed under the prior contract. The arbitrator found in the Union’s favor, hold- ing that the expiring contract’s subcontracting language, read in conjunction with its recognition clause, forbade the permanent contracting out of unit jobs. After the arbitrator’s decision issued, the Respondent introduced a proposal that would have restored its right to subcontract, at least with respect to certain positions it deemed “noncore,” subject to the limitation that current employees would not be displaced other than through at- trition. The Respondent maintained that its business plan required that it have the right to contract out these noncore positions. Subcontracting of unit jobs remained a divisive subject throughout negotiations, with the Respondent aggres- sively pursuing contract language allowing it to subcon- tract noncore positions and strongly suggesting that the in- clusion of such language was key to reaching overall agreement. Although, on occasion, the Union appeared willing to compromise and allow the subcontracting of some unit jobs, it consistently asserted that such subcon- tracting would constitute a change to the scope of the bar- gaining unit and that, because such a change was a per- missive subject of bargaining, the Respondent’s insistence thereon was unlawful. In addition to this dispute over subcontracting, the par- ties also disagreed over the Union’s repeated proposals to reinstate discretionary personal time and to give unit em- ployees the same 8 weeks of PPTO that unrepresented em- ployees received. As to personal time, the Respondent’s position from the outset of negotiations was that its inter- est in consistency—as credited in the General Counsel’s dismissal of the Union’s charge over the September 2016 implementation of the no-discretionary-personal-time policy—was what motivated its refusal to give ground on any Union proposals to restore such personal time. The issue resurfaced at numerous sessions and was discussed at length. As to PPTO, the Respondent expressed a will- ingness to bargain but insisted that unrepresented employ- ees had traded off benefits to receive the PPTO and that represented employees would have to make commensu- rate tradeoffs to achieve the benefit in bargaining. The parties discussed the issue extensively. Eventually, the Respondent offered the Union 1 week of PPTO; the Union continued to press for the 8 weeks received by the unrep- resented employees. The parties’ June 29 bargaining session was especially contentious. Russell Giglio, the Respondent’s lead nego- tiator, accused the Union of having bargained regressively on the subcontracting issue. He also presented the Re- spondent’s last, best, and final offer: a 5-year agreement that included broad subcontracting language sought by the Respondent, along with wage increases and a signing bo- nus. He further suggested that the Union was poorly rep- resenting its members by failing to put the Respondent’s offer to a vote. On July 3, the Respondent sent a bulletin to employees, summarizing the terms of its final offer and stating in part: The Company presented its last, best, and final offer to the ILEU . . . [which] was the result of many productive negotiation sessions between the parties . . . . The offer is a good one, with significant and competitive benefits to the bargaining unit. . . . The ILEU has not yet in- formed the Company as to whether the offer will be pre- sented to its membership for a vote. The Company be- lieves that employees should have a choice in accepting the offer and deserve a chance to vote. If and when the ILEU brings the Company’s last, best, and final offer for a vote, it is expected that Union members be provided reasonable time away from work to meet and vote. On July 9, discussions over PPTO came to a head. Un- ion President Michael Myers, following repeated efforts to convince the Respondent to give unit employees the same 8 weeks that unrepresented employees enjoyed, pressed Giglio on what it might take to garner PPTO ben- efits. Giglio replied that the employees could “walk away from the bargaining agreement.” Later, at a sidebar, he suggested that, to secure PPTO benefits, employees could “go without a union.” Personal time also remained a contentious issue. Nota- bly, at the July 9 sidebar, Giglio attributed the Respond- ent’s unwillingness to compromise on personal time in part to the Union’s unfair labor practice charge and “ag- gressive actions.” On July 25, the Respondent emailed a bulletin to unit employees to clarify its July 3 bulletin. The new bulletin read, in relevant part: [O]ur [July 3 bulletin] contained a statement that contra- dicted what the Company had presented to the ILEU . . . . Specifically, the [Employee Information Bulletin] stated relative to a potential ILEU vote on the Com- pany’s offer at the time that “it is expected that Union members be provided reasonable time away from work to meet and vote.” . . . The Company should not have said this. . . . . [T]he Company’s [Employee Information Bulletin] statement about time away from work to vote could be construed as what is called unlawful “direct dealing,” meaning we bypassed the ILEU and made an offer di- rectly to its members. That was not the Company’s EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 3 intention, but the Company cannot present a proposal to employees that it has not already presented to the em- ployees’ union. The Company will not engage in any direct dealing in the future. . . . . Our mistake was not intentional. We had simply forgot- ten about the details. . . . That is still no excuse, and again, we apologize. We also apologize to ILEU lead- ership. Later, during the September 4 bargaining session, per- sonal time came up again, and Giglio stated that the Re- spondent’s refusal to give ground on discretionary per- sonal time was in part due to “the stuff” the Union was bringing forward. He asserted that the Union should “work through channels” rather than invoking formal mechanisms like Board charges to resolve workplace dis- putes. On September 28 the Respondent emailed its employ- ees another employee bulletin, which stated in part: Despite the Company offering 7 dates to meet in August, the parties did not meet in the month of August and have only met 2 times in the month of September. The bulletin went on to summarize each item of the Union’s most recent counterproposal and the Respondent’s last offer on each item. It continued: Before noon, the ILEU completely withdrew its coun- terproposal. The ILEU then violated the practice and spirit of the bargaining ground rules by leaving the ses- sion unilaterally, despite the Company’s best attempt to continue discussions . . . . The Company is hopeful that an agreement can be reached, and will continue to bargain in good faith to- ward that end. As a reminder, the Company’s offer from July 19, 2018 remains outstanding. The Company hopes ILEU represented employees will have an opportunity to vote on the Company’s final offer. The decision of whether or not a vote will be held is made by the ILEU officers. After the parties’ September sessions, the parties met only four additional times over the next 6 months. No real progress was made on subcontracting, and the parties re- mained at loggerheads over personal time and PPTO. II. DISCUSSION A. Alleged unilateral change to evaluation procedures The judge found that the Respondent violated Section 8(a)(5) by unilaterally implementing new employee 5 We therefore do not pass on whether the judge correctly applied the clear and unmistakable waiver standard to the facts of this case. evaluation procedures in March 2018. Following the is- suance of the judge’s decision, however, the Board issued its decision in MV Transportation, Inc., 368 NLRB No. 66 (2019), in which the Board adopted the “contract cover- age” standard for analyzing alleged unilateral changes oc- curring during the term of a collective-bargaining agree- ment and decided to apply the newly adopted standard ret- roactively in all pending cases. Accordingly, as the instant case was pending when MV Transportation issued, we an- alyze the claim here anew under the appropriate standard.5 Under that standard, the threshold question is no longer whether there has been a clear and unmistakable waiver, but rather whether the change “falls within the compass or scope of contract language that grants the employer the right to act unilaterally.” Id., slip op. at 11. If so, the change will not constitute an 8(a)(5) violation. With respect to evaluation procedures, the parties’ then- effective contract6 specified: “The performance of em- ployees will be evaluated and reviewed by Management on a regular and consistent basis in accordance with the established Company-wide procedures. The procedures may be revised by the Company as necessary, after Man- agement has consulted with the Union and taken its views into consideration.” This contract language, which confers unilateral rights upon the Respondent, plainly encompasses the subject of evaluation procedures. In fact, language expressly re- serves to the Respondent the ability to revise its evaluation procedures. The contract, however, makes the right to un- dertake this unilateral action contingent on the Respond- ent first consulting with and considering the views of the Union. The Respondent met with the Union twice con- cerning the proposed change. At the first meeting, the Un- ion expressed concerns about the new evaluation system, and the Respondent listened and then explained why it was making the change. The parties also exchanged emails re- garding the new performance evaluation system. Thus, for “contract coverage” purposes, the record shows that the Respondent consulted with the Union and considered its views, and therefore the disputed change was within the compass or scope of contract language granting the Re- spondent the right to act unilaterally. Accordingly, we dis- miss the allegation that by making this change, the Re- spondent violated Section 8(a)(5) of the Act. Whether the Respondent sufficiently consulted with the Union and suf- ficiently considered its views before making the disputed change raise issues of contract interpretation—i.e., what degree of consultation and consideration was required un- der the collective-bargaining agreement and whether the 6 The parties’ collective-bargaining agreement expired May 31, 2018. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Respondent satisfied that requirement—appropriately left to grievance arbitration. See MV Transportation, supra, slip op. at 6–7 (noting arbitrators’ relative expertise in in- terpreting contract language).7 B. Alleged unlawful insistence on subcontracting proposal Board law establishes that a party violates Section 8(a)(5) when it conditions agreement on a mandatory sub- ject of bargaining on reaching agreement on a permissive subject of bargaining. See Smurfit-Stone Container En- terprises, 357 NLRB 1732, 1732 (2011) (finding that “midterm modification of a collective-bargaining agree- ment is a nonmandatory subject of bargaining, and as such it cannot be insisted on as a condition for reaching agree- ment on mandatory subjects”). Conversely, parties are re- quired to bargain over mandatory subjects and may insist on a mandatory subject as a condition of overall agree- ment. Here, the judge found that that the Respondent unlaw- fully conditioned agreement for a new contract on agree- ment to a proposal to allow subcontracting of unit posi- tions, reasoning that subcontracting of unit jobs consti- tutes a change in the scope of the bargaining unit and is thus a permissive subject of bargaining. In reaching this conclusion, however, the judge seems to have misinter- preted, and taken out of context, a passage in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964). The Court’s decision stated: We are thus not expanding the scope of mandatory bar- gaining to hold, as we do now, that the type of ‘contract- ing out’ involved in this case—the replacement of em- ployees in the existing bargaining unit with those of an independent contractor to do the same work under simi- lar conditions of employment—is a statutory subject of collective bargaining under § 8(d). Id. at 215. The judge read this passage as a suggestion by the Supreme Court that subcontracting of unit positions is a permissive, rather than a mandatory, subject. This, however, is clearly an incorrect interpretation of that language, as the holding in Fibreboard—that subcontracting “out” bargain- ing-unit work was a mandatory subject of bargaining—con- clusively demonstrates. Thus, it is clear that the Supreme Court was merely noting that its holding was consistent with 7 We do not pass on the Respondent’s argument that the changes to evaluation procedures were not material. 8 The court did not disagree with the above-quoted proposition from Hill-Rom Co. Rather, the Board found, on other grounds, that the re- spondent had altered the scope of the unit, and the 7th Circuit disagreed with that finding. 9 We do not pass on the Respondent’s argument that its conduct in bargaining did not amount to its conditioning of agreement to a contract the extant understanding of the scope of mandatory bargain- ing. Board cases further clarify that the subcontracting of unit jobs, even the work of an entire unit classification, is a mandatory subject of bargaining. In Batavia Newspa- pers Corp., 311 NLRB 477, 480 (1993), the Board re- jected the argument that a “proposal seek[ing] to change unit scope [was unlawful] because [it] would permit ac- tions that in theory could reduce the size of the bargaining unit or alter its membership.” The Board cited Fibreboard in support, noting that the Supreme Court authorized pro- posals to subcontract all unit work. The Board concluded that a proposal to reassign unit work, even all the unit’s work, affected only what work the unit employees per- formed – and not whom the union represented -- and was thus a mandatory subject. See also Hill-Rom Co., 297 NLRB 351, 358 (1989) (finding that transfer of work out- side bargaining unit is mandatory subject of bargaining, which is “not negated by a showing that upon such a trans- fer, a job classification within the unit will have no incum- bents and, therefore, will be dormant at best”), enf. denied 957 F.2d 454 (7th Cir. 1992).8 Under these circumstances, the Respondent’s insistence that an agreement include a subcontracting provision was consistent with a party’s lawful prerogative to condition agreement upon resolution of a mandatory subject of bar- gaining. Therefore, we reverse the judge and dismiss this allegation.9 C. Alleged retaliatory refusal to bargain over personal time The judge found that the Respondent violated Section 8(a)(5) by refusing to bargain about reinstating discretion- ary personal time. In so finding, the judge concluded that the Respondent’s refusal to bargain was a response to the Union’s filing of unfair labor practice charges.10 The rec- ord, however, establishes that the Respondent’s bargain- ing team repeatedly communicated a lawful rationale for its refusal to make any concessions on personal time, namely, that it sought to achieve consistency in its super- visory decisionmaking. Although a few statements by the Respondent’s negotiators mention the Union’s unfair la- bor practice charges, those statements are explanatory in nature rather than suggestive of a retaliatory motive. In fact, the statements are consistent with the Respondent’s on its subcontracting proposal, nor on its contention that the judge’s per- missive-subject analysis violated its due process. 10 Although the Respondent was willing to discuss the issue of per- sonal time at length, the issue is whether its repeated refusal to give ground or to entertain Union proposals was motivated by a purpose to retaliate against the Union for filing an unfair labor practice charge. EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 5 repeated and specific explanation of its legitimate mana- gerial interest in maintaining internal supervisory con- sistency. On May 24, for instance, Giglio confirmed that the Re- spondent could not accede to the Union’s request to rein- state discretionary personal time, explaining that “when the [Union] brought the [unfair labor practice charge] claiming that the lack of consistency was causing issues, it forced the [Respondent’s] hands to memorialize what would be a consistent interpretation, which was what we put into the September 2016 letter, which ultimately pre- vailed when it was brought through the various levels of the National Labor Relations Board, who agreed that the [Respondent] was correct in memorializing the consistent application of the parameters of that letter.” (Emphasis added.) Although it is true that Giglio referenced the Un- ion’s unfair labor practice charge in this statement, it is clear that Giglio was merely explaining that the charge had alerted the Respondent to the fact that its lack of supervi- sory consistency in responding to personal time requests was a managerial problem. Giglio also sought to empha- size that when the Respondent acted to address its mana- gerial interest in internal supervisory consistency, the Board recognized that its action was a valid means of ad- dressing its legitimate interest in consistency; Giglio could not have made this point without referencing the unfair la- bor practice charge. Similarly, at the July 8 session, the Respondent’s human resource official Lyndsey Naquin reiterated the point that the Respondent was not hostile to Union charges, but merely sought to address conditions giving rise to such charges. She stated: “I know you are claiming that you are not going to file a lawsuit or an unfair labor practice, but there is going to be some instance when you guys are going to get angry at us for not being consistent. So unless we write down every single case and what the parameters are around it, it will never be the same.” Giglio made the same point: “We see the real downside to having incon- sistencies, and it has certainly been demonstrated by this leadership team in the ILEU that you are quick to grieve, quick to ULP, quick to file lawsuits, so we want to keep as much ambiguity out of this as we can.” (Emphasis added.) 11 To the extent that any of these statements expressed irritation, the Board has recognized that “[a]ngry outbursts and inartful comments ut- tered in the heat of bargaining are realities of negotiations, and when iso- lated, . . . do not necessarily bespeak a sinister motive.” American Pack- aging Corp., 311 NLRB 482, 482 fn. 5 (1993)). 12 The judge’s Conclusions of Law indicate that he found both that the Respondent committed a retaliatory refusal to bargain in violation of Sec. 8(a)(5) and (1), and that it committed an independent 8(a)(1) violation. However, the judge did not elaborate his reasons for finding an independ- ent 8(a)(1) violation. In any event, based on the context that we have just described, the record demonstrates both that the Respondent’s The judge also pointed to the November 29 session, where Giglio stated, “Personal time is not going to happen because of the ULP that was filed by the Union and deter- mined by the NLRB that there was too much ambiguity in allowing supervisory discretion.” Although he did not phrase the point artfully, Giglio was clearly attempting to explain, again, that as a result of the Union’s charges, the Respondent recognized both that it had a managerial prob- lem with internal consistency and that it needed to act to rectify this managerial problem, and that the General Counsel had credited this managerial interest in dismiss- ing the Union’s charge over the elimination of discretion- ary personal time.11 For the reasons set forth above, we find that the General Counsel has not met his burden to establish that the Re- spondent unlawfully refused to bargain over personal time in retaliation for Union unfair labor practice charges.12 D. Allegation that the Respondent unlawfully promised PPTO in exchange for employees’ forsaking the Union The judge found that the Respondent violated Section 8(a)(1) by unlawfully offering PPTO benefits to employ- ees on the condition that they give up or decertify the Un- ion.13 However, the statement upon which the judge relied in finding this violation cannot reasonably be viewed as a serious promise of PPTO in exchange for abandonment of the Union. Following numerous discussions on the issue of PPTO, Union negotiator Myers asked at the July 9 session, “So what would it take to get eight weeks of PPTO?” Giglio replied, “Walk away from the bargaining agreement.” Myers asked what he meant by that, and Giglio responded: “If you weren’t covered by a [c]ollective[-b]argaining [a]greement, if you were exempt, you would have eight weeks of PPTO.” At that point Myers inquired, “So you are saying if we get [de]certified, you will give us eight weeks of PPTO?” Giglio answered, “You said that, I didn’t.” Giglio later said, “There are other ways to do it . . . . You will have to talk to your attorney.” Later that day, Giglio also stated that to get PPTO, employees would have to “walk away from the Union.” Up to that time, PPTO had been discussed repeatedly and exhaustively, and the Union had made multiple bargaining position was not motivated by unlawful animus and that its statements during negotiations would not be perceived as such by em- ployees or otherwise interfere with their Sec. 7 rights. Accordingly, the record does not support a finding of an independent 8(a)(1) violation. 13 The judge, apparently inadvertently, described this in the text of his decision as a 8(a)(5) violation as well as an independent 8(a)(1) violation. His analysis, Conclusions of Law, and the language of the complaint, however, make clear that the issue here is solely an independent 8(a)(1) allegation. Notably, we would dismiss any 8(a)(5) allegation even if one were alleged because the record shows that the Respondent bargained in good faith over PPTO. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 presentations on the subject. Giglio had repeatedly made the point that unrepresented employees had implicitly paid for PPTO in their benefits package and that the Union had not articulated any commensurate concessions it was will- ing to give. Taken in this context, Giglio’s July 9 state- ments appear to be an understandable exercise in sarcasm after being pressed repeatedly over numerous bargaining sessions on the issue, without having heard any response by the Union to suggest what concessions it would be will- ing to give.14 While a joking or sarcastic manner does not automatically negate the impact of a facially coercive re- mark, see Ethyl Corp., 231 NLRB 431, 434 (1977), we nonetheless must examine the objective context to deter- mine whether reasonable employees would take it seri- ously. The context here is that Giglio made the statements to the Union’s representatives, who were also employees of the Respondent, during collective bargaining. The rea- sonable inference in light of these circumstances is that the employees on the Union’s bargaining team would under- stand that Giglio was not making a serious quid-pro-quo promise of benefits in exchange for their abandonment of unionization. Therefore, we do not find the alleged viola- tion of an unlawful promise of benefits.15 E. Direct-dealing allegation Direct dealing occurs when (1) an employer communi- cates directly with union-represented employees; (2) the discussion is for the purpose of establishing or changing wages, hours, or other terms and conditions of employ- ment or undercutting the union’s role in bargaining; and (3) such communication is made to the exclusion of the union. El Paso Electric Co., 355 NLRB 544, 545 (2010). The judge found that, by telling its employees that it “believe[d] that employees should have a choice in accept- ing the [Respondent’s last, best, and final] offer and de- serve a chance to vote,” the Respondent interfered with the internal union process of submitting a proposal to ratifica- tion and thereby engaged in unlawful direct dealing. See Armored Transport, Inc., 339 NLRB 374, 378 (2003) 14 It is also notable that the Respondent offered 1 week of PPTO with- out insisting on commensurate concessions from the Union—a fact that further erodes any inference that PPTO was being withheld as a barter for employees’ rejecting the Union. 15 We reiterate that the Board must be cautious in finding isolated comments made in the course of lengthy negotiations to be unlawful. See fn. 11, supra. 16 The language from the case the judge relies on indicates that the key concern is that all employees affected by the unlawful conduct receive the retraction. Although the case states that all employees who received the threat needed to receive the repudiations, it prefaces the discussion by stating the boilerplate law that there must be publication “to the em- ployees involved.” See Auto Workers Local 785 (Dayton Forging), 281 NLRB 704, 707 (1986) (quoting Passavant Memorial Area Hospital, 237 NLRB 138, 138 (1978)). Thus, Dayton Forging’s reference to “all (“[T]he Board has long held that contract ratification votes and procedures are internal union affairs upon which an employer is not free to intrude.”) (internal quotation omitted). However, in cases involving an employer’s en- couragement of employees to seek a ratification vote, the Board has required an element of coercion (or, at a mini- mum, a backdrop of misconduct to render the communi- cations coercive) in order to find a violation of the Act. See Armored Transport, supra; Borden, Inc., 308 NLRB 113, 128 (1992), enfd. 19 F.3d 502 (10th Cir. 1994), cert. denied 513 U.S. 927 (1994). Here, the Respondent merely stated its “belief” that there should be a vote. Because this statement was not coercive, we find that it was lawful. The General Counsel also argued at trial that the bulletin constituted direct dealing because it made an offer con- cerning terms of employment directly to employees. The General Counsel contended that, by noting that the Re- spondent “expected” that employees would receive paid leave for ratification voting, the Respondent made a pro- posal concerning a term of employment directly to em- ployees before making it to the Union. We need not pass on whether the Respondent commit- ted a direct-dealing violation, however, because it effec- tively repudiated any such violation when it advised unit employees on July 25 that “it should not have said” that employees would receive paid time for a vote and apolo- gized for bypassing the Union. The judge found that the Respondent’s repudiation was not effective because, in his view, Board law requires that a repudiation be sent to all affected employees, including employees outside the bar- gaining unit.16 In fact, however, Board law does not re- quire that employees outside the bargaining-unit be noti- fied. See TBC Corp. & TBC Retail Group, Inc., 367 NLRB No. 18, slip op. at 2 (2018) (holding repudiation adequate that “notif[ied] the affected employees”). Be- cause the repudiation here satisfies the criteria set forth by the Board for evaluating repudiation, we find that the Gen- eral Counsel has not established a direct-dealing viola- tion.17 employees” was simply a paraphrase, and sending the repudiation to all employees affected by the unlawful conduct would be adequate. 17 To be valid, “repudiation must be timely, unambiguous, specific in nature to the coercive conduct, and free from other proscribed illegal conduct. . . . [T]here must be adequate publication of the repudiation to the employees involved and there must be no proscribed conduct . . . after the publication. . . . And, finally . . . such repudiation . . . should give assurances to employees that in the future their employer will not inter- fere with the exercise of their Sec[.] 7 rights.” Passavant Memorial Area Hospital, 237 NLRB at 139 (internal quotations and citations omitted). We express no opinion with respect to whether the Passavant require- ments represent a proper standard for effective repudiation of unlawful conduct, but we agree that the Respondent’s actions met the Passa- vant standard in this case. Here, the repudiation was reasonably timely, unambiguous, and specific, and it assured that there would be no future EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 7 F. Alleged disparagement of the Union The judge found that the Respondent’s statements at the June 29 bargaining session and in its September 28 bulle- tin constituted disparagement in violation of Section 8(a)(1), reasoning that they suggested that the Union was the reason that unit employees had not received improved benefits. Specifically, at the June session, Giglio told the Union that it was engaging in regressive bargaining and suggested that its failure to take the Respondent’s offer to a vote constituted ineffective representation of the unit employees. Further, the September bulletin, posted where unit employees could read it, claimed that the Union had violated ground rules and walked away from a bargaining session. Unlawful disparagement generally involves an attempt to undermine the union as bargaining representative, ei- ther through falsely ascribing responsibility for the loss of benefits or otherwise misleadingly or coercively calling into question its ability to represent employees. See Trin- ity Services Group, Inc., 368 NLRB No. 115, slip op. at 4 (2019) (finding an employer may “violate[] Section 8(a)(1) by misrepresenting the Union’s position in a way that tend[s] to cause employees to lose faith in the Un- ion”) (citation omitted). But “[w]ords of disparage- ment alone concerning a union or its officials are insuffi- cient for finding a violation of Section 8(a)(1).” Sears, Roebuck & Co., 305 NLRB 193, 193 (1991). Notably, the judge did not point to any specific mislead- ing or coercive statements in either the September 28 bul- letin or the June 29 meeting. Rather, he concluded that, in general, the Respondent’s words might convey to employ- ees an “unflattering” impression of the Union’s bargaining efforts. This, however, is not sufficient to constitute a “disparagement” violation. See Trailmobile Trailer, LLC, 343 NLRB 95, 95 (2004) (finding that “demeaning” com- ments that “did not suggest that the employees’ union ac- tivity was futile, did not reasonably convey any explicit or implicit threats, and did not constitute harassment that would reasonably tend to interfere with employees’ Sec- tion 7 rights” did not establish unlawful disparagement). making of proposals directly to employees. Further, as we find herein, there were no other violations that continued after this repudiation, nor any other conduct to cause employees to doubt the effectiveness of the repudiation or the Respondent’s assurance that it would not bypass the Union to make offers of terms and conditions directly to employees. See T-Mobile USA, Inc., 369 NLRB No. 50, slip op. at 1–2 & fn. 7 (2020). Most repudiation cases involve violations of Sec. 8(a)(1). While we find that the Respondent did adequately repudiate the fairly minor direct- dealing violation alleged here, we do not pass on whether and, if so, by what conduct a respondent might repudiate a more serious direct-dealing violation. 18 The judge also considered the July 3 email as background and found it to contain “false communications” that would drive a wedge between Cf. Novelis Corp., 364 NLRB No. 101, slip op. at 2 fn. 9 (2016) (holding that statement “clearly calculated to mis- lead employees as to the Union’s conduct with regard to restoration of . . . benefits” amounted to “interference, re- straint, and coercion that unlawfully tended to undermine the Union”), enfd. in relevant part 885 F.3d 100 (2d Cir. 2018). Although the Respondent’s September bulletin may not have cast the Union in the most favorable light, the Respondent’s statements were not objectively false or misleading. Further, to the extent that the Respondent may have conveyed its version of events, a reasonable em- ployee would expect a pro-Respondent slant from its com- munications. Similarly, Giglio’s statements at the June 29 session were nothing more than a statement of his point of view as to the Union’s conduct and, importantly, were spoken in the midst of intense discussions with the Un- ion’s bargaining team, in which context any critical com- ments would be viewed as part of the back-and-forth of heated negotiations.18 In the absence of any false or mis- leading communication that misled employees into a neg- ative impression of the Union’s bargaining conduct, we find that the General Counsel has failed to establish that the Respondent unlawfully disparaged the Union. G. Alleged overall bad faith The judge concluded that the cumulative effect of the violations he found warranted a finding of overall bad faith on the part of the Respondent. Because we have re- versed all of the judge’s individual findings of violations, his finding of overall bad faith must fall away. Moreover, even were we to have found any of the violations the judge did, the record does not suggest that the Respondent lacked an intent to reach agreement, a key component of finding that a party engaged in overall bad faith in bar- gaining. See Phillips 66, 369 NLRB No. 13, slip op. at 4 (2020) (“The essence of bad-faith bargaining is a purpose to frustrate the possibility of arriving at any agreement, and the Board looks to the totality of an employer’s con- duct to determine whether the employer has bargained in bad faith.”); Latino Express, Inc., 360 NLRB 911, 921 (2014) (finding two indicia of bad faith insufficient to employees and the Union, and that the subsequent correction of the July 3 email was not timely enough to undo the harm. We disagree. Although the judge was unclear on what in the July 3 email was a “false commu- nication,” apparently, he was referring to the statement that allegedly constituted direct dealing. That statement was: “If and when the ILEU brings the Company’s last, best, and final offer for a vote, it is expected that Union members be provided reasonable time away from work to meet and vote.” The statement expressed what was “expected,” evi- dently by the Respondent. There is no evidence that the Respondent did not expect this, and therefore no evidence that the statement was false. Moreover, the statement was repudiated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 establish overall bad-faith bargaining in light of the ab- sence of bad acts taking place at the bargaining table); Reichhold Chemicals, Inc., 288 NLRB 69, 69 (1988) (“We . . . find that the Respondent violated Section 8(a)(5) and (1) by insisting to impasse on a nonmandatory subject of bargaining, i.e., the waiver of access to Board processes. . . . We, however, have decided to adhere to the Board’s previous finding that the Respondent’s overall conduct es- tablishes that it engaged in lawful hard bargaining, rather than unlawful surface bargaining.”), enfd. in relevant part 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991). Here, by contrast, the Respondent’s actions dur- ing the course of bargaining reflect a desire to reach agree- ment: it engaged in numerous bargaining sessions and reached agreement on most issues, and, while it engaged in hard bargaining, it was clearly willing to give ground and make trade-offs on some issues to secure its desired outcome. Accordingly, we find that the Respondent did not bargain in bad faith. ORDER The complaint is dismissed in its entirety. Dated, Washington, D.C. September 28, 2020 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Joanna Pagones Ross, Esq., for the General Counsel. Jonathan Spitz, Daniel Schudroff, and Amanda Fray, Esqs. (Jackson Lewis, P.C.), and Craig Stanley, Esq. (ExxonMo- bil), for the Respondent. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Newark, New Jersey on March 19–21, 2019. The com- plaint alleges that ExxonMobile Research & Engineering Com- pany, Inc. (the Company or Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act)1 on numer- ous occasions in 20182 by failing to bargain in good faith with the Independent Laboratory Employees Union, Inc. (the Union) 1 29 U.S.C. §§ 151–169. while negotiating a successor collective-bargaining agreement, disparaging and denigrating the Union, promising employees higher wages and 8 weeks of paid parental time off (PPTO) if employees withdrew from union representation, refusing to bar- gain over personal time because of a previously filed unfair labor practice charge, implementing changes to the employee perfor- mance review system without prior notice to the Union and af- fording it an opportunity to bargain, and bypassing the Union and dealing directly with bargaining unit employees about being provided with time away from work to vote on contract ratifica- tion. The Company denies that it engaged in bad faith bargaining, emphasizing the fact that the parties agreed to approximately ninety percent of the topics during that time and engaged in con- tinuous negotiations over economic matters. It also contends that it lawfully disseminated information to employees regarding the status of negotiations, retracted its statement to employees about time away from work to vote, insists that the statement about PPTO was a sarcastic, stray remark that merely reflected that all non-union employees receive PPTO, and was entitled to revise the performance evaluation process after taking the Un- ion’s views into account. 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 Company, I make the following FINDINGS OF FACT I. JURISDICTION The Company, a corporation, has been engaged in the opera- tion of a research and development facility located in Annandale, New Jersey, where it annually provides services valued in excess of $50,000 to customers located outside the State of New Jersey, and purchases and receives materials valued in excess of $50,000 directly from points outside the State of New Jersey. The Com- pany admits, and I find, that it is an employer engaged in com- merce 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 Company’s Operations The Company’s Research and Engineering Technology Cen- ter is located close to the larger town of Clinton, New Jersey and for that reason is commonly referred to as the Clinton facility. The facility supports the Company’s Upstream, Downstream and Chemical business operations, including 432 laboratories, 92 plants and 850 offices. The Clinton facility “is responsible to project thirty to forty years forward seeking solutions to antici- pated energy challenges” by developing differentiated and high- impact technologies and products that are the foundation of the Company’s competitive advantage. Prior to 2018, the Company endeavored to remain competitive in the energy industry by selling two refineries, most of its retail fuels business, and a number of pipeline assets. It also consoli- dated various business units at its central campus in Houston and, 2 All dates refer to 2018 unless otherwise stated. EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 9 in 2018, merged its research operations in Paulsboro, New Jersey with the Clinton facility. B. The Collective-Bargaining Relationship The Company has been a party to approximately 25 collec- tive- bargaining agreements throughout the United States over the past 30 years, including the latest one with the Union at the Clinton facility. None have resulted in a work stoppage, strike or lockout and the Company has never declared an impasse dur- ing collective bargaining. The Union’s relationship with the Company dates back to Au- gust 31, 1944, when it was certified as the exclusive collective- bargaining representative of the following bargaining unit: Accountant, Accountant Senior, Accounting Assistant, Audio- Visual Assistant, Audio - Visual Technician, Audio-Visual Technician Senior, Electronics Technician Assistant, Electron- ics Technician, Electronics Technician Senior, Graphics De- sign Assistant, Graphic Design Technician, Graphics Design Technician Senior, Administrative Assistant, Administrative Technician, Senior Administrative Technician, Information Assistant, Information Technician, Information Technician Senior, Maintenance and Operations Assistant, Maintenance and Operations Technical Assistant, Materials and Services Coordinator, Mechanic, Mechanic Senior, Medical Laboratory Technician, Medical Laboratory Technician Senior, LPS Co- ordinator, Senior LPS Coordinator, Reproduction Services As- sistant, Reproduction Services Technician, Senior Reproduc- tion Services Technician, Technician, Research Technician, Research Technician Senior, Services Trainee, Systems Assis- tant, Systems Technician, Systems Technician Senior, Utilities Operator, Utilities Operator Senior, Utilities Operator (Other Plant) Senior, Wastewater Treatment Operator, Wastewater Treatment Operator Senior, X-Ray Technician, excluding all other employees, office clerical employees, audit inspectors, guards, and supervisors as defined in the Act. The most recent collective-bargaining agreement was effec- tive from June 1, 2013, through May 31, 2018 (the CBA). The parties reached agreement in 2013 after seven bargaining ses- sions. As of May 2018, approximately 165 employees were members of the bargaining unit. Approximately eighty percent of bargaining unit employees are research technicians. During the bargaining period at issue, the Company’s chief negotiators were Russell Giglio, a research and development business advisor, and Lyndsey Naquin, a human resources and labor advisor.3 The Union’s chief negotiators were senior re- search technicians Michael Myers and Thomas Fredriksen, the Union’s president and vice president, respectively. C. Key Excerpts from the CBA 1. Article X—Pay Section 8—Time Paid During Regular Schedule A. Straight time shall be paid for any time worked during an employee's regular schedule. B. In computing the 40 hours of time in the regular weekly 3 Giglio and Naquin are admitted supervisors and/or agents within the meaning of Secs. 2(11) and 2(13) of the Act. schedule, in addition to time actually worked, time in the regular schedule not worked by reason of any of the following absences shall be included: 1. With pay— a) Reporting for work with a reasonable expectation of work but being sent home for lack of work or other reason beyond the employee's control. b) Vacationing. c) Jury duty and death in the immediate family to the extent provided in Sections 1 and 2 of Article XVI. d) On a recognized holiday falling within the regular schedule. e) Any absence approved with pay by the Company. 2. Without pay— a) An absence approved by the Companyfor conducting Union business. b) Any absence approved by the Company. c) Disability certified by a Medical Division. Section 11—Accelerations A. The Company may, on the basis of performance and ability as judged by the Company, accelerate for any employee the time intervals between scheduled pay increases shown on the Progres- sion Schedule, in any such case the date of the accelerated sched- uled pay increase shall be the anniversary date for determining subsequent schedule pay increases. B. The Company will provide the Union with a list, without names, of all salaries for represented employees by. classifica- tion, once each calendar year within thirty days of a Union re- quest. Attachment 1—Uprates (partial chart) Represented by Bargaining Unit—Contract Coordinator, De- signer, Lead Pay—10% Typical Criteria for Consideration—(for contract coordinators and designers) Higher PA rating, High In- itiative, Potential for Promotion, Appropriate skills/experience for assignment, Availability from current assignment; (for leads) Satisfactory or better PA rating, Good initiative, Appropriate skills/experience for assignment, Availability from current as- signment, Involvement in activity. 2. Article XIII—Promotions There are two kinds of promotion: (a) Earned–for jobs above the entering level job other than "vacancy only" jobs. (b) To fill permanent job vacancies in "vacancy only" jobs above the en- try level. Promotions will be made on the basis of the rules hereinafter. Section 3—Determining Available Employees for Consideration for “vacancy only” promotions C. Additionally, effective 6/1/02, in the Administrative-Tech- nician /Assistant and Systems Technician /Assistant job fami- lies only, employees will be eligible for promotion to the Senior classification, notwithstanding the fact that no vacancy then currently exists, if they are rated outstanding for twenty four (24) consecutive months. Effective 6/1/06, in the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Administrative Technician /Assistant and Systems Techni- cian/Assistant job families only, employees will be eligible for promotion to the Senior classification, notwithstanding the fact that no vacancy then currently exists, if they are rated outstand- ing for thirty six (36) consecutive months. Section 4—Earned Promotion—Guide The following is the guide to the application of performance appraisals to earned promotions on or after June 1, 1996. A. Earned Promotion in the Minimum Time—A designation of "will be eligible for earned promotion in the minimum time" for a consecutive period of twenty four(24) months after reach- ing the top of progression in Section V, "Eligibility for Earned Promotion," on the Performance Appraisal Form, means that the employee will earn promotion to the next higher level of job classification in twenty four (24) months after reaching the top of progression. B. Earned Promotion But Not in the Minimum Time – A des- ignation of "will be eligible for earned promotion but not in the minimum time," for a consecutive period of thirty six (36) months after reaching the top of progression, in Section V, "El- igibility for Earned Promotion," on the Performance Appraisal Form, means that the employee will earn promotion to the next higher level of job classification at the end of the 36 -month period if a candidate for advancement to Grade 1. Employees will not be eligible for advancement to Senior Grade unless they meet the requirements of Paragraph A which requires an employee to be rated outstanding for twenty four (24) consec- utive months. C. Not Eligible for Earned Promotion -A designation of "will not be eligible for earned promotion in the foreseeable future," in Section V, "Eligibility for Earned Promotion," on the Perfor- mance Appraisal Form, means that the employee will not earn promotion to the next higher level until the progress and devel- opment improves. D. Performance Change -If an employee's rate of progress and development has changed such that it does not appear that the employee is eligible for advancement in the time period indi- cated during the last performance appraisal(s), it is urged that a current appraisal be provided as soon as practical after identi- fying the changed rate of progress and development with an appropriately modified designation in Section V on the Perfor- mance Appraisal Form. Such a change in the rate of progress and development should be brought to theemployee's attention via a performance appraisal at least three (3) months before the expected date of earned promotion based upon the prior ap- praisal(s). 3. Article XVIII—Contract Work The Company may let independent contracts. At the time a contract is let, involving work customarily per- formed by employees on or after Jan. 1,1975, the dollar value of which willbe in excess of $50,000, the Company will inform the appropriate Union Delegate of, and discuss the reasons for, the letting of such contract irrespective of whether such work is to be performed on Company premises or elsewhere. The notification will be confirmed in writing by the Division Man- agement involved. At the time a purchase order is let, involving work customarily performed by employees on or after January 1,1975, the aggre- gate cost of which will be in excess of $50,000 in a year, the Company will inform the appropriate Union Delegate of, and discuss the reasons for, the letting of such purchase order irre- spective of whether such work is to be performed on Company premises or elsewhere. The notification will be confirmed in writing by the Division Management involved. In the event a purchase order is let, involving work customarily performed by employees on or after January 1,1975, the aggre- gate cost of which is not anticipated to be in excess of $50,000 in a year and it becomes apparent that the aggregate cost of said order will exceed $50,000 in a year, the Company will inform the appropriate Union Delegate of, and discuss the reasons for, the letting of such purchase order irrespective of whether such work is to be performed on Company premises or elsewhere. The notification will be confirmed in writing by the Division Management involved. However, during any period of time when an independent con- tractor is performing work of a type customarily performed by employees and employees qualified to perform such work to- gether with all of the equipment necessary in the performance of such work are available in the Company facilities, the Com- pany may not because of lack of work demote or lay off any employee(s) qualified to perform the contracted work. Furthermore, in the event that employees have been demoted or laid -off because of lack of work, the Company, prior to let- ting out future contracts involving work customarily performed by employees and provided that all the equipment necessary in the performance of such work is available in the Company fa- cilities, will (1) repromoted demoted employees qualified to perform such work, and (2) recall, in accordance with Section 1 of Article IX, laid-off employees qualified to perform such work, provided the employees conduct and the job perfor- mance prior to and during such layoff were satisfactory to the Company. 4. July 1, 2014 Side Letter Agreement Amending Article XVIII—Contract Work At the time a contract is let, involving work customarily per- formed by employees on or after August 1, 2014, the dollar value of which will be in excess of $250,000, the Company will inform the appropriate Union Delegate of, and discuss the rea- sons for, the letting of such contract irrespective of whether such work is to be performed on Company premises or else- where. The notification will be confirmed in writing by the Di- vision Management involved. At the time a purchase order is let, involving work customarily performed by employees on or after August 1, 2014, the aggre- gate cost of which will be in excess of $250,000 in a year, the Company will inform the appropriate Union Delegate of, and discuss the reasons for, the letting of such purchase order irre- spective of whether such work is to be performed on Company premises or elsewhere. The notification will be confirmed in EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 11 writing by the Division Management involved. In the event a purchase order is let, involving work customarily performed by employees on or after August 1, 2014, the aggre- gate cost of which is not anticipated to be in excess of $250,000 in a year and it becomes apparent that the aggregate cost of said order will exceed $250,000 in a year, the Company will inform the appropriate Union Delegate of, and discuss the reasons for, the letting of such purchase order irrespective of whether such work is to be performed on Company premises or elsewhere. The notification will be confirmed in writing by the Division Management involved. However, during any period of time when an independent con- tractor is performing work of a type customarily performed by employees and employees qualified to perform such work to- gether with all of the equipment necessary in the performance of such work are available in the Company facilities, the Com- pany may not because of lack of work demote or lay off any employee(s) qualified to perform the contracted work. Furthermore, in the event that employees have been demoted or laid -off because of lack of work, the Company, prior to let- ting out future contracts involving work customarily performed by employees and provided that all the equipment necessary in the performance of such work is available in the Company fa- cilities, will (1) repromoted demoted employees qualified to perform such work, and (2) recall, in accordance with Section 1 of Article IX, laid -off employees qualified to perform such work, provided the employees conduct and the job perfor- mance prior to and during such layoff were satisfactory to the Company. This Agreement shall remain in effect until 12:01am on June 1, 2018, and may not be modified without the mutual consent of the parties hitherto. 5. Article XXVI—Work Performance Section 6—Performance Reviews The performance of employees will be evaluated and reviewed by Management on a regular and consistent basis in accordance with the established Company -wide procedures. The proce- dures may be revised by the Company as necessary, after Man- agement has consulted with the Union and taken its views into consideration. Section 7—Unsatisfactory Work Performance A. When the work performance of an employee is unsatisfac- tory, Management will call to the attention of the employee the shortcomings of the employee’s work as part of the routine su- pervisory function and will attempt to assist the employee to improve the employee’s performance. Employees whose work is deemed unsatisfactory after the prescribed remedial steps may be subject to a formal discussion with a supervisor, demo- tion, written warning or termination. B. Any employee whose work is unsatisfactory and has not been made satisfactory as a result of prior informal discussion will be called in by the employee's supervisor for a formal dis- cussion. The employee will be told of the elements of the em- ployee's work which are inadequate and the ways in which the employee's performance may be made satisfactory. The em- ployee may request that a Union representative be present at such discussion. The fact that such discussion was held will be subsequently confirmed in writing to the employee, with a copy to the Union. C. During such discussion, Management may inform the em- ployee that if the employee's work performance has not be- come satisfactory within a specified period of time (for exam- ple, 30 days, or some longer period), the employee may be de- moted. If the employee's performance does not become satis- factory during the period specified, the employee may be de- moted to a job with a lower rate of pay in the Promotional Group. D. At the time of such discussion, or subsequent thereto, Man- agement may determine that the work performance of the em- ployee is so unsatisfactory as to warrant a warning notice, and may give the employee such notice. The warning notice will statethe basis of Management's determination that the employ- ee's work is unsatisfactory, the improvements in performance required, the period of time to which the warning notice ap- plies, and that unless the employee's performance improves sufficiently within the time specified, the employee's employ- ment may be terminated at the expiration of the warning notice or within six (6) months thereafter. A copy of the warning no- tice will be sent to the Union, and the Union will be notified in advance if the employee will be terminated. E. The period of time in which a warning notice for unsatis- factory work performance is effective varies according to the circumstances of the case, but is ordinarily not less than thirty (30) days nor more than six (6) months. F. A warning notice for unsatisfactory performance will be re- moved from an employee's file two (2) years after its expira- tion. 6. Article XXVIII—Management Rights The Company shall retain all rights of management for facili- ties covered by this Agreement or pertaining to the operation of business, except to the extent that such rights are limited by the provisions of this Agreement. D. Contracting of Unit Work The contracting out of unit work was an issue prior to the com- mencement of bargaining over a new CBA. The issue emanated from the July 21, 2014 side letter agreement, which amended Ar- ticle XVIII—Contract Work. In or around November 2015, the Company began permanently contracting out certain unit posi- tions. On August 25, 2016, the Union filed unfair labor practice charges alleging that the Company replaced unit employees “with contractors supplied by third-party joint employers with- out paying union wages/benefits or recognizing the Union as the bargaining unit representative of said employees.” The Board deferred the charges to the parties’ grievance procedure and the Union promptly grieved the contracting issue. The Company de- nied the grievance and the Union submitted the dispute to arbi- tration. Arbitration hearings were conducted on August 4, 2016, and October 18, 2017. On May 25, arbitrator Joyce Klein concurred with the Union’s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 assertion that the Company violated the CBA by permanently filling bargaining unit positions with contractors and directed “that the Company cease and desist from the permanent contract- ing of bargaining unit positions” at the Clinton facility. The ar- bitrator determined that the Company’s broad management rights regarding the contacting out of unit work were overridden by the “limitations inherent both in the plain language of Article XVIII and in the Recognition Clause.” On June 20, the Union filed a motion to confirm the arbitration in United States district court. In August, the Company filed a motion to vacate the ar- bitration award but subsequently withdrew its petition to enforce the arbitration award. E. Excused Absences with Pay The Union also filed unfair labor practice charges regarding “excused absence with pay.” On May 5, 2016, the Union filed Case 22–CA–175772 alleging, in relevant part, that the Com- pany unilaterally changed a term and condition of employment by refusing to grant an employee “excused absence with pay.” In that regard, a bargaining unit employee was granted time off from work with pay for the birth of his child using a mixture of vacation days and “excused absence with pay” in accordance with Article X, Section 8 of the contract entitled “Time Paid Dur- ing Regular Schedule.” Upon the employee’s return to work, his supervisor informed him, “Union represented employees only receive personal time for jury duty and a death in the family and this is because the Union is getting more aggressive.” The par- ties resolved this charge through an informal settlement agree- ment requiring the Company to post a notice and pay the affected employee’s lost wages. On September 29, 2016, the Company issued a letter clarify- ing that represented employees are entitled to absences “excused with pay” only for jury duty and a death in the family. The Com- pany explained that “[f]or items such as doctor’s appointments, home maintenance appointments, family medical issues, baby bonding, and other issues that may arise, employees have the right to vacation time as outlined in the [CBA] or excused with- out pay.” In response, the Union filed Case 22–CA–187777 on November 7, 2016, alleging that the Company unilaterally ended the practice of “excused absence with pay” for baby bonding in retaliation for the Union filing Case 22–CA–175772. The Board’s Region 22 dismissed the charge and the ensuing admin- istrative appeal was denied. In November 2017, the Company implemented a parental paid time off policy (PPTO) granting employees 8 weeks paid time off for the birth or adoption of a child. At the Company and Union’s quarterly meeting in December 2017, however, the Company clarified that PPTO did not apply to bargaining unit employees. The Union requested to bargain over PPTO on or about January 29 and again on February 28, but the Company insisted that discussions be put off until negotiations for a suc- cessor agreement commenced. 4 Myers testified credibly that his performance evaluations were done sometime between June and November following the evaluated year. (GC Exh. 6, 12; Tr. 35.) F. Changes to the Performance Approval Process In accordance with the CBA, unit employees’ performance evaluations are conducted annually for the previous calendar year. Prior to 2018, the evaluation forms specified eleven crite- ria: job knowledge; reliability and consistency of performance; working with supervisors, peers and customers; initiative and su- pervision required; adaptability and flexibility in responding to changes; punctuality and attendance; safety/health/environment; supports diversity; other; overall equality of work; and overall quantity of work. As of March, the form also listed five catego- ries in rating overall assessment of performance: outstanding; exceeds expectations; meets expectations; needs improvement; and unsatisfactory. The eligibility for promotion section re- quired supervisors to identify whether an employee was eligible for promotion in the minimum time, eligible for promotion but not in the minimum time, or not eligible for promotion.4 On March 7, Giglio informed Myers that the Company in- tended to change the performance appraisal process for 2017.5 Please let this email serve as advanced notice of changes to the Wage Performance Appraisal Process per Article XXVI, Sec- tion 6—Performance Review, as outlined in the attached letter. There are no changes or implications to the current Employee Development Review (EDR) process. Please let me know if you have any questions or wish to discuss this matter further. Thank you. Giglio’s email proposed removing the dimensions of perfor- mance from the performance appraisal form. His letter attached to the email read: The purpose of this letter is to provide you advanced notice of the proposed changes to the wage performance appraisal pro- cess per Article XXVI, Section 6—Performance Review, as outlined below. There are no changes or implications to the current Employee Development Review (EDR) process. Summary of Changes: Performance measured by current job assignment expectations, strengths, and developmental opportunities of each employee: ● Details of Current Assignment (comments only) ● Strengths (comments only) ● Development Opportunities (comments only) - Overall Assessment (rating based on above-mentioned comments) - Eligibility for earned promotion excluded from perfor- mance appraisal form - Performance Appraisals in the form of a SharePoint list (hard copies available to print, as requested) - Overall Assessment–2 categories (Meets Requirements & Does Not Meet Requirements) - Does Not Meet Requirements should be interpreted by the Union as Needs Improvement and/or Unsatisfactory. The Company will continue to follow the guidance outlined in Ar- ticle XXVI, Section 7—Unsatisfactory Work Performance for 5 Giglio conceded that the Company had been planning the change since December 2017 but neither notified nor consulted the Union be- cause it wanted to have the new change in place before giving notifica- tion. (Tr. 48, 192.) EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 13 these cases Please let me know promptly if you have any concerns or ques- tions on these items- happy to discuss further. Myers replied on March 8 that the Union was reviewing the proposal and asked that it not be implemented until it had an op- portunity to bargain over the change. He also asked for clarifi- cation as to whether the Company planned to implement this new system for 2017 evaluations. Naquin, replying shortly thereaf- ter, explained that the Company intended to implement the new evaluation process in the near term as part of the 2017 perfor- mance evaluation process.” Citing Article XXVI, Section 6, she expressed the Company’s willingness to “take the Union's views into consideration but ask that you share those with us as soon as practical given the time-sensitive nature of the performance ap- praisal process.” Giglio confirmed Naquin’s remarks the follow- ing day. On March 14, Myers and Fredriksen met with Giglio. Myers asked if the proposal was a corporate-wide change or limited to the Clinton facility. Giglio told him that the Company had been reviewing the performance appraisal process since December 2017. Myers asked why the Union had not been involved sooner with the proposed changes. He expressed concerns about a per- formance appraisal process that evolved from five categories to a system that simply reported whether an employee was or was not doing his/her job. He further explained that employees wanted to know how they were doing in the various facets of their jobs and be acknowledged when they performed beyond their job expectations. Giglio explained that “they were making this change because unless people received an outstanding rat- ing, they’re often unhappy with the process, so they wanted to get rid of that.”6 Giglio met again with Myers and Fredricksen on March 17 in response to the announced changes. The Union objected to the changes and several emails followed. On March 20, Giglio emailed a summary of the discussions from the March 14 meet- ing. On March 23, Fredricksen sent an information request re- garding the announced changes. Giglio provided the requested information on March 27. Giglio responded to Fredricksen’s March 26 email on March 28 stating, in relevant part, that the Company would implement the change in the performance ap- praisal form as of March 28. The Union objected to any changes in the performance evalu- ation process for the 2017 assessment period on the grounds that employees were not notified of the change in rating criteria prior to the start of the assessment period and its retroactive applica- tion. The Company disagreed, maintaining that it provided the Union with the requisite notice under the CBA on March 7 and followed it with consultation on March 14.7 At the March 14 meeting, however, Giglio claimed that “needs improvement” and “unsatisfactory” would not both fall into the newly created category of “does not meet requirements.” When questioned about his explanation in the March 7 email, 6 This finding is based on Myers’ credible and unrefuted testimony. (Tr. 46–50.) 7 Giglio testified that under the new performance appraisal form “there is no hurdle of two outstandings” for an employee to be Giglio responded, “I guess I did not read what I signed.” Giglio rejected the Union’s objections in subsequent emails on the grounds that this CBA provision is not limited to the yearly performance rating. On March 20, he rejected the Un- ion’s request not to use the new form in assessing 2017 perfor- mance because it learned of the change too late: The Company's position remains that it intends to utilize the updated performance appraisal forms for the upcoming assess- ment period. In accordance with Article XXVI, Section 6— Performance Review, the Company gave the ILEU advanced notice of its intent to update the appraisal process and further- more provided a reasonable amount of time to take its views into consideration. The Company's formal notice on March 7, 2018 and verbal discussion on March 14, 2018 to understand the ILEU's views and specific recommendations took place in advance of the performance appraisal process being kicked off. Giglio also dismissed the ratings change from “needs im- provement and/or unsatisfactory to “does not meet require- ments” on the grounds that Article XXVI, Section 7 did not change past practice because it is utilized to address concerns for unsatisfactory “work performance.” Finally, Giglio asserted that the Company notified the Union of the proposed changes, of- fered it an opportunity to consult, and took the Union's views into consideration prior to implementation. On March 26, Fredriksen replied to Giglio and Naquin with “some corrections/additions” to Giglio’s March 20 email: More accurately, the [Union] expressed their disagreement with changing the wage performance appraisal system mem- bership had already after the worked under the expectation they were being evaluated the same way they had been since at least 1996. This change is ex post facto, and the [Union] finds this unfair to the membership. * * * * * * In the meeting, there was a lot of confusion over "Does Not Meet Requirements should be interpreted by the Union as Needs Improvement and /or Unsatisfactory." Russ said this had to be addressed. In response, the [Union] seeks clarity on this point: is the new "once- yearly performance rating" process di- vorced from administration of Article XXVI, Section 7 * * * * * * Russ stated that development of this new process had begun in December 2017, and that he first became aware of it in Jan 2018. The Union was not consulted at all until the Company was fully ready to implement the process, as is evident by the alarmingly rapid deployment. Russ was unable to fully articu- late the new performance appraisal process on March 14, and yet calendar appointments were sent out across the company as early as the very next day. When the Union made a proposal over PPTO on January 29th, with a follow-up on February 28th, Russ responded: “we accelerated into the next pay increase level, which he recognized is not consistent with the collective-bargaining agreement’s requirements. (Tr. 270). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 suggest that the impending formal contract negotiations (ap- proximately 2 months hence) presents a better opportunity to comprehensively consider and address this issue, which re- quires significant internal discussion and analysis.” The Union estimated three people would qualify for PPTO be- tween now and the end of the contract. The Company provided less than two weeks notice for a change that will directly affect the entire bargaining unit. There was no true interest in hearing any of our ideas. Why is a topic of this magnitude not being addressed at negotiations? We are aware that evaluations have already taken place. Again, evaluations were scheduled the day after we met—March 15— and took place the business day after your last correspond- ence—March 22. The lack of interest in attempting to obtain a mean- ingful input from the Union has yet again left us in a sour position. As stated in our March 14th meeting, the Union believes that involving us early, and nego- tiating in good faith, would more easily facilitate the arrival of mutually agreeable terms for any and all changes the Company would seek to make. On March 26, Fredriksen also requested information relating to unit employee performance appraisals for the previous 3 years: total number of performance appraisals given; and number of performance appraisal assessments rated at each of the cate- gories in the "Overall Assessment of Performance" (Exceeds Ex- pectations, Meets Expectations, Needs Improvement, and Unsat- isfactory). On March 27, Giglio provided the information, list- ing the total number of performance appraisals rated at the appli- cable levels for 2014, 2015, and 2016. On March 28, Giglio replied to Fredriksen’s March 26 email protesting the unilateral change as a fait accompli: Thank you for clarifying your concerns related to this matter. The Company has and will continue to seek improvements in all business processes, including but not limited to wage per- formance appraisals. Further, the Company will continue to follow the existing agreement for the consideration and imple- mentation of any and all changes. *** The "new once-yearly performance rating" could result in an individual being subject to Article XXVI, Section 7—Unsatis- factory Work Performance in the same manner, and to the same extent as at any other point in the performance cycle when the individual's work performance is determined to be unsatisfac- tory. The Company has already clearly articulated that Article XXVI, Section 7—Unsatisfactory Work Performance has al- ways; been interpreted and applied to facilitate contemporane- ous performance management. Again, this is no change from historical administration of the agreement. 8 That representation was not true, however, since at least 1-unit em- ployee was evaluated in accordance with the new appraisal form in March. *** As stated in the Company's March 7, 2018 notification letter, "The purpose of this letter is to provide you advance notice of the proposed changes to the wage performance appraisal pro- cess per Article XXVI, Section 6—Performance Review, as outlined below. There are no changes or implications to the current Employee Development Review (EDR) process." The fact is that the EDR process has not changed. The Performance Appraisal form was modified to be a more appropriate tool for documenting management input and conclusions concerning employee performance. Employees are still afforded an oppor- tunity to provide input, orally or in writing, in support of their performance accomplishments and knowledgeable other recognitions, or disagreement with his or her supervisor's evaluation. To clarify our March 14, 2018 discussion, the process to iden- tify efficiencies and improvements to the wage performance appraisal process actually did not begin until the end of January 2018. Whether "calendar appointments were sent out" on the day following our discussion is not relevant. Calendar appoint- ments are merely placeholders for a discussion that occurs on a yearly basis. We can, however, verify to you that to date no performance appraisal document or formal Communication in- itiating the 2018 performance appraisal process has been sent out to supervisors8; and this is because the Company has de- layed initiation of the process to insure the Union more than ample time to address its concerns regarding this minor change in accordance with Article XXVI, Section 6 –Performance Re- view. Because the Company has notified the Union and pro- vided the Union with ample time to provide input, and has given reasonable consideration to the Union's input prior to for- mal implementation of the new form, it is now the Company's intention to formally initiate the performance review process for the 2017-2018 performance period. On March 28, Fredriksen thanked Giglio for his timely re- sponse and requested a copy of the most recent performance ap- praisal template. Giglio provided a copy a short time later. The change was rolled out without the next several months, as evidenced by Myers’ most recent evaluation in August. At that time, his supervisor, Kathleen Edwards, handed him the “2018 Performance Assessment” for the 2017 calendar year. In accord- ance with the Company’s custom and practice, she discussed the assessment and incorporated his comments in the form. G. Bargaining Over a Successor Agreement 1. Overview The parties met on twenty-three occasions. The Union made thirty-four proposals, the Company made five and there were nu- merous modified versions of those proposals. Approximately fifty-four issues were discussed and the parties resolved about fifty of them. EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 15 2. The Parties Agree to Commence Bargaining The Union sent the Company a request to bargain over a new agreement on March 28, along with an information request. Gi- glio responded on April 16 and, consistent with the parties’ most recent bargaining in 2013, proposed seven meeting dates com- mencing on May 7. He proposed several ground rules and four “clean-up/housekeeping items.” Myers replied on April 23, gen- erally agreeing to the proposed ground rules changes and ex- pressing the Union’s willingness “to agree to extend the contract to June 15 as long as any agreement will be retroactive to June 1.” Giglio replied on April 27 that it was “premature to consider a contact extension at this time. The Company’s expectation is that both parties work diligently to reach an agreement by June 1, 2018, 12:01 a m.” Myers replied on May 2 with proposed minor changes. The parties agreed to commence bargaining on May 7 but did not, however, reach agreement regarding the tim- ing and location of the ratification meeting or whether non-eco- nomic proposals would be bargained to conclusion prior to dis- cussing economics. 3. The May 7 Bargaining Session On May 7, the Company and the Union commenced bargain- ing for a successor contract. Giglio opened by reiterating the Company’s preference that the parties reach tentative agreement on noneconomic issues before addressing economic proposals. The Company and the Union then exchanged written proposals. After a 4-hour recess to review the Union’s thirty-four proposals, the Company returned and Giglio explained that “there were a number of proposals where the verbiage either didn’t match the CBA or there was a lot of the section left out.” He proposed “going forward . . . to standardize the format the way we pro- vided our proposals to you. Take the entire section of the CBA that you are looking to make changes to and delete, you know, put a line through what you propose, deleting and highlight. . . . I think it will make it a lot more efficient going forward.” Myers responded by asking if Giglio had “any particular proposals that were questioned.” He did not directly respond to Giglio’s sug- gestion, but the parties started the discussions by focusing on noneconomic proposals. Both proposals included competing amendments to Article XVIII and the Company’s ability to con- tract out bargaining unit work. The Union’s proposal (U-31) re- placed Article XVIII with the following: The Company may let independent contracts. The purpose of independent contracts is not to erode the bargaining unit or re- strict or limit its growth. The company will not use contractors for more than a maxi- mum of 5% of the total Represented work force or 10% of any given job family. Number of contractors engaged in Project work in the trades are not limited or included as part of the total count towards the maximum limit. No position will be contracted for more than six months with- out the consent of the Union. Furthermore, in the event that employees have been demoted or laid-off because of lack of work, the Company, prior to let- ting out future contracts involving work customarily performed by employees and provided that all the equipment necessary in the performance of such work is available in the Company fa- cilities, will (1) repromote demoted employees qualified to per- form such work, and (2) recall, in accordance with Section 1 of Article IX, laid-off employees qualified to perform such work, provided the employees conduct and the job performance prior to and during such layoff were satisfactory to the Company. The Company’s contract work proposal (C-2) eliminated the threshold dollar amounts and the requirement that the Company notify the Union before contracting out work: The Company may let independent contracts. However, dur- ing any period of time when an independent contractor is per- forming work of a type customarily performed by employees and employees qualified to perform such work together with all of the equipment necessary in the performance of such work are available In the Company facilities, the Company may not because of lack of work demote or lay off any employee(s) qualified to perform the contracted work. Furthermore, in the event that employees have been demoted or laid-off because of lack of work, the Company, prior to let- ting out future contracts involving work customarily performed by employees and provided that all the equipment necessary in the performance of such work is available in the Company fa- cilities will (1) repromote demoted employees qualified to per- form such work, and (2) recall, in accordance with Section 1 of Article IX, laid-off employees qualified to perform such work, provided the employees conduct and the job performance prior to and during such layoff were satisfactory to the Company. 4. The May 14 Bargaining Session Giglio opened the second day of bargaining by informing the Union that the Company’s negotiators were not authorized to ex- tend the CBA past June 1. He expected the parties to proceed as efficiently as possible in bargaining over their respective pro- posals but raised “the possibility of, come June 1st, we say, ‘Wow, we just reached impasse.’ And if that is the case, the Company would give you a last, best, and final. We hope not to do that. We hope that collectively we will reach an agreement on each one of those proposals and side letters, but that is the way the process works.” Myers replied that he was surprised by the number of issues that the Company considered noneconomic. Giglio recapped the Company’s four issues: 12-hour standard shifts, contracting out work, the grievance procedure, and the direct payment of dues to the Union. A bunch of items stacked under “housekeeping,” however, amounted to a fifth set of issues. The parties exchanged written proposals again. The Company responded to each of the Union’s noneconomic proposals, in- cluding contracting, PPTO and personal time. The Company’s contracting proposal remained the same as the one that it pro- posed on May 7. 5. The May 16 Bargaining Session On day 3 of bargaining, the Company modified its contracting proposal to amend Article XVIII as follows: The purposes of independent contracts is not to erode the bar- gaining unit nor to restrict or limit its growth. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 The Company will not use contractors for more than a maxi- mum of 5% of the total Represented workforce or 10% of any given job family. The number of independent contractors en- gaged in project work in the trades are not limited as part of the total count towards the maximum limit. No position will be contracted for more than six months with- out consent of the Union. When Giglio got to the Union’s contracting proposal, how- ever, he said there was no “need to spend a lot of time on that right now because that one is where there is a very, very wide gap between [the proposals], and I don’t see that gap narrowing significantly with more debate at this point in time, unless you care to discuss it.” Myers replied that “a large gap would be reason to discuss it.” Extensive discussion ensued over the Com- pany’s rationale for contracting flexibility and resistance to any limitation on such authority. Pressed by Myers for an explana- tion, Giglio revealed the Company’s bottom line: Because it is untenable. Number one, it is not the way we run our business. At the very worst case that we are talking about here, Mike, which is why I wanted to defer discussion about this, we will live with it as it is written. We are not going to make these changes. If you are not going to be agreeable to deal with the changes that we have proposed, I can tell you that these are not changes that the Company would be interested in. So, I mean, we can continue to talk about it. We can continue to debate it, I have no problem with that, but I think we are so far apart on this that it probably won’t resolve itself by living with the existing language. 6. The May 21 Bargaining Session During the 4th day of bargaining, the parties agreed to several proposals and the Union modified several proposals and with- drew eight others. Among the proposals agreed to by the Com- pany were nearly all of the Union’s items relating to benefits, including health dependent care leave and an educational refund program. However, the Company did not acquiesce to the Un- ion’s proposal for 4 weeks of PPTO. Instead, Giglio asked the Union to provide data as to how many unit employees might ben- efit from such leave. With respect to contracting out unit work, the Company’s proposal remained unchanged. At the end of the session, the Company requested a copy of the Union’s bylaws and posed several questions: whether the Un- ion had a strike vote in place; the time, date and location of the ratification vote; the “verbiage” the Union planned to use on the ballot for a ratification vote; the process to be used for the ratifi- cation vote; who would conduct the count for the ratification vote; and how the Union would inform employees of the results. 7. The May 24 Bargaining Session Myers and Giglio opened the fifth bargaining session by briefly addressing the Company’s information request from the previous day. Then they engaged in legal jousting over whether the Company’s reliance on accrued vacation time, as opposed to personal time, sufficed in complying with New Jersey’s new dis- ability law. That debate was followed by extensive discussion regarding the Union’s PPTO proposal. Giglio asserted that the compensation packages of non-represented employees indirectly paid for those benefits and then asked what the Union offered in return. Myers asked what non-represented employees paid for such benefits. Giglio did not have an answer but said he would look into it. After the lunch break, the parties discussed the Company’s contracting proposal and its desire to address spikes in workload with contractors in lieu of hiring and firing employees. The Un- ion challenged the Company’s contention that there had been spikes in demand and the parties discussed the cost benefits of employing contractors versus employees. Myers concluded that discussion by suggesting that the parties move on since the mat- ter was in the midst of arbitration. Giglio and Myers also argued over personal time and the Company’s insistence on leaving it to supervisory discretion. Giglio attributed the Company’s position to the Union’s previous unfair labor practice charge, and Myers replied that it amounted to retaliation. The Union withdrew five proposals for a total of fifteen with- drawn to that point. Otherwise, the status of the proposals on contracting, personal time, and PPTO remained the same as the parties’ May 14 proposals. 8. The May 25 Bargaining Session Myers opened the session the following day by explaining the Union’s economic proposals, including a discussion of position descriptions. There was also discussion about the number of contractors that have been brought in since 2013. Myers asserted that ninety-six percent of all new hires since 2013 were contrac- tors and opined that contracting was being used to screen new hires. After the lunch break, Giglio said that the Company would review the Union’s economic proposals and come up with a counteroffer. The session concluded with agreement on several items and disagreement on several others. However, there was no change in position regarding contracting, personal time, or PPTO. 9. The May 25 Arbitration Award On May 25, arbitrator Joyce Klein issued an arbitration award regarding a 2016 grievance challenging the Company’s ability to permanently contract certain work. The Company took the posi- tion, based on Article XVIII and its long-standing practice, that its contracting rights were limited only to the extent that they would not result in layoffs. The arbitrator, however, rejected that position, ruling that irrespective of layoffs, the Company could not prospectively contract permanent jobs. The award did not limit the Company’s rights on temporary contracting. 10. The May 29 Bargaining Session The parties started the seventh bargaining session by follow- ing up the discussion from May 25 regarding several economic items. The Company countered with a package that included a proposal to eliminate Side Letter 100 and add a safety shoe sub- sidy if the Union agreed to withdraw its unfair labor practice charge regarding the alleged changes to performance appraisals. The Union’s counter declined to address withdrawal of the charge at that point but included several concessions, as well as a modified proposal on personal time. After reviewing the Union’s proposals during the lunch break, Giglio returned and stated that the parties were far apart and the Company was not going to counter the Union’s latest proposals. EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 17 He did, however, say that the Company would provide a modi- fied contracting proposal at the next session. The discussion then turned to the Company’s wage rate pro- posals for a 7-year contract and the Union’s request for copies of other CBAs agreed to by the Company. Giglio and Naquin ob- jected and raised the matter of their May 21 request to the Union for information regarding its voting process for ratification and going out on strike. Myers explained that the Union did not see the relevance regarding its internal processes and noted that the Company initially rejected the Union’s ground rule proposal to allow for ratification votes during work time as had been allowed during past negotiations. He concluded by asking whether the Company obtained information as to how non-represented em- ployees paid for PPTO. Giglio simply replied “not yet” and did not address the ratification issue further. Otherwise, there was no discussion of the parties’ proposals on contracting, personal time and PPTO. 11. The May 31 Bargaining Session The 8th day of bargaining focused mostly on wages. Early on, however, Giglio requested a brief side bar meeting. During that encounter, he handed Myers a revised contract work pro- posal, acknowledged that the Union won the arbitration, and ex- pressed the Company’s desire for a solution. Giglio then pro- ceeded to say that the Company would not agree to the Union’s personal time proposal, but suggested that employees would not notice it because of the additional compensation that the Com- pany would agree to.9 The Company’s proposal included an agreement not to appeal or challenge the May 25 award and apply it only prospectively, eliminated the dollar thresholds, eliminated the permanent con- tracting of research technicians through attrition but permitted it for the materials, trades, graphics, and admin technician posi- tions, permitted the continuation of temporary contracting, and eliminated any obligation to replace contractors with employees. Myers reviewed the proposal and replied that it was “not going to work.” Giglio replied that it was just a first draft. At a subse- quent side bar meeting, the parties agreed to extend the CBA un- til June 9. Aside from the side bar discussion, the rest of the session fo- cused on the Company’s presentation of wage data and discus- sion about technical changes to contract language. The parties recessed early in order to caucus and for Giglio to return with a modified proposal. Instead, however, the parties resumed off- the-record discussions in the hotel bar.10 12. The June 4 Bargaining Session During day 9 of bargaining, the Union countered with 8 weeks of PPTO, personal time as proposed on May 7, a requirement for new employees to join the Union within 30 days, the discontin- uation of 1 day of leave for United Way contributions, pay sched- ules, and standardizing the 12 hour nonstandard shifts. It also objected to the permanent contracting of positions but agreed to remove the audiovisual, reproduction, accounting and 9 Giglio did not refute Myers credible testimony regarding this re- mark. (Tr. 86, 274-275.) 10 Giglio testified that he was optimistic about an impending deal after the bargainers met for drinks later on. However, whatever transpired administrative positions from the bargaining unit and keep the 16 mechanics as unit employees while consenting to the perma- nent contracting of future mechanic hires. Finally, the Union also rejected the proposal to limit future interpretation of the side letter to its terms to the exclusion of the Act, prior awards, stand- ards, practices or any applicable provisions in the CBA. After caucusing, the Company partially responded to the Un- ion’s counter proposal, offering in pertinent part: to refrain from appealing the arbitration award; amend the side letter by elimi- nating monetary thresholds; refrain from permanently contract out wastewater treatment and utility operators, research techs, electronics techs and information techs through attrition or as va- cancies occur; allow contracting in lieu of hiring research techs, electronics techs and information techs for work fluctuations and other short term or discrete business needs; continue temporary contracting practices, including the right to utilize contractors to staff relative to projects, work fluctuations and other short term or discreet business needs; continue to contract any jobs con- tracted as of June 1, 2018; and permanently contract materials, mechanics, graphics, and admin techs. The Company also pro- posed to render the May 25 award and the Act inapplicable for future interpretation of the letter agreement; Giglio also said that personal time was “not going to happen.” The parties then caucused for 3 hours before resuming late in the afternoon. The session concluded shortly thereafter, with Giglio emphasizing that the parties needed to reach closure on the con- tracting issue before it was able to present its last, best and final offer. 13. The June 5 Bargaining Session At the tenth bargaining session, the Union countered the Com- pany’s June 4 proposal. Myers stated at the outset that the Union was “not interested in changing the scope of the bargaining unit” and would only consent to the contracting of services trainees. Otherwise, the Union maintained its position regarding safety shoe allowances, PPTO and eliminating the United Way day off practice. The Union also modified its proposal by limiting the 12-hour nonstandard shift to operations requiring “24/7 staffed operations.” The Union also restored the 8 percent temporary pay increase, specific overtime pay differentials, a $5000 ratifi- cation bonus, and pay increases of 7.5 percent in year 1, 5 percent in year 2 and 5 percent in year 3. In response, Giglio asserted that the Union’s counterproposal limiting contracting out to services trainees regressed from the previous negotiations over eleven items in the side letter. He was “willing to speak about everything” but warned that the Com- pany would be unable “to talk bundles until we nail down the contracting out verbiage.” After extensive argument over the issue, the parties caucused and reconvened about an hour later. The Company proposed a package that included the contract work side letter proposal from June 5, the safety shoe subsidy, limited the 12-hour nonstandard shift, discontinued the United Way Day off, and 1 week of PPTO if the Union withdrew its unfair labor practice charge relating to during that dialogue was not documented and Giglio did not refute My- ers’ credible testimony that he rejected the proposed C-2 side letter al- most immediately after being presented with it during the first side bar meeting that day. (Tr. 85-87, 277–279.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18 the performance appraisal form.11 The Company opposed the Union’s agency shop provision and its revised personal time pol- icy, and urged dropping these proposals to finalize the contract. The Company also submitted its first wage proposal: a $2500 ratification bonus and a 5-year contract with step pay increases: 1 percent in year one, 1 percent in year two, 1.5 percent in year three, 2 percent in year four, and 2.5 percent in year 5. Giglio concluded by stating that the Company would consider the Un- ion’s suggestion that the parties seek the assistance of a federal mediator. 14. The June 8 Bargaining Session Giglio opened the eleventh bargaining session by announcing the Company’s agreement to extend the CBA during negotia- tions. He reiterated the Company’s position as the one presented on June 5 and proposed discussion over contracting, the 12-hour shift and wages. Myers replied by reiterating his proposals of June 4 and 5. The parties then engaged in extensive discussion over the Company’s proposal for 1 week of PPTO. Meyers asked if the Company ascertained how it paid for the PPTO afforded to non- represented employees, but neither Giglio nor Naquin had an an- swer. No progress was made on that issue. The Company then went through its revised wage and benefits proposal, and the par- ties broke with an agreement to meet again on June 19. 15. The June 19 Bargaining Session At the thirteenth bargaining session, the Company reiterated its proposal from June 5, including 1 week of PPTO and no per- sonal time. After extensive arguing as to the applicability of the arbitration award and whether it was retroactive, the Union coun- tered the Company’s June 5 proposal by agreeing to the perma- nent contracting of the audio visual, reproduction, and account- ing positions, in addition to the attrition of administrative posi- tions and maintaining at least twenty mechanics. The Union’s revised proposal otherwise prohibited the Company from perma- nently contracting out the positions listed in the recognition clause without its expressed permission but agreed to temporary contracting out “to manage fluctuations in workload and other short term or discrete business needs. The Company may not uti- lize a contractor in the same position for more than 12 months without consent from the Union.” Frustrated with the Union’s new proposal on the contracting issue, Giglio announced that the contract would expire in forty- eight hours. With about an hour left in the bargaining session, the Company clarified its shift proposal. The session concluded after further accusations that neither party budged from their pro- posals—the Union’s May 31 counteroffer and the Company’s June 5 proposal. Giglio also rejected Myers proposal for a me- diator. 16. The June 25 Bargaining Session At the 13th day of bargaining the Company maintained its po- sition from June 5 with respect to contracting, 1 week of PPTO, and no personal time. The Union submitted a revised 11 Giglio’s testimony that the Company previously proposed 1 week of PPTO during “the second or third bargaining session” was incorrect. (Tr. 261.) counterproposal agreeing to withdraw the charge relating to the performance appraisal form in return for 8 weeks of PPTO and personal time for births/adoptions (5 days), and severe and dis- cretionary emergencies (16 hours annually for each). It also pro- posed to withdraw its agency shop proposal and discontinue the United Way Day off. The wage proposal included a $5000 rati- fication bonus and a 4-year contract with pay increases of 5 per- cent in year 1, 3 percent in year 2, 3 percent in year 3, and 3.5 percent in year 4. The shift proposal was modified to specify a normal work weeks of either 36 hours or 48 hours based on mu- tual agreement between the parties and an 8 percent shift differ- ential. The Union’s revised counterproposal also reduced the number of mechanics from 20 to 16 and increased the number of days the Company could utilize contractors in certain bargaining unit po- sitions from 60 days to ninety days without extending a perma- nent job offer due to demonstrated spikes in workload. Auto me- chanics and medical positions, however, would remain under the 12-month limit. Giglio branded the counterproposal as “incredibly regressive” and expressed displeasure that the Union had not closed the gap with the Company’s contract work side letter proposal. He also noted the difference between the proposed wage increases. Gi- glio emphasized that the Company had been “clear since Day 1 that we weren’t looking to fill what we consider noncore posi- tions permanently with contactors.12 That is what we are bar- gaining for. . . . All I can tell you is that we have been consistent for as long as we have had proposals on the table and that is what we are looking for and you are not making any progress whatso- ever in that area.” 17. The June 29 Bargaining Session Giglio opened the fourteenth bargaining session by describing the parties’ bargaining effort as having lasted already more than doubled the amount of sessions compared in 2013 and nearly 2000 hours of employee and management participation. He as- serted that that the parties were moving closer to an agreement until June 4 when the Union’s proposals submitted a regressive proposal and then failed to submit a good faith counteroffer to the Company’s June 5 proposal and, in particular, the Com- pany’s “primary outstanding proposal in contracting out.” Giglio then conveyed the Company’s last, best, and final offer (LBFO). It also included a $5000 ratification bonus and 1 week of PPTO but no personal time. The proposal did not include any economic concessions. Its revised C-2 portion stated the follow- ing: 1. The Union agrees to immediately withdraw and dismiss with prejudice its current petition to confirmArbitration Award. The Company and the Union will not appeal or challenge the Arbi- tration Award issued by Arbitrator Joyce Klein on May 25, 2018. 2. Paragraphs 2, 3 and 4 will be removed from Article XVIIII, and the supplemental Side Letter on notice and dollar thresh- olds is hereby terminated. 12 Considered in context with the record as a whole, Giglio apparently meant to say core instead of noncore position. (Jt. Exh. 13 at 33–34.) EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 19 3. The Company will add the Auto Mechanic position to Ex- hibit II of the contract. 4. The Company will not permanently contract Research, Elec- tronics, Sr. Info Tech, Info Tech/Asst., Sr. Wastewater Treat- ment Operator, Wastewater Treatment Operator, and Sr. Utili- ties Operator, Utilities Operator job families through attrition or as vacancies occur. 5. The Company may permanently contract Material & Service Coordinator, Mechanics, Graphics Design, and Sr. Admin Tech, Admin. Tech/Asst. job families through attrition or as vacancies occur. 6. The Company may continue, at its sole discretion, its current temporary contracting practices across all job families, includ- ing the right to utilize contractors to staff relative to projects, work fluctuations and other short term or discrete business needs. 7. The Company may continue to permanently or temporarily contract any positions contracted as of May 25, 2018. 8. Nothing in this Letter of Agreement or in the CBA shall be interpreted to require the Company to maintain a specific level of staffing or mixture of work. 9. Any arbitrator, court or government agency shall be limited to the express terms of this Letter of Agreement and shall not consider prior arbitration awards, custom, prior practice, indus- try standards, the NLRA, or the CBA’s Recognition Clause, Work Classifications or other provisions in the interpretation of this Agreement, its terms or intent. 10. To the extent there is a dispute between Article XVIII or any other provision of the CBA and this Letter of Agreement, this Letter of Agreement shall govern. Giglio warned that if the offer was not accepted and ratified by July 11 it would result in a significantly lower wage and rati- fication bonus offer. Myers repeated his view that the LBFO was premature, and the Union caucused to consider the offer. Myers returned 5 hours later and stated that the Union was still reviewing the LBFO. He noted, however, that the offer was il- legal because there were still other issues on the table and unfair labor practice charges had been filed. Giglio reiterated the dead- line and predicted that the Company’s next offer would be sig- nificantly lower. He said he would be willing to meet again on July 9 but the Union would only hear a “broken record:” the Company’s LBFO. Myers replied that the bargaining committee would not recommend the LBFO for ratification. Giglio criti- cized Myers’ response and accused him of misrepresenting 144- unit employees for the sake of preserving “13 jobs because we’re not putting anybody out—those would be filled through attrition or vacancy.” He implored Myers to bring the matter to his “con- stituency because I think they’re going to say: Man, are you wrong, and maybe we elected the wrong guy . . . see how they feel about this offer because we’re certainly going to tell them about it.” 18. The July 3rd Employee Information Bulletin The Company did just that. Following this session, on July 3, the Company sent an employee information bulletin to all employees at the Clinton facility: The purpose of this bulletin is to advise you that EMRE and the Independent Laboratory Employees' Union, Inc. (ILEU) have met for 14 collective bargaining negotiation sessions. The Company presented its last, best, and final offer to the ILEU on Friday, June 29, 2018 with an expiration date of July 11, 2018 at 12:01am. This offer was the result of many productive ne- gotiation sessions between the parties and tentative agreement was reached on nearly all items. The offer is a good one, with significant and competitive benefits to the bargaining unit. The Company believes a longer-term contract is beneficial; with an uncertain economy, a longer-term contract provides greater continuity and clarity regarding general wage increases. This very fair and competitive offer should allow us to continue to be a world class research organization. The ILEU has informed the Company that it is considering the offer and the parties have agreed to meet and discuss on Mon- day, July 9, 2018. The ILEU has not yet informed the Com- pany as to whether the offer will be presented to its member- ship for a vote. The Company believes that employees should have a choice in accepting the offer and deserve a chance to vote. If and when the ILEU brings the Company's last, best, and final offer for a vote, it is expected that Union members be provided reasonable time away from work to meet and vote. The key aspects of the offer are summarized below: ● 5-year agreement (Date and Month Agreement is Ratified 2018 to Date and Month Agreement is Ratified 2023) ● Annual wage increases of 1% Year 1, 1 % Year 2, 1.5% Year 3, 2% Year 4, 2.5% Year 5; and a $5,000 ratification bo- nus paid to all ILEU members upon acceptance of the offer if ratified on or before July 11, 2018 at 12:01am ● Parental Paid Time Off (PPTO) 1 week per occurrence of birth /adoption of a child ● Safety shoe allowance of $175 /employee (currently $150 /employee) ● Overtime meal allowance of $10 /employee (currently $8 /employee) If you have specific questions regarding the full offer, please contact your supervisor or your Union Representative. Employee Information Bulletins (EIBs) such as this one will be sent to you via email and also posted on this SharePoint site. Any Clinton employee may respond to the "Submit A Ques- tion” survey on the SharePoint site anonymously or choose to include his/her name if requesting follow-up. Questions re- ceived from employees may be converted to anonymous FAQs for the benefit of the entire site population. As always, our number one priority is the safety of employees. Thank you for continuing to keep safety at the forefront. 19. The July 9 Bargaining Session Myers opened the 15th session by reading a counterproposal to June 29 LBFO, which included: a safety shoe allowance; 8 weeks of PPTO; discontinuance of the United Way Day; a 4-year contract with no ratification bonus; a pay schedule of 2.5 percent pay increase in year one, 2.5 percent pay increase in year 2, 3 percent pay increase in year 3, and 3.5 percent pay increase in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20 year 4; nonstandard shifts to be negotiated; and a personal time policy eliminating designated categories. The C-2 portion de- leted the proposal that the Union withdraw its petition to enforce the arbitration award, agreed to continue temporary contracting for up to twelve months unless the Union agreed to a longer pe- riod, prohibited the permanent contracting of positions through attrition without the Union’s consent, consented to permanently contracting certain bargaining unit positions but specifically re- jecting the permanent contracting of others, required maintaining an agreed upon number of mechanics, and deleted the proposal to limit a court, arbitrator, or government agency’s interpretation of this side agreement. After discussing the Union’s counterproposals, the Company caucused for 3 hours. Upon returning, Giglio attempted to elicit whether the Union was claiming illegality as to the Company’s proposal that it withdraw the arbitration claim and/or agree to have the side letter override the Act. Myers explained that the Union would continue to object to any language that limited its rights under the Act. Giglio replied that the arbitration award was not retroactive. At one point, the parties recessed for a side bar discussion where Giglio emphasized the Company’s continued insistence on the discretion to contract out and that it was “not interested in personal time at this time, because of the Union’s filing of the [unfair labor practice charge] in 2016 and its aggressive actions.” When asked by Myers as to what the Union would have to do for the Company to agree to 8 weeks of PPTO, Giglio said, “go with- out a union.”13 When they returned, Giglio reiterated the Com- pany’s continued insistence for the right to contract out noncore positions. He characterized the Union’s failure to yield at all on its proposal as regressive and “wordsmithing.” Fredrickson re- plied that the Company should not have the right to determine who should be excluded from the bargaining unit. The parties also discussed included Myers’ request to reinsti- tute labor-management quarterly meetings, supervisory discre- tion in granting personal time off, shift pay differentials, and the ratification bonus. Finally, the discussion turned to the Union’s demand for 8 weeks of PPTO, a benefit that is available to the Company’s non-represented employees. Giglio stated that per- sonal time “goes back to the issue we had that was resolved after the Union filed a ULP and was resolved in 2016, I guess, at the National Labor Relations Board.” He explained that inconsist- encies had led to grievances and unfair labor practice charges.”14 Myers then asked what the Company wanted in exchange for 8 weeks of PPTO. Giglio said “[w]alk away from the bargaining agreement,” adding that “[i]f you weren't covered by a [CBA], if you were exempt, you would have eight weeks of PPTO.” He also noted that there were other ways to achieve the PPTO ben- efit and advised the Union to consult with counsel. Myers then 13 This finding is based on the credible and unrefuted testimony of Myers and Fredrickson, and corroborated by Giglio’s subsequent com- ments at the table. (Tr. 101–102, 324–325, 334–335; Jt. Exh. 15 at 86.) Giglio’s denial that he made the comment during the side bar was not credible given his subsequent comments on the record. (Tr. 263.) 14 Giglio testified that he referenced the charges as examples of what happens when there is discretionary language. He also conceded that the Union previously proposed a personal time policy with specific catego- ries and hour allotments. (Tr. 263, 266, 286; Jt. Exh. 86-87.) asked, “So you are saying if [we] get [de]certified, you will give us eight weeks of PPTO?” Giglio replied, “You said that, I didn’t.”15 The meeting concluded with Myers asking to schedule an- other meeting. Giglio replied, “[n]o, I think you guys can take the vote.” When asked by Fredriksen if Giglio would meet with them again, Giglio replied, “[i]f the contract is not ratified, we will certainly meet again.” 20. The July 19 Bargaining Session The parties met very briefly for the 16th day of bargaining since a stenographer was not available. The Company proposed a modified version of its LBFO. It reduced its previous offer of a $5000 ratification bonus to $2500 but withdrew its demands that the Union withdraw its petition to confirm the arbitration award and exclude the provisions of the Act from future inter- pretation of the contracting side letter. 21. E-mail dated July 25 On July 25, the Company emailed all employees at the Clinton facility a correction regarding the representations in the July 3rd employee information bulletin:16 The ILEU notified the Company last week that our EIB of July 3, 2018 contained a statement that contradicted what the Com- pany had presented to the ILEU prior to bargaining. The Com- pany confirmed that the ILEU was correct, and we apologize. Specifically, the EIB stated relative to a potential ILEU vote on the Company’s offer at the time that "it is expected that Unión members be provided reasonable time away from work to meet and vote:" The Company included the same statement in an MIB. The Company should not have said this. When discussing bargaining ground rules in early May before bargaining, the Company's last ground rule proposal to the ILEU included a proposal stating that the Company would not authorize employees to be away from work for ratification ac- tivities: The ILEU responded that it disagreed with this pro- posal. The parties agreed to move forward with bargaining. The Company communicated internally that it was agreeable to allowing employees time away from work to vote but never notified the ILEU or modified its proposal. Under the National Labor Relations Act (NLRA), the Com- pany’s EIBstatement about timeaway from work to vote could be construed as what is called unlawful “direct dealing," mean- ing we bypassed the ILEU and made an offer directly to its members. That was not the Company's, intention, but the Company cannot present a proposal to employees that it has not already presented to the employees' union. The Company will not engage in any direct dealing in the future. 15 Myers and Fredrickson understood the remarks to mean that unit employees would receive the same amount of PPTO as non-represented employees if they were not covered by the CBA. Giglio testified that he was being sarcastic and made the comment during bargaining “out of frustration.” (Tr. 101–103, 160–162, 166, 263, 300, 325, 334, 341–343; Jt. Exh. 15 at 113–115.) 16 Myers credibly testified that only bargaining unit employees re- ceived this e-mail, in contrast to the July 3 employee information bulle- tin, which was sent to all employees. (Tr. 113.) EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 21 The Company goes to great lengths to ensure that it always fol- lows the law and always provides accurate information. Our mistake was not intentional. We had simply forgotten about the details arid final status of the ground rules discussions both internally and with the ILEU. That.is still no excuse, and again, we apologize. We also apologize to ILEU leadership: The parties have had their differences and disagreements dur- ing thesenegotiations, but the Company would never intention- ally misstate or act unlawfully. We will be more diligent mov- ing forward. We are sending this communication because we want to do what is right and we want to comply with the NLRA, which the above-described statement violated. To the extent that the Company's misstatement interfered with your and/or the ILE- U's rights under the NLRA, again, the Company was wrong. It is our sincere desire to comply with the NLRA and all other laws. Therefore, going forward we will not do anything to in- terfere with your or the ILEU's rights. 22. The July 26 Bargaining Session The parties continued negotiations over the C-2 proposal on the 17th day of bargaining. There was no movement from the Union’s July 9 proposal and the Company’s July 19 proposal. Giglio acknowledged that contracting was the primary stumbling block and, as for the Union’s refusal to agree to changes to the scope of the bargaining unit, “[w]e can’t live with that.” He re- iterated that position later on, emphasizing that “[t]his is what the Company requires . . . if there is something that you need in return to make this happen, bring it forward, we are here to ne- gotiate.” Myers replied that the Union was not interested in the contracting proposal. 23. The September 4 Bargaining Session During the 18th day of bargaining, the Union replied to the Company’s July 19 proposal with a slightly modified version of its July 9 proposal relating to nonstandard shift schedules. After a 3-hour break to caucus, the parties returned and Myers asked if Giglio had a counteroffer. Giglio replied that the Company was waiting for a counteroffer on the contracting issue and urged the Union to provide one in order to “wrap this whole thing up very quickly.” He restated the Company’s priority that core positions be staffed by employees and noncore positions permanently re- placed by contractors once they become vacant. During subsequent discussion, Fredriksen noted that noncore is not a term defined in CBA. Giglio agreed but asserted that it is a term mentioned during arbitration proceedings and “dis- cussed across this table for quite a long time, and it is a term we can memorialize in the CBA going forward, if that is so de- sired.”17 There was, however, no movement on the contracting issue, leading Giglio to declare that “we have been as clear as we possibly can be that C2 is the linchpin in moving these negotia- tions forward. So we will continue to meet, but unless and until [the Union] gets serious about a counterproposal to C2, we are going to continue to do what we are doing and go through these exercises in futility.” 17 The core/noncore references were mentioned during arbitration but only by the Company and were never adopted by the Union. Giglio did not directly address the Union’s proposal for 8 weeks of PPTO except to refer to it during the discussion on the contracting. He explained that there used to be an “unwritten process” that supervisors had the discretion to grant personal time off. However, that process ended when the Company at- tempted to formalize the process and the Union brought charges. Giglio concluded by remarking that “is why we won’t agree to personal time, because this is the stuff that the [Union] brings forward.” Personal time was, as Giglio described it, a “gravy train that has now moved on.” 24. The September 27 Bargaining Session During the nineteenth bargaining session, the Union submit- ted a revised counterproposal package, which included a $5000 ratification bonus and a higher frontloaded pay increase pro- posal: 5 percent in year 1, 3 percent in year 2, 3 percent in year 3, and 3.5 percent in year 4. The Union agreed to maintain the Company’s corporate personal time policy and proposed: non- standard shift schedules requiring Union notification prior to im- plementation; a 40-hour rest period; 48 hours of consecutive rest between days off; two out of every 4 weekends as scheduled days off; and no more than three switches between the standard shifts every 4 weeks. The C-2 portion was revised in pertinent part: Add: Auto Mechanic Remove: Sr. Systems Tech, Systems Tech /Asst., Accounting, Sr. Medical Lab Tech, Medical Lab Tech, X-Ray Tech Altered Contracting Practice For the Mechanics job family, the Company may fill any future vacancies with contractors. All employees currently in these positions will retain their jobs until they retire, are promoted, or leave on their own accord. All employees currently in these po- sitions will receive lead pay for the remainder of their time in said positions. Additionally, the Services Trainee positions may be regularly staffed by contractors. In the event of a surplus of employees, backdowns, or layoffs, all contractors in these positions will be removed before any bargaining unit employee is laid off. For the Audio Visual, Reproduction Services, Materials & Ser- vices Coordinator, and Maintenance and Operations job fami- lies, the Company must fill any future vacancies with employ- ees. Contractors currently in these positions may remain as contractors until they are removed by the Company, are hired as employees, or leave on their own accord. Giglio appreciated the “movement on C-2,” and the parties broke to caucus. During that time, Giglio complained to Myers about the formatting of the Union’s counterproposal because it did not adhere to the side letter format agreed to by the parties. He characterized it as a regressive proposal and accused Myers of “throwing the mechanics under the bus.”18 When the parties returned to the table, Giglio rebuked the Un- ion for failing to submit its counteroffer in the same format as the Company’s C-2 proposal. Giglio complained that the 18 This finding is based on Myers credible and unrefuted testimony. (Tr. 115–119.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22 Union’s proposal was unacceptable because it was not in the same format as, and would have to be reworked into, the Com- pany’s July 19 proposal – a task that would take the rest of the day. He asked if the Union intended to provide the counterpro- posal in the format previously agreed to by the parties. Myers attempted to change the discussion to the mechanics classifica- tion proposal, but Giglio insisted that the parties resolve the for- matting issue first. Myers then asked, “[d]id you tell us to put contract language that we were comfortable with into a proposal for you.?” Giglio replied that he wanted the Union’s proposal in “the standardized, agreed-to-format” and asked, “Mike, answer my question. Okay? Are we wasting time here? Do you want us to take the rest of the day to manipulate this into our July 9 proposal, or do you want to do it?” He added that “[i]t is a yes- or-no answer.” Frustrated, Myers responded by withdrawing the Union’s proposal from that morning and dared Giglio to go tell his boss, Bruce March, that he was making the format an issue. The parties continued quibbling over format, with Giglio noting that, although not in the ground rules, the parties agreed early on to “line out and highlight” the previous proposals.19 Myers then called for a caucus. Upon returning from lunch, Myers an- nounced that the Union was leaving, and the session adjourned. 25. September 28th Employee Information Bulletin Dispar- aged the Union Following that contentious session, the Company emailed an employee information bulletin to all Clinton employees: The purpose of this note is to provide an update on collective bargaining between [the Company] and the . . . ILEU. As a reminder, any Clinton employee may respond to the “Submit a Question” survey on the SharePoint site anonymously or choose to include his/her name if requesting follow-up. Questions received from em- ployees may be converted to anonymous FAQs for the benefit of the entire site population. Despite the Company offering 7 dates to meet in Au- gust, the parties did not meet in the month of August and have only met 2 times in the month of Septem- ber. The 19th session was held on Thursday, Septem- ber 27, 2018. In the 19th session, the ILEU made a counterproposal to the Company's July 19, 2018 outstanding offer. The ILEU's coun- terproposal dated September 27, 2018 included but was not limited to the following terms: 1. $5,000 non -benefits bearing payment to union members in good standing only - Company's July 19, 2018 outstanding offer Includes a $2,500 ratification bonus to all ILEU represented employees as of the date of ratification 2. Retroactivity to June 1, 2018 - Company's July 19, 2018 outstanding offer does not 19 Myers testified that he withdrew the proposal because Giglio “was dictating on how we were supposed to give proposals for many days and we were kind of tired of it . . . He told me I was wasting his time and include retroactivity 3. Contracting Out Language - The ILEU's counterproposal did not counter the Compa- ny's July 19, 2018 outstanding offer 4. Personal Time and 8 weeks of PPTO - Company's July 19, 2018 outstanding offer includes 1 week of PPTO and no personal time Before noon, the ILEU completely withdrew its counterpro- posal. The ILEU then violated the practice and spirit of the bargaining ground rules by leaving the session unilaterally, de- spite the Company's best attempt to continue discussions dur- ing the remainder of the day. The ILEU's refusal to continue bargaining was extremely disappointing. No progress was made, and the next session has not yet been scheduled. The Company is hopeful that an agreement can be reached; and will continue to bargain in good faith toward that end. As a reminder, the Company's offer from July 19, 2018 remains out- standing. The Company hopes ILEU represented employees will have an opportunity to vote on the Company's final offer. The decision of whether or not a vote will be held Is made by the ILEU officers. Any questions on if the Company's final offer will be presented to membership for a vote should be di- rected to the ILEU. As always, your safety and the safety of all employees at the Clinton site is the single most important factor as these negoti- ations continue. Thank you for your continued patience and diligence. 26. The November 29 Bargaining Session During the 20th day of bargaining, the Union submitted a re- vised counterproposal package which included two revisions from its September 27 counterproposal. The personal time pro- posal was modified to reflect the one proposed on July 9 and the contract term was reduced to 3 years with pay increases of 3.5 percent for each year. Giglio replied that contracting out positions remained the “number one priority for the Company. We are not going to make an agreement unless contracting out is addressed.” He then clarified that statement by “finding it unlikely that we will be able to reach an agreement between the [Union] and the Com- pany unless we address the contracting out. I am not saying we can’t. I am saying we are here to bargain for that.” The parties then discussed the Union’s counterproposals. Gi- glio agreed to consider the Union’s contracting proposal, but said that PPTO was “not going to happen. You are governed by a [CBA]; therefore, you do not get the same benefits as everyone else . . . the Company has magnanimously offered one week of PPTO. . . So you have to bargain for it.” Giglio also rejected the Union’s personal time proposal due to “the ULP [charge] that was filed by the Union and determined by the NLRB that there was too much ambiguity in allowing su- pervisory discretion.” As Myers attempted to explain how the that they would have to spend hours formatting our proposal into what they wanted it to be and I didn’t think that was necessary.” (Tr. 133– 135.) EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 23 Union’s proposals benefited the Company, Giglio interjected that “we are not addressing contracting out. Are you refusing to bargain over contracting out?” Myers denied that the Union was refusing to bargain and insisted that the Company’s proposal was unacceptable. After caucusing for an hour and a half, Giglio countered by agreeing to the Union’s request for notification prior to the im- plementation of non-standard shift schedules and increasing base pay from five percent to six percent. Otherwise, the proposal did not deviate from the Company’s July 19 offer for contracting, no personal time and 1 week of PPTO. 27. The January 16, 2019 Bargaining Session Myers opened the twenty-first session by handing out a letter stating that an additional remedy from the arbitration ruling re- quired the parties to bargain any future United Way Day off. He reiterated that it was a benefit that the Union was still willing to discontinue in accordance with other benefits. Giglio replied that it was a step backward but opined the parties were close to resolving most items except for the contracting issue. He pro- posed that the parties pick up where they left off on November 29. Myers agreed. Myers began with the Union’s November 29 proposals relat- ing to non-standard shifts, the discontinuation of United Way Day off, 6 weeks of PPTO, and 32 hours of personal time. The Company responded with a counterproposal on nonstandard shifts. The Union did not submit a contracting proposal. 28. The February 28, 2019, and March 14, 2019 Bargaining Sessions The parties met two additional times, most recently 1 week before the hearing on Marc 14, 2019. Transcripts of those ses- sions were not offered into evidence. LEGAL ANALYSIS The General Counsel alleges that the Company violated Sec- tion 8(a)(5) and (1) by conducting the twenty-three bargaining sessions in bad faith. Specifically, she describes eleven different instances that evidence the Company’s bad faith in the bargain- ing process, portraying the Company as scheming at every pos- sible turn to thwart the Union and engage in surface bargaining. She also alleges four 8(a)(1) violations. The Company denies each specific allegation of bad faith and presents its bargaining representatives as reasonable but hard bargainers. It characterizes the Union as intransigent and blames the breakdown of the bargaining process on irreconcilable dif- ferences between the Union and itself, insisting bad faith on its part had nothing to do with these protracted negotiations. I. BAD FAITH GENERALLY The duty to bargain in good faith in Section 8(a)(5) requires that an employer bargains with the “sincere purpose to find [a] basis of agreement” with the Union. Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984). To comport with this duty, an employer must make “reasonable effort in some direction to compose its differences with the union.” Ibid. An employer fails to satisfy this duty when it “will only reach an agreement on its own terms and none other.” Mid-Continent Concrete, 336 NLRB 258, 259 (2001), enfd. 308 F.3d 859 (8th Cir. 2002). To determine whether an employer failed to bargain in good faith, the Board examines the totality of the conduct at and away from the bargaining table. See Public Service Co. of Oklahoma, 334 NLRB 487, 488–490 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003) (examining the total content of the employer’s activity to determine whether it violated the Act). This includes the nature of the bargaining demands, unilateral changes, withdrawal of al- ready-agreed-upon provisions without sufficient explanation, the failure to provide relevant information, and unlawful conduct away from the bargaining table. Mid-Continent Concrete, supra at 261. II. INTRUSION INTO THE UNION The General Counsel alleges that the Company intruded by asking for internal Union information at the May 21 and 29 meet- ings and directly dealing with bargaining unit members in the July 3 email. In support of this position, the General Counsel contends that the requests for information and email to employ- ees amounted to an impermissible attempt to influence internal Union processes. The Company denies that it unlawfully tried to influence the ratification vote by asking for information or di- rect dealing. It further argues that even if it did engage in direct dealing, it adequately repudiated any unlawful conduct. A. Direct dealing An employer directly deals with bargaining unit members when it: (i) communicates directly with union-represented em- ployees; (ii) to establish or change wages, hours, and terms and conditions of employment or to undercut the role of the union; and (iii) does so to the exclusion of the union. Metalcraft of May- field, 367 NLRB No. 116, slip op. at 8 (2019) (employer “sent the . . . letter directly to Union employees and did not provide a copy to the Union”). Cf. Permanente Medical Group, Inc., 332 NLRB 1143, 1144 (2000) (no purpose to exclude when employer included union in feedback for implementation of a new system). The Board applies a totality-of-the-circumstances inquiry when determining whether an employer intends to undercut the un- ion’s role. See Public Service Co. of Oklahoma, supra. Here, the Company communicated directly with union-repre- sented employees in the July 3 email, meeting the first prong of the Permanente test. Permanente, supra. By sending the July 3 email, the Company attempted to coerce the Union to hold a rat- ification vote for the contract that would result in changes to the wages and hours. The Company also used this email to undercut the Union’s bargaining position since the bargaining committee did not acquiesce to the Company’s proposals at the time. In- stead, the Company encouraged employees to ask their bargain- ing representative for a ratification vote rather than leaving it to internal union processes. Thus, the Company’s conduct met the second prong of the Permanente test. Cf. Southern California Gas Co., 316 NLRB 979, 981–982 (1995) (employer did not meet the second prong by merely collecting information from employees rather than communicating proposals to them). Fi- nally, the Company excluded the Union by not sending it the July 3 email to the Union, thus satisfying the third prong of the Per- manente test. Metalcraft of Mayfield, supra. The Company argues that the emails constituted a simple communication of the way it viewed the bargaining process to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24 unit members. Ye it concedes that the communication conveyed Giglio’s “expectation” that the Union hold a vote, conveying an effort to changes terms and conditions of employment. Cf. Southern California Gas Co., supra. Accordingly, the Company engaged in direct dealing with bargaining unit employees. When an employer engages in direct dealing, it can repudiate its conduct under the Passavant standard. To make an effective repudiation under Passavant, an employer must specifically re- pudiate the coercive conduct in a timely and unambiguous man- ner. Passavant Memorial Area Hospital, 237 NLRB 138, 138 (1978). The repudiation must also be free from other proscribed illegal conduct, adequately published, and free of subsequent il- legal conduct. Ibid. An employer adequately publishes a repu- diation when the employer communicates it to all employees who received the coercive communication, not just to bargaining unit members. Auto Workers Local 785, 281 NLRB 704, 707 (1986). Here, the Company sought to repudiate its July 3 email on July 28 but did not publish it adequately. By only sending the repu- diation to bargaining unit employees, the Company violated the requirement in Auto Workers Local 785 to communicate the re- pudiation to all employees who received the coercive communi- cation, not just the bargaining unit employees. 281 NLRB at 707. Therefore, the Company’s repudiation is insufficient. The Company also seeks refuge in Eagle Transport Co., where an employer did not violate the Act by unilaterally cor- recting miscalculated paychecks. 338 NLRB 489, 490 (2002) (reasoning that a mistake unilaterally corrected did not constitute a unilateral change). There, the Board reasoned that punishing an employer for a simple mistake which it promptly corrected would exceed the Act’s scope. Ibid. The Company’s compari- son, however, does not hold water because the violation in Eagle Transport Co. was unintentional, while the violation here was clearly intended (i.e. not sending the repudiation to all affected employees). Moreover, Eagle Transport Co. analyzes whether a unilateral change in wages without bargaining was unlawful. Ibid. This is inapplicable as to the question of whether the Com- pany adequately published its repudiation. Thus, the Company unlawfully engaged in direct dealing with unit employees and failed to adequately repudiate that action in violation of Section 8(a)(5) and (1). B. Intrusion into the certification process A union has sole authority as to when or whether it will submit a contract for ratification to its membership. M&M Oldsmobile, 156 NLRB 903, 905 (1966). Thus, an employer violates the Act by insisting that a union submits its contract for ratification. Dish Network Corp., 366 NLRB No. 119, slip op. at 3, fn.6 (2018). Employers can, however, communicate their opinions regarding the process a union uses for a vote. See, e.g., Westing- house Electric Corp., 232 NLRB 56, 56 (1977) (lawful commu- nication that a union strike vote was premature and that employ- ees should instead vote to certify the contract); Alexander Linn Hospital Assn., 244 NLRB 387, 392-393 (1979) (lawful commu- nication about which site could be used for a union vote); Put- nam Buick, Inc., 280 NLRB 868, 869 (lawful communication that employees should ratify contract individually and not hold strike vote). Here, the Company asked for internal Union information, in- cluding the procedures for ratification votes, at the May 21 and May 29 meetings. The Company also mentioned its desire for the Union to hold ratification votes over its proposed contract in the July 3 and September 28 emails. These communications, however, did not amount to insistence. The Union did not re- spond to the two requests for information on May 21 and 29, and the Company did not push back on this denial. The record re- flects no other requests, and the Company dropped the topic in future negotiations. Thus, the record does not support the Gen- eral Counsel’s allegation of unlawful insistence. Cf. Dish Net- work Corp., 366 NLRB at 3 (lack of good-faith bargaining when the employer refuses to meet until the Union agrees to submit a contract for ratification). Furthermore, the content of the emails merely indicates that the Company sought to communicate its views regarding the contract and its views as to whether the Union should hold a rat- ification vote on its proposals. The General Counsel stresses that the Company said that failing to ratify its proposal at that meet- ing would result in a much worse offer at the June 29 meeting. Giglio made that statement, however, to condition the ac- ceptance of a new CBA on the contracting side letter—not to make the Union hold a vote on the contract. Like in the cases cited above, the Company lawfully communicated its opinion in a way that demonstrates no coercive intent. Accordingly, this allegation is dismissed. III. REFUSAL TO BARGAIN OVER PERSONAL TIME AS RETALIATION FOR FILING UNFAIR LABOR PRACTICES CHARGE The General Counsel alleges that the Company refused to bar- gain with the Union over personal time policies in retaliation for the Union filing a previous unfair labor practice charge against the Company. The Company denies this allegation and insists that it refused to adopt the flexible policy proposed by the Union because the previous charge alleged that supervisors arbitrarily applied their discretion. Personal time is a mandatory subject of bargaining. Venture Packaging, Inc., 294 NLRB 544, 553 (1989). Refusal to bargain over a mandatory subject violates the duty of good faith. Id. at 544. When examining the refusal to bargain, the Board consid- ers factors such as the motives and parties’ states of mind, whether the parties have maintained an ongoing relationship, and whether other unfair labor practices are involved, among others. Chevron Chemical Co., 261 NLRB 44, 45-47 (1982), enfd. 701 F.2d 172 (5th Cir. 1983). The Board examines these factors with an emphasis on the totality of the circumstances. See Public Ser- vice Co. of Oklahoma, 334 NLRB at 488-490. Several times throughout the bargaining sessions, the Com- pany declared that it would not bargain over personal time be- cause the Union previously filed an unfair labor practice charge. On July 8, the Company stated that it was not interested in bar- gaining about personal time because of the previous charge and “[the Union’s] aggressive actions.” On September 4, the Com- pany stated that “the gravy train has moved on” regarding a fa- vorable personal time policy due to the previous charge. The Company reiterated the same position at the November 29 meet- ing. In each circumstance, the Company clearly expressed a re- fusal to bargain due to the previous unfair labor practice charge. EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 25 The Company seeks to justify these statements as a modifica- tion of the policy to comply with the Act, but the evidence demonstrates otherwise. Cf. Otis Elevator Co., 283 NLRB 223, 226 (1987) (no violation where the employer refuses to budge on one issue due to disagreement rather than any underlying unfair labor practice). Accordingly, the Company violated Section 8(a)(1) by refusing to bargain over personal time in retaliation for the Union filing a previous unfair labor practice charge. IV. DENIGRATION OF THE UNION The General Counsel alleges that the Company unlawfully denigrated the Union at the June 29 bargaining session and in the September 28 email. Specifically, the General Counsel alleges that the Company made false accusations about the Union that effectively drove a wedge between employees and the Union and implied that the Union bore fault for employees not receiving improved benefits. The Company denies these allegations and characterizes its communications as accurate descriptions of the bargaining process to employees. Employers denigrate unions in violation of the Act when they discourage the exercise of Section 7 rights. Dayton Hudson Corp., 316 NLRB 477, 483 (1995) (violation when employer de- nounced one employee in the presence of another). One way they denigrate unions is by communicating with employees in a way that places the burden on the union for the employer with- holding benefits. See, e.g., Met West Agribusiness, 334 NLRB 84, 84 (2001) (employer’s “statement placing the onus on the Union for denying a wage increase clearly violated the Act”); Atlantic Forest Products, 282 NLRB 855, 858 (1987) (attribu- tion to union of denial of wage increase is unlawful). Another way is by making false communications that will likely drive a wedge between the union and employees. See Armored Transport, 339 NLRB 374, 378 (2003) (employer denigrated the union by trying to drive a wedge between the union and employ- ees). The employer can, however, inform employees about the status of negotiations, proposals previously made to the union, or its version of a breakdown in negotiations. Procter & Gamble Manufacturing Co., 160 NLRB 334, 340 (1966) (“As a matter of settled law, Section 8(a)(5) does not . . . preclude an employer from communicating, in noncoercive terms, with employees dur- ing the collective bargaining negotiations.”). Here, the Company took several actions that implied the union bore fault for employees not receiving better benefits. At the June 29 bargaining session, the Company said that the Union be- gan to act regressively and stated that Myers was poorly repre- senting bargaining unit members. Read in this context, the Sep- tember 28 email, by characterizing the Union as ungrateful and comparing employees’ contemporary benefits to those proposed by the Company, implied that the Union bore fault for passing on the opportunity to increase benefits. Additionally, the Com- pany included false communications in its July 3 email. It cor- rected these misconceptions in the July 28 email, but waiting nearly a month to do so tended to drive a wedge between em- ployees and the Union. These communications included enough disparaging content that in the totality of the circumstances these messages denigrated the Union. See Public Service Co. of Ok- lahoma, supra. The Company characterizes these messages as merely informing the Union of its version of the breakdown in negotia- tions, citing Procter & Gamble, supra. Despite this characteri- zation, the unflattering portrayal of the Union in these emails un- lawfully disparaged it because it placed the burden on the Union for employees not receiving improved benefits. Met West Agri- business, supra. Thus, the Company violated Section 8(a)(1) by disparaging the Union and its leadership on June 29 and Septem- ber 28, 2018. V. UNILATERAL CHANGE TO THE APPRAISAL SYSTEM The General Counsel alleges that the Company unilaterally changed the terms of the appraisal system. The Company does not deny the unilateral change. It argues, however, that it law- fully changed the appraisal system in a non-material way and, in any event, that the Union waived its right to bargain over changes to the appraisal system. Employers violate the Act when they enact unilateral changes of mandatory subjects without giving the union an opportunity to bargain. NLRB v. Katz, 369 U.S. 735, 747 (1962). Specifi- cally, an employer must notify and bargain with its employees’ bargaining representative before changing employment ap- praisal systems. Safeway Stores, 270 NLRB 193, 195 (1984). Unilateral changes to appraisal systems only violate the Act, however, when those changes are “material, substantial, [or] sig- nificant.” Alamo Cement Co., 281 NLRB 737, 738 (1986). Changes in policy that modify employee incentives are mate- rial changes. Murphy Diesel Co., 184 NLRB 757, 764 (1970), enfd. 454 F.2d 303 (7th Cir. 1971) (material change where change from informal time requirements to requiring the submis- sion of written excuses for lateness). Mere changes in the way an employer conducts an existing procedure are not material, though. Rust Craft Broadcasting of New York, 225 NLRB 327, 327 (1976) (change from handwritten timecards to time clocks not significant); UNC Nuclear Industries, 268 NLRB 841 (1984) (change from non-oral to oral startup readiness tests for nuclear operators not significant). When changes are so minimal they lack impact, employers can unilaterally enact them. W-I Forest Products Co., 304 NLRB 957, 959 (1991) (citing Rust Craft Broadcasting, supra). Before the Company changed the appraisal system, the form contained eleven specific criteria for evaluating employees. These evaluations led to promotion or discipline if employees met specific thresholds on the eleven factors. After the unilateral change, the form only contained three general criteria that gave reviewing supervisors significantly more discretion. The Com- pany also did not specify how promotion and discipline would work under the new system. These changes drastically affect the incentives of the employees due to changing what employees strive toward when seeking to gain promotion or avoid disci- pline. The transformation here from many discrete factors to a few generalized factors mirrors the large shift in Murphy Diesel. Murphy Diesel, supra. The Company argues that this change merely modifies the way supervisors record evaluations. This assertion, however, flatly contradicts the Company’s testimony that it currently had no specific process addressing promotion and discipline under the new system. The changes here bear no resemblance to the minor changes in Rust Craft Broadcasting and UNC Nuclear. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 Those changes did not materially change employee incentives; these changes will. Thus, the change is material. The Company next argues that the Union waived its right to bargain over these changes in the CBA. Unions can waive the ability to bargain over unilateral changes in terms or conditions of employment through a collective-bargaining agreement. Omaha World-Herald, 357 NLRB 1870, 1871 (2011). This waiver must be clear and unmistakable. New York Mirror, 151 NLRB 834, 839–840 (1965) (“The Board will not find that con- tract terms of themselves confer on the employer a management right to take unilateral action on a mandatory subject unless the contract expressly or by necessary implication confers such a right.”); Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983) (“We will not infer from a general contractual provision that the parties intended to waive a statutorily protected right un- less the undertaking is explicitly stated.”). Pursuant to a waiver, an employer can lawfully enact a unilat- eral change if the employer has a sound basis for ascribing a par- ticular meaning to the contract. Vickers, Inc., 153 NLRB 561, 570 (1965) (“The Board is not the proper forum for parties seek- ing an interpretation of their collective-bargaining agreement. Where . . . an employer has a sound arguable basis for ascribing a particular meaning to his contract and his action is in accord- ance with the terms of the contract as he construes it, . . . the Board ordinarily will not exercise its jurisdiction to resolve a dis- pute between the parties as to whether the employer’s interpre- tation was correct”). The Board will not find a waiver, however, when the employer presents the bargaining representative with a “fait accompli.” Harley-Davidson Motor Co., 366 NLRB No. 121, slip. op. at 2 (2018). Article XXVI, Section 6 of the CBA permits the Company to revise appraisal procedures “as necessary, after Management has consulted with the Union and taken its views into consideration.” This clause establishes a process allowing the Company to change appraisal procedures in a way that sidesteps its statutory obligation to bargain. The Company thus has a sound basis for interpreting this text as a waiver since the Union agreed to only consult with the Company. Vickers, Inc., supra. The General Counsel argues that this language does not waive the right to bar- gain since it does not mention any release of the right to bargain under the Act, but such an explicit release is not necessary given the freedom afforded to employers with a reasonable understand- ing of a contract. Ibid. Thus, the Union waived its rights to bar- gain over changes to the appraisal system. The Company did, however, present the change as a fait ac- compli. After notifying employees of the change in a March 7 email, the Union emailed the Company, laying out its concerns. The Company and the Union discussed them, and the Company eventually proceeded with the change as planned on March 28. By not taking any of the Union’s concerns into account, the Company “merely [presented information] concerning the fait accompli.” Harley-Davidson Motor Co., supra at 3. In Harley- Davidson, the Board found notice of under a month to be insuf- ficient. Ibid. The 21-day time period between notice and imple- mentation is insufficient under Harley-Davidson. Ibid. (finding a time of 20 days insufficient). Therefore, the Company violated Section 8(a)(5) and (1) by enacting a unilateral change to its ap- praisal system without first notifying and consulting with the Union. VI. BAD FAITH DEMANDS IN THE BARGAINING PROCESS The General Counsel alleges that the Company bargained with a general demeanor of bad faith throughout the bargaining process by making repeated unlawful demands, including condi- tioning acceptance on a contracting side letter that addresses a permissive subject and foreshadowing an impasse. She also al- leges three per se violations: (i) offering PPTO in exchange for decertifying the Union; (ii) demanding to bargain non-economic issues to conclusion prior to bargaining economic issues to con- clusion; and (iii) conditioning acceptance of the contract on a contracting side letter that is repugnant to the Act. A. Promise of PPTO if Employees Decertified the Union Employers cannot give an implied promise of benefits if a rea- sonable employee thinks he receives the benefits in exchange for voting out the union. See Viacom Cablevision, 267 NLRB 1141, 1141 fn. 3 (1983) (describing Etna Equipment & Supply Co., 243 NLRB 596 (1979), where the Board found a violation when the employer went to great lengths to contrast union and non-union pension plans). One way they make an illegal implied promise is by comparing the benefits afforded to union members and non- members. Grede Plastics, 219 NLRB 592, 593 (1975) (letter stressing non-union employees receive better wages and benefits than union employees illegally implies better benefits in ex- change for decertifying the union). An employer has a general right to compare represented and unrepresented employees’ wages and benefits absent a threat, though. Langdale Forest Prods., 335 NLRB 602, 602 (2001) (finding lawful statements about a legal obligation to bargain accompanied with compari- sons of union and non-union benefits). Here, when Myers asked Giglio at the July 9 meeting what the Union could give in return for the Company’s agreement to eight weeks of PPTO, Giglio said the employees could “go without a Union.” Myers sought clarification and asked Giglio whether decertification of the Union would lead to 8 weeks of PPTO. Gi- glio replied, “You said that, I didn’t.” These statements clearly express an offer to exchange PPTO for decertification of the Un- ion. Compare Grede Plastics, supra, with Langdale Forest Prods., supra. The Company argues that Giglio made these remarks sarcas- tically. The facts demonstrate, however, that Giglio intentionally made these statements during protracted bargaining over PPTO. But even if the statement was intended as sarcastic, the Board analyzes its legality based on its impact on a reasonable em- ployee. Viacom Cablevision, supra. A reasonable employee would understand such statements as implying a promise of a benefit in exchange for decertifying the Union. Under the cir- cumstances, Giglio’s July 9, 2018 statement violated Section 8(a)(5) and (1). B. Bargaining Non-Economic Issues to Conclusion When an employer inflexibly insists on bargain non-economic issues to completion before addressing economic issues, the em- ployer acts in bad faith. John Wanamaker Philadelphia, 279 NLRB 1034, 1034 (1986). Merely deferring the discussion of economic issues to a later date, however, does not violate the Act so long as the deferral does not lead to undue delay. Long Island EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 27 Jeep, Inc., 231 NLRB 1361, 1367 (1977). In Long Island Jeep, the Board found no undue delay when parties did not bargain over economic issues until the fifth meeting. Id. at 1361. Here, the General Counsel characterizes the Company as un- yielding and ceaselessly insistent on bargaining non-economic issues to completion. The facts do not demonstrate that, though. The Company opened the first bargaining session by stating its desire to bargain non-economic issues to completion. The Union did not agree to this demand but bargained only over noneco- nomic issues for the first few meetings. In subsequent meetings, the Company and the Union started to discuss economic issues (personal time on May 21, wages on May 25, wage data on May 31). This behavior demonstrates that the Company did not insist on bargaining non-economic issues to completion. In fact, it be- gan bargaining economic issues at the sixth meeting, similar to the employer and union waiting to discuss economic issues until the fifth meeting in Long Island Jeep. Ibid. Therefore, the Com- pany’s position as to the timing for discussion of the economic issues did not violate Section 8(a)(5) and (1). C. The Side Letter as Repugnant to the Act Employers can legally hard bargain over provisions to arbi- trate. Chevron Chemical Co., 261 NLRB at 46. Unions can also completely waive their rights to the Act through their collective- bargaining agreements. See Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (the Act does not override the require- ments of the Federal Arbitration Act); Id. at 1631 (courts shall “enforce arbitration agreements according to their terms, includ- ing terms that specify . . . the rules under which that arbitration will be conducted” (emphasis original) (quoting American Ex- press Co. v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013)). Here, the General Counsel first argues that waiving rights to the Act under an arbitration agreement is repugnant to the Act, claiming that the purpose of the Act requires preventing employ- ees from waiving their rights to the Act under arbitration agree- ments. She also cites Board precedent that significantly predates Epic Systems and the modern line of Federal Arbitration Act precedent. But these arguments hold no weight. The Court in Epic Systems summarily rejected the General Counsel’s argu- ment. Id. at 1631 (rejecting a purposive argument against en- forcement of the Federal Arbitration Act and citing many previ- ous decisions where that same argument failed). Thus, a waiver of rights to the Act under an arbitration agreement is not repug- nant to the Act itself. The General Counsel also asserts that the Company unlaw- fully insisted on the arbitration waiver as a side term. If it did, however, it did so lawfully because the decision whether to arbi- trate claims is a mandatory subject of bargaining. See Chevron Chemical Co., supra. The Company did no such thing, though. It offered the arbitration term at the June 4 bargaining session in a side letter. At the July 19 session, after the Union indicated it would not agree to that term, the Company dropped the term from the side letter. The Company cannot unlawfully insist on a term it eventually dropped. See Smurfit Stone Container Enter- prise, 357 NLRB 1732, 1735–1736 (2011), enfd. 594 Fed. Appx. 897 (9th Cir. 2014) (“The proper test for unlawful insistence is whether agreement on the mandatory subjects of bargaining [was] conditioned on the nonmandatory subject of bargaining.”). Thus, the Company’s efforts to have the Union agree to an arbi- tration waiver did not violate Section 8(a)(5) and (1). That alle- gation is dismissed. D. Conditioning on the Side Letter as Bad Faith An employer bargains in bad faith when it unlawfully insists on a term that is a permissive subject of bargaining. Id. at 1732. “The proper test . . . is whether agreement on the mandatory sub- jects of bargaining [was] conditioned on the nonmandatory sub- ject of bargaining.” Id. at 1735–1736 (2011). Altering the scope of a bargaining unit is a permissive subject. See Wackenhurt Corp., 301 NLRB 835, 852 (2005) (“Once a specific job has been included within the scope of a bargaining unit by either Board action or consent of the parties, the employer cannot uni- laterally remove or modify that position without first securing the consent of the union or the Board.” (quoting Hill-Rom Co. v. NLRB, 957 F.2d 454, 457 (7th Cir. 1992)). The Company cites the Supreme Court’s decision in Fibre- board Paper Products Corp. v. NLRB to establish that contract- ing to alter the scope of the bargaining unit is a mandatory sub- ject of bargaining. 379 U.S. 203 (1964). In doing so, however, the Company ignores the Court when it states: We are thus not expanding the scope of mandatory bargaining to hold, as we do now, that the type of ‘contracting out’ in- volved in this case—the replacement of employees in the ex- isting bargaining unit with those of an independent contractor to do the same work under similar conditions of employment— is a statutory subject of collective bargaining under § 8(d). Id. at 215. Thus, when an employer unlawfully insists on chang- ing the scope of the bargaining unit as a term of employment, it violates the Act. Here, the Company insisted on altering the scope of the bar- gaining unit as a condition of its agreement at several meetings. At the third meeting, the Company proposed allowing contract- ing up to 5 percent of the bargaining unit and up to 10 percent of any job family for no more than 6 months without the consent of the Union. At this meeting, when the Union objected, Giglio said that removing this provision was “not [a] change[] that the Company would be interested in.” The Company argues that this conduct is not intended to change the scope of the bargaining unit, but that has no merit because the Supreme Court in Fibre- board held otherwise. Ibid. (describing changing the bargaining unit as replacing bargaining unit employees with independent contractors who perform the same work). At a side bar on May 31, the Company introduced a similar proposal. At the June 4 meeting, the Company said that it needed the Union to “come to an agreement on contracting before [it could] provide a last best and final.” The Union received a letter on June 5 stating the same information. On June 19, the Union acquiesced somewhat to the Company’s demands, but the Com- pany returned on June 25 and insisted on the same proposal. On June 29 the Company conveyed an LBFO that included language on contracting. At that meeting, the Company said “the offer would go down significantly” if the Union did not ratify the pro- posal with contracting terms by July 11. At the July 9 meeting, the Company continued to insist on contracting language, as it DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28 did on September 4. On September 27, the Union offered a coun- terproposal that changed the contracting term, but the Company excoriated the Union for not using the proper format to the point that the Union had to leave the meeting. On November 29, the Company again said that it could not reach an agreement with the Union without this proposal. The Company repeatedly insisted that it could not reach a final agreement without an agreement on its contract work proposal. This demonstrates that the Company conditioned a final agree- ment on the contracting term, a permissive subject. The Com- pany argues, however, that insistence is not unlawful as long as the insisting party does not press to impasse, citing Taft Broad- casting Co., 274 NLRB 260 (1985). That position is meritless, however, since the Supreme Court, in NLRB v. Borg-Warner Corp., held otherwise. See 356 U.S. 342, 346-348 and 350 (1958) (describing the insistence in the absence of impasse as violating the Act). The Company only needs to unlawfully con- dition its agreement to violate the Act—and it did. Thus, the Company violated Section 8(a)(5) and (1). E. Foreshadowing Impasse as Bad Faith An employer bargains in bad faith when it does not bargain with a sincere effort to reach an agreement. Mid-Continent Con- crete, 336 NLRB at 259. Here, the General Counsel alleges that the Company foreshadowed the rocky road ahead when Giglio expressed concern on June 4 that the Union would not acquiesce to contract work proposal and, as a result, impasse would ulti- mately occur. Giglio made this statement, however, when ex- pressing fear of an impasse before June 15, the CBA’s expiration date. Impasse was never declared at any of the sessions, nor did the Company seek to manufacture one. Accordingly, this alle- gation is dismissed. F. General Conduct The Company’s general conduct throughout the entire bar- gaining process demonstrates overall bad faith on its part. Alt- hough the Company did not violate the Act in every manner al- leged by the General Counsel, it did engage in several unfair la- bor practices. Specifically, the Company directly dealt with unit members, refused to bargain over personal time in retaliation for the Union filing unfair labor practice charges, denigrated the Un- ion, unilaterally changed the appraisal system in violation of the Act, offered to decertify the Union in exchange for PPTO, and conditioned a new CBA on a permissive contracting side letter. The Board examines the totality of the circumstances when examining whether the conduct of an employer constitutes bad faith. Public Service Co. of Oklahoma, 334 NLRB at 488–490. The total conduct of the Company here demonstrates numerous instances of bad faith. See Mid-Continent Concrete, supra at 261 (describing various indicia of bad faith, factors that appear here). Thus, the Company violated Section 8(a)(5) and (1) by its overall conduct throughout the bargaining process. CONCLUSIONS OF LAW 1. The Respondent, ExxonMobile Research & Engineering Company, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is, and at all material times was, the exclusive bargaining representative for the following appropriate unit of employees (the bargaining unit): Accountant, Accountant Senior, Accounting Assistant, Audio -Visual Assistant, Audio - Visual Technician, Audio -Visual Technician Senior, Electronics Technician Assistant, Electron- ics Technician, Electronics Technician Senior, Graphics De- sign Assistant, Graphic Design Technician, Graphics Design Technician Senior, Administrative Assistant, Administrative Technician, Senior Administrative Technician, Information Assistant, Information Technician, Information Technician Senior, Maintenance and Operations Assistant, Maintenance and Operations Technical Assistant, Materials and Services Coordinator, Mechanic, Mechanic Senior, Medical Laboratory Technician, Medical Laboratory Technician Senior, LPS Co- ordinator, Senior LPS Coordinator, Reproduction Services As- sistant, Reproduction Services Technician, Senior Reproduc- tion Services Technician, Technician, Research Technician, Research Technician Senior, Services Trainee, Systems Assis- tant, Systems Technician, Systems Technician Senior, Utilities Operator, Utilities Operator Senior, Utilities Operator (Other Plant) Senior, Wastewater Treatment Operator, Wastewater Treatment Operator Senior, X -Ray Technician, excluding all other employees, office clerical employees, audit inspectors, guards, and supervisors as defined in the Act. 5. The Respondent violated Section 8(a)(5) and (1) of the Act by: (a) Failing and refusing to bargain collectively and in good faith with the Union over personal time as the exclusive bargain- ing representative of its employees on July 8, September 4 and November 29, 2018; (b) Implementing material changes to its employee perfor- mance review system on March 28, 2018 without prior notice to the Union and affording it an opportunity to bargain with respect to this conduct and the effects of this conduct; (c) Bypassing the Union and dealing with employees in the bargaining unit on July 3, 2018, through Employee Information Bulletin 2018-06; and (d) Its failure to bargain in good faith by unlawfully insisting on reaching an agreement on contracting out unit employees’ work, a permissive subject of bargaining, as a condition to reach- ing a final agreement. (e) Its overall failure and refusal to bargain collectively and in good faith with Union as recited above during the period of March 2018 to January 2019. 6. The Respondent violated Section 8(a)(1) by: (a) Failing and refusing to bargain collectively and in good faith with the Union over personal time as the exclusive bargain- ing representative of its employees on July 8, September 4 and November 29, 2018; (b) Disparaging the Union’s leadership during bargaining on June 29, 2018 and by email on September 28, 2018; and (c) Promising to grant unit employees 8 weeks of parental paid time off on July 8, 2018, if they withdrew from Union represen- tation. 7. The aforementioned unfair labor practices affected com- merce within the meaning of Section 2(6) and (7) of the Act. EXXONMOBIL RESEARCH & ENGINEERING CO., INC. 29 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, including rescinding the unlawful unilateral change to employee performance appraisals, make whole em- ployees for any loss of pay or benefit they may have suffered as a result of said unilateral change in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River, 356 NLRB 6 (2010). Additionally, having found that the Respondent unlawfully conditioned negotiations with the Union on a nonmandatory sub- ject of bargaining—the contracting out of unit employees’ work—it is ordered, upon request by the Union, to bargain col- lectively and in good faith concerning terms and conditions of employment of unit employees, and, if an understanding is reached, to embody it in a signed agreement. Upon resumption of bargaining, it is further ordered to reinstate all tentative agree- ments reached during contract negotiations. See Health Care Services Group, 331 NLRB 333 (2000). The Respondent shall also be ordered to schedule meetings to ensure the widest possible attendance where a representative shall read the notice to employees during worktime and in the presence of a Board agent or, in the alternative, have a Board agent read the notice to employees during worktime in the pres- ence of the Respondent’s supervisors and agents. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended20 ORDER The Respondent, ExxonMobile Research & Engineering Company, Inc., Annandale, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Changing the terms and conditions of employment of its unit employees without first notifying the Independent Labora- tory Employees Union, Inc. (the Union) and giving it an oppor- tunity to bargain. (b) Disparaging or denigrating the Union as the exclusive col- lective-bargaining representative of unit employees. (c) Bypassing the Union and dealing directly with employees in the bargaining unit regarding terms and conditions of employ- ment. (d) Promising to grant unit employees parental paid time off if they withdraw from the Union. (e) Insisting on bargaining over permissive subjects as a con- dition to reaching a final collective-bargaining agreement. (f) 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. 20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der 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. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Upon request of the Union, rescind the unilateral change to the employees’ performance appraisal system. (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the follow- ing bargaining unit: Accountant, Accountant Senior, Accounting Assistant, Audio- Visual Assistant, Audio-Visual Technician, Audio-Visual Technician Senior, Electronics Technician Assistant, Electron- ics Technician, Electronics Technician Senior, Graphics De- sign Assistant, Graphic Design Technician, Graphics Design Technician Senior, Administrative Assistant, Administrative Technician, Senior Administrative Technician, Information Assistant, Information Technician, Information Technician Senior, Maintenance and Operations Assistant, Maintenance and Operations Technical Assistant, Materials and Services Coordinator, Mechanic, Mechanic Senior, Medical Laboratory Technician, Medical Laboratory Technician Senior, LPS Co- ordinator, Senior LPS Coordinator, Reproduction Services As- sistant, Reproduction Services Technician, Senior Reproduc- tion Services Technician, Technician, Research Technician, Research Technician Senior, Services Trainee, Systems Assis- tant, Systems Technician, Systems Technician Senior, Utilities Operator, Utilities Operator Senior, Utilities Operator (Other Plant) Senior, Wastewater Treatment Operator, Wastewater Treatment Operator Senior, X-Ray Technician, excluding all other employees, office clerical employees, audit inspectors, guards, and supervisors as defined in the Act. (c) Make whole the employees for any loss of earnings and other benefits suffered as a result of the change in the employees’ performance appraisal system. (d) On request, bargain with the Union in good faith to an agreement or impasse concerning any proposed changes in terms of employment. (e) Within 14 days after service by the Region, take the fol- lowing actions to notify employees of this Order at its facility in Annandale, New Jersey: (1) Post copies of the attached notice marked “Appendix.”21 Copies of the notice, on forms provided by the Regional Director for Region 22, 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 customarily posted. (2) Distribute the notices 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 em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or 21 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30 covered by any other material. In the event that, during the pen- dency of these proceedings, the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since March 28, 2018. (3) Schedule meetings to ensure the widest possible attend- ance where a representative shall read the notice to employees during worktime and in the presence of a Board agent or, in the alternative, have a Board agent read the notice to employees dur- ing worktime in the presence of the Respondent’s supervisors and agents. The complaint is dismissed insofar as it alleges violations of the Act that I have not specifically found. Dated, Washington, D.C. June 12, 2019 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 implement any changes in wages, hours or other terms and conditions of employment of the following employees exclusively represented by the International Association of Ma- chinists and Aerospace Workers, Tyson Lodge No. 175, District 98 (the Union) without first notifying and affording the Union the opportunity to collectively bargain over said changes: Accountant, Accountant Senior, Accounting Assistant, Audio- Visual Assistant, Audio- Visual Technician, Audio -Visual Technician Senior, Electronics Technician Assistant, Electron- ics Technician, Electronics Technician Senior, Graphics De- sign Assistant, Graphic Design Technician, Graphics Design Technician Senior, Administrative Assistant, Administrative Technician, Senior Administrative Technician, Information Assistant, Information Technician, Information Technician Senior, Maintenance and Operations Assistant, Maintenance and Operations Technical Assistant, Materials and Services Coordinator, Mechanic, Mechanic Senior, Medical Laboratory Technician, Medical Laboratory Technician Senior, LPS Coordinator, Senior LPS Coordinator, Reproduction Services Assistant, Reproduction Services Technician, Senior Repro- duction Services Technician, Technician, Research Techni- cian, Research Technician Senior, Services Trainee, Systems Assistant, Systems Technician, Systems Technician Senior, Utilities Operator, Utilities Operator Senior, Utilities Operator (Other Plant) Senior, Wastewater Treatment Operator, Wastewater Treatment Operator Senior, X-Ray Technician, excluding all other employees, office clerical employees, audit inspectors, guards, and supervisors as defined in the Act. WE WILL NOT disparage or denigrate the Union as the exclu- sive collective-bargaining representative of unit employees. WE WILL NOT bypass the Union and deal directly with employ- ees in the bargaining unit regarding terms and conditions of employment. WE WILL NOT promise to grant unit employees parental paid time off if they withdraw from the Union. WE WILL NOT insist on bargaining over permissive subjects as a condition to reaching a final collective-bargaining agreement. WE WILL NOT 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. WE WILL, on request of the Union, rescind the unilateral change to the employees’ performance appraisal system. WE WILL, on request by the Union, bargain collectively and in good faith concerning terms and conditions of employment of unit employees, and, if an understanding is reached, embody it in a signed agreement. WE WILL, on request, bargain with the Union in good faith to an agreement or impasse concerning any proposed changes in terms and conditions of employment of employees in the follow- ing bargaining unit exclusively represented by the Union WE WILL make whole the employees for any loss of earnings and other benefits suffered as a result of the change in the em- ployees’ performance appraisal system. EXXONMOBIL RESEARCH & ENGINEERING COMPANY,INC. The Administrative Law Judge’s decision can be found at www nlrb.gov/case/22-CA-218903 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. 370 NLRB No. 118 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. District Hospital Partners, L.P. d/b/a The George Washington University Hospital, A Limited Part- nership, and UHS of D.C., Inc., General Partner and 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Re- gion a/w Service Employees International Union. Cases 05–CA–216482, 05–CA–230128, and 05– CA–238809 April 30, 2021 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS EMANUEL AND RING 1 There are no exceptions to the judge’s finding that the Respondent did not violate Sec. 8(a)(1) by telling employees, when it announced a new transit benefit, that “[p]reviously the union did not negotiate this benefit on your behalf so you did not receive it.” There are also no ex- ceptions to the judge’s finding that the Respondent’s “bargaining briefs”—summaries of the state of negotiations from the Respondent’s point of view—were lawful, and even if there were, those communica- tions were protected under Sec. 8(c). Thus, unlike our colleague, we do not rely on them in assessing the lawfulness of the Respondent’s initial bargaining proposals. The dissent takes the position that the 8(c)-protected status of the bar- gaining briefs does not preclude considering them as evidence of “the Hospital’s motivation.” Yes, it does. Evidence of “the Hospital’s moti- vation” would be relevant to whether the Respondent bargained with a purpose to frustrate agreement—i.e., whether it bargained in bad faith. But statements protected under Sec. 8(c) cannot be used as evidence of an unfair labor practice. 29 U.S.C. § 158(c). The cases the dissent relies on are distinguishable in two respects. First, the statements at issue in those cases were not found protected un- der Sec. 8(c). Second, those cases involved employers whose communi- cations to employees reinforced an unlawful “take-it-or-leave-it” ap- proach to collective bargaining, which the Respondent did not employ. In American Meat Packing Corp., 301 NLRB 835 (1991), at the outset of negotiations for a successor contract, the employer proffered a series of proposals, the most significant of which sought extensive changes in job classifications and wage rates. Three days later, the employer’s pres- ident, Herrmann, announced to employees that the proposal on job clas- sifications and wage rates “[would] go into effect on December 20, 1985,” the day after the current contract expired. Id. at 836. And in subsequent letters to employees, Herrmann “pictured the union negotia- tors as people with no legitimate role to play other than agree to the Re- spondent’s proposals.” Id. at 839. Meanwhile, in collective bargaining, it was starkly apparent that the employer had entered negotiations with a predetermined resolve not to budge from its initial proposals. Based on this “take-it-or-leave-it” stance, plus additional unlawful conduct, in- cluding direct dealing, unilateral implementation of the job classifica- tions proposal, and a threat of plant closure, the Board found that the statement to employees 3 days into negotiations further evidenced the employer’s “hostility to the bargaining process,” id. at 836, and that the totality of the evidence, including the employer’s communications to em- ployees, “manifested an intent to undermine employee support for the [u]nion and enable [the employer] to impose, virtually unchanged, what it unilaterally decided at the outset was a fair set of terms and conditions On September 4, 2019, Administrative Law Judge Mi- chael A. Rosas issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the Gen- eral Counsel and the Charging Party filed answering briefs, and the Respondent filed reply briefs. 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 exceptions1 and briefs and has decided to af- firm the judge’s rulings,2 findings,3 and conclusions only to the extent consistent with this Decision and Order. The principal issue in this case is whether the Respond- ent failed and refused to bargain in good faith with 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region (the Union) in violation of Section 8(a)(5) and (1) of the Act solely of employment.” Id. Notably, the Board rejected the judge’s reasoning that the employer’s bargaining proposals alone constituted bad-faith bar- gaining. Id. at 835. In General Electric Co., 150 NLRB 192 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970), the Board relied in part on a statement the employer made to employees, by means of which it “consciously placed itself in a position where it could not give unfettered consideration to the merits of any proposals the [u]nion might offer.” Id. at 196. Before bargaining commenced, the employer told employees that it would make “a fair and ‘firm’ offer that would include ‘everything’ shown by its total research to be in the common best interests of employ- ees, shareowners, and others concerned with the success of its business.” Id. at 216. Then, in negotiations, it told the union that “everything we think we should do is in the proposal and we told our employees that, and we would look ridiculous if we changed now.” Id. at 196. Here, unlike the employers in American Meat Packing or General Electric, the Respondent never refused to consider union proposals, did not adopt a take-it-or-leave-it posture, and did not use statements it made to employees as leverage in negotiations. And the General Counsel never contended otherwise: the only issue in this case is whether the Re- spondent’s proposals alone demonstrated bad-faith bargaining. Moreo- ver, as discussed in more detail below, after presenting its initial pro- posals to the Union, the Respondent demonstrated a willingness at the bargaining table to move from its starting positions, unlike the employers in the cases the dissent cites. 2 The Respondent has excepted to the judge’s ruling at the hearing to permit the General Counsel to amend the Amended Complaint to allege that the Respondent violated Sec. 8(a)(1) when, during its trial prepara- tion, it interviewed employees without first adequately advising them of their rights under Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf. de- nied 344 F.2d 617 (8th Cir. 1965). The Respondent asserted that Sec. 10(b) barred the allegation because it was not closely related to any of the timely-filed unfair labor practice charges against it. Although the judge granted the General Counsel’s request to amend, he found that the Respondent’s interviews did not violate Sec. 8(a)(1). No party excepted to the judge’s dismissal of the allegation. Accordingly, we find it unnec- essary to pass on the Respondent’s exception because it is moot. 3 The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because of the bargaining proposals it presented to the Un- ion during the course of the parties’ negotiations for a suc- cessor collective-bargaining agreement (CBA). The judge found that the Respondent’s bargaining proposals evi- denced unlawful surface bargaining.4 For the reasons dis- cussed below, we disagree with the judge. We find that, although the Respondent clearly engaged in hard bargain- ing, the General Counsel failed to show that the Respond- ent’s proposals in and of themselves demonstrated bad- faith bargaining. All other excepted-to findings depend on the surface-bargaining finding; reversing the judge’s deci- sion as to the latter, we necessarily reverse as to the for- mer. Accordingly, we dismiss the complaint in its en- tirety. Facts The judge’s decision goes into far more detail concern- ing what transpired at the parties’ collective-bargaining meetings than we will attempt here. What follows are the more salient facts. For more than 20 years, the Union represented a bar- gaining unit of around 150 full- and part-time employees of the Respondent who worked in the Environmental Ser- vices, Linen Services, Ambulatory Care Center, and Food Services Departments of the George Washington Univer- sity Hospital in Washington, D.C. The parties’ most re- cent CBA expired on December 19, 2016. In anticipation of the CBA expiring, on November 21 and 22, 2016, the parties held their first negotiation sessions. The parties discussed bargaining schedules, “housekeeping” items, and several contract provisions. Wanting to rectify what it viewed as numerous deficiencies in the current CBA, the Respondent mentioned upfront that it would seek to sub- stantially alter many of the contract provisions to make them less antiquated and ambiguous. Specifically, the Re- spondent told the Union that it sought “a contract that is clear [] to the managers that will utilize it” and explained We have carefully examined the record and find no basis for reversing the findings. In addition, some of the Respondent’s exceptions allege that the judge’s rulings, findings, and conclusions demonstrate bias and preju- dice. On careful examination of the judge’s decision and the entire rec- ord, we are satisfied that the Respondent’s contentions are without merit. 4 The judge also found that the Respondent’s alleged bad-faith bar- gaining caused a majority of the unit employees to sign a disaffection petition, and hence he concluded that the Respondent could not rely on the petition to withdraw recognition from the Union. Based on that find- ing, the judge found that the Respondent violated Sec. 8(a)(5) and (1) by withdrawing recognition from, and refusing to bargain with, the Union and by subsequently implementing unilateral changes to the unit employ- ees’ terms and conditions of employment. 5 Our colleague asserts that the Respondent’s “modernizing” pro- posals “amounted to eliminating crucial guarantees and protections” for employees and the Union. Without accepting her characterization of the potential impact of the Respondent’s initial proposals if ultimately that “a lot of what we have is out of date and antiquated. We want to streamline and [make it] as modern as possi- ble.”5 The Respondent’s Initial Management Rights Proposal On December 6, 2016, at the parties’ next bargaining session, the Respondent tendered its initial Management Rights proposal. In its proposal, the Respondent sought to reserve for itself the right to act unilaterally with respect to a number of important managerial prerogatives.6 Be- cause it was also proposing to nullify all past practices, the Respondent explained that it wanted a comprehensive Management Rights clause that captured all of the rights it had already been exercising under the soon-to-expire CBA. At the parties’ fourth negotiation session, on December 7, 2016, the Union was represented by new counsel, Ste- phen Godoff. Although the Union addressed a few of the Respondent’s proposals at this session,7 its new repre- sentative used his initial appearance at the negotiations to level accusations and question motives. He accused the Respondent of creating a difficult negotiating atmosphere and called the Respondent’s proposals “disturbing.” He questioned the Respondent’s “intentions,” i.e., whether the Respondent was interested in reaching a new agree- ment, even though it was only the fourth bargaining ses- sion, and only 2 weeks had elapsed since the negotiations had commenced. He described one of the Respondent’s proposals as “a nothing burger” and another as “an abso- lute waste of everyone’s time.” As the judge succinctly put it, “Godoff started off with a bang.” His performance at this session was not atypical, however. In later sessions, he told the Respondent’s representatives to “kiss my ass” and to “get the fuck out of here,” among other profanities. And later in December 2016, instead of countering the Re- spondent’s initial proposal, the Union opted to threaten agreed to by the parties, we note that the Respondent presented them as its initial proposals. The Respondent expressed its willingness to modify those proposals as part of the back-and-forth process of collective bar- gaining, and it did modify its proposals. For its part, however, the Union mostly declined to participate in the process, resorting to vituperation and curt rejections of the Respondent’s proposals rather than seeking to move negotiations forward by offering its own counterproposals. 6 This included, among other things, the right to (1) allow supervisors to perform bargaining unit work; (2) use contractors and subcontractors to perform bargaining unit work; (3) search unit employees; (4) disci- pline employees without cause; (5) change benefit plan carriers, insurers, administrators, fiduciaries, and/or trustees; (6) determine the existence, number, and type of positions to be filled by employees; (7) determine the extent to which bargaining unit work could be performed at the facil- ity. 7 As the judge found, by the end of the December 7 bargaining session the Union had rejected one of the Respondent’s proposals and tendered counteroffers regarding three others. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 3 that the Respondent “will wind up being at war. War with SEIU.”8 The Respondent’s Initial Discipline Proposal; Progress on Management Rights On January 17, 2017,9 the Respondent submitted its in- itial Discipline proposal to the Union.10 At that negotia- tion session, the Union continued to make profane and denigrating comments about the Respondent’s proposals while failing to offer written counterproposals. For in- stance, the Union’s representative referred to one of the Respondent’s proposals as “[g]ratuitous bullshit and nas- tiness I have no interest in[,] disgusting,” and he re- sponded to a concern raised by the Respondent with the retort, “[m]anagement flexibility my ass.” At the January 31 negotiation session, the parties dis- cussed the Respondent’s initial Discipline proposal. The Union proposed changes, and the Respondent showed flexibility in response, agreeing to provide written notifi- cation to employees of certain discipline, to pay dis- charged employees by a stated deadline, to refrain from disciplining employees in a manner that would embarrass them before other employees or the public, and to strike catchall provisions regarding conduct exempt from pro- gressive discipline. On February 1, the Union responded to the Respondent’s initial Management Rights proposal, agreeing to much of it. At negotiation sessions on Febru- ary 22 and 23, the parties further discussed the Respond- ent’s initial Discipline proposal, and the Respondent made significant concessions in response to concerns raised by the Union, including reducing the length of time that dis- cipline would remain active in employees’ files.11 On 8 Although the Union threatened “war” with the Respondent, there is no evidence that it seriously considered holding a strike vote or providing the required strike notification to the Federal Mediation and Conciliation Service (FMCS). So also, the Union expressed “concern,” as early as March 29, 2017, that negotiations would be prolonged and would delay a wage increase for the unit employees. It reiterated its concern over that delay on June 12, 2017, and colorfully and heatedly complained at vari- ous times about the pace of negotiations—and yet it did little to push negotiations to a conclusion, allowing month after month to pass without presenting counteroffers to the Respondent’s proposals. The Union’s conduct appeared to acknowledge, implicitly, that the Respondent had superior bargaining leverage, which only increased the longer negotiations continued. The unit employees had not received a wage increase since January 2016, and it was to be expected that they would lose patience with the Union—helped along in this regard by the Respondent’s bargaining briefs—as time went by without a successor agreement. Notably, there is no allegation in this case that the status quo required the Respondent to increase wages. The dissent implies as much, claiming that the Respondent “withheld” a wage increase “to sow disil- lusionment among employees.” But the Union never filed such a charge, which it presumably would have done if the facts allowed. Our col- league’s insinuation to the contrary notwithstanding, the Union evidently recognized that the Respondent’s duty was to maintain the status quo while bargaining continued, including keeping wages frozen until the March 28, the Respondent presented a revised Manage- ment Rights proposal, which addressed a concern raised by the Union. Upset that the Respondent did not make more substantive concessions, the Union responded to the revised Management Rights proposal by telling the Re- spondent to “[g]et the fuck out of here.” The Union made no counterproposal. The Respondent’s Initial No Strikes and No Lockouts, Grievance and Mediation, and Union Security and Dues Checkoff Proposals On March 29, the Respondent presented its initial pro- posals on a number of additional subjects. The Respond- ent tendered its initial No Strikes and No Lockouts pro- posal, under which employees would be prohibited from picketing and using other economic weapons in response to violations of the CBA or federal law. The Union did not counter this proposal because it did not perceive it as “serious,” but it expressed the concern that the proposal would postpone an employee pay raise. At the same ne- gotiation session, the Respondent presented its initial Grievance and Mediation and Union Security and Dues Checkoff proposals.12 In response to the Grievance and Mediation proposal, Godoff remarked, “This is potentially goodbye to this session. We won’t have time to read through this today.” Before the parties had a chance to discuss the Respondent’s initial Union Security and Dues Checkoff proposals, the Union told the Respondent, “This is bullshit,” “We’re out of here,” and “Kiss my ass. We’ll let you know where we are going from here.” On April 5, the parties discussed the Respondent’s ini- tial Grievance and Mediation proposal, particularly some parties either concluded a successor agreement or reached overall im- passe. See Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994). In other words, time was on the Respondent’s side. 9 All dates hereinafter are in 2017 unless otherwise indicated. 10 The Respondent sought, among other things, to delete just-cause language, remove any discipline short of discharge from arbitration, place limits on union representation at investigatory interviews, and only apply progressive discipline “where appropriate.” 11 Our colleague faults the Respondent for meeting no more than two sessions a month, while ignoring the fact that it was the Union that de- clined to have full-day bargaining sessions. 12 The Grievance and Mediation proposal would have granted the Un- ion the right to file grievances over certain contractual disputes that it could ultimately submit to non-binding mediation using the services of the FMCS. It also would have permitted an employee to pursue a claim in court for breach of any contractual provision subject to mediation. The Union Security proposal sought to delete the union security provision in the expired CBA in its entirety. The Dues Checkoff proposal sought to eliminate a requirement that, when remitting dues deductions, the Re- spondent provide the Union a report containing unit employees’ contact and work information and to eliminate employee authorization to have their contributions to the 1199SEIU Political Action Fund deducted. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discrepancies between it and the Respondent’s Discipline proposal. The Respondent also explained several reasons for its March 29 Union Security proposal, including em- ployee complaints about dues obligations. The Union pointed out that the Respondent had negotiated a CBA in Boston that contained a union security clause. The Re- spondent replied that the CBA in Boston, including the union security clause, was the “result of back and forth” with the union in Boston. Godoff said, “We’ll give you our answer now. No.” At that same negotiation session, with respect to proposed changes to the safety clause in the expired CBA, the Union asked, rhetorically, “Do you guys give a shit? It’s a disgusting proposal” and ex- claimed, “You just don’t give a goddamn about these workers.” When the Respondent suggested the Union de- vote more time to countering instead of critiquing, the Un- ion replied, “Here’s the counter—no.” On April 6, the Union continued to refuse to negotiate over the Respondent’s initial Union Security proposal and instead presented a written counterproposal that summar- ily stated, “REJECT.” Also, at that same negotiation ses- sion, despite acknowledging that the wage structure in the expired CBA had created significant problems, the Union proposed a 5 percent across-the-board pay raise. At the May 16 negotiation session, the Respondent stated that it would be tendering a proposal related to employees’ hours. Godoff replied, “I’m going to tell you we’re not going to accept [new noneconomic] proposals at this point. You can send it to us but, no, we are not going to agree.” The Respondent’s Revised Discipline Proposal; Wage Discussions At the May 25 negotiation session, to resolve a discrep- ancy the Union had highlighted between the Respondent’s Discipline proposal and its Grievance and Mediation pro- posal, the Respondent amended the former so that it was not inconsistent with the latter.13 At the June 12 negotia- tion session, the Union accused the Respondent of causing the negotiations to drag out and noted that employees had been working for months without a pay increase. None- theless, at the July 31 negotiation session, the Union in- sisted that it would not agree to a CBA that did not include “just cause” for discipline and binding arbitration. 13 The judge erroneously stated that the Respondent never reconciled the discrepancy. 14 Relatedly, the parties discussed a lingering wage-underpayment is- sue. Godoff testified that the Respondent ultimately made the affected employees whole, with interest, after extensive discussion with the Un- ion over the amount of backpay due. 15 The proposal specified that the market-based adjustment would not reduce pay rates of current unit employees. On October 6, the parties continued to discuss problems with the wage structure in the expired CBA,14 and toward the end of the session the Respondent asked whether the discussion would lead the Union to move from its wage proposal, which maintained the existing wage structure and called for an across-the-board increase. The Respond- ent also remarked that “it shouldn’t surprise anyone that we’re going to propose a new [wage] str[u]cture.” The Union conceded that “it’s a terribly unfair system.” The Respondent agreed that the parties owed it to future em- ployees and managers “to be clear and make it easier to figure out.” The parties held additional negotiation sessions on Jan- uary 17, 2018 and February 13, 2018. Godoff was absent from these sessions for medical reasons. On March 12, 2018, the Union filed an unfair labor practice charge against the Respondent alleging that its bargaining pro- posals constituted surface bargaining. The Respondent’s Initial Wage Proposal At the parties’ May 18, 2018 bargaining session—the first session after the Union filed its unfair labor practice charge—the Respondent made its initial Wage proposal. Under the Respondent’s proposal, employees would re- ceive a market-based adjustment and merit-wage in- creases based on performance evaluations.15 The Re- spondent also proposed pay ranges for each classification, and employees’ placement within the applicable pay range would be based on their years of experience. According to the Respondent, the transition to pay ranges, which would happen when the CBA was ratified, would result in an immediate wage increase. The Respondent also pro- posed awarding employees nondiscretionary lump-sum bonuses and shift differential pay.16 On May 21, 2018, the parties met for another bargaining session. Despite recognizing problems with the current wage structure, which its proposal for an across-the-board increase retained, the Union objected to the Respondent’s proposal on several grounds, including that the proposed merit-wage increase would not go into effect until August 2019 when, as the Union observed, the employees had not received a raise since January 2016.17 The Respondent re- plied that the employees would receive a significant wage increase as soon as a new CBA was ratified, but it also noted that the delay in employees receiving a wage 16 Notwithstanding our colleague’s suggestion, the nondiscretionary components of the Respondent’s initial Wage proposal and placement of employees within pay ranges based on their years of experience demon- strate that the Respondent’s proposal did not give it unfettered discretion over employees’ compensation. 17 The judge incorrectly quoted Godoff as stating that employees had not received a raise since January 2015. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 5 increase was “an unfortunate side effect to bargaining.” The Respondent also invited the Union to counter its pro- posal.18 The Respondent’s Revised No Strikes and No Lockouts and Wage Proposals On June 7, 2018, after further negotiations about its No Strikes and No Lockouts proposal, the Respondent made a significant concession and withdrew the proposal. On July 31, 2018, the Union rejected outright the merit com- ponent of the Respondent’s Wage proposal, stating that “merit is not anything the [U]nion is looking to do.” At the conclusion of the session, the Respondent noted that the Union had failed to counter 15 of its proposals while the Respondent had responded to all but 2 of the Union’s proposals. Godoff’s explanation was that the Respondent had moved away from the expired CBA. (Again, the Re- spondent had announced at the very start of the negotia- tions that it would seek to substantially alter many provi- sions of the expired CBA.) At the negotiation session the next day, the Respondent modified its Wage proposal to provide that every employee would receive, at minimum, a 2 percent wage increase at the time a successor CBA was ratified. The Respondent also offered to work with the Union to ensure the accuracy of its calculations as to em- ployees’ years of experience to determine the correct placement of each employee within the applicable pay range. The Union never made a written counter to the Re- spondent’s Wage proposal. The Union’s Counterproposals on Union Security, Management Rights, and Grievance Procedure On September 5, 2018, the Union presented counterpro- posals on union security, management rights, and griev- ance procedure—more than 18 months after the Respond- ent presented its proposals on union security and griev- ances (March 29, 2017) and its revised proposal on man- agement rights (March 28, 2017). The union security pro- posal contained the same language as the union security provision in the Boston CBA that the Union had refer- enced at the April 5, 2017 negotiation session. The man- agement-rights and grievance procedure proposals were taken from CBAs between the Union and hospitals in New York. They were substantially different from the compa- rable provisions in the parties’ expired CBA and unre- sponsive to the Respondent’s initial proposals. In partic- ular, the Union’s management-rights proposal effectively 18 Thus, the judge’s and the dissent’s suggestion that the Respondent refused to bargain over its Wage proposal is incorrect. In addition, as the judge noted, the Union conceded at the October 10, 2018 bargaining ses- sion that it had failed to respond to the Respondent’s Wage proposal, blaming its failure to do so on the time spent on noneconomic issues. It cannot be “take it or leave it”—as our colleague posits—when one party rescinded the Union’s previous acceptance of numerous subsections in the Respondent’s December 6, 2016 man- agement-rights proposal. The Union acknowledged that its counterproposals needed revision. Nonetheless, the Respondent discussed the Union’s counterproposals and expressed its continued willingness to negotiate. The parties held their last negotiation sessions on Octo- ber 10 and 11, 2018. The parties continued to discuss nu- merous noneconomic issues, including management rights, discipline, dispute resolution, and union security. The Respondent also noted that the Union had yet to re- spond to its revised Wage proposal. Despite reaching ten- tative agreements on several provisions at three of their last four negotiation sessions, the parties were unable to reach a complete agreement. However, the Respondent repeatedly expressed its willingness to bargain, asked the Union to offer further counterproposals, and reminded the Union of the status of the pending proposals that it had previously made to the Union. Employee Disaffection Petition; Respondent’s Withdrawal of Recognition On October 25, 2018, the Respondent received a peti- tion signed by a majority of employees in the bargaining unit. The following morning, the Respondent emailed the Union that it had “received objective evidence which clearly and unequivocally indicates that the Union has lost the support of a majority of bargaining unit employees” and that it was “withdrawing recognition of the Union ef- fective immediately.” Accordingly, the Respondent also cancelled all future bargaining sessions. On November 1, 2018, the Respondent distributed a memorandum to the unit employees about “the new pay rates and benefits you will now have as a non-union em- ployee.” The Respondent informed the employees that many of them would receive significant wage increases— at least 3 percent—and would also be eligible for a merit increase based on their performance evaluation, as well as a new lump-sum bonus program. In addition, the Re- spondent notified the employees that it would be “transi- tioning everyone to [its] non-union benefit programs in- cluding PTO, Holidays, and Leave Banks,” that a monthly commuter subsidy would be automatically added to their paychecks, and that they would have the opportunity to participate in new employee engagement activities. The Respondent unilaterally implemented the wage increases in November and December 2018. simply fails to test the other party’s willingness to move from its pro- posal. Moreover, as noted below, the Respondent did move from its in- itial Wage proposal—after the Union complained that employees had not received a raise since January 2016—modifying it to provide a minimum 2 percent increase for every unit employee at contract ratification. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Analysis Section 8(d) of the Act requires parties engaged in col- lective bargaining “to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, . . . but such obligation does not compel either party to agree to a proposal or re- quire the making of a concession.” When determining whether an employer has violated its statutory duty to bar- gain in good faith, the Board must ultimately determine, under the totality of the circumstances, “‘whether the em- ployer is engaging in hard but lawful bargaining to achieve a contract that it considers desirable or is unlawfully en- deavoring to frustrate the possibility of arriving at any agreement.’” Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op. at 8 (2018) (quoting Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003)); see also Audio Vis- ual Services Group, Inc. d/b/a PSAV Presentation Ser- vices, 367 NLRB No. 103, slip op. at 6–7 (2019) (finding that the parties engaged in lawful hard bargaining by hold- ing firm to their positions because “neither party was re- quired to give up its position or make concessions”), affd. sub nom. International Alliance of Theatrical Stage Em- ployees, Local 15 v. NLRB, 957 F.3d 1006 (9th Cir. 2020). Where an employer is alleged to have violated its good- faith bargaining obligation on the basis of its bargaining proposals, the Board will not decide whether specific pro- posals are “acceptable” or “unacceptable,” but it will “consider whether, on the basis of objective factors, a de- mand is clearly designed to frustrate agreement on a col- lective-bargaining contract.” Reichhold Chemicals, 288 NLRB 69, 69 (1988), enfd. in relevant part sub nom. Teamsters Local 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991). However, this does not deny a party the right to “stand firm on a position 19 The dissent cites Wright Motors, Inc., 237 NLRB 570 (1978), enfd. in relevant part 603 F.2d 604 (7th Cir. 1979), for the proposition that when an employer’s initial bargaining proposals are unreasonable, the union need not test the employer’s willingness to bargain over them. Wright Motors is not comparable to the instant case. For example, under the Respondent’s initial No Strikes and No Lockouts proposal, employ- ees would be prohibited from picketing and resorting to other economic weapons in response to violations of the collective-bargaining agreement or federal law. In Wright Motors, the employer’s initial no-strike pro- posal, among other things, would have (a) required the union to fine any employee who engaged in a work interruption, (b) granted the employer the right to seek an injunction and file suit for damages against the union without arbitrating the claimed violation, (c) made the union, its officers, agents, and members individually and collectively liable for damages, (d) required the union to waive its legal right to remove a suit filed by the employer from a state or federal court, and (e) required the posting of a $20,000 bond to be forfeited as liquidated damages in the event of a violation of the article. Id. at 571–572. The differences between that case and this are stark, and Wright Motors does not excuse the Union’s failure to test the Respondent’s willingness to bargain. if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force the other party to agree.” Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984); see also Phillips 66, 369 NLRB No. 13, slip op. at 5 (2020) (finding that the parties engaged in hard but lawful bargaining as they stood firm on their respec- tive core positions, while the employer also showed its willingness to adjust its proposals and reach agreement on other issues). Moreover, the Board will not find that an employer failed to bargain in good faith if the union assumes that the employer’s initial proposals reflect unalterable positions without testing the employer’s willingness to engage in the give and take of collective bargaining. See Audio Vis- ual Services Group, above, slip op. at 8 (“[W]e find that the [u]nion did not sufficiently test the [r]espondent’s will- ingness to bargain prior to filing its bad-faith bargaining charge.”); Captain’s Table, 289 NLRB 22, 23 (1988) (“Nor do we find that when negotiations ended prema- turely through the default of both parties . . . the [u]nion had sufficiently tested the [r]espondent’s proposals to per- mit us to assess the latter’s willingness to bargain in good faith.”).19 The General Counsel alleged, and the judge found, that the Respondent violated Section 8(a)(5) and (1) by engag- ing in surface bargaining based solely on the following four bargaining proposals that the Respondent presented to the Union during the course of the parties’ 2 years of negotiations: 1) its Grievance and Mediation proposal in tandem with its No Strikes and No Lockouts and Manage- ment Rights proposals; 2) its revision to its Discipline pro- posal to make disputes over discharges no longer subject to binding arbitration; 3) its Union Security proposal de- leting the union security provision in the parties’ expired CBA; and 4) its Wage proposal, which purportedly gave The conduct of the employer in Hydrotherm, Inc., cited by our col- league, is also markedly different from how the Respondent approached its negotiations with the Union. In Hydrotherm, prior to the first negoti- ation session, the union presented a package of proposals. 302 NLRB 990, 990 (1991). In response, the employer presented only one proposal at the first negotiation session, which vested it with exclusive authority over numerous subjects. Id. At the second session, the employer pre- sented a proposal that was silent on several important issues and failed to counter any of the union’s economic proposals, instead insisting on a “take-it-or-leave-it” approach to merit wage increases. Id. at 990–991. Over the five remaining negotiation sessions, the employer either failed to present proposals or did so on only a few subjects without addressing important outstanding issues, including management rights, temporary employees, grievance and arbitration, or the treatment of discharge and discipline. Id. at 991–992. By the last negotiation session, the employer insisted on unilaterally implementing merit raises and told the union that it saw no reason for further meetings. Id. at 992. Here, unlike the em- ployer in Hydrotherm, the Respondent, over the course of 30 negotiation sessions, was consistently responsive in offering its own bargaining pro- posals and responding to the Union’s. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 7 the Respondent unfettered discretion over employees’ pay. For the reasons that follow, we reverse the judge’s finding that the Respondent failed to bargain in good faith in violation of Section 8(a)(5) and (1) by tendering these proposals to the Union. 20 The Supreme Court has held that proposing and bargaining for a management-rights clause is not a per se violation of the duty to bargain in good faith, NLRB v. American National Insurance Co., 343 U.S. 395, 407–409 (1952), and the Board has found broad management-rights pro- posals consistent with fidelity to that duty. In Rescar, Inc., the Board found that proposals for broad management-rights and no-strike clauses with a limited grievance and arbitration procedure did not evince a dis- position not to reach an agreement with the union. 274 NLRB 1, 2 (1985). Our colleague notes that the Board in Rescar relied on the fact that the employer did not maintain these proposals as a package, but the same is true here. The Respondent did not insist on the Union consider- ing its proposals as all-or-nothing. Rather, it advanced its proposals as entry points for discussions, it repeatedly invited the Union to offer coun- terproposals, it never refused to entertain counters on the rare occasions the Union offered them, and it ultimately withdrew its no-strike proposal. Under these circumstances, that the initial proposals were aggressive does not support an inference that the Respondent was seeking to frus- trate the possibility of reaching an agreement. See Artiste Permanent Wave Co., 172 NLRB 1922, 1924 (1968) (Even assuming the respond- ent’s proposals “can be called ‘outlandish,’ inflated or extreme . . . , it is well settled that [r]espondent had the right to submit them for consider- ation without penalty under the Act, provided it did not continue an ada- mant insistence on them in arbitrary fashion as a condition of any agree- ment, without offering reasons or justification for its position, or without displaying any willingness to discuss their terms, make concessions, or compromise on their terms and scope.”). And while the dissent sharply criticizes the Respondent’s proposals, she does not mention the incon- venient fact that the Union initially accepted most of the Respondent’s proposed management-rights clause. Likewise, the Respondent’s other bargaining proposals were lawful in and of themselves. First, the record does not support the judge’s finding that the Respondent “essentially concede[d]” that its no-strike proposal was unlawful. The Respondent merely exercised its right to withdraw a proposal that the Union had objected to in the hopes of furthering the bargaining process. Cf. Reichhold Chemicals, 288 NLRB at 70 (the em- ployer’s narrowing of its initial no-strike proposal in response to the un- ion’s concerns supported a finding of no bad faith). Second, the Respondent’s proposal to change the existing wage struc- ture does not evidence an intent to frustrate agreement. The Union itself acknowledged that the existing structure was a “terribly unfair system,” and yet its only wage proposal would have retained it. Moreover, as the Board recognized in McClatchy Newspapers—the holding of which the judge and the dissent mischaracterize—an employer may lawfully “at- tempt[] to negotiate to agreement on retaining discretion over wage in- creases.” 321 NLRB 1386, 1391 (1996), enfd. in relevant part 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998); see also Wood- land Clinic, 331 NLRB 735, 740 (2000) (“[A] merit wage increase pro- posal that confers on an employer broad discretionary powers is a man- datory subject of bargaining on which parties may lawfully bargain to impasse.”) (citing McClatchy). Our colleague analogizes the Respond- ent’s Wage proposal to the unlawful wage proposal in A-1 King Size Sandwiches, Inc., 265 NLRB 850 (1982), enfd. 732 F.2d 872 (11th Cir. 1984), cert. denied 469 U.S. 1035 (1984). But that comparison fails. In A-1 King Size Sandwiches, the employer steadfastly refused to deviate from its 24-year practice of granting completely discretionary wage in- creases solely on the basis of merit and never offered to bargain with the union over non–merit-based wage increase factors, such as seniority. Id. Although the Board examines the totality of the circum- stances and not the propriety of individual proposals in making surface-bargaining determinations, we note ini- tially that not one of the Respondent’s proposals was un- lawful in and of itself.20 Moreover, although the at 857–859. Here, the Respondent not only expressed its willingness to bargain over its Wage proposal, it also revised the proposal to provide a minimum 2 percent wage increase for all employees at the time a succes- sor CBA was ratified. By its own admission, the Union never countered the Respondent’s revised proposal. Moreover, unlike the wage proposal in A-1 King Size Sandwiches, the Respondent’s Wage proposal included non-discretionary components—lump-sum bonuses, shift differential pay, and reliance on years of experience in placing employees within pay ranges—so it did not seek unlimited managerial discretion over employ- ees’ wages. The record does not support the dissent’s suggestion that the Union’s failure to counter the revised Wage proposal was due to a refusal on the Respondent’s part to tell the Union where unit members would be placed on the pay scales until October 11, 2018. Rather, the record shows that at the August 1, 2018 bargaining session, the Respondent offered to work with the Union to determine the correct placement of each employee within the applicable pay range. Besides, the Union itself blamed its failure to respond to the Wage proposal on the time spent on noneco- nomic issues. Third, assuming without deciding that philosophical opposition is an insufficient basis for opposing union security, the Respondent’s Union Security proposal was not based exclusively on philosophical grounds. Although the judge failed to mention this, the Respondent explained that it had received complaints from its employees about the union security clause—a fact the Union acknowledged—and that union security also impeded its recruitment efforts. Cf. Phelps Dodge Specialty Copper Products, 337 NLRB 455, 455 fn. 1 (2002) (finding that employer did not bargain in bad faith with regard to union security where, in relevant part, “some bargaining unit members informed management that they objected to joining the [u]nion”). Also, as noted above, the Respondent expressed its willingness to engage in “back and forth” over union secu- rity, which the Union failed to test. See AMF Bowling Co., 314 NLRB 969, 974 (1994) (reversing the judge’s bad-faith finding where the Gen- eral Counsel failed to show that the respondent was unwilling to discuss its union security proposal with the union), enfd. in relevant part 63 F.3d 1293 (4th Cir. 1995). With respect to dues checkoff, the Respondent’s initial proposal was not to eliminate but only to modify certain aspects of the dues-checkoff article in the expired contract, in particular language pertaining to remittance report information and checkoff of political ac- tion committee contributions. The Respondent stood ready to negotiate over the issue. Fourth, although the judge found that the Respondent regressed from its Discipline proposal when it modified the proposal to subject dis- charges to mediation rather than arbitration, “[t]he fact that proposals are regressive or unacceptable to the union, or that the union finds the em- ployer’s explanations for them unpersuasive, does not suffice to make proposals unlawful if they are not ‘so harsh, vindictive, or otherwise un- reasonable as to warrant a conclusion they were proffered in bad faith.’” Management & Training Corp., 366 NLRB No. 134, slip op. at 4 (2018) (quoting Genstar Stone Products Co., 317 NLRB 1293, 1293 (1995)). The Respondent’s explanation for its change to its Discipline proposal was not unreasonable; it was made to remove a mistaken discrepancy between that proposal and its Grievance and Mediation proposal—a dis- crepancy the Union pointed out. And there was no tentative agreement on the Discipline proposal at that time. We see no reason for questioning the Respondent’s stated motive for revising its Discipline proposal to en- sure consistency across its proposals. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent’s initial combination of proposals sought sub- stantial concessions from the Union, a party does not vio- late its duty to bargain in good faith by testing its bargain- ing leverage in this way. As it turned out, the Respondent did have substantial leverage due to fact that the unit em- ployees had not received a wage increase for some time. The Union was well aware of the situation, as demon- strated by its repeated expressions of concern over that prolonged delay. Notwithstanding its concern, however, the Union itself contributed to the very delay about which it complained. Negotiations dragged on for many months without counterproposals from the Union on numerous is- sues. To the extent the Respondent adhered to its pro- posals on these issues, it was not being intransigent; it merely refrained from bargaining against itself. Moreo- ver, the Union initially accepted most of the Respondent’s proposed management-rights clause. And when it subse- quently regressed on that issue in its counterproposal on management rights, and also when it presented its coun- terproposal on grievances, the Union immediately admit- ted that its proposals needed to be revised. Importantly, the Respondent never insisted on any of its proposals— either alone or in combination—to impasse or presented them as part of a last, best, and final offer. Compare Al- tura Communication Solutions, LLC, 369 NLRB No. 85 (2020) (finding that the employer failed to bargain in good faith based in part on the proposals contained in its final offer); Public Service Co. of Oklahoma (PSO), 334 NLRB at 488–489 (same).21 In fact, nothing in the record indicates that the Respond- ent was unwilling to bargain over its proposals. For in- stance, the Respondent never refused to continue bargain- ing over its combined Management Rights, No Strikes and No Lockouts, and Grievance and Mediation proposals, and it eventually withdrew its No Strikes and No Lockouts proposal—a significant concession. The Respondent made other concessions as well. For instance, at the Jan- uary 31, 2017 negotiation session, the Respondent re- lented on some changes sought by the Union to the Re- spondent’s Discipline proposal, agreeing to provide writ- ten notification to employees of certain discipline, to set a 21 In support of her view that the Respondent bargained in bad faith, our colleague relies heavily on the Board’s recent decision in Altura Communication, but that case is readily distinguished. In Altura Com- munication, the employer presented the union with a last, best, and final offer that would have given the employer unilateral control, during the term of the contract, over almost all terms and conditions of employment. The offer included a two-tier wage proposal that set minimums but oth- erwise gave the employer complete discretion to increase, and substantial discretion to decrease, individual employees’ wages. It also included a proposal to transfer almost all contractual employee benefits to an extra- contractual handbook, the terms of which were exclusively controlled by the employer. In addition, the no-strike clause in the final offer would have precluded any and all protests, regardless of the reason. The deadline by which discharged employees must be paid, to refrain from disciplining employees in a manner that would embarrass them before other employees or the pub- lic, and to strike catchall provisions regarding conduct ex- empt from progressive discipline. The Respondent made further concessions on discipline the following month, in- cluding reducing the length of time that discipline would remain active in employees’ files. The Respondent’s modification of its proposals in response to the Union’s counters was not the behavior of a party seeking to frus- trate the possibility of reaching an agreement. At the same time, the Union repeatedly declined to test the Respondent’s willingness to bargain over its pro- posals. As an example, at the April 5, 2017 negotiation session, when the Union presented a union security pro- posal lifted from a CBA with a Boston hospital, the Re- spondent observed that the Boston CBA was the “result of back and forth” in negotiations and invited the Union to offer a counterproposal and engage in a comparable “back and forth.” The Union refused to do so and the next day summarily rejected the Respondent’s initial Union Secu- rity proposal. On management rights, the Union initially agreed to many of the subsections in the Respondent’s in- itial proposal, but then regressed 18 months later by pre- senting a counterproposal that completely disregarded the Respondent’s proposal and repudiated its prior tentative agreement. Based on its conduct in negotiations, the Union seems to have decided early on that the Respondent had no inter- est in reaching an agreement. It said as much, just 2 weeks into collective bargaining. Perhaps the Union decided that its best chance of prevailing lay in Board litigation rather than at the negotiating table. It filed a surface bargaining charge on March 12, 2018, without having attempted to test the Respondent’s willingness to bargain in good faith on a range of issues. Indeed, several months later, on July 31, 2018, the Respondent pointed out that the Union had yet to offer counterproposals to 15 of the Respondent’s proposals, while the Respondent had countered all but two of the Union’s. By way of explanation, the Union replied that the Respondent had moved away from the expired employer also insisted that the union submit written proposals as a con- dition of further bargaining and then refused to meet even after the union responded with comprehensive written proposals, and it declared im- passe and implemented some of the terms of its final offer despite the fact that the union’s proposals significantly narrowed the differences be- tween the parties’ positions. In contrast, the Respondent in this case never presented wage and benefit proposals like those in Altura, never refused to meet and bargain (until it received evidence that the Union had lost majority status), never suggested that its proposals were a final offer or claimed that bargaining was at an impasse, and never proposed as broad a no-strike clause as that in Altura—and the no-strike clause the Respondent did propose it later rescinded. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 9 CBA. But at that time, the parties had been in collective bargaining for more than 18 months, and the Respondent made clear at the outset of negotiations that it intended to bargain for a contract that “moved away” from the expired CBA. Instead of seriously attempting to reach an agree- ment by substantively engaging with the Respondent’s proposals, the Union chose to be intransigent and bellig- erent, repeatedly uttering profane and offensive com- ments.22 The Respondent, for its part, considered the counterpro- posals put forward by the Union, demonstrated its willing- ness to move from its positions on more than one occasion, and withdrew its No Strikes and No Lockouts proposal en- tirely. To be sure, the Respondent also stood firm on a number of positions that differed substantially from terms contained in the expired CBA, and this was a sea change in the parties’ bargaining relationship. As Section 8(d) makes clear, however, the Respondent’s unwillingness to 22 Our colleague contends that the Union’s oral counterproposals were sufficient to communicate its position. The problem with the Union’s counterproposals was not that they were oral. It was that they lacked detail and only reiterated the Union’s insistence that the Respondent just roll over and agree to language from the expired contract without modi- fication. The dissent also faults us for noticing the way Godoff behaved at the bargaining table and essentially accuses us of being the politeness police. To be clear, we could care less about Godoff’s penchant for pro- fanity. What matters is what the Union did not say. Godoff said “no” and “REJECT,” dismissed proposals as “bullshit” and “nothing burgers,” and generally gave the Respondent’s proposals the back of his hand in- stead of seriously engaging with the Respondent’s initial proposals to try to find common ground. This left the Respondent to choose between standing firm and bargaining against itself, and it is not bad-faith bar- gaining to decline to do the latter. 23 The dissent conflates cases in which an employer engaged in con- duct designed to impede the bargaining process both at the bargaining table and away from it with this case, in which the Respondent is alleged to have engaged in bad-faith bargaining based solely on its initial bar- gaining proposals. For instance, in Radisson Plaza Minneapolis, quoted by our colleague, the Board stated that the employer’s “dealings with the [u]nion both at the bargaining table and away from it were clearly calcu- lated to impede bargaining and weaken the [u]nion with a view to having it removed as the employees’ collective-bargaining representative, rather than to reach agreement.” 307 NLRB 94, 94 (1992) (internal footnote omitted), enfd. 987 F.2d 1376 (8th Cir. 1993). In Radisson Plaza Min- neapolis, the employer insisted on a perpetual reopener clause that would permit the employer to alter or discontinue any benefits or other policies contained in the agreement, and it pressed proposals regarding the union- ratification vote and to require annual proof of the union’s majority sup- port. Id. at 95–96. The employer also rebuffed the union’s request to discuss certain changes to employees’ job assignments, unilaterally im- plemented wage increases, stalled in responding to the union’s request for basic information about the unit employees, and briefly reneged at the outset on its voluntary recognition of the union—while its chief ne- gotiator wasted time by indulging in long-winded discourses on irrele- vant topics. Id. In Target Rock Corp., also cited by the dissent, the finding of bad- faith bargaining was driven as much by the timing of the employer’s pro- posals as by their substance. Five months after the commencement of negotiations, and on the same day of a union meeting to vote on whether make concessions on these matters was not inconsistent with the duty to bargain in good faith. Moreover, the rec- ord contains no evidence of conduct away from the bar- gaining table that tends to support an inference of bad- faith bargaining.23 Contrary to the dissent, it is not bad-faith bargaining to begin negotiations by presenting “a ‘wish list,’ ‘throw-in- the-kitchen-sink’ kind of proposal that one frequently sees in a party’s first proposal.” Target Rock, 324 NLRB at 385. It is not bad-faith bargaining to advance a specific proposal that would leave the union with fewer rights than it would have without a contract, since every manage- ment-rights proposal does exactly that, and management- rights proposals are lawful under Supreme Court prece- dent dating back nearly 70 years. See NLRB v. American National Insurance Co., 343 U.S. at 407–409. It is not bad-faith bargaining for an employer to decline to bargain against itself when its negotiating partner fails to test its to continue or end a strike that the union was clearly losing, the employer proposed terms that sparked outrage among the strikers and that would “have left the [u]nion members better off without the [u]nion and without a contract,” including an unlawful “yellow dog” provision that would prohibit employees from joining the union during their first year of em- ployment. 324 NLRB 373, 384–387 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998). The Board adopted the judge’s reasonable conclusion that the employer’s aim was not to reach an agreement but rather to prolong the strike. Id. at 373, 387. Significantly, the Board in Target Rock also adopted the judge’s distinguishing of cases in which employers were found not to have bargained in bad faith where they advanced restrictive proposals early in the negotiations. Id. at 386–387. The judge in Target Rock referred to such a lawful proposal as “a ‘wish list,’ ‘throw-in-the- kitchen-sink’ kind of proposal that one frequently sees in a party’s first proposal.” Id. at 385 (emphasis added). That pretty well describes the Respondent’s initial proposal. Fairly read, then, Target Rock supports our position, not the dissent’s. In Prentice-Hall, Inc., cited by the dissent, the Board found that the totality of the evidence indicated that the employer never intended to reach an agreement because the evidence showed that the employer counted on the passage of the certification year without any real prospect of a contract causing sufficient employee dissatisfaction to enable it to eventually withdraw recognition. 290 NLRB 646, 646 (1988). The Board’s inference of bad-faith bargaining in that case was strengthened by the employer’s tactic of pretending to concede on a particular matter objected to by the union only to reincorporate its original proposal in another clause. Id. In this case, the Respondent never employed such deceptiveness in its negotiations with the Union by saying one thing and doing another. To the contrary, it was always forthright with the Union and expressed its willingness to seriously entertain the Union’s concerns and proposals. Finally, in San Isabel Electric Services, Inc., also cited by our col- league, the Board found that the employer engaged in bad-faith bargain- ing by refusing even to discuss safety and work rules with the union—a crucially important issue, given the dangers faced by employees who work on power lines—and its insistence on its management-rights pro- posal was a smokescreen to conceal an effort to exclude the union from having any involvement in establishing safety and work rules. 225 NLRB 1073, 1080 (1976). Here, in contrast, the Respondent never re- fused to discuss any mandatory subject of bargaining. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD willingness to modify its positions by offering counterpro- posals. Audio Visual Services Group, above, slip op. at 8. And it is not bad-faith bargaining to stand firm on pro- posals that are even predictably onerous to a union where, as here, the employer “reasonably believes . . . that [it] has sufficient bargaining strength to force the other party to agree.” Atlanta Hilton & Tower, 271 NLRB at 1603. The Respondent met with the Union for 30 bargaining sessions, made many of its initial proposals at the outset of the negotiations, solicited counterproposals from the Union, made concessions in response to the Union’s bar- gaining positions, and never refused to bargain over any mandatory bargaining subject—and all the while it calmly answered the Union’s bellicose conduct by continuing to bargain. Ultimately, because of the Respondent’s active participation in the bargaining process, the General Coun- sel could only fault the Respondent for the substance of its proposals. However, the Board does not sit in judgment of a party’s bargaining proposals. And the Respondent’s initial proposals did not evince an intent to frustrate the reaching of an agreement when they were not presented as final offers, and the Respondent always remained willing to move from its position. Accordingly, in considering the totality of the Respondent’s conduct, including its bar- gaining proposals, we find that the General Counsel did not establish that the Respondent failed to bargain in good faith in violation of Section 8(a)(5) and (1). Because the Respondent did not engage in surface bar- gaining during the negotiations, we also reverse the judge and find that the Respondent did not violate Section 8(a)(5) and (1) when it withdrew recognition from, and re- fused to bargain with, the Union after receiving objective evidence that the Union had, in fact, lost the support of a majority of the unit employees, and when it subsequently implemented unilateral changes to the unit employees’ terms and conditions of employment.24 ORDER The complaint is dismissed. Dated, Washington, D.C. April 30, 2021 24 We find that the Respondent properly relied on the disaffection pe- tition signed by a majority of the unit employees in withdrawing recog- nition from the Union. In doing so, we do not rely on the employees’ testimony regarding their subjective reasons for signing the disaffection petition, which was considered by the judge. See Johnson Controls, Inc., 368 NLRB No. 20, slip op. at 12 & fn. 56 (2019). 1 Altura Communication Solutions, LLC, 369 NLRB No. 85, slip op. at 1 (2020), quoting Phillips 66, 369 NLRB No. 13, slip op. at 4 (2020). _____________________________________ William J. Emanuel, Member _____________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD CHAIRMAN MCFERRAN, dissenting. As the Board has recently pointed out, the “‘essence of bad-faith bargaining is a purpose to frustrate the possibil- ity of arriving at any agreement,’” and sometimes that bad purpose is revealed by the content of an employer’s bar- gaining proposals, considered in the “totality of [the] em- ployer’s conduct” both at and away from the bargaining table.1 This is clearly such a case, although my colleagues do not see it that way. For more than 20 years, the Union represented about 150 employees at the Hospital, the respondent here. Dur- ing that time, the parties’ collective-bargaining relation- ship was, by all accounts, harmonious. Employees en- joyed the fruits of a collective-bargaining agreement that provided them with workplace rights and benefits that are typical of a union contract: compensation with fixed an- nual wage increases and benefits established by the con- tract, the ability to grieve and arbitrate disputes, a just- cause standard for discipline, job security, and the protec- tion of unit work. All that changed when the contract ex- pired in 2016, and the Hospital decided to chart a different course—a course designed to frustrate reaching an agree- ment and, it seems, to oust the Union altogether.2 At the start of the bargaining over a successor contract and for the nearly 2 years that followed, the Hospital with- held employees’ annual wage increases and, as part of a campaign against the Union, used the withheld wage in- creases to sow disillusionment among employees. All the while, the Hospital’s bargaining position—reflected in a package of proposals—was that it would only accept the unconditional surrender of employees’ contractual and statutory rights. When the Union, unsurprisingly, refused to capitulate, the Hospital exploited employees’ disillu- sionment with the delay to withdraw recognition from the Union. 2 Under the Board’s contract-bar doctrine, a collective-bargaining agreement insulates a union from challenge for up to three years, creating an incentive for antiunion employers not to reach agreement, apart from the desire to avoid creating contractual obligations to employees. See generally Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996) (discussing contract-bar doctrine). DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 11 As Board precedent illustrates, the Hospital’s conduct here amounted to a textbook case of bad-faith bargaining. The majority, however, essentially faults the Union and its lead negotiator for the outcome here. The majority’s pain- fully detailed discussion of the union bargaining repre- sentative’s intemperate language suggests that the tone of the union counsel’s communications is somehow relevant to the reasonableness of the employer’s bargaining pro- posals. It is not. The Board’s job here is to apply our law on surface bargaining, not give out points for politeness. In my view, the record reveals not only the Hospital’s bad purpose, but also the Union’s recognition of what was unfolding and its understandable, if unpleasant, anger. Frustrating agreement makes for frustrated negotiators. For the reasons that follow, the Board should adopt (not reverse) the administrative law judge’s conclusion that the Hospital bargained in bad faith.3 I. There is basic agreement on the legal principles that govern this case, as well as on the essential facts here. We differ, and differ sharply, on how to apply the law to the facts presented. A recent unanimous Board decision find- ing bad-faith bargaining, Altura Communication, supra, should guide us today. Explaining the principles of the duty to bargain in good faith created by Section 8(d) of the National Labor Relations Act, the Altura Board observed that although employers and unions are entitled “to bar- gain hard for a contract each side perceives as desirable,” and the Board does not “sit in judgment of the substantive terms of bargaining,” it is the Board’s “role . . . to oversee the process to ascertain that the parties are making a sin- cere effort to reach agreement,” and so the Board “will ex- amine [bargaining] proposals and consider whether, on the basis of objective factors, a demand is clearly designed to frustrate agreement on a collective bargaining contract.”4 The Board’s “examination of the [employer]’s proposals 3 I would also affirm the judge’s conclusion that the Hospital’s with- drawal of recognition was unlawful, because an employer may not law- fully withdraw recognition from a union where it has committed unfair labor practices that are likely to affect the union’s status, cause employee disaffection, or improperly affect the bargaining relationship itself. Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996), affd. in relevant part and remanded 117 F.3d 1454 (D.C. Cir. 1997). In turn, the Hospital’s unilateral changes to employees’ terms and conditions of em- ployment, made after the unlawful withdrawal of recognition, were also unlawful. Flying Foods, 345 NLRB 101, 104 (2005) enfd. 471 F.3d 178 (D.C. Cir. 2006). 4 Altura Communication, supra, 369 NLRB No. 85, slip op. at 1 (in- ternal quotation marks and citations omitted). As the Supreme Court has observed, “there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the princi- ple that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground.” NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 486 (1960). is undertaken to determine, not their merits, but ‘whether in combination and by the manner proposed they evidence an intent not to reach agreement.”5 In Altura, the Board examined employer proposals that would have given the employer substantial discretion to raise or lower employees’ wages, complete discretion over work hours, and the ability to alter or eliminate employee benefits.6 The employer also proposed a broad manage- ment-rights clause, coupled with a broad no-strike clause and a grievance procedure that would have excluded many discretionary employer actions from coverage—including elimination of the bargaining-unit altogether.7 Drawing on extensive Board and judicial precedent stretching back to the 1970’s, the Altura Board concluded that “[c]onsid- ered in their entirety, the [employer]’s proposals would have required the [u]nion ‘to cede substantially all of its representational function, and would have so damaged the [u]nion’s ability to function as the employees’ bargaining representative that the [employer] could not seriously have expected meaningful collective bargaining.’”8 Altura Communication is only the most recent in a line of Board cases involving what by now is a familiar em- ployer strategy to avoid reaching a collective-bargaining agreement and to undermine an incumbent union. This case illustrates the same, unlawful employer approach, but here, the majority allows the employer to get away with it. That is more than just unfortunate for the Union. As the Board has observed, the “fundamental rights guaranteed employees by the Act—to act in concert, to organize, and to freely choose a bargaining agent—are meaningless if their employer can make a mockery of the duty to bargain by adhering to proposals, which clearly demonstrate an in- tent not to reach an agreement with the employees’ se- lected collective-bargaining representative.”9 5 Altura Communication, supra, 369 NLRB No. 85, slip op. at 4, quot- ing Coastal Electric Cooperative, 311 NLRB 1126, 1127 (1993). 6 Id. at 4–5. 7 Id. at 5. 8 Id. at 6, quoting Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 489 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003). Among the de- cisions cited by the Altura Board are Kitsap Tenant Support Services, Inc., 366 NLRB No. 98 (2018); Radisson Plaza Minneapolis, 307 NLRB 94 (1992) enfd. 987 F.2d 1376 (8th Cir. 1993); A-1 King Size Sand- wiches, Inc., 265 NLRB 850 (1982), enfd. 732 F.2d 872 (11th Cir. 1984); Eastern Maine Medical Center, 253 NLRB 224 (1980), enfd. 658 F.2d 1 (1st Cir. 1981); and San Isabel Electric Services, Inc., 225 NLRB 1073 (1976). 9 Reichhold Chemicals, Inc., 288 NLRB 69, 70 (1988), enfd. in part sub nom. Teamsters Local 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990), cert. denied 498 U.S. 1053 (1991). 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. The administrative law judge’s opinion comprehen- sively describes the parties’ bargaining and the Hospital’s actions. A brief review of the key facts is helpful. For more than 20 years, the Hospital and the Union had suc- cessive collective-bargaining agreements. The most re- cent agreement expired in December 2016. Bargaining for a new contract began in November 2016 and lasted nearly two years, until October 2018. From the beginning, the Hospital made no secret of its aim to make radical changes. The Hospital called this effort “modernizing” the agreement. It amounted to eliminating crucial guar- antees and protections for employees, stripping the Union of its function, and giving the Hospital free rein to deter- mine employment terms and conditions. In short, a tradi- tional contract, and a traditional role for the Union, were to be treated as things of the past. The most significant changes that the Hospital proposed were: • an expansive management-rights clause that (among other things) gave the Hospital the right to unilaterally reassign bargaining unit work, to disci- pline employees without cause, and to change em- ployees’ health insurance and benefits at any time;10 • a dispute resolution proposal that replaced arbitra- tion with non-binding mediation; • a sweeping no-strike provision prohibiting em- ployee picketing and use of economic weapons in response to violations of the collective-bargaining agreement or federal law; • the elimination of check-off for union dues and the union security clause;11 and 10 Under the management-rights proposal, the Hospital reserved the right to: (1) assign any amount of bargaining-unit work to supervisors; (2) use contractors and contract personnel to perform bargaining-unit work; (3) engage in searches of unit employees without limit; (4) disci- pline employees without cause; (5) change employees’ health insurance and other benefits at any time; (6) determine what positions were part of the unit; (7) determine the existence of bargaining-unit work; and (8) de- termine the extent to which bargaining-unit work could be performed at all. The Hospital also proposed a “zipper” clause nullifying all past prac- tices and reaffirming the Hospital’s right, without limitation, “to make, change and enforce rules, regulations and policies governing employ- ment and conduct of employees on the job.” With respect to discipline, the Hospital’s proposal departed from longstanding contract language by: (1) eliminating the requirement that employees be disciplined for “just cause;” (2) excluding any discipline short of discharge from “the full grievance and arbitration procedure;” (3) placing limits on employees’ right to union representation at investi- gatory interviews; and (4) weakening the progressive discipline system. 11 The Hospital contemporaneously stated that the proposal reflected its belief “that employees should have a choice as to whether or not to • a wage proposal that placed employees on hospital- wide pay scales where the Hospital had the unfet- tered discretion to determine wage increases. With only some small modifications, the Hospital never budged from these proposals. There was another important component to the Hospi- tal’s strategy: withhold employee wage increases and pub- licly blame the Union. Under the expired contract, em- ployees had received annual wage increases, the last in January 2016. Once the contract expired, employees would not receive another increase until October 2018 – after the Hospital withdrew recognition from the Union. Throughout the bargaining process, the Hospital required supervisors to read and distribute bargaining briefs to em- ployees at pre-shift meetings. The administrative law judge found that the “bargaining briefs continually dispar- aged the Union during bargaining, misrepresented the par- ties’ bargaining positions, including its wage proposals, … blamed the Union for the lack of a pay raise,” and “served to undercut unit employees’ support for the Un- ion.”12 As to wages, the Hospital consistently maintained that it would not bargain over economics until all non-eco- nomic proposals were resolved, which, according to the Union, involved Hospital proposals to alter 19 out of 20 non-economic provisions in the contract. Instead, at the Hospital’s insistence, the focus remained on its demands for significant concessions. The Hospital finally made its wage proposal in May 2018, over a year and a half into bargaining -- and more than a year after the Union had submitted a wage proposal. The wage-structure in the Hospital’s proposal was unprecedented for the parties. Bargaining-unit employees would be placed on hospital- wide wage scales, at the Hospital’s discretion, with the same wage rates for union and non-union employees. Any pay union dues, and should not be fired, as the union is insisting, if they choose not to pay dues.” 12 My colleagues, citing the judge’s finding that the Hospital’s bar- gaining briefs were lawful under Sec. 8(c) of the Act, refuse to consider them in assessing whether the Hospital bargained in good faith. But if, for instance, we want to understand why the Hospital opposed a union security clause, looking at the totality of the circumstances, we can surely look to the bargaining briefs that communicate the Hospital’s motivation without running afoul of Sec. 8(c). This is consistent with the long- standing principle that simply because conduct is not unlawful does not mean the Board is “precluded from considering such conduct, in the to- tality of circumstances, as evidence of the actual state of mind of the actor.” NLRB v. Insurance Agents’ Union, 361 U.S. 477, 506, (1960) (Frankfurter, J., concurring). See also American Meat Packing Co., 301 NLRB 835, 839 (1991) (ad hominem attacks and attempts to denigrate the union in the eyes of the employees support an inference of bad-faith bargaining); General Electric, 150 NLRB 192, 274 (1964) enfd. NLRB v. General Electric, 418 F.2d 736, 757 (2nd Cir. 1969) (employer’s bar- gaining briefs publishing its take-it-or-leave-it bargaining proposals sup- port a finding of bad-faith bargaining). DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 13 wage increases during the contract term would be discre- tionary, based on the Hospital’s evaluations of employees. The Hospital informed the Union that its wage proposal was non-negotiable.13 Repeatedly during the course of negotiations, the Un- ion’s lead, Stephan Godoff, expressed his frustration with the pace of bargaining and the substance of the Hospital’s proposals. As early as February and March 2017, Godoff and his fellow bargaining team members complained that the Hospital was slow-walking the negotiations. Of par- ticular concern, the Hospital refused to agree to more than two sessions a month. At the same time, the Union and Godoff were growing increasingly alarmed by the dra- matic—and often unexplained—concessions being de- manded by the Hospital. To be sure, Godoff did not hold back in expressing himself. At various points during the negotiations Godoff characterized the Hospital’s pro- posals as “disgusting,” “bull shit,” “nastiness,” and a “dis- grace,” and made clear that he had no interest in discuss- ing such unacceptable proposals. As observed by the ad- ministrative law judge, however, Godoff was not alone in making such colorful comments. Indeed, there were raised voices and interruptions all around the table throughout the parties’ contentious negotiations. In March 2018, the Union set this case in motion by fil- ing an unfair labor practice charge against the Hospital, alleging that it was bargaining in bad faith by “maintain- ing a restrictive grievance/arbitration provision and no strike provision, while at the same time an expansive man- agement rights clause in its contract proposal.” At this point, the Hospital had maintained its combination of pro- posals a full year. (It would do so until June 2018, when it finally withdrew its proposed no-strike provision.) About the time that the Union filed its charge with the Board, a bargaining-unit employee began circulating a pe- tition expressing disaffection from the Union. In October 25, 2018, the employee submitted the petition to the Hos- pital’s chief executive officer. The administrative law judge found that “[m]ost [employees] who signed the pe- tition did so because they were disappointed with the 13 The Union countered with a proposal guaranteeing certain wage in- creases where employees at least met expectations, but the Hospital did not agree. 14 As the Supreme Court has observed, employers are presumed to intend the foreseeable consequences of the actions, under the National Labor Relations Act as in other areas of the law. NLRB v. Erie Resistor Corp., 373 U.S. 221, 228 (1963), citing Radio Officers’ Union of Com- mercial Telegraphers Union v. National Labor Relations Board, 347 U.S. 17, 45 (1954). 15 Radisson Plaza Minneapolis, 307 NLRB 94, 94 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993). 16 When no collective-bargaining agreement is in place, an employer remains subject to the duty to bargain established by Sec. 8(d) of the Act. The employer may not change any term and condition of employment Union’s inability to get a new contract and the resulting wage increases.” The next day, after determining that 81 out of 156 bar- gaining-unit employees had signed the petition, the Hos- pital withdrew recognition from the Union, revoked the Union’s access rights, and stopped bargaining. A 20-year bargaining relationship was terminated. On November 1, 2018, the Hospital told employees that it was “delighted to welcome [them] to the GW Hospital team of non-union employees” and that the Hospital was making across-the- board changes to working conditions—including granting significant pay increases. There was nothing unforeseea- ble about this result, and nothing surprising about the Hos- pital’s expressed delight.14 III. Examined in light of Board precedent, the record evi- dence is more than enough to establish, as the administra- tive law judge found, that the Hospital engaged in bad- faith bargaining. The Hospital’s demonstrated purpose was, in the words of the Altura Communication Board, “to frustrate the possibility of arriving at any agreement.” That purpose is reflected in the combination of bargaining proposals that the Hospital made and adhered to, even apart from its campaign to undermine the Union. Follow- ing an approach by now familiar to the Board, the Hospi- tal’s “dealings with the Union . . . were clearly calculated to impede bargaining and weaken the Union with a view to having it removed as the employees’ collective-bar- gaining representative, rather than to reach agreement.”15 A. To begin, as Altura Communication illustrates, the Board has long held, with court approval, that employer proposals which, taken as a whole, would leave employees with fewer rights than they would have without a contract are clearly designed to frustrate the collective-bargaining process.16 The most prominent example is when an em- ployer simultaneously insists on a broad management- rights clause, a no-strike provision, and no effective griev- ance-and-arbitration procedure.17 This would require without first giving the union notice and opportunity to bargain. Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991). Em- ployees, in turn, retain all of the Sec. 7 rights that might be given up in an agreement, including the right to strike. Id. at 199. 17 See e.g., Target Rock, 324 NLRB 373, 386 (1997) (“An employer acts in bad faith when, during negotiations, it simultaneously insists on a broad management-rights clause, a no strike provision, and no effective grievance-and-arbitration procedure.”), citing San Isabel Electric Ser- vices, 225 NLRB 1073, 1079 fn. 7 (1976) (“We have consistently found bad-faith bargaining in cases in which an employer has insisted on a broad management rights clause and a no-strike clause during negotia- tions, while, at the same time, refusing to agree to an effective grievance and arbitration procedure.”) (collecting cases). My colleagues claim it was the timing rather than the substance of the proposals in Target Rock 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees to sacrifice their statutory right to strike, while offering few, if any, contractual guarantees in return. The employer would be free to change many terms and condi- tions of employment unilaterally, and there would be no simple way to enforce what rights the contract did give employees. Here—in making a radical, so-called “modernizing” break with prior agreements—the Hospital advanced and adhered to precisely the combination of proposals that the Board has consistently condemned. As discussed, the Hospital pursued a management-rights clause that would have allowed the Hospital to alter, eliminate, or subcon- tract unit work and to alter health insurance and other ben- efits during the term of the contract.18 Similarly, it pro- posed to retain unfettered discretion to determine any wage increases and sought the unlimited power to “make, change and enforce rules, regulations and policies govern- ing employment and conduct of employees on the job.” The Hospital also pursued a no-strike provision that re- quired employees to give up their statutory rights to en- gage in picketing and to use economic weapons, such as a strike, in response not only to violations of the collective- that was unlawful. But that is at odds with the decision itself, which states that the employer’s position exceeded the bounds of lawful hard bargaining because they proposals would “have left the Union members better off without the Union and without a contract.” 324 NLRB at 386. That is precisely what the judge found in this case. The majority’s observation that an employer is free to engage in hard bargaining, and may lawfully seek a management-rights clause, has no application here. Management-rights clauses that give the employer “unilateral control over virtually all significant terms and conditions of employment” are examples of bad-faith bargaining. Altura Communica- tion Solutions, supra, 369 NLRB No. 85, slip op. at 3–4, quoting Public Service Co. of Oklahoma (PSO), 334 NLRB 487, 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003). The majority cites Rescar, Inc., 274 NLRB 1, 2 (1985), for the prop- osition that a broad management-rights proposal with a no-strike clause and a limited grievance and arbitration mechanism is not evidence of bad faith. But the Rescar Board explicitly relied on the fact that—in contrast to this case—the employer did not simultaneously maintain this combi- nation of proposals as a package. Notwithstanding the majority’s claims, the Hospital did maintain this unlawful combination of proposals for 15 months, and under extant law, it makes no difference that the majority never presented its proposals as all-or-nothing. In further contrast to this case, the Rescar employer (1) did not propose to eliminate the just-cause standard and arbitration for discipline or discharge; (2) did not seek the power to change benefits at any time; and (3) did not propose to maintain unfettered discretion to determine wage increases. 18 The Board has observed that a management-rights clause that per- mits the employer to alter or discontinue any benefit at any time is “at odds with the basic concept of a collective-bargaining agreement.” Radisson Plaza Minneapolis, supra, 307 NLRB at 95. The majority con- cedes that the Hospital proposed to retain the authority to unilaterally change the unit members’ terms and conditions of employment at any time but claims that Radisson Plaza Minneapolis is inapposite because that case also involved additional away-from-the-table misconduct. As discussed, I believe that the Hospital’s away-from-the-table conduct sup- ports an inference of bad faith. Moreover, the overarching principle that bargaining agreement, but also to violations of federal law.19 Finally, the Hospital proposed a dispute resolution system that culminated not in binding arbitration, but ra- ther in non-binding mediation. The Hospital’s adherence to the poison-pill combina- tion of the management-rights clause, no-strike clause, and absence of a grievance-arbitration clause is enough to establish bad-faith bargaining by itself, but there is more here, as I will explain. B. The Hospital’s approach to bargaining over wages also supports a finding of bad-faith bargaining. First, the Hospital presented its wage proposal as non- negotiable.20 That approach is obviously contrary to the statutory duty to bargain in good faith.21 Thus, the Board has long held that a “party who enters into bargaining ne- gotiations with a ‘take-it-or-leave-it’ attitude violates its duty to bargain.”22 Here, the Hospital “unlawfully sought agreement on its own terms and none other.”23 Whatever small accommodations the Hospital made with respect to its proposal, its key position—that bargaining-unit em- ployees would be placed on a hospital-wide pay scale, certain proposals demonstrate bad faith applies regardless. See e.g., Prentice-Hall Inc., 290 NLRB 646, 646 (1988) (employer demand for sweeping waivers of employees’ statutory rights, while offering little in return, with no away-from-the-table evidence of bad-faith bargaining, was simply “not the behavior of an employer who is trying to achieve a collective-bargaining agreement.”); NLRB v. Wright Motors, Inc., 603 F.2d 604, 609 (7th Cir.1979) (“Sometimes, especially if the parties are sophisticated, the only indicia of bad faith may be the proposals ad- vanced and adhered to.”) 19 The majority credits the Hospital for making a “significant conces- sion” by eventually withdrawing the no-strike proposal. But the Hospital maintained this unlawful combination of proposals for 24 bargaining ses- sions over 14 months, which was more than enough time to frustrate the bargaining process. The Hospital only withdrew the no-strike proposal after the Union filed an unfair labor practice charge with the Board. 20 My colleagues state that the judge was incorrect in finding that the Hospital refused to negotiate over the wage proposal. The Hospital, they say, invited a counter proposal, and the Union failed to test the Hospital’s willingness to bargain. Even assuming, contrary to the judge’s factual findings, that the Hospital invited a counteroffer and the Union did not make one, the Union was in no position to counter the Hospital’s pro- posal. The Hospital’s long-delayed initial wage proposal presented 18 months into bargaining and 12 months after the Union’s wage proposal, was incomplete. Despite repeated requests from the Union, the Hospital refused to tell the Union where unit members would be placed on the pay scales until October 11, 2018, 2 weeks before it withdrew recognition. Thus, the Union, without sufficient information to formulate a counter proposal, did not have the realistic opportunity to test the Hospital’s will- ingness to negotiate. 21 As Justice Frankfurter observed, good faith bargaining “is incon- sistent with a predetermined resolve not to budge from an initial posi- tion.” NLRB v. Truitt Mfg., 351 U.S. 149, 154 (1956) (concurring opin- ion). 22 General Electric, 150 NLRB 192, 194 (1964). 23 Regency Service Carts, 345 NLRB 671, 672 (2005), citing Ameri- can Meat Packing Corp., 301 NLRB 835, 836 (1991). DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 15 with each employee’s placement within that scale and any wage increases during the contract left entirely up to man- agement—was “take it or leave it.”24 Second, of course, the terms of the Hospital’s pro- posal—which gave management near-unfettered discre- tion over wage increases—are evidence of bad-faith bar- gaining, as long-standing Board precedent demonstrates. The Hospital’s proposal was strikingly similar to the pro- posal in A-1 King Size Sandwiches, supra, where the em- ployer sought to determine wage increases on the basis of semi-annual wage reviews, where it would make the final decision and had the exclusive right to evaluate, reward, promote and demote employees, leaving the union’s par- ticipation in the process “meaningless.”25 The prolonged adherence to such a proposal, as happened here, is com- pelling evidence of bad faith by itself, but even more so when viewed in the full context of the Hospital’s pro- posals, which together reflect an intent to subvert the bar- gaining process. C. Yet another illustration of the Hospital’s subversive ap- proach was its proposal to eliminate the contract’s longstanding union security and dues-checkoff clauses— based on nothing more than a newfound philosophical op- position to such clauses. For decades, the Board has held that “[w]hile the Act does not require that an employer grant a union’s bargain- ing proposals for union-security and dues-checkoff provi- sions, the assertion of ‘philosophical’ objections does not satisfy the statutory obligation to bargain in good faith concerning these matters.”26 Consistent with well-estab- lished Board law, the judge correctly found that the Hos- pital’s proposal reflected bad faith. The judge considered and rejected the Hospital’s claim that the union security clause interfered with the 24 Even if the Hospital eventually agreed to an initial flat wage in- crease upon contract ratification, any such increase was presented as con- tingent. The Union was required to accept a system that granted exclu- sively merit-based wage increases. Critically, the Hospital never wa- vered from its position that the Union would be excluded from any par- ticipation in determining wage increases during the life of the contract. 25 265 NLRB at 859. See also Kitsap Tenant Support Services, supra, 366 NLRB No. 98, slip op. at 8 (employer “sought to deny the [u]nion any role in establishing wage rates during the life of the contract”). In reversing the judge, the majority cites the principle that an em- ployer is free to propose to retain discretion over wage increases. McClatchy Newspapers, 321 NLRB 1386, 1391 (1996), enfd. in relevant part 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998). That principle has no application here. As the McClatchy Newspapers Board explained, an employer is free to negotiate objective procedures and criteria establishing discretionary wage increases. But the Board found the employer proposal there unlawful because the employer pro- posed open-ended wage increases based on no objective criteria and by- passing the union’s role as bargaining representative. The Board found that such a proposal was “antithetical to our statutory system of Hospital’s recruitment of employees, determining that it was unsubstantiated. Indeed, the judge’s finding is con- sistent with the Hospital’s own characterization of its po- sition. In its bargaining briefs, the Hospital touted the fact that its opposition to union security reflected its belief that “employees should have a choice as to whether or not to pay union dues” and asserted that “it’s not fair to force employees to pay dues to keep their jobs at [the Hospital.]” In other words, by its own admission, the Hospital’s bar- gaining position was based on philosophical opposition to union security. Such a position does not satisfy the duty to bargain in good faith. Reversing the judge, the majority insists that the Hospital’s proposal was not exclusively based on its philosophical opposition to union security clauses. Citing evidence that the trier of fact found unper- suasive, the majority references testimony that the Hospi- tal had received complaints about the union security clause. The Hospital’s own repeated statements—that it was opposed to dues checkoff because it believed employ- ees should not be required to pay union dues or fair share fees—are far more believable. The record simply does not support the majority’s attempt to dismiss this evidence of bad-faith bargaining. D. There is a final example of the Hospital’s approach to bargaining that while relatively small in comparison to its other conduct, neatly illustrates its bad-faith desire to frus- trate agreement: its regressive bargaining over whether disputes over employee discharges would be resolved through arbitration. The Board will find that a regressive bargaining pro- posal—a less favorable proposal than one made earlier— is evidence of bad-faith bargaining when it is made with- out explanation or when the stated reason for the step collective-bargaining meant to promote industrial stability.” Id. The Hospital’s proposal here, with its reservation of unlimited managerial discretion to determine any wage increase during the life of contract, falls into this category. 26 Hospitality Motor Inn, Inc., 249 NLRB 1036, 1040 (1980), enfd. 667 F.2d 562 (6th Cir. 1982), cert. denied 459 U.S. 969 (1982). The Board has recently found evidence of bad-faith bargaining where an em- ployer, “[t]hroughout negotiations … consistently maintained proposals to eliminate the union security clause without advancing any business justification, let alone a legitimate business justification,” but instead “simply argued that people could voluntarily pay union dues, but that it should not be a condition of employment.” Kalthia Group Hotels, Inc. and Manas Hospitality LLC d/b/a Holiday Inn Express Sacramento, 366 NLRB No. 118, slip op. at 19–20 (2018). See also CJC Holdings, 320 NLRB 1041, 1047 (1996), affd. 110 F.3d 794 (5th Cir. 1997); Chester County Hospital, 320 NLRB 604, 622 (1995), enfd. 116 F.3d 469 (3d Cir. 1997); Carolina Paper Board Co., 183 NLRB 544, 551 (1970). The majority assumes without deciding that it is unlawful for an employer to oppose union security and dues checkoff for philosophical reasons, but that proposition is unassailable under the Board’s decisions. 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD backward appears dubious.27 That is the case here. There is no dispute here that the Hospital engaged in regressive bargaining. It first made a discipline proposal providing that the parties would arbitrate disputes over discharges, as had been the case. Then, four months later, it made a dispute-resolution proposal under which discharge dis- putes would be addressed only through non-binding me- diation. The Hospital’s only explanation for this shift— that it was not aware of the terms of its discipline proposal when it made its dispute-resolution proposal—is both im- plausible and woefully inadequate. Grievance and arbi- tration provisions are a cornerstone of collective-bargain- ing agreements. A party seeking, in good faith, to elimi- nate an existing procedure would surely understand its own prior proposals, exercising due diligence. Here, in the context of the Hospital’s overall conduct, it is not en- titled to the benefit of the doubt. Nevertheless, the majority credits the Hospital’s expla- nation that the regressive proposal was made simply to re- solve a discrepancy in its overall package of proposals.28 Of course, the Hospital could just as easily have recon- ciled the two proposals by choosing to preserve binding arbitration for discharge disputes. Nothing compelled the Hospital to move backward, in other words, not even a supposedly inadvertent mistake. The Hospital’s choice, consistent with its other bargaining proposals, evidences its desire to avoid an agreement, not reach one. 27 See Mid-Continent Concrete, 336 NLRB 258, 260 (2001), enfd. sub nom. NLRB v. Hardesty Co., Inc., 308 F.3d 859 (8th Cir. 2002); Houston County Electric Cooperative, 285 NLRB 1213, 1214 (1987). “Regres- sive bargaining . . . is not unlawful in itself; rather it is unlawful if it is for the purpose frustrating the possibility of agreement.” U.S. Ecology Corp., 331 NLRB 223, 225 (2000), enfd. 26 Fed. Appx. 435 (6th Cir. 2001). 28 The majority obscures the realities of the situation when it accuses the Union of regressive bargaining. Eighteen months into bargaining, the Union offered to accept a management-rights clause from a different contract between the parent company and the union. By that point, the parties had reached tentative agreement on aspects of the Hospital’s pro- posed management-rights clause, a reflection of the Union’s willingness to make reasonable concessions. But the parties were still in fierce dis- pute over significant provisions in the management-rights clause because the Hospital refused to step back from using the clause to eviscerate the contract. After months of the Hospital’s recalcitrance, the Union pro- posed a new management-rights clause as a clear attempt to move the negotiations forward. This is not an example, then, of the Union with- drawing from a tentative agreement without good cause. 29 For that reason, my colleagues attempt to distinguish Altura Com- munication, supra, based on whether the offers were final is unpersua- sive. It is, in fact, the commonalities between this case and Altura Com- munication that are striking. Both cases involve employers’ prolonged adherence to a combination of proposals that would leave employees with fewer rights than they would have had without a contract. Both IV. The obvious conclusion here, in light of Board prece- dent and the record evidence, is that the Hospital engaged in bad-faith bargaining, succeeding in its goal to frustrate agreement and to oust the Union. The majority offers a series of excuses for the Hospital’s conduct, but none are persuasive. They amount to blaming the victim for the crime. First, without giving proper weight to the nature of the Hospital’s proposals and its apparent aim in making them, the majority insists that the Union failed to test the Hospi- tal’s willingness to bargain. The facts are to the contrary. As discussed, over the course of 30 bargaining sessions spanning almost 2 years, the Union repeatedly attempted to persuade the Hospital to abandon or modify its pro- posals. The Hospital, however, steadfastly refused to se- riously consider making any significant concessions. Second, the majority argues the Hospital’s proposals did not evidence bad faith because they supposedly were not final offers. Of course, the fact that the Board has found that an employer engaged in bad-faith bargaining by presenting unreasonable final offers does not mean that only final offers can demonstrate bad faith.29 Indeed, the Board, with judicial approval, has previously rejected the argument that a union faced with unreasonable employer proposals needs to await a final offer before it can success- fully demonstrate that the employer is violating its statu- tory duty to bargain in good faith.30 A union is not “com- pelled to continue [a] charade.”31 Unfortunately, a cha- rade is precisely what the Union confronted here. cases involve employer proposals to retain the right to unilaterally change almost every significant terms and conditions of employment, including the existence of bargaining unit work. In both cases, any wage increase during the term of the contract would be at management’s dis- cretion. And in both cases, the employer sought absolute control over terms of employment coupled with no-strike provisions. My colleagues contend that there are meaningful distinctions between the no-strike pro- visions, but the no-strike provision at issue here was sweeping: it prohib- ited employees from participating in any strike or any picketing for any reason, including any violation of the contract or of the law. 30 See e.g., Wright Motors, 237 NLRB 570 (1978), enfd. NLRB v. Wright Motors, 603 F.2d 604, 609–610 (7th Cir. 1979). In Wright Mo- tors, the Board and circuit court rejected the employer’s argument that a bad-faith finding was premature because the parties had only held three bargaining sessions over 6 months. See also Hydrotherm, Inc., 302 NLRB 990, 994 (1991) (rejecting the employer’s contention that its pro- posals were not unlawful because it was deprived of an opportunity to reveal its willingness to compromise by the union’s filing of unfair labor practice charges). 31 In Wright Motors, supra, the Seventh Circuit explained that if “the negotiations were not progressing because of the employer’s insistence on unreasonable provisions, the Union should not be compelled to con- tinue the charade for more sessions before asserting its statutorily pro- tected right.” 603 F.2d at 608. My colleagues seek to distinguish Wright Motors because the no- strike proposal there was more punitive. Contrary to the majority’s DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 17 Third, the majority finds fault in the Union’s counter- proposals, particularly where the Union orally rejected some of the Hospital’s contract proposals. The record is clear, though, that the Union made written and oral coun- terproposals on many of the Hospital’s proposals, and that the Union made concessions to the Hospital’s demands.32 In the majority’s version of events, the Hospital simply exploited its superior bargaining position to force conces- sions from the Union, which failed to appreciate its weak- ness and to make the appropriate concessions. Collective bargaining, though, “is not a cutthroat death match,” AFGE v. Trump, 318 F. Supp. 3d 370, 432 (D.D.C. 2018) rev’d on other grounds, 929 F.3d 748 (D.C. Cir. 2019), and it does not serve the policies of the Act for us to treat it as such. What the evidence shows is that the Hospital sought to use its leverage not to seek more favorable con- tract terms, but to destroy the collective-bargaining rela- tionship. That is not bargaining in good faith, nor was the Union required to capitulate to save itself. It was permit- ted to propose adherence to the existing contract that em- bodied a 20-year relationship. There is no allegation here that the Union violated its own duty to bargain in good faith. Fourth, the majority asserts that the Respondent did not engage in bad-faith bargaining because it offered conces- sions from its original proposals. But the majority vastly overstates the significance of those concessions.33 The only meaningful concession was the withdrawal of the no- strike proposal, which the Hospital maintained for 15 months and which was withdrawn only in response to the Union’s unfair labor practice charge. Otherwise, as ex- plained, the Hospital maintained fundamentally the same position throughout the negotiations. Fifth, the majority places great emphasis on the conduct of Union negotiator Godoff. Boorish as Godoff might have been, his behavior does somehow not excuse the Hospital’s bargaining approach—an approach that may well have provoked Godoff to begin with. The Board has rejected the proposition that a negotiator’s offensive be- havior (short of conduct that itself constitutes bad-faith bargaining) excuses a party from meeting face-to-face, much less that it justifies engaging in surface bargaining.34 Finally, the majority also implies that the Union should have tried harder to bargain over the Hospital’s proposals, suggestion, it makes no difference that the proposals here and in Wright Motors are unlawful in different ways. 32 The majority cites no case supporting the position that the Board requires any party to submit written counterproposals. Nor do the facts here support an inference that the bargaining process was hampered by the Union’s oral counteroffers. Indeed, when, as here, an employer pro- poses radical changes in an existing agreement, and the union wants to retain current contract language, oral proposals are surely enough to communicate the union’s position. rather than filing unfair labor practice charges. Of course, if those charges have merit, that is all that matters. Here, in any case, the Union did not simply file charges and stop bargaining. It continued to bargain for 7 months until the Hospital withdrew recognition, walked away from the bar- gaining table, and welcomed employees to the “team of non-union employees.” V. The Supreme Court has observed that the “object of the National Labor Relations Act is industrial peace and sta- bility, fostered by collective-bargaining agreements providing for the orderly resolution of labor disputes be- tween workers and employers.”35 The result here does not help achieve that object. The Hospital’s conduct was not just bad-faith bargaining, it was egregious bad-faith bar- gaining. It was the Hospital, not the statute, that it achieved its object in this case: avoiding a new agreement and ousting the Union, after 20 years. Neither Board law, nor the record evidence support the majority’s decision to- day. Accordingly, I dissent. Dated, Washington, D.C. April 30, 2021 ______________________________________ Lauren McFerran, Chairman NATIONAL LABOR RELATIONS BOARD Barbara Duvall and Andrew Andela, Esqs., for the General Counsel. Tammie Rattray and Paul Beshears, Esqs. (Ford Harrison LLP), of Tampa, Florida and Atlanta, Georgia, Steven Bernstein, Esq. (Fisher & Phillips,) of Tampa, Florida, for the Respondent. Stephen Godoff, Esq., (Abato, Rubenstein & Abato, PA), of Bal- timore, Maryland, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Washington, District of Columbia on June 18–20, 2019. The complaint alleges that District Hospital Partners, L.P. d/b/a The George Washington University Hospital, a Limited Partner- ship, and UHS of D.C., Inc., General Partner (the Hospital or 33 NLRB v. Wright Motors, supra, 603 F.2d at 609 (observing that the employer did not make “bona fide concessions on substantial issues.”). 34 Success Village, 347 NLRB 1065, 1067 & 1081 (2006). The Board has explained that the “obligation to bargain also imposes the obligation to thicken one’s skin and to carry on even in the face of what otherwise would be rude and unacceptable behavior.” Victoria Packing Corp, 332 NLRB 597, 600 (2000). 35 Auciello Iron Works v. NLRB, supra, 517 U.S. at 785. 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent) violated Section 8(a)(5) and (1) of the National La- bor Relations Act (the Act)1 by failing and refusing to bargain in good faith and with no intention of reaching an agreement for a successor collective-bargaining agreement with 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region A/W Service Employees International Un- ion (the Union) as the exclusive collective-bargaining repre- sentative of its employees. The complaint further alleges that the Hospital improperly withdrew recognition from the Union after nearly 2 years of bad faith and regressive bargaining, subse- quently rejected the Union’s request to continue bargaining and immediately proceeded to implement unilateral changes to em- ployees terms and conditions of employment. At hearing, the General Counsel moved to amend the com- plaint to further allege that Hospital representatives improperly interrogated potential employee witnesses. The Hospital disputes the allegations and contends that it en- gaged in hard, but good faith, bargaining over the course of 30 bargaining sessions. It contends that it withdrew recognition from the Union only after it received objective evidence from a majority of employees in the bargaining unit that they no longer wished to be represented by the Union for purposes of collective bargaining. Even if it did engage in any unfair labor practices during bargaining, the Hospital avers that none caused the disaf- fection that eventually developed among a majority of the bar- gaining unit. Since the withdrawal was proper, the Hospital con- tends that it was then entitled to implement unilateral changes to employees’ terms and conditions of employment, as well as no- tify employees that the changes were related to the Union’s shortcomings and their newfound status as nonunion employees. Finally, the Hospital denies that its counsel coercively interro- gated employees in preparation for hearing and that they properly advised the employees of their rights, including the right to decline to give testimony without threat of reprisal. On the entire record,2 including my observation of the de- meanor of the witnesses,3 and after considering the briefs filed by the General Counsel, the Hospital and the Union, I make the following FINDINGS OF FACT I. JURISDICTION The Hospital, a limited partnership, is engaged in providing short-term acute medical care to the general public from its health care facility in Washington, D.C. In conducting such business oper- ations, the Hospital annually derives gross revenues in excess of $250,000 and receives goods and materials valued in excess of $5,000 directly from points outside of Washington, D.C. Addi- tionally, the Hospital’s business operations within the District of Columbia are encompassed by the National Labor Relations Board’s (the Board) plenary jurisdiction over enterprises in that 1 29 U.S.C. §§ 151-169. 2 The parties’ joint motion to correct the record, dated July 31, 2019, is granted. 3 There were very few credibility issues in this case. An unidentified hospital employee took notes of the sessions. The General Counsel in- troduced selected portions of those bargaining notes, while the Hospital moved at the conclusion of the hearing to admit the notes for all 30 jurisdiction. The Hospital admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and has a been a healthcare institution within the meaning of Section 2(14) of the Act, and that the Un- ion is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Parties’ Collective Bargaining History The Hospital is jointly owned by George Washington Univer- sity and District Hospital Partners, L.P. District Hospital Part- ners, L.P. is a subsidiary of Universal Health Services, Inc. (UHS). The Union represents a bargaining unit of about 150 regular full-time and regular part-time employees in the Envi- ronmental Services (EVS), Linen Services, Ambulatory Care Center, and Food Services (Dietary) departments of George Washington University Hospital (the bargaining unit). The Hospital’s recognition of the Union has been embodied in successive collective-bargaining agreements spanning more than 20 years.4 The most recent agreement was effective from De- cember 20, 2012 through December 19, 2016 (the CBA). That agreement, as well as the one before it, were negotiated within a week and without the assistance of counsel. The CBA defines the bargaining unit, in pertinent part, as follows: Article 1 – Recognition Section 1.1 The Employer recognizes the Union as the exclu- sive bargaining agent for a unit of all regular full-time and regu- lar part-time employees of the Employer in the Environmental Services, Linen Services, Ambulatory Care Center and Food Services Department of George Washington University Hospi- tal. The job classifications are named in Section 2 below, but ex- cluding, all executive, professional, technical, clerical, and su- pervisory employees (including foreman), temporary employ- ees, guards, employees not regularly scheduled for a standard workweek of twenty (20) or more hours, and all other employees in job classifications not specifically named in Section 1.2 be- low. Section 1.2 Crew Leader, Environmental Services Service Worker Service Worker Trainee Senior Service Worker Linen Service Worker Trainee Linen Service Worker Cook I Cook II Utility Worker Food Service Worker bargaining sessions. I received all of the notes over objection of the Gen- eral Counsel. The notes did not always capture the detailed exchanges between the parties. They did, however, cover the topics covered at the meetings and were corroborated in most instances by witness testimony, subsequent correspondence, and exchanged proposals and counterpro- posals. (R. Exh. 3.) 4 GC Exh. 30. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 19 Nutrition Associate Section 1.3 For purposes of this Agreement, the following terms have the meanings stated below: (a) “regular full-time employee(s)” means employee(s) in a bargaining unit who hold regular full-time positions and who are regularly scheduled to work forty ( 40) hours per week; (b) “regular part-time-employee(s)” means employee(s) in a bargaining unit who hold regular part-time positions and who are regularly scheduled to work twenty (20) or more hours per week; any regular part-time employee working over 35 hours a week shall receive an additional twenty cents (20) an hour to his or her straight-time hourly rate for each hour worked from 36 to 40. If an employee works in excess of 40 hours per week[,] such additional amount will not be paid; (c) “temporary employee(s),” excluded from bargaining units, means employees who are identified as temporary employees on Employer records and are hired for a period of no longer than six (6) months, or whose temporary status is subsequently renewed for periods not to exceed three (3) months, or who are hired to replace one or more employees who are absent on leave from work, even if for longer than ( 6) months; (d) “employee(s)” as hereinafter used means both regular full- time employees and regular part-time employees as defined above, unless a provision applies only to one of these categories of employees, in which case the term shall include only the cat- egory of employee to which the provision applies. Other provisions that figured prominently in the bargaining at issue include the following relating to union security, wages and the grievance/arbitration process: Article 2 – Union Security Section 2.1 The Employer agrees that as a condition of con- tinued employment, all employees who are presently members of the Union shall maintain said membership, and all employees who are not presently members of the Union and all new em- ployees shall become members on the first day of the first full calendar month which follows completion of sixty (60) days of employment, or the thirtieth day following the effective date of this Agreement, whichever is later. The Employer agrees to pro- vide the Union with a quarterly report of new members, their ad- dresses and job titles. Section 2.2 Membership in the Union, insofar as this Agree- ment is concerned, shall mean that an employee tenders the pe- riodic dues and initiation fees uniformly required by the Union as a condition of acquiring or maintaining membership therein. Section 2.3 The Employer further agrees that upon request of the Union it will discharge any employee who in accordance with the above, fails to tender the periodic dues and initiation fees uniformly required to obtain and maintain membership in said Union. Section 2.4 The Union agrees to indemnify and hold the Em- ployer harmless from any and all claims, suits, judgments, at- tachments, and any other liability resulting from the Employer’s actions in accordance with this Article. Article 7 – Wage Rates Section 7.1(a) Effective January 1, 2013, employees on the payroll as of that date shall Receive a pay increase of two percent (2%) of their present straight time hourly rate. Effective January 1, 2014, employees on the payroll as of that date shall receive a pay increase of two percent (2%) of their present straight time hourly rate. Effective January 1, 2015, employees on the payroll as o that date shall receive a pay increase of two percent (2%) of their present straight time hourly rate. Effective January 1, 2016, employees on the payroll as of that date shall receive a pay increase of one percent (1 %) of their present straight-time hourly rate. (b) If any employee’s straight-time hourly rate of pay, upon being increased as provided above, is less than the straight-time hourly rate for his/her job classification as listed in the relevant column of Exhibit 3, the employee’s straight-time hourly rate will be the higher rate, and whichever straight time hourly rate is higher will be used as the basis for computing all paid leave and other benefits provided under this Agreement. Section 7.2 Employees who are hired on or after the date of execution of this Agreement or who transfer to a new job classi- fication on or after the date of execution of this Agreement will be hired or transferred in accordance with the hourly rates of pay set forth in Exhibit 3; provided that in the case of a transfer to a job classification in the same or a higher pay grade, the employee may retain his/her former hourly rate of pay, if higher. Section 7.3 An employee shall receive a shift differential forty ($.40) cents per hour over his/her straight-time hourly rate for hours worked between 7:00PM and 5:00AM. No shift differ- ential will be paid for any hours for which an employee is paid at a time-and-a-half (1½ ) or greater rate. Section 7.4 An employee shall receive a weekend differential thirty ($.30) cents per hour-over his/her straight-time hourly rate for hours worked between 12:00 AM Saturday and 12:00 AM Monday. No shift differential will be paid for any hours for which an employee is paid at a time-and-a-half (1 ½) or greater rate. Section 7.5 It is understood and agreed that an employee from a lower classification assigned to perform one (1) hour or more per day in a classification paying a higher rate Section 8.1 of pay per hour as set forth in Exhibit 3 shall receive the higher rate of pay for all hours worked in the higher classification. Nothing in this Agreement, however, shall be construed to prohibit the em- ployee from performing tasks as a trainee for a higher paid clas- sification at his/her regular rate for a period not to exceed 2 months. An employee may be assigned to perform work in a lower classification when emergencies or unpredictable events occur which prevent the normal operational schedule to be fol- lowed, but in such temporary instances will retain his or her reg- ular rate of pay per hour. Article 18 – Grievance and Arbitration Section 18.1 General. A grievance is defined as a complaint 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by the Union over an alleged violation of any specific provision of this Agreement that occurs during its term. A grievance shall be in written form, signed and dated by an authorized union rep- resentative. Section 18.2 Time Limits, “Working days” as used in this Article means Monday through Friday, excluding observed hol- idays. Unless the parties have agreed in advance in writing to a specific extension of time, any grievance or demand for arbitra- tion which is not filed by the Union at each step within the time limits contained herein is waived and the grievance is deemed to be concluded in accordance with the Employer’s decision, and there shall be no further processing of the grievance or any arbi- tration delivery in writing by person or by mail, and if filing is by mail, the date of the official U.S. Postal Service postmark shall be the date of filing. Section 18.3 Meetings. If the authorized Union representative or the aggrieved employee fails to attend a scheduled grievance meeting without prior notification to the Employer, the grievance shall be deemed concluded in accordance with the Employer’s decision and there shall be no further processing of the grievance or any arbitration thereon. Section 18.4 Steps 1. 2 and 3. Except as provided in Section 18.4 (d) below, Steps 1, 2 and 3 are as follows: (a) Step 1. A grievance shall be filed at Step 1 with the su- pervisor within ten (10) working days after the action on which the grievance is based. The parties may agree to hold a meeting at this Step. If the grievance is not settled or denied by the super- visor or his/her designee within five (5) working days after it is filed at Step 1, the grievance shall be deemed denied at the expi- ration of such five (5) working days and the Union may, proceed to file the grievance at Step 2 as provided below. (b) Step 2. A grievance shall be filed at Step 2 with the de- partment head, within five (5) working days after the grievance is denied at Step 1. A meeting for the purpose of attempting to resolve the grievance shall be held at this Step. If the grievance is not settled or denied by the depat1ment head or his designee within ten (10) working days after it is filed at Step 2, however, the grievance shall be deemed denied at the expiration of such ten (10) working days and the Union may proceed to file the grievance at Step 3 as provided below, (c) Step 3. Within five (5) working days after the grievance is denied at Step 2 a grievance shall be filed at Step 3 with the Di- rector of Human Resources. A meeting for the purpose of at- tempting to resolve the grievance shall be held at this Step. If the grievance is not settled or denied by the Director of Human Re- sources or his/her designee within ten (10) working days after it is filed at Step 3, however, the grievance shall be deemed denied at the expiration of such ten (10) working days and the Union may proceed to invoke the arbitration procedure as provided in Section 18.5 below. (d) Discharges: Discipline Imposed by Department Head. A 5 Godoff admitted he used profanity on numerous occasions during the bargaining sessions and never heard that type of language from Bern- stein or Schmid. (Tr. 80–91.) grievance which arises from a discharge or from disciplinary ac- tion imposed directly by the department head shall start at Step II instead of Step I and shall be filed within ten (10) working days after the action on which the grievance is based. All other provisions of Section 18.4 shall apply. Section 18.5 (a) Demand for Arbitration. A written demand for arbitration shall be filed by the Union with the Director of Human Resources within thirty (30) working days after the grievance is denied at Step 3. At the same time, the Union will request the Federal Mediation and Conciliation Service (with a copy to the Employer) to furnish a list of not less than nine (9) arbitrators. Selection shall be made by the Union and then the Employer representatives alternatively striking any name from the list until only one name remains. The final name remaining shall be the arbitrator of the grievance. (b) Authority of Arbitrator. The arbitrator shall have no au- thority to hear and determine any case that has not been pro- cessed and submitted to him/her in accordance with the time and procedural requirements of the Article unless the parties have specifically agreed in writing to a waiver of the particular re- quirements. The arbitrator’s authority and his/her opinion and award shall be confined exclusively to the specific provision or provisions of this Agreement at issue between the Union and Employer. The arbitrator shall have no authority to add to, alter, amend, Ot! modify any provision of this Agreement. The arbi- trator shall not hear ot· decide more than one grievance without the mutual consent of the Employer and the Union. The arbitrator shall render a decision as expeditiously as possible, and no later than thirty (30) working days after the close of the hearing, un- less otherwise agreed to. The award in writing of the arbitrator within the proper jurisdiction and authority as specified in this Agreement shall be final and binding on the aggrieved employee, the Union and the Employer. Before either party flies an action in court to enforce or vacate an arbitrator’s award, the (c) Expenses. The Union and the Employer shall each beat its own expenses in any arbitration proceedings, except that they shall share equally the fee and other expenses of the arbitrator in connection with the grievance submitted. B. Overview of the Bargaining Period The Hospital and the Union met for 30 sessions between No- vember 2016 and October 2018. The Hospital’s bargaining team was led by outside counsel Steven Bernstein and Jeanne Schmid, the Hospital’s vice president of labor relations. Both were new to the bargaining relationship, although Bernstein had repre- sented the Hospital since 2014 during the decertification of the Hospital security officers’ union. Other Hospital negotiators in- cluded supervisors Rhonda Evans, Eric McGee, Makita Miller and Robert Trump. The Union’s lead bargainers included out- side counsel Stephen Godoff5 and Brian Esders, Union repre- sentatives Lisa Wallace,6 Antoinette Turner and Yahnae Barner, and unit employees Cynthia Bey, Pamela Brooks, Aisha Brown, Marcia Hayes, Sonya Stevens and Arlene Smith. 6 Although not clarified in the record, I find that Lisa Wallace subse- quently changed her name to Lisa Barnes. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 21 The parties met at the Hospital’s administrative offices, some distance from the medical center, on K Street in Washington, D.C. for negotiations on the following dates: 1. November 21, 2016 2. November 22, 2016 3. December 6, 2016 4. December 7, 2016 5. December 21, 2016 6. December 22, 2016 7. January 17, 2017 8. January 31, 2017 9. February 1, 2017 10. February 22, 2017 11. February 23, 2017 12. March 28, 2017 13. March 29, 2017 14. April 5, 2017 15. April 6, 2017 16. May 16, 2017 17. June 12, 2017 18. July 12, 2017 19. July 31, 2017 20. October 6, 2017 21. January 17, 2018 22. February 13, 2018 23. May 18, 2018 24. May 21, 2018 25. July 31, 2018 26. August 1, 2018 27. September 5, 2018 28. September 6, 2018 29. October 10, 2018 30. October 11, 2018 C. The Bargaining Sessions 1. November 21 and 22, 2016 Bargaining Sessions At the first bargaining session on November 21, 2016, the par- ties discussed the scheduling of bargaining sessions and time al- located to each, whether employee negotiators would be com- pensated by the Hospital for their time at bargaining, and various other “housekeeping” items. From the outset and on numerous occasions thereafter, Bernstein and Schmid stressed that they sought to substantially alter many of the CBA provisions on the grounds that they were antiquated and ambiguous in various re- spects.7 The second day of negotiations on November 22, 2016 fo- cused on weather related transportation issues, the usage of cots, proposed changes to Articles 25 (union announcements & con- ferences) and 28 (personnel folders), and a new article on re- stricted access to hospital and patient care areas. The Union gave verbal counter-offers to the recognition and nondiscrimination clauses.8 The contentiousness of the negotiations due to a previ- ous labor/management committee dispute surfaced in several snide comments by Turner.9 Following those bargaining sessions, the Hospital issued its first “Bargaining Brief” (bargaining brief) to supervisors on De- cember 1, 2016, which included the following “talking points:” the union has communicated with hostility and has not provided any proposals or responses to the proposals introduced by the hospital. They have not been prepared; as a result, the meetings have been unproductive unfortunately; This is the first time GWUH is presenting a bargaining brief and we do not believe 7 Godoff confirmed that the CBA could use some updating, but not to the drastic extent that the Hospital’s negotiators sought. (Tr. 77; R. Exh. 3 at 6, 50, 85, 177.) 8 R. Exh. 5. 9 R. Exh. 3 at 24–26. 10 Following nearly every bargaining session, the Hospital required supervisors to read and distribute bargaining briefs to unit employees at pre-shift meetings. Along with some of the bargaining briefs were “talk- ing points” for supervisors to share with bargaining unit employees. (GC Exh. 40.) the union will be happy with us doing so. Therefore, please be vigilant as union presence may increase as soon as today.”10 2. The December 6 and 7, 2016 Bargaining Sessions With the CBA about to expire on December 19, 2016, the par- ties resumed bargaining on December 6 and 7. On December 6, Bernstein presented the Union with proposed sweeping changes to Article 30, the management rights clause, which had been em- bedded in all of the predecessor agreements between the par- ties.11 The proposal reserved the Hospital’s rights to: (1) assign any amount of bargaining unit work to supervisors; (2) use con- tractors and contract personnel to perform bargaining unit work; (3) engage in searches of unit employees without limit; (4) dis- cipline employees without cause; (5) change employees’ health insurance and other benefits at any time; (6) determine what po- sitions are and are not part of the unit; (7) determine the existence of bargaining unit work; and (8) determine the extent to which bargaining unit work could be performed at all. Along with its management rights proposal, the Hospital also proposed to nul- lify past practices: The parties further agree that all past practices, side agreements of understandings, verbal or written, of every kind and nature which may have developed or existed prior to the effective date of this Agreement are superseded and extinguished by this Agreement and, effective with execution of this Agreement, shall be wholly void and without force and effect. Nothing contained in this Article shall be construed as impairing or lim- iting the Hospital’s Management Rights . . . including, without limitation, the Hospital’s right to make, change and enforce rules, regulations and policies governing employment and con- duct of employees on the job. After the Hospital began posting contentious bargaining briefs, the Union brought Godoff into the negotiations on De- cember 7, 2016. Godoff started off with a bang, accusing the Hospital of creating an atmosphere that was very difficult to ne- gotiate in and questioning its interest in arriving at a new con- tract.12 At one point, he also referred to the Hospital’s personnel folders proposal as “a nothing burger” and “an absolute waste of everyone’s time.”13 By the end of bargaining on December 7, the Union had ten- dered counteroffers for the recognition clause, non-discrimina- tion clause and personnel folders.14 It rejected the distribution and solicitation proposal, while the Hospital rejected the hostile environment side letter and proposed a job posting provision. On December 9, 2016, Schmid distributed the Hospital’s sec- ond bargaining brief asserting, in pertinent part, that the Union had a different negotiator each day, did not bring a computer or 11 The Hospital’s rationale for the proposal was that the management rights language in the current and earlier contracts was outdated and re- quired clarification. (GC Exh. 2; R. Exh. 1 at 3542–3543.) 12 Godoff conceded that he used profane language at various times but noted that the voices were raised on both sides. (Tr. 80–81; R. Exh. 3 at 45.) Indeed, the Hospital’s bargaining notes reflected numerous in- stances in which Wallace and Schmid interrupted each other. 13 R. Exh. 3 at 49. 14 R. Exh. 5. 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD printer and objected to the bargaining brief posted after the last meeting. The brief concluded with a reminder that Hospital management was available to answer any questions about bar- gaining. Schmid’s subsequent email on December 11 also re- minded supervisors not to “review, discuss or sign any petition, or anything that looks like a petition with anyone,” since “doing so will disrupt the integrity of the process.”15 3. The December 21 and 22, 2016 Bargaining Sessions By the December 21, 2016 session, the proposed ground rules from the November 21 session had still not been agreed upon. As he sought to do at the outset of every session, Bernstein re- viewed the status of all of the proposals during every session, which Godoff found useful because of the infrequency of the bargaining sessions. Negotiations began with discussion of changes to job postings, visitation and bulletin boards. The Un- ion presented language that was used in a contract with Georgetown Hospital, which the Hospital rejected. Godoff men- tioned that the Union had a good relationship with Georgetown Hospital. Schmid responded that “we’re not Georgetown.”16 On December 22, 2016, the parties discussed the Hospital’s proposals to modify Article 6 (hours for employees), specifi- cally, procedures for calling out late and absences. The parties did not agree on any terms; Godoff characterized the Hospital’s proposal to authorize termination based on a few absences as draconian and unprecedented. Bernstein’s proposal to meld Ar- ticles 15 (layoff and recall) and 23 (seniority) was also rejected. The Union opposed these changes as well because they dimin- ished seniority by authorizing layoffs based on performance evaluations rather than seniority. Godoff expressed the Union’s dismay to such a proposal: “If you’re hell bent on these kinds of things we will end up with a fight. Some things are so important will wind up being at war. War with SEIU.”17 4. The January 17, 2017 Bargaining Session On January 17, 2017, the Hospital provided the Union with a proposal to replace Article 22 (Suspension and Discharge) with a draft entitled “Discipline.”18 Among the substantial departures from the longstanding language appearing in Article 22 were provisions: (1) deleting “just cause” language; (2) excluding any discipline short of discharge from “the full grievance and arbi- tration procedure;” (3) placing limits on employees’ right to un- ion representation at investigatory interviews; (4) allowing the Hospital to rely on final written warnings for four years; and (5) permitting the Hospital to apply progressive discipline “where appropriate,” and to skip steps for certain enumerated infrac- tions, as well as “any other incident [or event] that the Hospital deems as a major [or egregious] infraction of employee conduct or work rules.” During the ensuing discussion, the Hospital took the position that discipline, with the exception of termination, should be grieved and not arbitrated.19 The parties also resumed discussion over the Hospital’s 15 GC Exh. 36. 16 R. Exh. 3 at 66. 17 R. Exh. 3 at 90–93. 18 GC Exh. 4; R. Exh. 1 at 3561–3563. 19 Bernstein initially asserted on direct examination that the arbitration provision in the Hospital’s discipline proposal was a mistake or “error” proposal to replace Articles 15 and 23 relating to seniority, layoff and recall. The expired CBA did not contain a time limit on re- call rights; however, the Hospital proposed limiting the time pe- riod for recall to 2 months from the date of layoff. The Hospital also proposed eliminating 2 weeks of severance pay; the Union countered verbally, which Schmid found to make the negotia- tions very difficult. Godoff called the proposal “disgusting . . . Gratuitous bull shit and nastiness I have no interest in [discuss- ing]. Proposal is so mean spirited it is a disgrace . . . Manage- ment flexibility my ass.” Notwithstanding the emotional re- sponse, Godoff signaled a willingness to counter the proposal. In the meantime, he countered with a proposal that the Hospital agree to restoration of Article 15.4 which provides for 2 weeks of severance pay to laid-off employees with at least 6 months of service.20 Two days later, the Hospital circulated a bargaining brief sum- marizing the topics discussed and pointing out that “[d]uring these sessions the union formally proposed: Nothing.” The brief also denounced the Union’s conduct during the sessions and lim- ited availability: • Starting with these January bargaining sessions, the union has refused to continue tomeet with the Hospital’s bargaining team during working hours. The union is insisting on meeting in the evenings because the Hospital agreed to pay the union’s bar- gaining committee members for their time at the table only through the end of the-last year. The Hospital has maintained that the union should pay their own bargaining committee, since the committee is bargaining on behalf of the union, not the Hospital. The union, however, refuses to do so. • Instead the union now wants to meet in the evenings for half of the time we had previously spent in bargaining each day. Instead of meeting for approximately 7 hours from 10 am to 5 pm each day, the union wants to meet from 4pm to 7:30 pm – with a break for dinner. The union acknowledged that this is likely to slow down the pace of bargaining significantly. • Yesterday afternoon, we were in bargaining for 30 minutes when the union took a 45 minute break for dinner. We met to- gether for 45 more minutes after their dinner, and then we ended for the evening. In the short time that we were together at the bargaining table: • The union’s chief negotiator spent the first twenty minutes of valuable time cursing and yelling at the Hospi- tal’s bargaining team; • The Hospital’s chief negotiator made clear that its committee was prepared to walk out if that continued; • The union informed the Hospital that it is no longer able to negotiate on any Fridays, forcing us to change an already agreed-upon date to accommodate that new re- striction. • Despite the fact that the Hospital’s counsel has repeat- edly asked for written counter-proposals, the union and “inaccurate,” but when pressed on cross-examination he admitted that it was in fact not a mistake and the parties actually discussed the arbitration provision when the Hospital introduced the disciplinary pro- posal. (Tr. 42–44, 118–119, 188–190, 554–556, 597–599, 608–609; GC Exh. 46; R. Exh. 3 at 98–109.) 20 R. Exh. 3 at 100–105. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 23 provided none and informed the Hospital that it would not be able to provide any written counters in the evening be- cause there was no one in their offices in Baltimore to type the proposals at that time. But, it is the union that is insisting on meeting in the evening. The brief concluded with the dates of the next sessions and a reminder that “your leadership and the senior leadership team” were available to answer any questions about bargaining.21 5. The January 31 and February 1, 2017 Bargaining Sessions At the January 31, 2017 bargaining session, the Union pro- vided a written counterproposal to the Hospital’s proposed dis- ciplinary proposal to replace Article 22.22 The Union proposed, among other things: (1) that employees be notified within a cer- tain period of time of discipline; (2) that the Hospital produce the work rules it referenced in its discipline proposal; and (3) for fi- nal written warnings to be added to the list of arbitrable actions. The Hospital countered in writing and agreed to some notifica- tion to employees of the discipline; to a deadline by which dis- charged employees must be paid; that employees would not be disciplined in public; and to strike the catch-all provisions re- garding conduct exempt from progressive discipline.23 The par- ties also discussed several outstanding items, including person- nel files, non-discrimination, recognition clause, solicitation, job postings and seniority/layoff and recall. When the parties met on February 1, 2017, the Union tendered a counterproposal to the Hospital’s management rights proposal by accepting 22 of its 26 subsections. The Union also agreed to the Hospital’s introductory language, with the exception of a portion permitting the Hospital to subcontract services or prod- ucts. The bargaining brief issued by the Hospital on February 2 listed the pending proposals by the Hospital and the Union, as well as a detailed summary of the positions of the parties during bargaining, and accused the Union of dragging out negotiations: The evening sessions are much shorter than the sessions we were attending during the day. We now typically begin after 4:00 and end at 7:30 pm, with a break for the union’s dinner. The amount of actual time spent in bargaining is now less than 2 hours per day.Unfortunately, at this pace, it could take longer to work through the process.24 6. The February 22 and 23, 2017 Afternoon Bargaining Sessions During the February 22 session, the parties exchanged pro- posals relating to discipline, solicitation and notification of job postings, and discussed revisions to the bargaining unit, proba- tionary periods and eligibility for benefits, and minimum work hours for full-time employees. The Hospital also tendered a pro- posal to revise Article 28 (personnel folders). The parties 21 GC Exh. 5. 22 GC Exh. 6; R. Exh. 2. 23 GC Exh. 7. 24 GC Exh. 8. 25 R. Exh. 3 at 149–152. 26 GC Exh. 9–12; R. Exh. 1 at 3601–3603, 3610–3611, 3614, 3627– 3630. tentatively agreed to the proposals regarding discipline. On sev- eral occasions during these sessions, the Union’s negotiators ex- pressed a sense of urgency about the need to move to the eco- nomic issues. At the conclusion of the session, Turner noted that “[w]e have to start economics why can’t you give a non-economic pro- posals. Your strategy is to prolong. You won’t want to pay these employees and pay retro.” Bernstein ignored her comment and went on to discuss the need to revise the arbitration language. At the outset of the February 23 bargaining session, Godoff expressed frustration with the pace of negotiations and insisted that the parties agree to on more than 2 half-days per month. Bernstein replied that the Hospital was only willing to schedule two full days of bargaining per month. Godoff responded by threatening to file charges. Bernstein invited the Union to pro- pose dates and Turner replied with twelve dates in March and April. Bernstein immediately replied by agreeing to schedule two dates for bargaining – April 5 and 6, 2017. Turner replied that members had been limited to the afternoon/evening sessions, which Bernstein recognized was due to the fact that the Hospital refused to compensate unit employees for time spent attending collective bargaining after the CBA expired.25 Bernstein handed out proposals relating to uniforms (Article 16), job postings and filling vacancies. He requested a written counter to the Hospital’s discipline proposal (Article 22) and the parties resumed bargaining over Articles 1 (recognition) and 26 (classifications). 7. The March 28 and 29, 2017 Bargaining Sessions At the March 28 and 29, 2017 sessions, the Hospital tendered counterproposals on discipline and job postings, and the parties reached tentative agreements on uniforms. Bernstein also intro- duced four proposals: a counterproposal for managerial duties and rights, a new proposal for union security (Article 2), griev- ance and mediation (Article 18) and no-strikes or lockouts (Ar- ticle 21).26 The Hospital’s March 28 management rights proposal coun- tered the Union’s February 1 proposal. However, it was virtually identical to the Hospital’s December 6 proposal, with the excep- tion that the Hospital agreed “to receive from the Union con- structive suggestions, which the Hospital shall consider in its sole discretion.”27 Godoff, hardly impressed, told Bernstein to “Get the fuck out of here. Put it in the bargaining notes keep going with your proposal.”28 Three new Hospital proposals were tendered on March 29. Its union security proposal sought to delete that provision, as well as the dues remittance authorization.29 That proposal was not discussed. However, the no-strike proposal, which would have precluded picketing and the use of “economic weapons” in re- sponse to contract violations or violation of federal law, evoked a strong response from Godoff: 27 Schmid’s testimony confirmed that the Hospital’s proposal did not change from its December 6 proposal. (Tr. 248.) 28 Contrary to the Hospital’s representation in the bargaining brief that followed, Godoff’s vulgar reference was obviously a rejection of the pro- posal and not a directive to Bernstein to leave. (Tr. 168.) 29 R. Exh. 1 3598–3600. 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Want to be clear at this point. We’ll take a look at this docu- ment; not sure if we are prepared to bargain. Now into the end of March after months of negotiations on innumerable contract provisions that have taken a tremendous amount of time to go through and only TA30 1 or 2 of those documents. To submit on 3/29 a brand (sic) document that requires more time and ef- fort. These negotiations have been extremely protracted and we have only 2 days and now into May before were (sic) even able to consider language non-economic matters. Make clear now that we fully expect on the 6th of April to present eco- nomic proposals and begin to bargain over them. Not walking away from stuff we bargaining but will tell you under no cir- cumstance not accept any new proposals into April, not ac- cepted at that point. Again I don’t know, it may simply clarify responsibilities, we can’t make this a forever negotiation and have to hear from you on issues on retroactivity on wage in- creases before going into 5–6 months on a contract that’s been around for 20 years or more. Reinventing a brand new contract with less than 1 arbitration a year; never been any job action in 20 years so there’s nothing I see in the present contract that has been problematic for either party. No complaints from mgmt., they have been 3 day off. [No]w talking 5 months at a mini- mum. That’s where we are. Want to make sure we are bargain- ing toward a contract not spinning wheels. People not had a raise, contract already 3 months old. Serious concern of ours, not making progressing fast enough, think we ought to lock in dates in [M]ay so we can at least make sure we are done by May. Concern [we’ll] be here.31 Bernstein agreed to schedule bargaining dates for May but in- sisted the parties bargain over the new proposals, insisting they were all urgent. In response to Schmid’s comment that the Un- ion had not fully responded to the Hospital’s proposals, Godoff replied: You’re full of shit . . . we’ve given you everything. You don’t know what the hell is going on. By sticking out month after month these people are going without a raise. Paying without 12 an hour. She pisses me off and you ruin these negotiations.32 After a brief exchange, Bernstein asked if it was the Union’s position that it would no longer discuss non-economic proposals. Godoff replied: Reaching point you are not bargaining in good faith, becoming the suspicion. Not agreed on employee wants to look at person- nel file for a union rep to help them go through the file. What’s happening is people are becoming concerned, this is a continu- ing, [we’re] going to get [to] new. We’re not into [M]ay. Takes us hours to go through non-economic. The Hospital’s negotiators then noted the need to tighten or 30 TA is shorthand for tentative agreement. 31 R. Exh. 3 at 175–176. 32 Godoff conceded that he lost his temper at this particular session and “threw [Hospital’s counsel] out of the room.” (Tr. 51–52). After that session, Godoff told the Union “that in my view you are never going to get a contract.” (Tr. 124.) 33 R. Exh. 3 at 175–178. 34 R. Exh. 3 at 179–180. clarify language because numerous contract interpretation issues had arisen over the years. Godoff replied: We’ve all been in negotiations; there have been issues with management and union about interpretation. For [manage- ment] to come and change and clarify position but to come in and say on provisions never been a dispute and spend hours and hours raises red flag for the union. What you’re doing is drag- ging out a process with no intention on getting to a process in the end. If we’re going to have a fight not sure if we want to wait to have a fight. I’ll be candid, with certain exceptions members of your committee, really did want to get to a contract and I’ve assured the union this is difficult and time consuming but intentions are honest. Also some that raises a red flag. After months of negotiations new proposal on a strike clause with no labor dispute in 20 years, never had a picket line, never had anything but health positive labor mgmt. relations. Why all of a sudden is the no strike clause a significant concern that would postpone a raise, for wages by July below minimum wage for DC? We’re concerned about that.33 As bargaining continued, Bernstein tendered a proposal to re- place Article 18 (grievance and arbitration) with a grievance and non-binding mediation provision, and amended its previous dis- ciplinary proposal. The proposal curtailed the Union’s ability to file lawsuits alleging violations of the CBA unless the breach in- volved a provision subject to mediation. Construed in conjunc- tion with the disciplinary proposal, the proposed process essen- tially relegated discipline short of discharge to the grievance pro- cess and foreclosed access to mediation and further litigation. Godoff took exception, noting that “[t]his is potentially goodbye to this session. We won’t have time to read through this today.” Bernstein then distributed a proposal to replace Article 3 (dues check-off). Godoff replied that “[t]his is bullshit . . .Come on [give] us the other things. [We’re] out of here.” As the Union negotiators were leaving, Godoff said that they would take the rest of the afternoon to “look at what you gave us.”34 This was a pivotal development in the negotiations, as the pro- posals stymied the Union’s objective of advancing to bargaining over economic terms. In fact, Godoff advised the Union’s bar- gaining team after this session that the proposals were “a clear announcement by management that they would never enter into an agreement with [the Union].”35 The Hospital’s March 30, 2017 bargaining brief focused on the more raucous aspects of the March 28–29 sessions and com- pletely omitted any reference to the concessions made by the Un- ion in its February 1 counterproposal on management rights, as well as the Hospital’s refusal to change its position between De- cember 6 and March 29.36 In addition, the brief highlighted the Union’s refusal to “allow supervisory employees to perform bar- gaining unit work. We don’t see how that helps staff members 35 Godoff’s testimony that the Union asserted on March 29 that the proposals would remove the Union’s ability to enforce employees’ rights was not reflected in the bargaining notes. (Tr. 51, 126). He did contend at that time, however, that the proposals were not justified based on the excellent labor relations history between the parties—no strikes or labor disputes, with the exception of one arbitration proceeding—during the past 20 years. (R. Exh. 3 at 176–178, 185.) 36 GC Exh, 13. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 25 who would like to be able to rely on their directors’ managers’ and supervisors’ help when facing a difficult task or call-outs[.]” The brief also stated that the “union’s negotiator was dismissive of the Hospital’s March 28 proposal and told the Hospital they needed to ‘Get the F*** Out!! and that they would not be willing to consider further Hospital proposals on the subject.” The re- mainder of the brief was also critical of the Union’s conduct: As the Hospital’s VP of Labor Relations [Ms. Schmid] at- tempted to explain the Hospital’s position, the union’s attorney [Mr. Godoff] cut her off before shouting, “She pisses me off!” Then, turning directly to her he added, “You’ve ruined these negotiations!” The Hospital’s VP of Labor Relations replied, “You don’t intimidate me.” At that point the attorney said, “If I wanted to intimidate you, I could have.” Mr. Andrews then chimed in by repeating the lawyer’s state- ment that, “This is bullshit!” The Hospital’s chief negotiator [Mr. Bernstein] replied, “Just so I capture that clearly, is ‘bull- shit’ one word or two?” In the presence of the entire room, in- cluding several female members of both committees, Mr. An- drews (who was apparently sitting in for the union’s lead nego- tiator), replied, “There are three things that I don’t tolerate— Bullshit, Bigotry, and Bitches.” Many participants were dis- gusted by that remark which seemed to be directed at a number of people in the room. The Hospital’s negotiator made one more effort to redirect the union’s attorney to the Hospital’s proposals, only to have him respond, “Kiss my ass!” Mr. Andrews added, “Capture that!” Unfortunately, the meeting adjourned on that note at 1:00pm, with the union’s attorney making clear that he was unwilling to continue the meeting or return to the negotiating room despite the fact that negotiations were scheduled to continue for the balance of the afternoon. 8. The April 5 and 6, 2017 Bargaining Sessions After Bernstein opened the April 5, 2017 bargaining session by proposing to go resume bargaining over the Hospital’s March 29 proposals, Godoff stated that the Union no longer believed that the Hospital was interested in reaching an agreement but would continue to bargain in good faith.37 Bargaining proceeded with the Hospital’s presentation of a counterproposal on disci- pline in which it agreed to timely notify employees.38 The Union noted several discrepancies in the proposal with respect to arbi- tration versus the mediation of grievances as it was presented by the Hospital on March 29. The Union also orally countered by proposing that the longstanding grievance and arbitration proce- dure remain unchanged.39 The Hospital did not budge on this issue, attributing the justification for the procedural change to a previous arbitration ruling. Nor did Bernstein attempt to recon- cile the noted discrepancies at this meeting. The Hospital presented its last noneconomic proposal at this session—the replacement of the safety clause (Article 20) with a 37 R. Exh. 3 at 181. 38 GC Exh. 14. 39 R. Exh. 3 at 181–203. 40 R. Exh. 3 at 193–195. 41 R. Exh. 1 at 3617–3618; R. Exh. 3 at 193–195. safe harbor for safety concerns provision.40 Once again, Godoff responded crudely, “Do you guys give a shit? It’s a disgusting proposal,” and when Bernstein suggested the Union put more time in countering instead of critiquing, Godoff replied, “Here’s the counter—no.”41 At the April 6, 2017 bargaining session, the Union countered with a rejection of the Hospital’s proposals to delete the union security and dues check-off provisions.42 It then presented its initial wage proposal—a five percent increase for all unit em- ployees—consistent with the amounts in the expired CBA.43 In the bargaining brief that followed, the Hospital reported that the parties had reached tentative agreement on two pro- posals—the preamble and uniforms. The Hospital also contin- ued its pattern of reporting on the bargaining derelictions of the Union negotiators: their arrival to bargaining 2 hours late and then bargaining for about four of the scheduled 12 hours; and failure to provide the Hospital with responses to 13 proposals while the Hospital needed to respond to three proposals. The Hospital also claimed that its objection to the union security clause was based on its belief “that employees should have a choice as to whether or not to pay union dues, and should not be fired, as the union is insisting, if they choose not to pay dues.”44 9. The May 16, 2017 Bargaining Session The parties started the May 16, 2017 session by reviewing the Union’s most recent proposals relating to recognition and classi- fication, restricted access, attendance policy, seniority layoff, un- ion presence during employees’ reviews of personnel files, non- discrimination and no-striking. In particular, Godoff asserted that Bernstein’s combined proposals for a no-strike clause, very broad management rights and non-binding labor arbitration con- stituted unfair labor practices. Bernstein simply plowed ahead with the next item on the list, grievance and mediation. He also brought up pending proposals relating to Articles 2, 24 and 25 on the solicitation and distribution of literature, bulletin boards and discipline. Finally, Bernstein stated that the he would be tendering a proposal to amend Article 6 (hours for employees), which the Hospital viewed as an economic item.45 Godoff re- plied that Bernstein could send the proposals but the Union was not going to agree, adding that the parties had been bargaining for 6 months and the Union was no longer accepting new none- conomic proposals. Bernstein tendered the new proposals and Godoff replied that there were 20 noneconomic provisions in the expired CBA and the Hospital had proposed to completely overhaul 19 of them. He added that the CBA language had been in effect for decades and the Hospital insisted on renegotiating every provision. As examples, he referred to Bernstein’s insistence on revising the arbitration process when there had been a lack of arbitration, in- sistence on bargaining over layoff language when there had not been any layoffs, and bargaining over strike language when there had never been a picket line. Schmid insisted that the contract language was out of date. Godoff replied that parties normally 42 R. Exh. 2 at 3771. 43 R. Exh. 2 at 3780–3782. 44 GC Exh. 16. 45 Ultimately, the Hospital never proposed such a policy. (Tr. 85–86; R. Exh. 3 at 222.) 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD negotiate when they are having difficulties with provisions they are working on and asked Bernstein to point to issues with any of the provisions. Godoff mentioned that before concluding for the day, the Un- ion wanted to add to its economic proposal and start discussing it. Bernstein replied that the Hospital did not want to move for- ward on economic issues because many noneconomic items were still pending. There was brief discussion over pay increases relating to specific job classifications before the parties broke for lunch. When they resumed, the parties bargained over recogni- tion and classification, attendance and absence, union activ- ity/visitation and discipline.46 10. The Hospital’s May 25, 2017 Revised Disciplinary Proposal On May 25, 2017, Bernstein emailed Godoff a revised version of the Hospital’s disciplinary and grievance-mediation pro- posals: Good afternoon Steve, I hope that all is well with you. My apol- ogies for the delay, but per our discussion at the bargaining ta- ble this past week, I’ve gone ahead and attached Hospital pro- posals pertaining to both Discipline and Grievance and Media- tion, which have been revised in an effort to reconcile some of the discrepancies that you had pointed out in prior sessions. For ease of convenience, I chose to highlight the substantive changes in the Discipline proposal to distinguish them from the other revisions reflected in show changes mode. As always, please do not hesitate to call with any questions. In the mean- time, I look forward to seeing you and your team next month. Thanks.47 11. The June 12, 2017 Bargaining Session The June 12, 2017 session opened with argument over the Hospital’s continued refusal to pay employees on the bargaining committee for time spent in bargaining and their need to use paid time off to attend. Godoff noted that the Union agreed to have employee negotiators attend during scheduled days off on the as- sumption that bargaining would last a few sessions. He added that “the way you have bargained have led us into a lengthy pro- cess.” Bernstein explained that his travel commitments pre- cluded him from working past 6 p m. and required that the next day’s bargaining session be cancelled. Godoff replied that the Hospital still had not provided any response to its economic pro- posals, the parties had not been making any progress toward an agreement, and the employees had been working for months without a pay increase. Bernstein acknowledged receipt of the Union’s most recent economic proposals, including a five per- cent pay increase shortly before the meeting and then passed out its proposal. The parties, however, spent the rest of the session updating a list of employees and their classifications.48 12. The July 12, 2017 Bargaining Session After reviewing the Hospital’s previous revisions to its arbi- tration and discipline proposals, the parties started the July 12, 2017 session with a discussion of the Hospital’s spreadsheet of 46 R. Exh. 3 at 220–225. 47 GC Exh. 17. 48 R. Exh. 3 at 231–237. employees and issues with the incorrect wage rates paid to cer- tain unit employees. After a lunch break, Bernstein asked for more time to review the Union’s economic proposal and turned the focus to the Hospital’s revised discipline and grievance pro- posals, which changed “documented” to “verbal” and “arbitra- tion” to “mediation.” Bernstein also said he was waiting for a counter to the Hospital’s proposed changes to recognition and classification and management rights. He then discussed the job postings proposal that the parties were close to agreeing on. Go- doff said the Union would consider it. Bernstein acknowledged that the Hospital owed a proposal on safe harbor and then referred to its November 21 proposals and the Union’s December 6 counterproposal on recognition and classification. The parties were apart on the Hospital’s proposal to exclude crew leaders but agreed to other proposals. Bernstein then moved to probationary employees, proposing a 90-day pro- bationary period, while the Union proposed 60 days with a po- tential 30-day extension. Discussion ensued regarding per diem, temporary and agency employees.49 13. The July 31, 2017 Bargaining Session Bernstein opened the July 31, 2017 session by reporting that the Hospital was still processing employees’ names to ensure compliance with the expired CBA. He then proposed bargaining over the recognition and classification issues, and the Union’s December 6 counterproposal. The only issue there remained crew leaders. Godoff emphasized the Union’s opposition to any proposal that would modify the definition of a full-time em- ployee from 40 to 32 hours. Bernstein replied that such a change would have the effect of adding a lot more union dues payers. With respect to the parties’ probationary period proposals, he said there was room for compromise. The Union proposed to agree to the Hospital’s job postings proposal if the Hospital agreed to Union’s last proposal regarding employee requests for a union representative and non-discrimination. Bernstein said the Hospital would consider it.50 After a break, the Union proposed to eliminate a contract pro- vision entitling any person working over 35 hours per week to receive an additional 30 cents per hour. Bernstein characterized that as an economic item and deflected to the issue of crew lead- ers. He asserted that there was no classification for crew leaders and referred to them as lead employees. Godoff replied that crew leaders were non-supervisory and should be in the unit. After another break, Godoff brought up discipline and insisted that the Union would not agree to a contract that did not provide just cause for disciplinary or provide for arbitration. He also re- quested a counterproposal with respect to the length of time for notices of discharge. The meeting ended with the Union’s re- sistance to the Hospital’s proposal to replace Article 25 (union announcements and conferences). Before concluding, the parties agreed to resume bargaining on September 7 and 8.51 14. The October 6, 2017 Bargaining Session The October 6, 2017 session began with Bernstein proposing that the parties discuss wages. Godoff requested information for 49 R. Exh. 3 at 238–254. 50 R. Exh. 2 at 3805-3807, R. Exh. 3 at 255–257. 51 R. Exh. 3 at 255–262. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 27 the previous six months of hours worked. Then there was dis- cussion over the applicable wage rate, with Bernstein focusing on the “practice” rate and Godoff noting that the contract rate was applicable and that the time taking to get a handle on under- payment was for naught. He insisted that the printout demon- strated that employees were not being paid at the contract rates. After a 1-hour break, Bernstein agreed to have the Hospital look at the list again. After an hour and a half lunch break, the Hospital maintained its position on whether a union representative could be present during review of a personnel file. Godoff said that the Hospital’s refusal to move on non-discrimination constituted an unfair labor practice. Bernstein moved to the crew leader issue which re- mained in dispute. Regarding probationary periods, Godoff pro- posed 60 days with an additional 30 days if a manager needed more time to assess employee performance. The Union re- mained opposed to the Hospital’s proposal to allow it to reduce full time employees’ hours from 40 to 32 per week. Bernstein replied that the current language eroded the Hospital’s rights un- der the management rights clause. Lisa Brown noted that this was the same conversation that the parties had months earlier. Bernstein replied that there had been “movement on other things on both sides.” After Schmid asserted that the “vast majority of lack of counters has come from the other side of the table,” Brown referred to the two economic proposals tendered by the Union. After Godoff insisted the only sticking point was the Un- ion’s insistence on allowing employees to have Union represent- atives present when they look at their files, Bernstein replied: “By my counts the employer has submitted 19 proposals, the un- ion has submitted 19 proposals the ball is in the [Union’s] court on some and it’s in ours on some and my sense is that we’re get- ting close to final statements.” The discussion then moved to per diem employees converting to full time if they work 60 straight days. As the discussion con- tinued, the Union raised issues over employee training by other employees instead of supervisors. If that was going to continue to happen, however, the Union believed that employee trainers should at least be compensated. The Union also asked for an explanation as to why non-unit personnel were receiving a trans- portation benefit, but unit employees were not. Toward the end of the session, Bernstein asked if the Union had heard anything to that point that would alter its initial wage proposal in advance of the Hospital’s initial wage proposal. Bernstein said, “I think your proposal is pretty straightforward just a straight bump, I just want to be sure you’re not going to change it.” After Godoff explained stated the reasons behind the Union’s wage proposal, Bernstein said “it shouldn’t surprise an- yone that we’re going to propose a new [structure].” Godoff con- ceded that the previous wage scheme was problematic because of discrepancies among departments, to which Bernstein replied, “I think we all owe it to whomever comes after us to be clear and make it easier to figure out.” The meeting ended without an agreed upon resumption date.52 15. The January 17, 2018 Bargaining Session Esders replaced Godoff, who recently underwent surgery, at 52 R. Exh. 3 at 263–275. the January 17, 2018 bargaining session. Bernstein reported that the Hospital had not yet paid any of the back wages owed unit employees. However, he did provide a revised spreadsheet pre- viously sent to Godoff listing the back wages owed. Bernstein proposed in writing a notice of dues checkoff going forward and the Hospital’s intention to suspend dues checkoff effective February 1, 2018. He stressed that the Hospital’s posi- tion was not negotiable: “Union can secure from other means.” Esders replied that the Hospital was refusing to bargain over this implementation for the reasons stated in its letter. Bernstein con- firmed that assertion. Bernstein then summarized where the proposals stood up to that point. After a brief break, Bernstein proposed starting with the recognition clause. There was discussion of the minimum number of hours for full-time versus part-time, as well as per diem, temporary and agency employees. The Hospital proposed that part-timers stay at 20 hours per week. There was renewed discussion over the Hospital’s request to eliminate the crew leader position, which led to the Union renewing its assertion that some performed supervisory duties but did not get compen- sated. As for the applicable probationary period, the Hospital did not budge from its position of 90 days, while the Union con- tinued to push for 60 days plus an additional 30. After a nearly 3-hour break, Esders charged that the Hospital engaged in unfair labor practices during the morning session, while Bernstein tried to restart the discussion of the dues check off notice. However, Esders commented that discussions were breaking down and the Union walked out at 3:18 p m.53 16. The February 13, 2018 Bargaining Session The February 13, 2018 bargaining session had numerous cau- cusing breaks. Bargaining started with discussion of a spread- sheet analysis of employees’ wages in attempting to determine the underpayment amounts, as well as negotiating over the ap- plicable interest rate. The Hospital agreed to forego repayment of overpayments. The parties broke after an hour, resumed an hour later with continued discussion and broke for lunch 10 minutes later at 12:45 p.m. with no agreement reached on repay- ment. The parties resumed at 3:17 p m. and continued discussion of repayment issues. They broke at 3:35 p.m. When they resumed at 4:01 p.m., the Union agreed to the repayment of identified un- derpayments with interest at the Hospital’s proposed 4 percent rate—all contingent on a final agreement. Bernstein wanted to have the issue fully resolved on behalf of all unit employees, while Esders wanted to reserve their individual rights to arbi- trate. They broke at 4:10 and resumed at 4:29 p m. There was still disagreement on the 90-day timeframe for challenges to the repayment amounts. The Union offered to reduce that to 60 days. They broke at 4:37 and resumed at 4:45 p.m. at which time Bernstein countered with a demand that underpayment claims be resolved at bargaining. They broke at 4:49 and resumed at 4:56 p m. The Union remained steadfast in its demand for employees to have recourse and the focus turned to the scheduling of 30- minute sessions on February 27 for each employee to meet with 53 R. Exh. 3 at 276–285. 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD management regarding their specific underpayment claims. The meeting adjourned at 5:36 p.m. with no future date set.54 17. The May 18 and 21, 2018 Bargaining Sessions The Hospital finally presented a wage proposal at the May 18, 2018 bargaining session.55 The proposal included shift differen- tial changes, and lump sum bonuses for quality performance and high attendance that were agreeable to the Union. The salary structure, however, was dissimilar to any of the wage compo- nents in the previous agreements between the parties.56 It pro- vided for a new compensation structure starting August 2019 that incorporated a market-based adjustment for each employee and merit wage increases for employees the Hospital deemed worthy. The proposal also based wage rates on employees’ overall expe- rience and not solely on their tenure with the Hospital. In addi- tion, the Hospital retained sole discretion for evaluating employ- ees, and its decisions would not subject to the grievance process; if a review resulted in termination, however, the employee could grieve or mediate the decision.57 When the parties returned to bargain on May 21, 2018, Godoff asked for Appendix B to the Hospital’s wage proposal. Bern- stein replied that it would be provided in the afternoon. Upon being provided with Appendix B, Godoff explained that he was unable to evaluate the proposal because it lacked specificity as to the overall range for the various classifications. It provided only the lowest and highest rates for each classification with no indication as to the specific wage rate for each unit employee. He requested further documentation in that regard, but Schmid insisted that she could only give “examples” based on her “knowledge of the market” for specific classifications. The Union opposed to this proposal on several grounds: the delayed raises, the use of performance evaluations upon which to base merit-based increases starting August 2019, and the time- line and calculation of market-based increases. When Godoff expressed concern “that these employees haven’t had a raise since January 2015,” Bernstein replied, “Yes, it’s an unfortunate side effect to bargaining.” Bernstein and Schmid told the Union that this proposal was not negotiable. When Godoff asked whether the Hospital was going to at least negotiate the ranges from year to year, Schmid said, “No, the ranges are set for the hospital as a whole, it will be the same range for nonunion em- ployees and applied exactly the same way, people are going to be rewarded based on their individual merit.” The Hospital’s representations were consistent with the proposal’s language that “[t]he evaluation process and merit increase awards for bargain- ing unit employees shall follow and be incorporated into the same general merit criteria and process used for all non-bargain- ing unit employees at the Hospital.”58 The Union countered the Hospital’s wage proposal by propos- ing the guarantee of merit increases based on performance eval- uations where employees meet expectations or higher, but the 54 R. Exh. 3 at 286–300. 55 The proposal referenced specific wage ranges in Appendix B, which was not provided at that time. (GC Exh. 18; R. Exh. 1 at 3640–3643.) 56 This finding is based on the credible and undisputed testimony of Godoff, Schmid and Bernstein. (Tr. 60–62, 203–205, 580–582.) 57 The parties took a lunch break at 12:22 p.m. with the Union nego- tiators expecting that the Hospital’s negotiators would be right back. Hospital rejected that proposal. The Hospital countered with a second wage proposal, but the Union found no substantial con- cessions in the document.59 On May 21, 2018, the Hospital issued a bargaining brief blam- ing the Union for shortening the March 18 meeting when its bar- gaining team left because the Company had not returned from the lunch break by 1:50 p m., insisting that it previously told the Union that the Hospital’s negotiators had a telephone call at 1:30 p m. On June 7, 2018, Mr. Bernstein emailed the Union confirming that the Hospital was withdrawing its no-strike proposal and re- instating its proposal from March 29, 2017.60 18. The July 31, 2018 Bargaining Session Bernstein started the July 31, 2018 session by reviewing the outstanding proposals and Lisa Brown asked Bernstein if he had the “back wage proposal that we asked for 4 times, that you said you would have prior to this session?” Bernstein replied that he still did not have the information because of a change in person- nel requiring that the Hospital “redo some of that work.” When asked by Brown as to how that changed the data, Bernstein clar- ified that it “changed the progress we were making on that data. Pressed by Brown for a date, Bernstein did not know. Godoff said that was “unacceptable performance on your part, it’s been 3 or 4 months.” Brown said the Union gave the Hospital a for- mula with the accurate calculations at the last session and it seemed like the Hospital was dragging out the back-wage issue. Bernstein replied that the change in personnel changed the pro- gress that the Hospital was making in compiling the data. Brown asked for a date that the information would be provided by. Bernstein did not know and changed the subject to the Union’s last proposal. After a lunch break, Brown asked Bernstein to discuss the Hospital’s wage proposal information in Appendix B. He ex- plained the pay ranges, which were based on years of experience for new hires. As the discussion progressed, Brown and Schmid disagreed on the Hospital’s proposal to link future pay increases to merit or performance. Schmid argued that high performing employees were not being recognized under the current pay sys- tem, while Brown replied that the Hospital could always pay them more, and that workers doing the same work should receive the same pay, and the employer has disciplinary alternatives available to them for unsatisfactory work. Bernstein remarked that there were several open proposals. Brown replied that the Hospital needed to agree to more than the 2 days previously agreed to (September 5 and 6). At the conclusion of that discussion, Bernstein commented that the parties “made good progress today,” but Schmid started an argument over whether the Union had countered any of the Hospital’s proposals. Bernstein mentioned fifteen Hospital pro- posals that had not drawn a counterproposal and two Union When they took longer than expected the Union warned that they would leave if the Hospital’s negotiators did not return by 1:50 p.m. They did not return by that time and the Union negotiators left. (GC Exh. 18; R. Exh. 3 at 301–304.) 58 R. Exh. 3 at 305–310. 59 GC Exh. 19. 60 GC Exh. 21; R. Exh. 1 at 3655–3658. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 29 proposals that the Hospital had not countered. Lisa Brown re- plied that the back-wage issue needed to be resolved before mov- ing on to other issues. Schmid disputed that assertion but they both agreed that the back wages needed to be resolved and an economic proposal from the Hospital if the non-economic issues were not resolved. Schmid disputed that assertion and Bernstein noted that the parties had never agreed to ground rules. Brown urged that the parties move quicker and stated that if the parties did not get the non-economics resolved, the Union would come back with a package, but needed the documents on back wages and the Hospital’s economic proposal. After an explanation by Bernstein of what was not countered by the Union, Godoff re- marked that the Hospital had moved away from the contract that was in place for 20 years. Brown added that the Hospital took an aggressive nonunion position and there were not enough days scheduled to move bargaining forward. She added that a month in between meetings disrupted any flow that might have been generated from previous meetings.61 19. The August 1, 2018 Bargaining Session At the August 1, 2018 session, Bernstein acknowledged re- ceiving the Union’s counterproposal the previous day relating to availability of service (absences in excess of 3 days) and referred to the applicability of FMLA guidelines and extended leave banks. They also discussed clocking in procedures. Bernstein then proposed a disciplinary schedule of up to 24 months. The Union broke to consider the proposal and the Hospital needed additional time to meet with the payroll department to review the back-wage data. When they resumed 2 hours later, the Union raised questions about emergency situations excusing justifiable lateness and ab- sences and agreed to submit a counterproposal. The discussion then turned to the Hospital’s proposal to reduce official time for grievances from 1 hour per week per delegate to a total of 300 hours per year. The Hospital’s yearly break-down of the market-wage rate proposal reflected an increase in base pay to $13.75 and a range of pay based on experience increased by a minimum of 2 percent, but was contingent on the Union agreeing to a performance merit system. Godoff said the Union would have to review the data. Bernstein also acknowledged that employees needed to be made whole for back wages. The parties then haggled over the Hospital’s proposed merit increases starting in 2021. The meeting ended with Godoff ac- knowledging that the Union owed a counter on availability of service. The parties concluded with a discussion of available dates in September.62 After the session, the Hospital issued a bargaining brief blam- ing the Union for still not having responded to 15 hospital pro- posals, wasting time by switching negotiators at the bargaining table, and criticized the Union for rejecting the hospital’s merit pay proposal: The union made it clear that “the union does not agree to merit pay.” When asked shouldn’t it be the employees who decide 61 R. Exh. 3 at 326–345. 62 R. Exh. 3 at 346–354. 63 GC Exh. 22. whether they want merit pay increases, the union said, “not every decision has to go to the members, in here [the bargaining team] – a this is the union.” The Brief concluded with a summary of the Hospital’s merit wage proposal and criticism of the Union’s position as inimical to the notion of rewarding “good performers.”63 20. The September 5 and 6, 2018 Bargaining Sessions At the September 5 session, the Union provided several coun- ter proposals. The Union agreed to the Hospital’s April 5 pro- posal to delete Article 24. The Union provided written counter proposals to the Hospital’s March 28–29 proposals regarding Ar- ticle 18 (grievance procedures),64 Article 2 (union security),65 Article 3 (dues check off), and Article 30 (management rights).66 Bernstein summarized the outstanding proposals. The Hospi- tal had not yet countered the Union’s visitation proposal, but Bernstein noted that the Hospital had a competing proposal from November 22, 2016. With respect to the Union’s safe harbor pro- posal of April 6 and 7, the Hospital submitted a counterproposal. Others outstanding proposals included Hospital proposals to supplement the integration clause (Article 29), seniority layoff and recall, solicitation and distribution, and personnel files revi- sion of Article 28. The parties were also apart on management rights, grievances, dues check off, union security and non-dis- crimination, discipline, recognition and classification, and wages. Bernstein added that the parties were confirmed for fur- ther bargaining on October 31 and November 1. Esders began discussion of backpay and the back-wage spreadsheet. The Union disagreed with the Hospital’s proposed four percent interest rate. The Hospital tendered its safe harbor proposal again, which it said was the last noneconomic item on its list. After an hour break, the Union countered by rejecting a por- tion of the safe harbor proposal and proposing minor language changes. The Union then moved to the backpay spreadsheet. Esders noted, however, that the information was incomplete, and the Union needed specific amounts to be inserted and would then need to review that information. Bernstein discussed into the four Union proposals. With re- spect to the management rights and dues check off proposals, Bernstein said they were substantially different from the CBA and asked where they came from. He added that there had been no counter to the Hospital’s wage proposal. After the lunch break, Esders explained that the revised proposals were from other agreements. The union security proposal was copied from the Union’s agreement with a Boston hospital owned and man- aged by UHS; the management rights, grievance and arbitration proposals were copied from agreements between the Union and a group of New York hospitals. The Hospital negotiators took issue with those proposals and Esders agreed that they needed revision. The parties tentatively agreed to the Hospital’s nondiscrimi- nation proposal. Other proposals tentatively agreed to included job postings, uniforms and the preamble. The parties also agreed 64 GC Exh. 23; R. Exh. 2 at 3813–3815. 65 GC Exh. 24; R. Exh. 2 at 3818. 66 GC Exh. 25; R. Exh. 2 at 3816. 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to compromise language replacing Article 25 (union announce- ments). With respect to the Hospital’s May 2018 recognition and classification proposals, the Union argued in favor of keep- ing the crew leader classification because the position still ex- isted. The Hospital pushed for a 90-day probationary period and the Union countered with a proposal that any extension beyond 90 days required Union consent. The Hospital countered the per- sonnel files proposal (Article 28) by proposing that any Union representative present be limited to an “internal union delegate.” Schmid reiterated the Hospital’s counterproposal to eliminate the Union security clause. The Union insisted that the backpay issue be resolved instantly, but Bernstein disagreed. Schmid again conceded the wage underpayments and Bernstein said that the Hospital wanted to make unit employees whole but wanted to ensure that it was done correctly.67 At the September 6 session, Bernstein went through five ten- tative agreements—the preamble, uniforms, job postings, non- discrimination and deletion of Article 24 (union-management conferences). Outstanding were Hospital proposals regarding restricted access, layoff and recall, solicitation and distribution and management rights. Argument ensued when Godoff said that the Union accepted the Hospital’s solicitation and distribu- tion proposal with the exception of one word. Schmid insisted that the Union put that in writing so the changes could be tracked. Godoff pushed back, maintaining that there was nothing to track since the Union essentially agreed to the proposal. Contentious discussion ensued regarding the Hospital’s safe harbor proposal with Godoff insisting that the section simply mirror OSHA protections while Schmid maintained that it was the employee’s decision. Godoff took exception, asking “what is the problem with stating what the federal protection (sic) are, you have to post the fucking thing in your building anyways (sic) you’re proposing to put in a contract that that this is an agreement they no longer have their rights under federal law.” Schmid dis- agreed. The parties discussed the Union’s grievance and arbitration counterproposals but did not reach an agreement. With respect to the Union security proposal from the day before, the Hospital wanted to keep it at 60 days, while the Union still proposed 30 days. Godoff also asserted that the Hospital’s continued insist- ence on “language to do away with forced dues” was unaccepta- ble. After a lunch break, the parties bargained over the dues check off proposal. Schmid repeated the Hospital’s desire to eliminate forced dues check off. She then added that “it’s also an issue for us that we don’t want it” and “it’s not fair to force employees to pay dues to keep their jobs at [the Hospital.” Godoff replied that employees made that decision when they voted in favor of union representation. Schmid replied, “Decades ago.” After Schmid added that the Union has never given unit employees the choice of whether or not to pay dues, Godoff replied that Schmid “[did] not understand how it works.” Wallace then implied that Hospi- tal pushed for decertification. Godoff followed with a remark that the Hospital did not like unions. Bernstein replied that “[w]e do like choice.” After noting that that the Hospital had discon- tinued dues check off deductions, Schmid attributed it to the fact 67 R. Exh. 3 at 355–369. that the CBA expired. There was further discussion over the Hospital’s management rights and solicitation and distribution proposals. In addition, the Hospital proposed a different approach to educational benefits and training. The Union agreed to review that proposal and the session ended. The September 7, 2018 bargaining brief following those ses- sions was entitled, “We are going to have blacken your name - the name of this institution – SEIU Negotiator, threatening that the union will damage the reputation of the Hospital be- cause the Hospital has proposed giving employees CHOICE about whether they wish to pay dues to the union.” (emphasis in original) The brief criticized the Union latest proposals as em- anated from “a very old contract involving hospitals and nursing homes in New York, with language dating back to 1968.” The bargaining brief further stated that the proposals did not respond to any of the Hospital’s proposals or reflect any of the Union’s prior proposals and were not based on the current contract lan- guage. Those assertions then led into criticism of the Union’s competency: The Hospital, at this point, expressed frustration that nothing the union had put across the table showed ANY effort or work on the union’s part for the employees who they say they repre- sent. How, the hospital asked, could the union be so intent on forcing employees to pay dues when this was the kind of slip- shod work the union continues to bring to the table. It seemed to be yet another union grab for money, with no effort being made on behalf of the employees. The Hospital directly asked the union whether it believed that employees should have the- freedom to choose whether-on not they want to pay dues to the union. The Hospital proposed that employees should NOT be forced to pay dues – they should have a choice. The union- told the Hospital, “you can stick those proposals up your ass.” The Union said they would never agree to allow employ- ees to have that choice. In fact, the union said that employees already made their choice about dues – back at the time the un- ion was voted in over 20 years ago. Seriously?? (emphasis in original) The Hospital also questioned the union’s misleading language which makes it appear that employees must be members of the union. The law says that no one can be forced to be a member of the union, (even though they may be forced to pay dues if the union negotiates a forced dues clause). The union did not want to change the language, even though they know it is mis- leading, saying “membership” does not mean “membership.” That is completely nonsensical. Instead, the union continued, accusing the Hospital of “hating the union” when all the Hospital was doing was fighting for the freedom for employees to choose dues and choose member- ship. When the Hospital wouldn’t back down, the union then threatened to blacken the name of the Hospital – in the city and with the mayor. The Hospital asked how that would help GWUH employees? The union had no answer. The bargaining brief further stated that the Hospital proposed DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 31 giving tuition reimbursement to unit employees instead of con- tributing to the Union’s “completely ineffective” education fund. It also criticized the Union for spending hours talking about “old, recycled proposals for nursing homes” that had no relevance to unit employees instead of discussing the Hospital’s July 2018 wage proposal.68 21. The October 10 and 11, 2018 Bargaining Sessions At the October 10, 2018 session, the Hospital finally produced a completed backpay spreadsheet and stated its intention to issue payments to unit employees. Bernstein then went over a list of noneconomic items—bulletin board postings, union security, dues check off and grievances. The bulletin board issue was close to being resolved but culminated with an argument be- tween Schmid, who insisted that the Hospital see fliers before they were posted to ensure they did not contain political state- ments, and Godoff’s insistence that the Union was entitled to ed- ucate unit members on their right to vote. After the lunch break, the parties discussed but still did not come to agreement on numerous noneconomic issues, including management rights, discipline, dispute resolution, union secu- rity, and employee’s personnel file reviews in the presence of a Union representative. The discussion then moved to the Hospi- tal’s wage proposal. Schmid commented that the Union had not replied to the Hospital’s wage proposal. Godoff replied that the Union’s failure to respond to the wage proposal was due to the time wasted time bargaining on the noneconomic issues. At Go- doff’s request, Bernstein and Schmid explained again how the merit wage-based process was going to work. The Hospital’s position was unchanged.69 At the October 11, 2018 session, the parties discussed pro- posals relating to the preamble, uniforms, job postings, bulletin board posting, nondiscrimination, union management confer- ence and personnel files. They tentatively agreed to the person- nel files proposal, but did not reach agreements on any of the other noneconomic issues. The parties then discussed the Hos- pital’s wage proposal. Schmid explained that all employees would receive a wage increase of at least 2 percent immediately upon contract ratification.70 The Hospital’s October 12, 2018 final bargaining brief was entitled, “Round 20 and still no decision. We aren’t even close. Why?” After criticizing the Union’s negotiators for wasting time, the brief described the Hospital’s version of the bargaining over its wage proposal: Most importantly, the Hospital informed the union that it has completed the dietary back-wage analysis. The Hospital pro- vided the payout calculations and back up to the union. The Hospital let the union know that the Hospital plans to distribute the checks for these back wages to all affected employees, to make them whole, in a special payroll check to be run on Fri- day, October 19th. After months of silence on the Hospital’s wage proposal, the union finally asked for further information about it. The union could have had this information three months ago and they could have had a counter proposal ready to give the Hospital. 68 GC Exh. 26. 69 R. Exh. 3 at 391–404. Instead, we have still not moved forward on wages because the union is just beginning to look at them. We advised the Union that, had they taken the time to review our wage proposal when we initially gave it to them FIVE months ago, then we would be much further along by this point. The Hospital expressed concern to the union that there is a ru- mor circulating that the Hospital is not offering even a dollar per hour increase to employees after all this time. This is very far from the truth. We showed the union that the Hospital’s proposal would provide immediate increases upon ratifica- tion of the contract to all staff. These increases in many cases are very significant and reflect what the Hospital believes to be competitive wages for our jobs here in D.C. (emphasis in orig- inal) We explained to the union that – Under the Hospital’s proposal: • EVERYONE would receive an increase immediately upon ratification of the contract; • Many employees would see significant increases – the high- est being a 33% increase, with many individuals’ increases be- ing in the double digits; • The increases taken all together average approximately 9.7%; • The leastanyone would receive would be 2%, and most of the employees in this category are those who have been hired in the last year with little or no experience and who have not been waiting years for an increase; • Additionally, the Hospital’s proposal provides for an addi- tional increase in 6 months (July 2019) based on merit, as well as additional lump sum bonuses based on department perfor- mance measures. Under the Union’s proposal: • The vast majority of employees would receive less than a one dollar raise. Only those making $20/hour or more would see a one dollar or more raise; • The union’s proposal does not provide for any reward for per- sonal performance or for any bonuses. (emphasis in original)71 D. Withdrawal of Recognition 1. Disaffection petition is circulated Sometime in March 2018, EVS employee Eugene Smith be- gan circulating a disaffection petition among other unit employ- ees. While soliciting coworkers to sign the petition, Smith lauded Kim Russo, the Hospital’s chief executive officer, and told them that they would get a pay raise and travel stipend if they got rid 70 R. Exh. 3 at 405–412. 71 GC Exh. 27. 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Union.72 Smith was assisted by another EVS employee, Hardie Cooper.73 Some individuals, like EVS probationary employee Angelica Claros, signed the petition because they did not want union rep- resentation. She had been employed for about three months at the time she signed the petition on October 12, 2018. At the time, she was approached by an unknown individual who told her “you are a new hire, yes. You don’t want a union.” She replied, “No, I don’t want it.” Claros was unaware up to that point that she was even represented by the Union.74 Others, like EVS employee William Barnes, did not have a problem with the Union but he still signed the petition on April 5, 2018 and again on August 23, 2018.75 Most who signed the petition, however, did so because they were disappointed with the Union’s inability to get a new con- tract and the resulting wage increases. Freddie Ard, an EVS em- ployee, signed the petition on April 2, 2018 because he wanted “to get a better benefit” and was concerned about his wage rate not increasing during bargaining.76 Tsedale Benti, an EVS em- ployee, signed the petition on April 25, 2018 had several con- cerns about the Union, including the fact that she had not re- ceived a raise.77 Vivian Otchere, an EVS employee, signed the petition on June 22, 2018 after being told by an unknown indi- vidual that she might get a pay raise if she signed the petition.78 Noel Reyes, a dietary employee, signed the petition on July 3, 2018 because the Union was unable to secure a contract and pay raise for the past 2 years.79 Lewis Bellamy, an EVS employee, signed the petition on August 29, 2018 because the Union was not getting results from bargaining over 2 years, specifically pay raises.80 Mary Collins, an EVS employee, signed the petition on 72 Smith was not a very credible witness and, as such, I do not credit his testimony that “everybody wanted to sign” the petition. Many of his responses were vague, evasive and non-responsive. He assumed the leadership role in circulating the petition but was extremely vague and lacked recollection about the circumstances by which he allegedly re- ceived the blank petition from an unnamed kitchen employee. Smith’s motivation for opposing the Union was simply unclear. He expressed strong sentiment about the Union’s positions in bargaining but professed ignorance of the Union’s wage proposals. I find that highly unlikely. (Tr. 398–419.) 73 Cooper was also not a credible witness. He provided vague testi- mony about being unable to get ahold of the Union and his displeasure with his wage rate. Like Smith, he provided ambiguous and contradic- tory explanations as to who started the petition, who collected which sig- natures, including the signatures after October 12, 2018. (Tr. 374–376, 383, 387, 390–391, 395–397.) 74 Claros’ equivocation when asked to explain the circumstances when she signed the petition indicated that she felt pressured as a new em- ployee to sign it: I - - really I don’t read, because when they just sign this and the Union, I say I don’t want it. . . . (Tr. 312–314, 318–323.) 75 Barnes did not credibly explain why he signed the petition after tes- tifying that he no problem with the Union. He also professed ignorance when shown specific bargaining briefs but conceded that similar docu- ments were mailed to his home. (Tr. 280–281, 288–290.) 76 Ard had returned to work at the Hospital in October 2016 and was told by the Union that he would get a pay raise after 90 days but was not aware that the CBA had expired. (Tr. 467–468, 476–477.) October 13, 2018 because the Union was unable to get a contract and a wage increase.81 Schmid was well aware of the petition by July 2018.82 As of September 11, 2018, however, the petition had been signed by only one-third of the bargaining unit. A total of 37 signatures were from employees who were hired after the expiration of the previous contract. Over the next month, no employees signed the petition.83 During the next 2 weeks following the Hospital’s is- suance of the October 12, 2018 bargaining brief, which included the Hospital’s issuance of backpay checks to dietary employees seven days later, 27 more employees signed the petition. Of those 27 employees, 14 had been hired within the previous 2 months; six of those 14 employees had been employed less than 2 weeks. Based on instructions from the Hospital’s security depart- ment, which had experience with the prior withdrawal of recog- nition of its union, Smith delivered the petition to Russo during his shift at about 3:30 p.m. on October 25, 2018. She congratu- lated him, shook his hand and thanked him shook his hand, thanked and congratulated him. Russo also told him that she knew “it wasn’t easy to do” and concluded the discussion by tell- ing Smith that she needed to get the petition to human re- sources.84 2. The Hospital Withdraws Recognition On October 24, 2018, Evans informed Schmid that the disaf- fection petition was going to be delivered to management on Oc- tober 25, 2018. Schmid, who is based at UHS in Pennsylvania, and Bernstein, who is based out in Florida, traveled to the Hos- pital the next day in order to await the disaffection petition. Shortly after receiving it, Russo handed it off to Schmid. Within 77 Benti was displeased with the Union’s response to a disciplinary matter but conceded that she was primarily concerned with the fact that the raises had stopped as a result of bargaining. (Tr. 447–557.) 78 Otchere testified that she signed the disaffection petition because the Union did not answer her questions, but it was clear that her frustra- tion was attributable to the Union inability to procure a pay raise (Tr. 345, 359–360.) 79 Reyes testified that he signed because he felt that his department did not need a union. However, when asked for further explanation he testified that he felt that the Union did not do anything because he had not had a raise for 2 years. (Tr. 331–341.) 80 Bellamy did not attend any of the bargaining sessions but was given the impression from others that the Union’s wages were less than the amounts in the expired CBA. (Tr. 366–371.) 81 Collins testified that she did not want to pay union dues but, in fact, she was not paying dues at the time that she signed the petition. (Tr. 298–299, 304–305.) Moreover, she conceded on cross-examination that she actually signed the petition because she was frustrated over the Un- ion’s inability to get the Hospital to agree to a new contract and a pay increase. (Tr. 310–311.) 82 Schmid’s vague recollection that she only learned of the petition from EVS assistant director Rhonda Evans sometime around “July, Au- gust, September” of 2018 was not credible based on her December 11, 2016 email and her recollection of other salient facts. (Tr. 224, 228–230; GC Exh. 36.) 83 R. Exh. 7. 84 Although Smith was on the clock, he had received supervisory per- mission to take the petition to Russo’s office, where he had to “wait a while” before meeting with Russo. (Tr. 414, 422–423.) DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 33 the next several hours, Schmid, with the assistance of supervisors and human resource staff, validated or dismissed all of the sig- natures on the petition based on a review of personnel and pay- roll records. The Hospital determined that 156 employees were members of the bargaining unit as of that date and that the disaf- fection petition had been signed by 81 of them.85 By email during the morning of October 26, the Hospital with- drew its recognition of the Union as the exclusive collective-bar- gaining representative of the bargaining unit and revoked its ac- cess rights. The Union replied that it was still willing and able to bargain on the previously scheduled dates of October 31 and No- vember 1, 2018. The Hospital rejected the Union’s overture al- most immediately and since that time refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit on the grounds that the Union no longer enjoyed the support of a majority of members in the bargaining unit.86 E. Unilateral Changes Following its withdrawal of recognition from the Union, on November 1, 2018 the Hospital unilaterally implemented the fol- lowing changes, including wage rates, compensation structure and transit benefits of EVS and dietary employees: Welcome EVS and Dietary Teams! We are delighted to welcome you to the GW Hospital team of non-union employees. We are proud to have you as part of our dedicated team here at GW Hospital. Each of you contributes greatly to the care of our patients, employees and visitors every single day. The vital role that you play is so important to our hospital. We are looking forward to working with you directly and supporting you in your development and growth. FIRST, WE WANT TO GIVE YOU AN UPDATE ABOUT THE ROLLOUT OF THE NEW PAY RATES AND BENEFITS YOU WILL NOW HAVE AS A NON- UNION EMPLOYEE: Monthly Commuter Subsidy This benefit is added onto your paycheck. Previously the union did not negotiate this benefit on your behalf so you did not re- ceive it. Moving forward, you will receive this benefit as fol- lows, starting with the pay period beginning November 11, 2018: Full-time: $100 per month Part-time: $50 per month Employee Engagement Activities We are thrilled to also have you join our other non-union em- ployees in the following activities: • Coffee with Kim – Kim will be scheduling special EVS/Dietary only coffees in the next few weeks; then, going forward, all other GW employees in the regularly scheduled Coffees with Kim. 85 The General Counsel notes that the Hospital neither struck proba- tionary employees from the petition nor determined whether each signa- tory was part of the unit at the time they signed the petition. (Tr. 229– 236, 510, 517, 521–523, 526; R. Exh. 8–10.) It does not argue, however, • Staff Rounding. • New hire Check-In Interviews with supervisors after 30 and 60 days. Stay Interview with your supervisor at 6 months and annually. These provide additional opportunity to talk about what is going well, your career goals, and any concerns you may have. have. out w at Is going well, your career goals, and any con- cerns you may have. • Opportunity to serve on Hospital employee committees. • Participation in action planning for GW Hospital engage- ment surveys. Pay • In the next few weeks, we will be transitioning you to mar- ket-based pay rates (which take into account your years of experience) for your job classifications. Many of you will see significant increases, and everyone will receive at least a 3% increase in their pay. • Additionally, in July, all former bargaining unit members will also be eligible for an additional increase – a merit based pay increase determined by your performance evaluation. • We will also implement a lump sum bonus program in 2019 for all former bargaining unit employees in each depart- ment contingent on departmental scores. Benefits We will be transitioning everyone to our non-union benefit pro- grams including PTO, Holidays and Leave Banks. We will share more information regarding these programs in the com- ing weeks.87 The memorandum went on to “clear up a few rumors,” assert- ing that the withdrawal of recognition was not illegal and re- ferred to the October 26 letter to the Union. In addition, the Hos- pital said the Union put out a flyer that the Union’s assertion that the Hospital engaged in bad faith bargaining and would be con- testing that charge before the Board. The Hospital reiterated that there is no “union contract still in place” and concluded with the following advisory: “If you don’t want the union spending some other poor union person’s dues fighting your rightful and legal decision to become non-union, you have every right to tell it so. If the union really cares about what you think and want, as it says it does, it should respect your decision.” (emphasis in original) As predicted in the memorandum, EVS and dietary depart- ment employees received wage increases in November or De- cember 2018. The Hospital implemented the changes unilater- ally and without affording the Union an opportunity to bargain over them at any time after the withdrawal of recognition on Oc- tober 26, 2018. F. The Hospital’s Attorneys Meet with Prospective Witnesses Prior to the hearing, the Hospital’s attorneys, Tammie Rattray and Paul Beshears, accompanied by Schmid, arranged to meet that any of the signatories should have been excluded from those counted as unit employees. 86 GC Exh. 28. 87 GC Exh. 29. 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with unit employees who signed the disaffection petition.88 All were instructed by managers or supervisors to leave their work areas to meet with counsel in a Hospital administration office. Once they arrived to meet with the attorneys, either Rattray or Beshears explained the purpose of the interviews as preparation for testimony in this proceeding, and explained that their partic- ipation was voluntary and they were free to refrain from any or all of the interview without recrimination. Their explanations to four of those employees—William Barnes,89 Angelica Claros, Noel Reyes90 and Vivian Otchere91—was followed up by read- ing or explaining the following printed statement to them, and then having each employee sign, print their names and date the form on June 6: JOHHNIE’S POULTRY STATEMENT92 1. I have given this statement at the request of [Tammie Rattray or Paul Beshears], who introduced [herself or himself] as an attorney who represents George Washington University Hos- pital (“GWUH”) with regard to labor matters. 2. [Ms. Rattray or Mr. Beshears] informed me [she or he] is conducting an investigation in order to help GWUH to deter- mine how to respond to an unfair labor practice case and that [she or he] would like to ask questions in order to obtain factual information which may be relevant to these issues. 3. [Ms. Rattray or Mr. Beshears] informed me my participation in this interview is entirely voluntary and that at any time I can decide that I do not want to participate in the interview. In that case, I would be free to stop speaking with [her or him]. 4. [Ms. Rattray or Mr. Beshears] informed me that absolutely no action will be taken against me if I decline to be interviewed or if I decline to answer a particular question or any questions at all. 5. [Ms. Rattray or Mr. Beshears] informed me I will not in any way be disadvantaged or rewarded by GWUH based on whether my answer to any question is consistent or inconsistent with GWUH’s position. I have read the above statement and I understand it. I have not been told anything which contradicts what is stated above.93 Legal Analysis I. THE HOSPITAL’S ALLEGED FAILURE OR REFUSAL TO BARGAIN IN GOOD FAITH A. The Surface Bargaining Allegations The General Counsel alleges that the Hospital engaged in 88 Rattray and Beshears credibly explained the circumstances of their interviews with the witnesses, provided assurances as to the voluntary nature of their cooperation, and discussed and read each of the forms before having them sign them. (Tr. 485–488.) 89 The General Counsel argues that Barnes’ initial testimony—that he was not given the requisite assurances at the outset of the interview— stands in contrast with his signed statement. However, I credited the testimony of Rattray and Beshears that they provided the assurances at the beginning of each encounter and, in Barnes’ case, he did testify on redirect when presented with the signed statement that he was given cer- tain assurances. (Tr. 282–283, 294–295; R. Exh. 11.) 90 Reyes also testified that he was not given any assurances that he would not be retaliated surface bargaining by: (1) proposing and adhering to contract terms that would have left unit employees with fewer rights than they would have in the absence of a collective-bargaining agree- ment: (2) its unlawful combination of proposals–no arbitration and no work stoppages; (3) its unlawful combination of pro- posals–unfettered wage discretion, broad management rights, no arbitration, and no just cause for discipline; (4) engaging in re- gressive bargaining when it withdrew a proposal providing for arbitration of grievances based on employee discharges; and (5) failing to establish legitimate justifications for its insistence on drastic changes to contract language over which the parties pre- viously had little to no dispute. The Hospital denies the surface bargaining allegations and contends that it bargained in good faith and with the intention of reaching a contract. It avers that (1) there is no evidence that it maintained and adhered to initial proposals that were never coun- tered by the Union; (2) a mistake is not regressive bargaining; (3) it was entitled to negotiate union security and its initial pro- posal was not unlawful; and (4) its initial wage proposal did not grant it unfettered discretion. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer “to refuse to bargain collectively with the repre- sentative of his employees.” In relevant part, Section 8(d) of the Act defines the phrase “to bargain collectively” as “the perfor- mance of the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and con- fer in good faith with respect to wages, hours, and other terms and conditions of employment . . .” (emphasis added). The Board recently reiterated this statutory mandate in Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op. at 5 (2018), citing J. H. Rutter-Rex Manufacturing Co., Inc., 86 NLRB 470, 506 (1949): [t]he obligation to bargain collectively surely encompasses the affirmative duty to make expeditious and prompt arrange- ments, within reason, for meeting and conferring. Agreement is stifled at its source if opportunity is not accorded for discus- sion or so delayed as to invite or prolong unrest or suspicion. It is not unreasonable to expect of a party to collective bargaining that he display a degree of diligence and promptness in arrang- ing for collective bargaining sessions when they are requested, and in the elimination of obstacles thereto, comparable to that which he would display in his other business affairs of im- portance. against when the attorneys questioned him prior to the hearing. (Tr. 335–336.) However, he was presented with the written form by one of the attorneys and signed it. Based on my observation of his testimony, I find that Reyes was articulate and likely understood the contents of the statement that he signed. (Tr. 342–343; R. Exh. 13.) 91 Otchere’s conflicting testimony indicated that she signed the docu- ment after speaking with counsel for ten to fifteen minutes about the pe- tition. Again, I credit the testimony of counsel that Otchere, like the other witnesses, were provided with the requisite assurances. (Tr. 351– 364; R. Exh. 14.) 92 Johnnie’s Poultry, 146 NLRB 770 (1964) (Board established con- ditions under which an employer may interrogate an employee about Section 7 matters). 93 R. Exh. 11–14. DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 35 On March 29, 2017, the Hospital tendered no-strike and griev- ance and mediation proposals, along with a management rights proposal substantially identical to its December 6, 2016 pro- posal. The Hospital contends, however, that it never indicated that any of its proposals were its “last and final offer” and that it eventually withdrew its no-strike proposal. It also cites the Un- ion’s 18-month delay in responding to the Hospital’s grievance and mediation proposal and failure to respond to its no-strike/no- lockout proposal. With respect to the Union’s grievance and me- diation counterproposal on September 5, 2018, the Hospital notes that it was copied from another hospital group’s agreement and bore no resemblance to the expired CBA. The Hospital essentially concedes the unlawfulness of its March 29, 2017 no-strike proposal, which it repeatedly at- tempted to tie-in with a non-binding mediation clause in lieu of arbitration. However, it asserts that it eventually withdrew the proposal over 14 months later on June 7, 2018.94 The Hospital’s initial January 17, 2017 disciplinary proposal unlawfully sought to eliminate the just cause requirement and proposed to exclude arbitration for all discipline except for discharge. See Kitsap Tenant Support Services, Inc., 366 NLRB at 9 (employer’s un- lawful proposals included the unfettered right to administer dis- cipline and discharge). The Hospital’s December 6, 2016 management rights pro- posal, which hardly budged over nearly 2 years of bargaining, unlawfully combined with its wage proposals to give it unfet- tered discretion to change virtually all aspects of bargaining unit operations, including wages, benefits, hiring, promotion and transfer, disciplinary action without just cause, job classifica- tions, work schedules, supervisors performing unit work, the use of part-time, per diem, agency and temporary employees, and work rules. See Kitsap Tenant Support Services, Inc., supra at 8 (bad faith proposal would have given employer the exclusive rights to determine wages, benefits, discipline, promotion, de- motion, discipline, layoff, discharge, rules and regulations and operational functions, and an ineffective grievance procedure); McClatchy Newspapers, 321 NLRB 1386, 1391 (1996) (pro- posal to give employer unrestricted control over wages consti- tuted bad faith bargaining); Woodland Clinic, 331 NLRB 735, 740 (2000) (same). The Hospital notes that the Union took a long time in counter- ing many of its proposals. However, the failure of the parties to move forward in an efficient manner is also attributable to the Union’s resistance to the aforementioned bad faith proposals by the Hospital, which precipitated a seemingly perpetual humdrum of counterproposals that merely nicked along the surface. The Hospital also alludes to Godoff’s offensive language during sev- eral bargaining sessions, but as the Board noted in Victoria Pack- ing Corp: There can be no doubt that [the Union’s representative] is a confrontational person, and that he approached the negotia- tions without the diplomacy of a foreign ambassador. How- ever, no one expects labor negotiations to be conducted in the sitting room of the Harvard Club by persons having a gracious, gentle manner. ‘For better or worse, the obligation to bargain 94 R. Exh. 3 at 175–176. also imposes the obligation to thicken one’s skin and to carry on even in the face of what otherwise would be rude and unac- ceptable behavior.’ 332 NLRB 597, 600 (2000). See also Success Village, 347 NLRB 1065, 1081(2006) (employer improperly declared im- passe during contentious negotiations based on the union’s ref- erence to employer’s representative as an “asshole”); Long Is- land Jewish Medical Center, 296 NLRB 51, 71–72 (1989) (same). The Hospital’s prolonged adherence to no-strike, grievance and mediation, and management rights proposals, along with its unrestricted, ambiguous and unpredictable merit or market- based wage proposals, constituted bad faith surface bargaining in violation of Section 8(a)(5) and (1) of the Act. See Regency Service Carts, Inc., 345 NLRB 671, 675 (2005) (unlawful em- ployer bargaining proposals included management rights clause granting it unfettered discretion over workplace rules, discipline and wages, a broad no-strike clause, and excluded arbitration to any challenges to employer’s application of management rights); A-1 King Size Sandwiches, 265 NLRB 850 (1982) enfd 732 F.2d 872 (11th Cir. 1984), cert. denied 469 U.S. 1034 (1984)(unlaw- ful proposals included unfettered discretion over merit increases, scheduling and hours, layoff, recall, granting and denying leave, promotions, demotions, discipline, assignment of work outside the unit and changes to past practices, a broad no-strike clause, and exclusion of disciplinary decisions from the grievance-arbi- tration procedure). In making and adhering to such a combination of proposals, the Hospital unlawfully endeavored to strip the Union of its role in representing bargaining unit employees in violation of Section 8(a)(5) and (1) of the Act. See Target Rock, 324 NLRB 373, 386–387 (1997) enf’d. 172 F.3d 921 (D.C. Cir 1998) (simulta- neous proposal and maintenance of no-strike provision, broad management rights clause, and ineffective grievance and arbitra- tion procedure found unlawful); Public Service of Oklahoma, 334 NLRB 487, 488–489 (2001) (employer engaged in bad faith bargaining when it “insisted on unilateral control to change vir- tually all significant terms and conditions of employment of unit employees during the life of the contract).” Moreover, the Hospital unlawfully insisted on eliminating the parties’ longstanding union-security, basing its position on phil- osophical grounds—i.e., the belief that its employees should have the freedom of choice as to whether or not to join the Union and pay dues—without laying out a legitimate business justifi- cation. Schmid testified that the Hospital was impeded in its em- ployee recruitment efforts due to its relationship with the Union, but that allegation was not substantiated. Under the circum- stances, the Hospital’s insistence on eliminating the union secu- rity clause violated Section 8(a)(5) and (1). See Kalthia Group Hotels, Inc., 366 NLRB No. 118 (2018) (employer unlawfully refused to consider any union-security provision on philosophi- cal grounds and without advancing any legitimate business jus- tification). Finally, on April 5, 2017, the Hospital unlawfully regressed from its January 17, 2017 discipline proposal by tendering a 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD grievance-mediation proposal that still undermined the effective- ness of the arbitration process. The Union noted the discrepancy and, on May 16, 2017, the Hospital conceded that its April 5 pro- posal conflicted with its January 17 proposal. Bernstein in- formed the Union that the Hospital would reconcile the proposals but never did and, on May 25, 2017, informed the Union that arbitration was out of the equation. See Management & Training Corporation, 366 NLRB No. 134, slip op. at 4 (2018) (regressive proposals are unlawful when “made in bad faith or are intended to frustrate agreement”); Mid-Continent Concrete, 336 NLRB 258, 260 (2001) (unexplained, dubious regressive proposal sug- gests bad-faith bargaining). B. The Bargaining Briefs “[A]n employer’s free speech right to communicate [its] views to [its] employees is firmly established, and cannot be in- fringed by a union or the Board. Thus, [Section 8(c) of the Act] merely implements the First Amendment by requiring that the expression of “any views, argument, or opinion” shall not be ‘ev- idence of an unfair labor practice,’ so long as such expression contains “no threat of reprisal or force or promise of benefit” in violation of § 8(a)(1).” NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). That right also extends to non-coercive com- munication between an employer and its employees in the con- text of the collective-bargaining process. United Technologies Corp., 274 NLRB 609, 610 (1985) (as the Board has recognized, “permitting the fullest freedom of expression by each party” nur- tures a “healthy and stable bargaining process.” It is not for the Board to “police or censor propaganda.”) Linn v. United Plant Guard Workers of America, 383 U.S. 53, 60 (1966); see also Long Island College Hosp., 327 NLRB 944, 947 (1999) (over- enthusiastic rhetoric is protected speech unless it is knowingly false or made with reckless disregard for the truth). As previously mentioned, the bargaining briefs continually disparaged the Union during bargaining, misrepresented the par- ties’ bargaining positions, including its wage proposals, and blamed the Union for the lack of a pay raise. Taken in context with the Hospital’s unlawful surface bargaining tactics over a 2- year period, the bargaining briefs served to undercut unit em- ployees’ support for the Union. See Regency House of Walling- ford, Inc., 356 NLRB 563, 567 (2011) (in the context of addi- tional unlawful conduct, denigration of union conveyed implicit threat that union representation would be futile and employees would have to rely on employer to protect their interests); Gen- eral Electric, 150 NLRB 192 (1964) (bargaining briefs com- pounded the effects of employer’s bad-faith conduct during bar- gaining and at the table and, predictably, fueled employees’ dis- satisfaction with the union). See Miller Waste Mills, Inc., 334 NLRB 466, 467 (2001) (Board upheld finding that employees became alienated from the union due to belief that it prevented a wage increase). Although the bargaining briefs were the vehicles by which the effects of the Hospital’s unlawful conduct was conveyed to unit employees, they did not convey any objective “threat of reprisal or force or promise of benefit.” See Children’s Center, 347 95 The General Counsel does not dispute the authenticity of the 81 signatures or the inclusion of those witnesses on list. NLRB 35, 36 (2006) (employer “lawfully expressed an unfavor- able opinion about the union, its positions, and its actions.”); NLRB v. Pratt & Whitney Air Craft Div., United Techs. Corp., 789 F.2d 121, 135 (2d Cir. 1986) (employer lawfully asserted that the union was on “a collision course,” their preparation was ‘thoughtless and irresponsible,” and that their offers were “unre- alistic”); United Technologies Corp., 274 NLRB 1069, 1074 (1985) (employer lawfully issued bulletins criticizing the Un- ion’s demands and tactics and setting forth its version of the ne- gotiations). II. THE HOSPITAL’S WITHDRAWAL OF RECOGNITION Pursuant to Section 8(a)(5) of the Act, an employer has a con- tinuing obligation to recognize and bargain with an incumbent union. Upon expiration of a collective-bargaining agreement, an incumbent union is presumed to enjoy majority support among unit employees, and an employer may withdraw recognition only on the basis of objective evidence showing that the union has actually lost majority support. Levitz Furniture Co. of the Pa- cific, 333 NLRB 717, 725 (2001) (withdrawal of recognition lawful if employer proves that at the time of withdrawal the un- ion was not supported by a majority of unit employees). The obligation to recognize and bargain with a union ends, however, if the union no longer enjoys majority support. Id. at 720. As of October 25, 2018, the Hospital’s employee roster listed 151 bargaining unit employees on the payroll. On that date, the Hospital was presented with a union disaffection petition con- taining 81 valid signatures of bargaining unit employees ob- tained between March 16 and October 25, 2018—a majority of the bargaining unit.95 The General Counsel contends, however, that the Hospital’s surface and regressive bargaining, accompa- nied by the bargaining briefs, warrants a presumption that such conduct tainted the disaffection petition on which the Hospital based its withdrawal of recognition. Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996), affd. in part, 117 F.3d 1454 (D.C. Cir. 1997) (a causal relationship is presumed between unremedied bargaining violation and a subsequent showing of disaffection). The Hospital argues that the Lee Lumber presumption does not apply because that case involved a general refusal to both recognize and bargain with the incumbent union. Instead, the Hospital relies on Levitz Furniture Co., Id. at 725, to support its contention that its withdrawal of recognition was lawful because it submitted a disaffection petition signed by 53.6 percent of bar- gaining unit employees. Notwithstanding its disavowal of Lee Lumber, the Hospital relies on that decision for the proposition that “[n]ot every unfair labor practice will taint evidence of a un- ion’s subsequent loss of majority support; in cases involving un- fair labor practices other than a general refusal to recognize and bargain, there must be specific proof of a causal relationship be- tween the unfair labor practice and the ensuing events indicating a loss of support.” Lee Lumber, 322 NLRB at 177. Finally, the Hospital contends that analysis of the facts reveals that they fall short of the standard set forth in Master Slack, 271 NLRB 78, 84 (1984) for establishing a tainted petition: DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 37 (1) The length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; (3) any possible tendency to cause employee disaf- fection from the union; and (4) the effect of the unlawful con- duct on employee morale, organizational activities, and mem- bership in the union. Regardless as to whether one applies Lee Lumber or Master Slack,96 both decisions require proof of a causal connection be- tween the petition and the Hospital’s bad faith surface and re- gressive bargaining, compounded by its dissemination of bar- gaining briefs to employees lampooning the Union’s frustrations and resistance to its unlawful conduct. Analyzing the case under the Lee Lumber, the Hospital’s unlawful failure to bargain in good faith with the Union is presumed to have caused the subse- quent employee disaffection. From the unit employees’ view- point, the Hospital’s surface and regressive bargaining, com- pounded by the bargaining briefs, clearly discredited the Union, conveyed a sense of futility in union representation and prompted many unit employees to sign the disaffection petition. Analysis of the case under Master Slack produces the same result. The timing of the unfair labor practices was clearly con- nected to the withdrawal of recognition. The signature collection began in March 2018, after 16 months of bargaining, most of it precipitated by the Hospital’s bad faith bargaining. A total of 81 eligible unit employees signed the disaffection petition. Thirty of those employees signed the petition between during the period that the Hospital adhered to its unlawful no-strike proposal (March 29 to June 7, 2018). The most striking development is that, while 54, or two-thirds, of those employees signed during the period from March to early October 2018, the remaining one- third—27 employees—signed the petition during the 2 weeks following the Hospital’s issuance of the October 12 bargaining brief blaming the Union for blocking pay raises and leading up to the delivery of the petition to Russo on October 25, 2018. The timing of those signatures strongly suggests a causal con- nection. See, e.g., Gene’s Bus Co., 357 NLRB 1009 (2011) (ap- proximately seven months passed between manager’s public denigration of and physical assault on the shop steward, and five to 6 months passed between direct-dealing incidents and the cir- culation of the decertification petition); Bunting Bearings Corp. 349 NLRB 1070 (2007) (month-long lockout ended just eight days before the employees executed the May 29 petition and fif- teen days before the employer withdrew recognition); AT Sys- tems West, 341 NLRB 57, 60 (2004) (nine months between un- lawful direct dealing and circulation of decertification petition); RTP Co., 334 NLRB 466, 468 (2001) (finding “close temporal proximity” between the employer’s unfair labor practices and its withdrawal of recognition where the unfair labor practices 96 The General Counsel objected to the admission of subjective testi- mony regarding employee disaffection on the ground that analysis under the Master Slack test assesses only the likelihood that causation exists. See SFO Good-Nite Inn, 357 NLRB 79, 82–83 and fn. 26 (2011) (sub- jective employee testimony regarding their Union disaffection excluded due to “the inherent unreliability of such testimony). However, the Board recently left the door open on this issue in Denton County, 366 NLRB No. 103, slip op. at 3, fn. 10 (2018) (judge did not abuse his occurred 2 to 6 weeks prior to the antiunion petition on which the employer based its withdrawal of recognition). The evidence establishes that the Hospital’s conduct meets the other Master Slack factors as well. The Hospital consistently adhered to a consistent course of surface and regressive bargain- ing that prolonged bargaining and it followed those actions with bargaining briefs blaming the Union for the delays. After 16 months of protracted bargaining and no raise on the horizon, em- ployees understandably became disillusioned with the Union. Twenty-six employees expressed their disaffection with the Un- ion after the Hospital misrepresented on October 12, 2018 that the Union’s wage proposal was inimical to their interests and they would be better off without union representation. See Mil- ler Waste Mills, Inc., 334 NLRB 466, 468–469 (2001) (employ- ees became alienated from Union after employer misrepresented union’s bargaining positions and blamed it for preventing em- ployees from receiving their customary annual wage increase); Detroit Edison, 310 NLRB 564, 566 (1993) (employer’s unfair labor practices “convey[ed] to employees the notion that they would receive more . . . without union representation. Such con- duct improperly affects [the] bargaining relation-ship”). The last factor in a Master Slack analysis is whether the Hos- pital’s surface and regressive bargaining had lasting effects on unit employees. The representative sample of employee senti- ment produced by the Hospital demonstrated that most of those who signed the petition were displeased with the Union for fail- ing to secure a new contract and wage increases during a lengthy period of bargaining. Two of the witnesses organized the disaf- fection effort and were clearly antiunion. Of the remaining eight employees, however, six conceded that the Union’s inability to obtain pay raises from the Hospital for 2 years was a significant reason as to why they signed the disaffection petition.97 First, the Hospital delayed in producing a wage proposal until May 2018. When it finally produced one, it tendered an unprece- dented, radically different compensation system that spurred fur- ther rancor at the bargaining table. Its wage proposal was doomed on arrival. The proposal, which was presented as nonnegotiable, gave the Hospital unfettered discretion to set wage rates within a series of ambiguous ranges. Its October 12, 2018 misleading bargaining brief impugning the Union for ham- pering the issuance of pay raises triggered a stampede of disap- pointed unit employees to sign the petition over the course of the next 2 weeks. See Mesker Door, Inc., 357 NLRB 591, 598 (2011) (unlawful statement that Board charges “would result in lost wage increases and lower bonus amounts” was so close in time to a flurry of petition signatures that it “appear[ed] to have directly affected employees’ support for the Union”). Under the circumstances, the Hospital’s October 26, 2018 withdrawal of recognition from the Union as the labor repre- sentative for unit employees violated Section 8(a)(5) and (1). In discretion in permitting the testimony of four employees who signed the disaffection petition). Moreover, the Board’s administrative law judges, as expert fact finders in these labor relations disputes, are quite capable of assessing the reliability of subjective testimony in conjunction with the objective evidence. 97 Mary Collins, Noel Reyes, Vivian Otchere, Lewis Bellamy, Tsedale Benti, and Freddie Ard. 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD addition, the circumstances also require that the ensuing remedy include a bargaining order ordering the Hospital to bargain with the Union for a reasonable period of time and at least twice per week. See Lee Lumber & Building Material Corp., 334 NLRB 399, 399 fn. 7 (2001). These circumstances include the Hospi- tal’s prolonged and unlawful failure and refusal to bargain in good faith with the Union, the widespread disaffection caused by the Hospital’s surface and regressive bargaining, as well as the compounding effect of those actions through bargaining briefs, and the fact that the Hospital has already proceeded unilaterally to change unit employees’ terms and conditions of employment. Those changes adversely impacted unit employees’ Section 7 rights as evidenced by the Hospital’s newly acquired and unfet- tered discretion to determine their wages and the evisceration of critical due process rights that they had under the expired CBA relating to the disciplinary and grievance/arbitration processes. III. THE NOVEMBER 1, 2018 MEMORANDUM On November 1, 2018, the Hospital notified unit employees that it was unilaterally changing their terms and conditions of employment since they were now nonunion employees. The changes included a transition to market-based wage structure, lump sum bonuses, PTO, holiday and leave banks, and a monthly commuter subsidy. With respect to the transit benefit, the Hos- pital noted that “[t]his benefit is added to your paycheck. Previ- ously the union did not negotiate this benefit on your behalf so you did not receive it.” Given that its withdrawal of recognition of the Union was un- lawful, the parties were still in a bargaining relationship gov- erned by the Act. Accordingly, the aforementioned unilateral changes, undertaken after rejecting the Union’s offer to resume bargaining, also constituted an unfair labor practice in violation of Section 8(a)(5) and (1) of the Act. See Southern Bakeries, LLC, 364 NLRB 804 (2016); Narricort Industries, L.P., 353 NLRB 775, 776 fn. 11 (2009); Northwest Graphics, Inc., 342 NLRB 1288, 1288 (2004); Turtle Bay Resorts, 353 NLRB 1242, 1275 (2009). I disagree, however, with the General Counsel’s contention that the Hospital’s statement that the Union failed to negotiate a transit benefit on their behalf constituted either a sep- arate coercive act under Section 8(a)(1) or a separate bargaining violation under Section 8(a)(5). See Litton Systems, 300 NLRB 324, 330 (1990), enfd., 949 F.2d 249 (8th Cir. 1991), cert denied, 503 U.S. 985 (1992) (the Board is “reluctant to find bad-faith bargaining exclusively on the basis of a party’s misconduct away from the bargaining table”). IV. THE HOSPITAL’S WITNESS INTERVIEWS In preparation for the hearing, the Hospital’s attorneys met separately with unit employees in an office to discuss giving their providing testimony at the hearing. At the hearing, the Gen- eral Counsel moved to strike certain witness testimony on the ground that, during trial preparation, the Hospital’s attorneys in- terviewed employees without first advising them of their rights under Johnnie’s Poultry Co., 146 NLRB 770, 775 (1964). The General Counsel also moves to and amend the complaint to add an allegation that those interviews amounted to coercive interro- gation in violation of Section 8(a)(1) of the Act; that motion is granted and the allegations are deemed denied by the Hospital. The Hospital opposes both motions on the grounds that its at- torneys advised the witnesses of their rights to cooperate with counsel during the hearing preparation and to choose whether or not to testify at the hearing. The Hospital also contends that the proposed amendment should not be allowed because no charge was filed raising these allegations, nor are they closely related to any of the multiple charges filed in this case. Moreover, if the amendment is allowed, it should nonetheless be dismissed as the credible record evidence demonstrates the Hospital did not vio- late Section 8(a)(1) by interviewing employees. The Hospital’s contention that the charge is barred as untimely pursuant to Section 10(b) or otherwise unrelated to timely filed charges overlooks the fact that the issue did not accrue until a few weeks before the hearing when the witnesses were inter- viewed by trial counsel. Timeliness is not the issue, but rather, the judge’s decision of whether to permit an amendment at the hearing. Section 102.17 of the Board’s Rules authorizes the judge to grant complaint amendments “upon such terms as may be deemed just” during or after the hearing until the case has been transferred to the Board. See Folsom Ready Mix, Inc., 338 NLRB 1172 fn. 1 (2003). In this case, the issue of employee interrogation did not come to light until the Hospital’s witnesses testified at the hearing a few weeks later and were crossed-ex- amined by the General Counsel. Under the circumstances, there is no basis to deny the General Counsel’s motion to amend the complaint to add allegations relating to coercive interrogation. See Pincus Elevator & Electric Co., 308 NLRB 684, 684–685 (1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993) (judge abused her discretion by denying motion during the hearing to add a Johnnie’s Poultry allegation, as respondent’s counsel introduced the subject employee statement at trial, the allegation was fully litigated, and the respondent had therefore suffered no preju- dice). In Johnnie’s Poultry Co., the Board held that to safeguard against the possible coercion that may occur when employees are questioned about matters involving their Section 7 rights, the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the question- ing must occur in a context free from employer hostility to un- ion organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting infor- mation concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees. Three of the employees interviewed—Barnes, Otchere and Reyes—provided conflicting testimony that they were either not advised about all of their rights under Johnnie’s Poultry or re- ceived such advice after the interviews began. However, based on the credible evidence of the Hospital’s experienced labor at- torneys, Tammie Rattray and Paul Beshears, I found, in accord- ance with their custom and practice, that they read all of the wit- nesses their rights under Johnnie’s Poultry from the preprinted forms and/or had them read and sign the forms further advising them of those rights at the outset of those interviews. Further- more, the forms contained the requisite information—the pur- pose of the questioning, assured that no reprisal will take place DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 39 and obtained the employee’s voluntary participation. Under the circumstances, I find that the credible evidence es- tablishes that the Hospital’s attorneys provided the requisite as- surances under Johnnie’s Poultry. Accordingly, the General Counsel’s motion to strike the testimony of witnesses called by the Hospital is denied and that allegation is dismissed. CONCLUSIONS OF LAW 1. District Hospital Partners, L.P. d/b/a The George Washing- ton University Hospital, a Limited Partnership, and UHS of D.C., Inc., General Partner (the Hospital) is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and has a been a healthcare institution within the meaning of Section 2(14) of the Act. 2. 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region A/W Service Em- ployees International Union (the Union) is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All regular full-time and regular part-time employees of the [Hospital] in the Environmental Services, Linen Services, Am- bulatory Care Center and Food Services Department of George Washington University Hospital. 4. The Hospital has violated Section 8(a)(5) and (1) of the Act by bargaining in bad faith during negotiations with no intention of reaching a successor collective-bargaining agreement by: (a) Adhering to bargaining proposals that provide the Unit with fewer rights than afforded to them without a collective-bar- gaining agreement, such as a restrictive grievance-arbitration procedure that does not include binding arbitration, a no strike provision, and an expansive management’s right clause. (b) Engaging in regressive bargaining such as by proposing that discharges be subject to the grievance-arbitration procedure, and then later proposing a grievance procedure that culminates in non-binding mediation. (c) Maintaining and adhering to bargaining proposals that de- lete a longstanding union security provision. (d) Maintaining and adhering to bargaining proposals that give Respondent unfettered discretion in employee wages. (e) Unlawfully withdrawing recognition from the Union on October 26, 2018 after committing unfair labor practices that are likely to cause loss of union support among employees. 5. The Hospital further violated Section 8(a)(5) and (1) by: (a) refusing to bargain with the Union as the exclusive collective bargaining representative of employees in the aforementioned bargaining unit on or after October 26, 2018, and (b) unilaterally implementing changes to employees’ terms and conditions of employment and refusing to bargain over such changes on No- vember 1, 2018. 6. The Hospital’s unfair labor practices affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found that the Hospital has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom. Un- der the circumstances, however, a cease-and-desist order alone would be inadequate to remedy the Hospital’s withdrawal of recognition. Accordingly, the Hospital shall be ordered to take certain affirmative action designed to effectuate the policies of the Act, including the issuance of an affirmative bargaining or- der. An affirmative bargaining order is appropriate in these cir- cumstances due to the Hospital’s prolonged and unlawful failure and refusal to bargain in good faith with the Union, the extensive disaffection caused by the Hospital’s surface and regressive bar- gaining, the compounding of the effect of those actions through bargaining briefs, and the Hospital’s unilaterally change to unit employees’ terms and conditions of employment. Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); Caterair International, 322 NLRB 64, 68 (1996). Those changes adversely impacted unit employees’ Section 7 rights as evidenced by the Hospital’s newly acquired and unfettered dis- cretion to determine unit employees’ wages and the evisceration of due process provided under the expired CBA relating to the disciplinary and grievance/arbitration processes. Having found that the Hospital violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union, the Hospital shall be ordered to meet at reasonable times and in good faith with the Union as the exclusive bargaining representa- tive of its employees in the above described bargaining unit with respect to wages, hours, and other terms and conditions of em- ployment and, if an understanding is reached, to embody the un- derstanding in a written agreement. Due to the Hospital coun- sel’s refusal to meet more than twice per month during the bad- faith bargaining period, a bargaining schedule requiring the Hos- pital to meet and bargain with the Union on a regular and timely basis is appropriate and would effectuate the purposes of the Act. See All Seasons Climate Control, Inc., 357 NLRB 718, 718 fn. 2 (2011) (ordering employer to comply with a bargaining schedule to remedy its unlawful conduct), enfd. 540 Fed. Appx. 484 (6th Cir. 2013). Upon the Union’s request, the Hospital shall be re- quired to bargain for a minimum of 15 hours per week, or in the alternative in accordance with some other schedule to which the Union agrees. The Hospital shall also be required to submit writ- ten bargaining progress reports every 15 days to the compliance officer for Region 5, and to serve copies of those reports on the Union. Finally, given the nature of the violations, the prolonged pe- riod of bad faith bargaining, and the previous practice between the parties, the Hospital shall be ordered to make the following employee negotiators whole for any earnings and/or leave lost while attending bargaining sessions: Cynthia Bey, Pamela Brooks, Aisha Brown, Marcia Hayes, Sonya Stevens and Arlene Smith. Frontier Hotel & Casino, 318 NLRB 857, 857 (1995) (employees reimbursed for expenses incurred during bargaining where employer engaged in “egregious and deliberate surface bargaining”). I decline, however, to issue such an order with re- spect to the costs of the Union representatives in attending two bargaining sessions per month. 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommended98 ORDER The Respondent, District Hospital Partners, L.P. d/b/a The George Washington University Hospital, a Limited Partnership, and UHS of D.C., Inc., General Partner, Washington, D.C., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with the Union as the certified exclusive collective-bargaining representative of em- ployees in the following appropriate unit: All regular full-time and regular part-time employees of the [Hospital] in the Environmental Services, Linen Services, Am- bulatory Care Center and Food Services Department of George Washington University Hospital. (b) Engaging in the following surface, regressive and bad- faith bargaining with the Union for a successor collective-bar- gaining agreement: (1) Adhering to bargaining proposals that provide the unit with fewer rights than afforded to them without a collective-bargain- ing agreement, such as a restrictive grievance-arbitration pro- cedure that does not include binding arbitration, a no strike pro- vision, and an expansive management’s right clause. (2) Engaging in regressive bargaining such as by proposing that discharges be subject to the grievance-arbitration proce- dure, and then later proposing a grievance procedure that cul- minates in non-binding mediation. (3) Maintaining and adhering to bargaining proposals that de- lete a longstanding union security provision. (4) Maintaining and adhering to bargaining proposals that give Respondent unfettered discretion in employee wages. (5) Unlawfully withdrawing recognition from the Union on October 26, 2018 after committing unfair labor practices that are likely to cause loss of union support among employees. (c) Unilaterally implementing changes to employees’ terms and conditions of employment without giving the Union an op- portunity to bargain over such changes in good faith. (d) 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 effectu- ate the policies of the Act. (a) Recognize, and upon request, bargain with the Union as the exclusive representative of the employees 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 regular full-time and regular part-time employees of the [Hospital] in the Environmental Services, Linen Services, 98 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der 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. Ambulatory Care Center and Food Services Department of George Washington University Hospital. (b) Upon the Union’s request, bargain for a minimum of 15 hours per week, or in the alternative in accordance with some other schedule to which the Union agrees. (c) On the Union’s request, rescind any or all of the unilater- ally implemented changes made in the terms and conditions of employment of employees since November 1, 2018. (d) Within 14 days from the Board’s Order, make Cynthia Bey, Pamela Brooks, Aisha Brown, Marcia Hayes, Sonya Ste- vens and Arlene Smith whole for any loss of earnings and other benefits incurred during bargaining. (e) Within 14 days from the Board’s Order, compensate em- ployees in the Unit, with interest, for any loss of earnings and other benefits resulting from the unilateral changes we have made to their wages, hours, and working conditions since Octo- ber 26, 2018. (f) Within 14 days after service by the Region, post copies of the attached notice marked “Appendix”99 in all places where no- tices to employees are customarily posted, including but not lim- ited to the following locations at The George Washington Uni- versity Hospital located at 900 23rd St N.W., Washington, D.C. 20037: the bulletin boards located in the Linen Services Depart- ment, the office of the Environmental Services department, and the kitchen located outside of the cafeteria in the Food Services department. The notices shall be posted by the Respondent and maintained for 60 consecutive days. In addition to the physical posting of paper notices, the notices shall be distributed electron- ically, such as by email, posted 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, defaced, or covered by any other material. (g) Submit written bargaining progress reports every 15 days to the compliance officer for Region 5 and serve copies of those reports on the Union. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. 99 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DISTRICT HOSPITAL PARTNERS, L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL 41 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. 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region, a/w Service Employ- ees International Union (the Union), is the employees’ repre- sentative in dealing with us regarding wages, hours, and other working conditions of our employees in the following appropri- ate unit (the Unit): All regular full-time and regular part-time employees of the Employer in the Environmental Services, Linen Services, Am- bulatory Care Center and Food Services Departments of George Washington University Hospital WE WILL NOT fail or refuse to bargain in good faith with the Union as the exclusive collective-bargaining representative of the Unit. WE WILL NOT, during negotiations with the Union for a suc- cessor contract, simultaneously maintain and adhere to bargain- ing proposals that provide the Unit with fewer rights than af- forded to them without a collective-bargaining agreement, such as a restrictive grievance-arbitration procedure that does not in- clude binding arbitration, a no strike provision, and an expansive management’s right clause. WE WILL NOT, during negotiations with the Union for a suc- cessor contract, simultaneously maintain and adhere to bargain- ing proposals that delete a longstanding union security provision. WE WILL NOT, during negotiations with the Union for a suc- cessor contract, simultaneously maintain and adhere to bargain- ing proposals that give us unfettered discretion in your wages. WE WILL NOT, during negotiations with the Union for a suc- cessor contract, engage in regressive bargaining, such as by pro- posing that discharges be subject to the grievance-arbitration procedure, and then later proposing a grievance procedure that culminates in nonbinding mediation. WE WILL NOT withdraw recognition from the Union or refuse to recognize and bargain with the Union as the exclusive collec- tive-bargaining representative of the Unit. WE WILL NOT fail or refuse to continue negotiations for a successor contract with the Union as the exclusive collective- bargaining representative of the Unit. WE WILL NOT unilaterally make changes to the terms and conditions of employment of employees in the Unit without first giving notice to the Union and affording the Union an oppor- tunity to bargain collectively with respect to such changes. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL recognize and, on request, bargain with the Union as your representative concerning wages, hours and working conditions. If an agreement is reached with the Union, we will sign a document containing that agreement. WE WILL give the Union notice and an opportunity to bargain over any proposed changes to the wages, hours, and working conditions of employees in the Unit before putting such changes into effect. WE WILL identify and, on the Union’s request, rescind any changes that we have made unilaterally since November 1, 2018 to the wages, hours, and working conditions of employees in the Unit. WE WILL compensate employees in the Unit, with interest, for any loss of earnings and other benefits resulting from the uni- lateral changes we have made to their wages, hours, and working conditions since October 26, 2018. WE WILL pay the following employee bargaining committee members for any pay and/or leave they lost attending bargaining sessions: Cynthia Bey; Pamela Brooks; Aisha Brown; Marcia Hayes; Sonya Stevens; and Arlene Smith. WE WILL file with the Regional Director for Region 5, within 21 days of the date the amount of backpay is fixed, a report allo- cating the backpay award to the appropriate calendar year(s). DISTRICT HOSPITAL PARTNERS,L.P. D/B/A THE GEORGE WASHINGTON UNIVERSITY HOSPITAL, A LIMITED PARTNERSHIP, AND UHS OF D.C., INC., GENERAL PARTNER The Administrative Law Judge’s decision can be found at www nlrb.gov/case/05-CA-216482 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.