Alexandria Manor

National Labor Relations Board - Board Decisions

Apr 25, 1995

317 N.L.R.B. 2 (N.L.R.B. 1995)

2
317 NLRB No. 1
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order to correct an
inadvertent error in par. 2(a). We shall also substitute a new notice
so that it conforms to the Order as modified.
We modify the remedy section of the judge’s decision to provide
that to the extent an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Re-
spondent will reimburse the employee, but the amount of such reim-
bursement will constitute a setoff to the amount that the Respondent
otherwise owes the fund.
Health Care Investors, Inc. d/b/a Alexandria Manor
and New England Health Care Employees
Union, District 1199, AFL–CIO. Case 34–CA–
6502
April 25, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On October 24, 1994, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Union filed answering
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 exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Health
Care Investors, Inc. d/b/a Alexandria Manor, Bloom-
field, Connecticut, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Sign and give effect to the collective-bargain-
ing agreement reached by the parties on December 16,
1992.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to sign the collective-
bargaining agreement which we reached on December
16, 1992 (effective November 8, 1992, through No-
vember 7, 1995), with the Union (New England Health
Care Employees Union, District 1199, AFL–CIO), the
exclusive collective-bargaining representative for the
employees in the following appropriate bargaining
unit:
All full-time and part-time service and mainte-
nance employees employed by Alexandria Manor
at its proprietary nursing home located at 55
Tunxis Avenue, Bloomfield, Connecticut, but ex-
cluding all other employees, registered nurses, li-
censed practical nurses, office clerical employees,
professional employees, casual employees, Pro-
gram Director, guards, watchman, Administrator,
Director of Nurses, Assistant Director of Nurses,
the Chef, and all other supervisors as defined in
the National Labor Relations Act, as amended,
confidential, executive and managerial employees,
physicians, dentists, students whose performance
of work at the Home is part of the educational
course of study such students are pursuing, part-
time employees who work less than eight (8)
hours per week for the job classifications in
which they work, and temporary employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL sign and give effect to the collective-bar-
gaining agreement which we reached with the Union
on December 16, 1992, which agreement you ratified.
WE WILL make you whole, with interest, for any
losses which you may have sustained by reason of our
failure to sign and give effect to the agreement which
we reached with the Union on December 16, 1992.
WE WILL make all payments, with interest, to the
benefits funds required by the collective-bargaining
agreement reached with the Union on December 16,
1992.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees listed above
3ALEXANDRIA MANOR
1 As Alexandria does not argue its limitations defense on brief, I
find that Company has abandoned that affirmative defense. In any
event, there is no evidence supporting such a defense.
2 References to the two-volume transcript of testimony are by vol-
ume and page. Exhibits are designated GCX for the General Coun-
sel’s and RX for Respondent Alexandria’s. The Union offered no ex-
hibits.
in the appropriate bargaining unit concerning terms
and conditions of employment.
HEALTH CARE INVESTORS, INC. D/B/A
ALEXANDRIA MANOR
Darryl Hale, Esq., for the General Counsel.
Carmelo Grimaldi, Esq. (Kaufman, Naness, Schneider &
Rosenweig), of Melville, New York, for the Respondent.
John M. Creane, Esq. (Law Firm of John M. Creane), of
Milford, Connecticut, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
refusal-to-bargain case (Alexandria Manor refused to sign a
document allegedly embodying the agreement reached).
Crediting the Government’s witnesses and disbelieving Alex-
andria Manor’s president, its sole witness, I order Alexandria
Manor, by its designated representative, to sign the document
incorporating the understanding reached on December 16,
1992, to give effect to its terms retroactive to November 8,
1992, to make whole, with interest, the employees for any
losses they may have suffered as a result of Respondent’s re-
fusal to sign the document, and to make whole, with interest,
all benefit funds.
I presided at this 2-day trial in Hartford, Connecticut, on
August 15 and 16, 1994, pursuant to the April 26, 1994 com-
plaint and notice of hearing (complaint) issued by the Gen-
eral Counsel of the National Labor Relations Board through
the Regional Director for Region 34 of the Board. The com-
plaint is based on a charge filed February 22, 1994, by New
England Health Care Employees Union, District 1199, AFL–
CIO (the Union or District 1199), against Health Care Inves-
tors, Inc. d/b/a Alexandria Manor (the Company, Alexandria,
or Respondent).
In the Government’s complaint the General Counsel al-
leges that Respondent Alexandria violated Section 8(a)(5) of
the Act, 29 U.S.C. § 158(a)(5), by failing, since February 17,
1994, to execute a complete collective-bargaining agreement
the terms of which were reached about December 16, 1992.
By its answer, Alexandria admits certain factual allegations,
denies violating the Act, and affirmatively pleads limitations
and that the alleged agreement does not represent the under-
standing of the parties. The pleadings establish, and I find,
that the Board has both statutory and discretionary jurisdic-
tion.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel, by District 1199, and by Com-
pany,1 I make the following
FINDINGS OF FACT
I. CREDIBILITY RESOLVED
The General Counsel called four witnesses and rested.
(2:380.)2 The Union also rested at that point. Jerome Brown
was the first witness called by the General Counsel. Brown
has been the Union’s president since 1979. Following Brown
were Benjamin Fischman, Maryann Allen, Betty Cleveland,
and Barbara Stoltman. As president of Alexandria Manor,
Fischman (a New York-licensed attorney, 2:429) was called
to testify briefly about items to be produced in response to
a subpena duces tecum. In effect, Fischman was called as an
adverse witness. Allen serves as the Union’s vice president,
Cleveland was the Union’s organizer for most of the relevant
events, and Stoltman succeeded Cleveland as the organizer
servicing the employees at Alexandria Manor. The Company
called only one witness, Alexandria’s president, Benjamin
Fischman. When the Company rested (2:465), the General
Counsel recalled Jerome Brown to testify in the rebuttal
stage. There was no surrebuttal.
Having observed each of the witnesses as he or she testi-
fied, and after considering the record evidence and briefs of
the parties, I find the Government’s witnesses (not counting
President Fischman) as being more believable than Alexan-
dria’s sole witness, President Fischman. The findings which
follow reflect that credibility resolution. As the critical issue
in the case is whether, at a meeting of the Union and Alex-
andria on December 9, 1992, Fischman told Brown that the
Union would have to waive the Company’s current benefit
payments until certain conditions prevailed (including a resi-
dent census of 90 percent at the 120-bed facility), the credi-
bility resolution is crucial. As counsel states in Respondent’s
opening statement, if Fischman is credited, then there was no
meeting of the minds, no agreement, and no violation. (1:26–
27.) Disbelieving Fischman, and crediting the Government’s
contrary evidence, I find there was a meeting of the minds,
an agreement, and a violation.
In resolving credibility, I have considered the fact that
Maryann Allen, the Union’s vice president, was present and
heard Betty Cleveland testify. Although sequestration of the
witnesses was in effect, Allen was the designated assistant of
both the General Counsel and of the Union. (1:13–14.) Allen
therefore was exempted from sequestration in order to assist
at trial. Designated assistants frequently testify last, or near
last, for parties. Allen’s situation became an issue in the fol-
lowing manner. Allen testified as the Government’s third
witness (second, if Fischman’s brief testimony about a sub-
poena is not counted). At the conclusion of Allen’s direct ex-
amination, the General Counsel, on request, furnished Re-
spondent a copy of Allen’s pretrial affidavit. (1:193–194.)
Supplying a copy of the affidavit for use during the hearing
accords with the General Counsel’s voluntary procedure as
reflected in 1 NLRB Casehandling Manual, sec. 10394.11
(June 1989). That section merely supplements the Board’s
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Distinguish the election required when a motion to dismiss the
complaint is denied. If a respondent there proceeds, it waives its mo-
tion. Kidd Electric Co., 313 NLRB 1178, 1187 (1994); Peter Vitalie
Co., 313 NLRB 971, 972–973 (1994). But that rule pertains to ques-
tions about the allocation of the burden of proof and ripeness for a
decision on the merits. 29 CFR § 102.41 simply protects a party’s
right to participate further, without fear of waiver, even though its
objection to evidence, for example, has been overruled.
rule, 29 CFR § 102.118(b), which clearly contemplates that
the original shall be produced. Indeed, the cited manual sec-
tion, 10394.11, itself provides that a copy will be produced
at the same time the ‘‘original’’ is produced.
In the case of handwritten statements (as was Allen’s), the
need to produce the original is obvious. First, that is what
the law requires. Second, photocopies are notorious for gen-
erally not revealing (a) any differences in ink colors, (b)
whether different colors of paper were used, (c) whether
some pages appear worn and others new, (d) whether any of
the ink appears recent as compared to the remainder, or (e)
whether, in some instances, a strikeover or other slight, but
important, correction was made. Such factors, when they
exist, give a cross-examiner a strong basis to inquire into the
reason for any such differences.
Overnight Respondent’s counsel marked on the copy fur-
nished and did not want to show the marked copy to the wit-
ness. Offering to furnish a clean copy of Allen’s affidavit,
the General Counsel declined to furnish the original on the
basis the Government is not obligated to do so. (2:201.)
Given one last chance to deliver the original affidavit, the
General Counsel requested time to consult with his superiors
at the Region. In light of the 10 minutes the General Counsel
had just taken off the record to obtain the original (and ap-
parently to make a clean copy), I denied the request and
(2:202) struck Allen’s testimony. 29 CFR § 102.118(b)(2). A
moment later I granted counsel’s repeated request for time to
consult with his superiors. On his return, the General Coun-
sel advised that the Government would file a special appeal.
(2:200–203). We then proceeded to the Government’s next
witness, Betty Cleveland, with Allen remaining in attend-
ance. Just before the end of Cleveland’s direct examination,
and after another consultation by the General Counsel with
his office, the General Counsel announced that a special ap-
peal would not have to be filed and that the Government
would produce the original of Allen’s affidavit, for cross-ex-
amination purposes, if I reinstated Allen’s testimony. (2:247,
258.)
Respondent objected to any reinstatement of Allen’s testi-
mony on the basis that it now would be prejudiced because,
as Allen had heard Cleveland’s direct examination, the Com-
pany would be unable to cross-examine Allen effectively.
(2:248, 262–263.) Observing that Allen, as the Government’s
designated assistant, would have been in the hearing room in
any event, the General Counsel countered Respondent’s taint
argument. (2:262–263.) Agreeing with the General Counsel,
I overruled Alexandria’s objection and reinstated Allen’s tes-
timony. (2:264.) At the same time, I said I would weigh the
fact that Allen had heard Cleveland’s direct testimony. (A
strong argument can be made that I should not weigh the fact
of Allen’s presence because, as a designated assistant, she
was entitled to be present, and for me to weigh the fact of
her presence (that is, counting her presence as a negative on
the credibility balance scales) would be contrary to the right
granted by Rule 615, FRE. Nevertheless, in crediting the
Government’s witnesses, I have weighed the fact that Allen
was present during Cleveland’s direct examination.)
Alexandria thereafter declined to cross-examine Allen on
the basis that (1) it was prejudiced beyond repair and (2) for
fear that, by cross-examining Allen, the Company would
waive its objection to my reinstating Allen’s testimony.
(2:268–271.) Respondent then proceeded to cross-examine
Betty Cleveland. Respondent’s first ground has no merit for
the reason stated in my ruling. Moreover, the Company has
shown no prejudice by my ruling. As for the matter of waiv-
er, at trial I informally suggested that Respondent Alexandria
was protected by 29 CFR § 102.41. (2:265–270.) I am satis-
fied that section 102.41 would have permitted Respondent to
cross-examine Allen without waiving its objection of preju-
dice. Section 102.41 of the Board’s Rules provides: ‘‘Any
objection with respect to the conduct of the hearing, includ-
ing any objection to the introduction of evidence, may be
stated orally or in writing, accompanied by a short statement
of the grounds of such objection, and included in the record.
No such objection shall be deemed waived by further partici-
pation in the hearing.’’3
II. OVERVIEW
At issue here is a contract covering the service and main-
tenance employees at Respondent’s nursing home, Alexan-
dria Manor, in Bloomfield, Connecticut. For many years,
since about 1970, the Union has represented the service and
maintenance employees of the facility. During those years
the facility has had several owners. Before Respondent pur-
chased the facility about November 8, 1992, the latest owner,
Mayer Lauffer, operated the facility as Oak Ridge Convales-
cent Center. As the new owner, Respondent renamed the fa-
cility Alexandria Manor. The Union’s collective-bargaining
agreement with Oak Ridge expired, by its terms, on October
31, 1992. (GCX 4.) After purchasing the facility, Respondent
hired the former employees, but set new terms, with wages
and benefits being reduced.
During October the parties conferred in a ‘‘get acquainted
meeting.’’ Although this conference is referred to as the first
meeting, Respondent was not yet the owner, and the meeting
in no way can be considered a collective-bargaining session.
The Union’s purpose was to express its desire that all the
employees be hired and that the new principals be aware that
the owner of Oak Ridge owed a substantial debt to the bene-
fits trust funds. On December 9, 1992, the parties met again.
By the time of this ‘‘second’’ meeting, Alexandria had hired
all the employees (and cut their pay and reduced their bene-
fits) and recognized the Union as the exclusive bargaining
representative. Union President Brown was the Union’s
spokesperson. Assisting Brown were Allen and Cleveland.
Speaking principally for Alexandria Manor was Attorney
Peter A. Schneider. Attending with Schneider were President
Fischman (who contends that he was the Company’s primary
spokesperson) and Vice President Samuel Strasser.
Although Brown describes the December 9 session as a
‘‘background’’ meeting rather than a bargaining meeting (he
apparently reserves the ‘‘bargaining’’ description for formal
bargaining meetings when the bargaining unit’s elected bar-
gaining committee is present to negotiate), the ‘‘second’’
meeting of December 9, 1992, clearly was a collective-bar-
5ALEXANDRIA MANOR
4 Grocery Warehouse, 312 NLRB 394, 397 (1993); New Orleans
Stevedoring Co., 308 NLRB 1076, 1081 (1992), enfd. mem. 997
F.2d 881 (5th Cir. 1993).
gaining session. At this meeting the parties agreed on fun-
damental issues and left it for their respective bargaining
committees to wrap up the contract.
The ‘‘third’’ and final meeting was held December 16,
1992, as a formal bargaining session. Maryann Allen was the
Union’s principal spokesperson, with Cleveland assisting.
The bargaining unit’s negotiating committee also was
present. Alexandria Manor was represented by Attorney
Schneider and the facility’s administrator, Doris Leitgeb Gor-
don. The parties bargained all night, concluding about 4 a.m.
the following morning. The record is unclear whether the
meeting began or ended on December 16. As the parties
dated their memorandum of agreement December 16, it
would appear that they actually began on December 15 and
concluded on December 16. The difference is immaterial,
however, and as the parties and witnesses have referred to
this meeting as occurring on December 16, that is the date
I shall use. In any event, by 4 a.m. the parties had reached
an agreement as evidenced by a document (GCX 6) consist-
ing of nine pages, with most of the text being handwritten.
The memorandum agreement has no provision that Alexan-
dria Manor could postpone payments to the benefit plans
until the facility reached and maintained a census of 90 per-
cent and until its financial position was stable.
Communications thereafter were by telephone or letter in
an effort by the Union to obtain an executed contract. After
incorporating some minor corrections in response to Attorney
Schneider’s letter (GCX 2) of November 11, 1993, the Union
submitted, for execution, the corrected pages by letter (GCX
7) dated December 14, 1993. Schneider’s letter of November
11 expresses, for the first time, Respondent’s contention of
waiver by the Union. I address that in a moment. After fur-
ther communications, including the Union’s threat to file un-
fair labor practice charges, Attorney Schneider, by letter
(GCX 14) of February 17, 1994, states that Alexandria
Manor will not sign unless the waiver proviso is included.
(Schneider also asserts that a date needs correcting.) The
Union filed the instant charge on February 22, 1994.
III. THE DISPUTED ISSUE OF WAIVER OR DELAYED
PAYMENTS
At the December 9, 1992 meeting, the Union proposed an
economic package which matched the industry standard. This
was referred to as the ‘‘pattern’’ contract. Attorney Schneider
said that the Union’s proposal was too rich for Alexandria
Manor, that the Company needed financial relief. After dis-
cussing the matter, the Union agreed to assist Alexandria by
allowing the current lower pay rates and benefits payments
during the first year of the contract, but by the third year,
wage rates and benefit levels would conform to the industry
standard. This is what the parties agreed to at the December
9 meeting.
According to Fischman, during the December 9 meeting
he explained to Brown, at the bargaining table and in the
presence of the attendees (2:390, 429), that Alexandria was
in a poor financial condition. Part of the reason for this,
Fischman stated, was the fact that, of the facility’s 120 beds,
the occupancy, or census, was only 97. Fischman said that,
while Alexandria could increase the wages to meet the pat-
tern contract, the Company could not make the actual benefit
payments until (1) the resident census reached ‘‘and main-
tained’’ 90 percent (108 residents) and (2) until such time as
Alexandria Manor’s ‘‘financial situation had improved.’’ Ac-
cording to Fischman, this ‘‘waiver’’ of payment when due
was agreed to by the parties. Brown denies that any such
conversation occurred, and Allen and Cleveland support
Brown. As earlier noted, I do not believe Fischman. Under
Fischman’s description (which was not really clear until later
in his testimony), liability for the benefit payment would ac-
crue, along with interest, but actual payment could be post-
poned until his two conditions were met, whenever that
might be. (2:390, 392, 403, 433–434, 445, 453, 463–464.)
When Schneider wrote to Allen by letter of November 11,
1993, he recites seven numbered differences between what
the parties agreed to and the Union’s draft. The first one
reads (GCX 2):
1. You have omitted a Stipulation regarding the
Union’s waiver of customary time frames for receipt of
Fund contributions in the event that the Facility’s pa-
tient census is under 90% or if its financial condition
continues to be precarious.
Allen, with Cleveland present, called Schneider on a con-
ference call and told him that his letter was the first she had
ever heard of any waiver. Schneider said there was nothing
in writing because it had been an oral agreement made with
Brown. At trial Fischman testified that his agreement with
Brown was at the bargaining table in the presence of the oth-
ers. (2:390, 429–430.) (Neither Schneider nor Strasser testi-
fied. Strasser served as Respondent’s designated assistant at
counsel table.) I draw an adverse inference from the failure
of Schneider and Strasser to testify.
Respecting Schneider’s item 1 of November 11, Allen, in
her responding letter of December 14 (GCX 7) wrote, ‘‘After
review of all documents, no such waiver exists.’’ Although
that answer smacks of begging the question since Schneider
conceded that such part of the parties’ agreement had not
been incorporated into the handwritten agreement, Allen es-
sentially was denying the existence of any such agreement on
the basis that the handwritten agreement reflects all the
agreements made. In any event, Brown credibly denies that
any such conversation occurred.
IV. AGREEMENT ON ALL ESSENTIAL TERMS
A. Side Letters and Stipulations
To reach a binding collective-bargaining agreement which
either party may be required to execute, it is necessary that
the agreement reached by the parties cover all the essential
or substantive terms. As this prerequisite is frequently
phrased, there must be a ‘‘meeting of the minds’’ as to all
substantive terms. Century Papers, 284 NLRB 1151, 1156
(1987). Although correctable discrepancies appearing in the
typing or integration process do not relieve a party from the
duty to assist in assembling a document which reflects the
agreement reached by the parties,4 terms or conditions miss-
ing as a result of the parties’ failure to agree about sub-
stantive terms cannot be supplied by the Board or an admin-
istrative law judge. Century Papers, supra at 1156.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In our case the language which gives rise to a question ap-
pears in the preamble to the December 16, 1992 memoran-
dum (GCX 6). Providing that, pending ratification by the
Union’s membership, the agreement would extend the old
contract (which expired the preceding October 31) ‘‘except
as modified below, including all side letters and stipula-
tions.’’ Aside from Respondent’s rejected argument that one
of the ‘‘stipulations’’ was an oral agreement at the December
9 meeting that the Company could postpone actual benefit
payments, the remaining question is whether the Union’s
drafted agreement (GCX 8) contains all the side letters and
stipulations and, if not, whether the absence of any is an in-
tegration matter (agreed to be included but omitted by over-
sight) or a substantive matter (not agreed to be included and,
if an essential term, its absence and nonagreement a fatal de-
ficiency).
The expired contract (GCX 4), which, as modified by the
December 16, 1992 memorandum of agreement (GCX 6),
became the new collective-bargaining agreement (GCX 8),
contains eight attachments. These attachments consist of
three (side) letters, a copy of a blank application for union
membership plus a checkoff authorization (apparently in-
tended, per p. 5, to be designated as Exh. A), ‘‘Exhibit B’’
(a form authorizing deductions for the Union’s political ac-
tion fund for Federal elections), ‘‘Exhibit C’’ (providing for
employer contributions to a health and welfare benefit fund),
‘‘Stipulation I’’ (description of the bargaining unit’s inclu-
sions), and ‘‘Stipulation II’’ (classifications and minimum
wage rates). Of these items, Exhibits B and C and Stipula-
tions I and II (the last item updated) are contained in the new
contract (GCX 8), but Exhibit A and the three side letters are
not.
Although the three side letters were not attached to the
new collective-bargaining agreement, it is clear that the par-
ties intended for them to be so transferred. Indeed, the table
of contents to General Counsel’s Exhibit 8 lists them (side
letters I, II, and III) as being part of the document. Side let-
ter I, dated August 6, 1987 (taking the side letters in se-
quence), is an interpretation about the article for holidays.
Side letter II (August 11, 1987) pertains to quarterly safety
meetings between management and a committee of employ-
ees. Side letter III (undated) covers three different items per-
taining to weekend makeup, patient care, and patients who
become assaultive or aggressive. As the parties intended the
side letters to be transferred, their integration at this point is
merely a ministerial action necessary to implement the agree-
ment of the parties. Accordingly, I shall order Alexandria
Manor to sign a General Counsel’s Exhibit 8 which con-
forms to the parties’ agreement by including side letters I,
II, and III.
In the text of both the old and new contracts, Exhibit A
is identified as the checkoff authorization. Apparently the
only reason an application for membership is part of the
checkoff attachment to the old contract (GCX 4 at 50) is that
it was the top half of a form which included the checkoff
authorization. As it is the checkoff authorization which is
provided for in both the old and new contract, I find that the
deletion of the application for membership from the new
contract was intended by the parties, and that the parties in-
tended for a checkoff authorization form to be attached to the
new contract as Exhibit A. I shall order Respondent to sign
the new collective-bargaining agreement (GCX 8) which
contains such form as Exhibit A.
B. Posttrial Stipulation Corrects General Counsel’s
Exhibit 8
As earlier mentioned, in his letter of November 11, 1993
(GCX 2), to Union Vice President Maryann Allen, Attorney
Schneider listed seven numbered differences between the
agreement and the drafter document submitted by the Union.
Item 1 was the alleged waiver of due dates and the 90-per-
cent census. Item 2, pertaining to the calculation of dues de-
ductions, was answered and resolved by Allen in her letter
of December 14, 1993 (GCX 7), to Schneider. Item 3 identi-
fies a mistyping in General Counsel’s Exhibit 8 at page 11
pertaining to loss of seniority. Schneider observes that the
entry should be 7 days (to conform to GCX 6 at 6) rather
than the 10 days shown. Allen testified that this change was
made, as were the others, and the corrected pages sent to
Schneider, and that General Counsel’s Exhibit 8 incorporated
the changes. (1:189–190.) In fact, General Counsel’s Exhibit
8 does not incorporate the changes, and it is clear the docu-
ment offered and received as the corrected version in fact is
not. As evidenced by the General Counsel’s letter of Septem-
ber 29, 1994, to me, however, copies to the parties, and by
confirming letters from the parties, the parties have made a
posthearing stipulation that corrected pages 11, 26, 41, and
43 be substituted for the corresponding pages of General
Counsel’s Exhibit 8. These pages incorporate the corrections
agreed to by Allen in her letter to Attorney Schneider. I have
inserted the letters of the parties, with corrected pages 11,
26, 41, and 43, in the official exhibits folder with General
Counsel’s Exhibit 8.
The execution date, appearing on General Counsel’s Ex-
hibit 8 at page 38 as December 6, 1992, apparently should
be December 16, 1992, to conform to the handwritten ver-
sion on the memorandum of agreement (GCX 6 at 9). (The
parties may desire to substitute the actual date of execution,
for the effective term is the same whichever execution date
is used.)
I note that Attorney Schneider, in his letter of February 17,
1994 (GCX 14), to Allen, concludes by stating that if the
Union will include the waiver language (his earlier item 1)
in the draft, ‘‘the Facility will then execute the document.’’
At trial President Fischman agreed with that statement.
(2:397-398.) As GCX 8, with the stipulated corrections for
pages 11, 26, 41, and 43, and when side letters I, II, and III
are attached, reflects, I find, the agreement reached by the
parties on December 16, 1992, I shall order Alexandria
Manor, by its designated representative, to sign the corrected
version of General Counsel’s Exhibit 8 and to give effect to
its terms retroactive to its effective beginning date of No-
vember 8, 1992.
CONCLUSIONS OF LAW
1. By failing and refusing since February 17, 1994, to sign
the collective-bargaining agreement reached with the Union
on December 16, 1992, Respondent Alexandria Manor has
committed an unfair labor practice affecting commerce with-
in the meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
7ALEXANDRIA MANOR
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a Judgment of the United States
Court of Appeals, the words in the notice reading ‘‘Posted by Order
of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.’’
2. The Company’s affirmative defense of limitations is
without merit.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Once the Union has attached side letters I, II, and III to
General Counsel’s Exhibit 8, to complete the corrected ver-
sion of General Counsel’s Exhibit 8, and has signed and sub-
mitted the corrected General Counsel’s Exhibit 8 to Alexan-
dria Manor for execution, Respondent Alexandria, by its des-
ignated official or agent, must forthwith sign the agreement
and give effect to its terms retroactive to November 8, 1992.
Alexandria shall make whole its employees for losses, if any,
which they may have suffered as a result of Respondent’s
failure to sign and honor the agreement in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970),
with interest thereon as provided in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Respondent Alexandria
also shall make unit employees whole for losses resulting
from Alexandria Manor’s failure to make required payments
to the benefits trust funds in the manner prescribed in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981). Our Lady of Lourdes
Health Center, 306 NLRB 337 fn. 2 (1992). The method for
determining the additional amounts owed to the benefits
funds is specified in Merryweather Optical Co., 240 NLRB
1213 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Health Care Investors, Inc. d/b/a Alexan-
dria Manor, Bloomfield, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union (New England
Health Care Employees Union, District 1199, AFL–CIO) by
refusing to sign and give effect to the agreement reached by
the parties on December 16, 1992, for a collective-bargaining
agreement effective November 8, 1992, through November 7,
1995.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Refusing to sign the collective-bargaining agreement
reached by the parties on December 16, 1992.
(b) Make whole bargaining unit employees for all losses
incurred, if any, by reason of Alexandria Manor’s conduct
found herein to be unlawful, with interest computed in the
manner set forth above in the remedy section of this deci-
sion.
(c) Make all payments, with interest, to the benefits funds
required by the collective-bargaining agreement reached with
the Union on December 16, 1992, in the manner set forth
above in the remedy section.
(d) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment:
All full-time and part-time service and maintenance em-
ployees employed by Alexandria Manor at its propri-
etary nursing home located at 55 Tunxis Avenue,
Bloomfield, Connecticut, but excluding all other em-
ployees, registered nurses, licensed practical nurses, of-
fice clerical employees, professional employees, casual
employees, Program Director, guards, watchman, Ad-
ministrator, Director of Nurses, Assistant Director of
Nurses, the Chef, and all other supervisors as defined
in the National Labor Relations Act, as amended, con-
fidential, executive, and managerial employees, physi-
cians, dentists, students whose performance of work at
the Home is a part of the educational course of study
such students are pursuing, part-time employees who
work less than eight (8) hours per week for the job
classifications in which they work, and temporary em-
ployees.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Bloomfield, Connecticut, copies
of the attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.