Brownsboro Hills Nursing Home, Inc.,

National Labor Relations Board - Board Decisions

Aug 16, 1979

244 N.L.R.B. 269 (N.L.R.B. 1979)

BROWNSBORO HILLS NURSING HOME, INC.
Brownsboro Hills Nursing Home, Inc. and Local 445,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO.' Cases 9-CA-11627 and
9-CA 12460
August 16, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.O
AND TRUESDAI.E
On May 18, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Brownsboro Hills Nursing Home, Inc., Louisville,
Kentucky, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
I The Charging Party's name, formerly Retail Clerks Union Local 445.
Retail Clerks International Association, AFL-CIO, has been changed in rec-
ognition of the June 7, 1979, merger between the Retail Clerks International
Union and the Amalgamated Meatcutters and Butcher Workmen of North
America.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products,. Inc.. 91 NLRB 544
(1950)., enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
3In par. (h) of his recommended Order the Administrative Law Judge
provided that Respondent shall cease and desist from "in any other manner"
interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed them by Sec. 7 of the Act. However, it is the Board's policy
that such an order is warranted only when a respondent is shown to have a
proclivity to violate the Act or has engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for the employees' funda-
mental statutory nghts. Hickmorrtt Foods, Inc., 242 NLRB 1357 (1979). With
respect to the instant dispute, we find that the broad injunctive order issued
against Respondent is not warranted. Accordingly, we shall modify the Ad-
ministrative Law Judge's recommended Order and notice.
1. Substitute the following for paragraph l(h):
"(h) 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. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER O(F ItIE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Local 445, United Food and Commercial
Workers International Union, AFL-CIO, as the
exclusive representative of all employees in the
appropriate unit described below, by negotiating
in bad faith with no intention to enter into a final
agreement with the Union.
WE WILL NOT ask employees to abandon the
Union and form a new union, or promise them
benefits for so doing.
WE WILL NOT coercively interrogate employ-
ees about their union sympathies or desires or
those of other employees.
WE WILL NOT threaten to replace employees if
they strike.
WE WILL NOT threaten employees with inabil-
ity to find employment with other employers be-
cause of their union activities, nor will we advise
other employers of our employees' union activi-
ties.
WE WILL NOT threaten employees with a re-
fusal to bargain in good faith with the Union.
WE WILL NOT solicit or promise to remedy em-
ployees' grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act,
as amended.
WE WILL, upon request, bargain collectively
with Local 445, United Food and Commercial
Workers International Union, AFL-CIO, as the
exclusive representative of all employees in the
appropriate unit described below, with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment and,
if an agreement is reached, embody such under-
standing in a signed contract. The appropriate
bargaining unit is:
All full-time and regular part-time nursing em-
ployees, housekeeping employees, and dietary
244 NLRB No. 47
269
I)E( ISIONS OF NAlI ONAI IABOR REL.ATIONS BOARD
employees eniployed by us at our facility located
at 2141 Sycamore Avenue. Louisville. Kentucky.
but excluding all temporary employees, casual
employees (including sitters), registered nurses.
licensed practical nurses, all office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
BROWNSBORO HIL.Lt NRSIN(; HOME. INC.
DECISION
STATEMENT OF IHE CASI
CLAUtI) R. WOLFE, Administrative l.aw Judge: This case
was heard before me at Louisville, Kentucky, on December
11-12. 1978. Retail Clerks Union Local 445. Retail Clerks
International Association. AFL CIO. herein called the
Union, filed a charge in Case 9-CA-11627 on August 5.
1977. A complaint was issued in Case 9 CA- 11627 on Oc-
tober 4, 1977. and the parties entered into a written settle-
ment agreement, approved by the Regional Director for
Region 9 on January 19, 1978. in which Respondent agreed
that it would bargain with the Union on request and would
not negotiate in bad faith.' On April 26. 1978, the Union
filed a new charge in Case 9 CA -12460 alleging that Re-
spondent was engaging in bad-faith bargaining after the
settlement of Case 9-CA- 11627. On June 15, 1978. the Re-
gional Director withdrew his approval of' the settlement.
citing noncompliance therewith, and issued a consolidated
complaint covering both cases. This complaint alleges that
Respondent made threats and promises violative of Section
8(a)(1) of the Act and engaged in bad-faith bargaining vio-
lative of Section 8(a)(5) both before and after the settlement
agreement. Respondent denies the unfair labor practice al-
legations.
Upon the entire record,' including my observation of the
demeanor of witnesses as they testified and after due con-
sideration of the post-trial briefs, I make the following:
goods and materials at their respective places of business in
Kentucky directly from enterprises located outside the
State of Kentucky. At all times material herein Respondent
is and has been an employer within the meaning of Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. I.ABO)R R(;ANIZAlII)N
The Union is and at all times material has been a labor
organization within the meaning of Section 2(5) of the Act.
III. tHE AL.LEGE(iD :UNFAIR I.AB()R PRAI ll(tS
The Union was certified by the National Labor Relations
Board on April 29. 1977. as the exclusive collective-bar-
gaining representative of Respondent's employees in an ap-
propriate unit.4 It appears that negotiation meetings were
held on June 2: July 20 and 21: August 2. 23. and 25;
September 7: October 14. 1977: and on March 28: April
21: November 20: and December I and 7. 1978.
The Union submitted its first contract proposal at the
June 2. 1977, meeting. Respondent's chief bargaining repre-
sentative at this meeting was replaced at subsequent meet-
ings by John Greenebaum. Greenebaum was not present at
the June 2 meeting. I credit Thomas Greilick. union health
care coordinator, that Respondent agreed to an 8-hour
workday on June 2 and retracted this agreement on July
20.'
Respondent presented its written proposals to the Union
on July 20. 1977. Greenebaum expressed his attitude
toward the Union's proposals by stating either that they
could take it and hang it on the wall or that he was glad it
was written on soft paper. Either expression conveyed his
total rejection. He also said to the Union's negotiator.
Charging Party Questa. "Why don't you just walk away
from this thing and forget about it. There will be no con-
tract. Why don't you just forget about it." Greenebaum
further told Questa during a phone conversation after this
FINDINGS ANI) CONCI.USIONS
I. JURISDICTION
Respondent is a Kentucky corporation engaged as a
health care institution in the operation of a nursing home in
Louisville, Kentucky. During the 12 months preceding the
issuance of the consolidated complaint, a representative pe-
riod, Respondent, in the course and conduct of its business
operations, derived gross revenues in excess of $100,000,
and purchased and received goods and material valued in
excess of $50,000 from firms located in the State of Ken-
tucky, each of whom, in turn. purchased and received said
' The settlement agreement contains a specific nonadmission clause.
2 Respondent's contention that it is improper to consider presettlement
conduct as evidence bearing on postsettlement conduct is rejected. It has
long been the law that presettlement conduct may be utilized as background
evidence to establish the motivation for postsettlement activities. Northern
California District Council of Hodcarriers and Common laborers of A merica.
AFL-CIO. etc. (Joseph's Landscaping Service), 154 NLRB 1384, fn. 1 (19651.
I The facts set forth herein are based on a synthesis of the credited aspects
of the testimonies of all witnesses. the exhibits, and careful consideration of
the logical consistency and inherent probability of the facts found. Although
I may not, in the course of this Decision. discuss every bit of record testi-
mony or documentary evidence, it has been carefully weighed and consid-
ered. To the extent that evidence not mentioned herein night appear to
contradict my fact findings. that evidence has not been disregarded but has
been rejected as incredible. lacking in probative worth. surplusage. or irrele-
vant.
'The unit is:
All full-time and regular part-time nursing employees, housekeeping
employees and dietary employees employed by the Respondent at its
facility located at 2141 Sycamore Avenue, Louisville, Kentucky but ex-
cluding all temporary employees, casual employees (including sitters).
registered nurses, licensed practical nurses, all office clerical employees.
professional employees. guards and supervisors as defined in the Act.
Greilick's testimony that Respondent agreed at the first meeting and
withdrew this agreement at the second meeting is uncontroverted and is
partially supported by the language in Respondent's written proposal of July
20, 1977. which states in the management rights clause. "the Company shall
have the authority to determine starting and quitting times, and the hours
during which the Company facilities will he In operation. and all hours of
work."
270
13ROWNSBORO HILLS NURSIN( HOMI. IN('.
meeting that Respondent would be glad to meet at an time
hut would not reach a inal agreement, and that if the
Union intended to strike it might as well go ahead and do
so.6 There is no evidence that the Lnion made any prepara-
tions for or mentioned a strike.
In addition to unilateral control over hours of work, Re-
spondent's July 20 proposal provided that the Compan. at
its discretion. "mna recognize holidays," "may grant vaca-
tions," shall pay employees on a "flat rate. hourly, commis-
sion or other basis," shall have the right to grant leaves of
action for any reason, and reserves the right to make loans
to employees. The holiday, vacation, and wage provisions
are made subject to the provisions of the management
rights clause.
The proposed management rights clause specifically pro-
vides ("Except as altered or modified by this Agreement. or
any supplementary agreements ... "), for retention hN Re-
spondent of the exercise of its unfettered discretion as an
absolute right to the following: (I) to alter or terminate nv
job, department. operation or service: (2) to assign work or
jobs: (3) to use working supervisors and lead persons in aqr
work; (4) to contract work out (5) to institute or change
rules covering employees (6) to make or change ,nlt poli-
cies or practices (7) to determine the order of layoff and
recall; (8) to retire employees: (9) to draft and implement
employee rules and regulations (10) to assign overtime:
(I11) to determine specific employees' vacation times; ( 12) to
determine times and duration of work breaks: (13) to deter-
mine which holidays "if any" will constitute days off work:
( 14) and to exercise "the absolute and unfettered right and
power to determine wages and other forms of compensa-
tion, whether flat rate, commission, or other, and to adjust
them up or down, or change them in form or content."
The parties met again on July 21 and agreed to providing
a suggestion box for employees, as Greenebaum suggested.
in lieu of the Union's proposal of an employee committee
on new procedures. There was some discussion of union
access, but no agreement was reached because Respondent
wanted visitation of the facility by prior appointment only.
Greenebaum rejected the Union's vacation proposal and
commented that he did not believe in paid vacations be-
cause it was unproductive time. Various other proposals
were discussed with no agreement reached, and Greene-
baum requested the Union to file a notice of dispute with
the Federal Mediation and Conciliation Service so that a
mediator might be present at the next meeting.
No mediator was present at the August 2, 1977. meeting.
Union and company proposals were discussed. Union rep-
resentative Day asked for copies of the existing health and
welfare program to assist in negotiating contractual health
and welfare provisions. Greenebaum said that he would
only submit it if the Union would deliver a copy of its
program to him. There was further discussion on union
access, without agreement. Day raised the Union's proposal
6 Questa impressed me as a reliable witness who carefully testified only to
that of which he was certain, and his testimony on these two conversaticons is
uncontroverted.
7 It is not clear whether either party ever delivered these requested materi-
als.
to eannmine pa roll records in enlploNece wage disputes, and
G(reenhaum raised condilitonal agreement on COl lpany ac-
cess to records of the Union's economi c staltus. Ihe Union
rejected Respondent's management rights clause. It does
not appear that any contractual clauses were agreed upon
at this meeting.
A mediator Aas present at the August 23. 1977. meeting.
The Union submitted a management rights clause to the
Employer. The proposals of both parties were recapitulated
with no agreement reached on anthing but military leae.
lhce parties met with the mediator on August 25. 1977. in
closed session. Respondent submitted its original proposal
s
with some pencilled revisions including the insertion of the
Union 's proposed management rights clause as the second
paragraph of Respondent's proposed clause. I-herc were no
other substantial changes in Respondent's proposal. and the
insertion of the Inion's management rights proposal ef-
Iected no material change or diminution of the ('ompany's
proposed clause. The parties did not meet tace-to-tace until
the end of the meeting when the Union personally delivered
a management rights proposal to Greenehbaum.
The testimony regarding the September 7. 1977. meeting
is scant. but I conclude that there was some discussion
about the contract because Greilick testified that Respon-
dent rejected the Union's management rights proposal.
The last negotiation meeting in 1977 took place on Octo-
ber 14. It was a closed session with a mediator, and no
agreements were reached.
During the 1977 negotiations Respondent. by its owner
and administrator. Harold V. Bomar. Sr.. and by Tom For-
shee, personnel counselor (who was brought in and paid b
Respondent after the Board election of April 29. 1977. for
the purpose of reporting to Respondent on "the emploer-
employee relationship"). talked to emploees about the
U!nion and working conditions.
9
Bomar. Sr.. held a meeting of all employees in the catete-
ria on July 16. 1977. He told them that he wanted to know
about their complaints and problems. Dorothy Vincent
asked what he would offer in terms of better wages and
working conditions. Bomar. Sr., answered that he could do
nothing for the employees unless they rejected the Union
and suggested that they form their own union. He asked
why emploees had not come to him rather then the men
from Cincinnati,'' and he said that he was not going to let
outsiders come in and take over the business. Bomar, Sr..
said that he would make some offers to employees if they
gave the Union up. He further stated that he would replace
II is obvious from the documenl that (ireilick's testimony that Respon-
dent submitted the Union's proposal with changes thereon is confused and
inaccurate I am also persuaded that the document was delivered on August
25 rather than on October 14 as Day recalled.
'Neither Bomar. Sr.. or Forshee testified. orshee was plainly a hired
agent of Respondent for personnel matters.
10 The account of the course of this meeting is derived from a composite of
the testimonies of Kathrvn \'awter. Naomi Lewis. and D)oroths incent. all
of whom impressed me as candid witnesses testifying to the facts as thes
recalled them. I note that Vincent and I.ewis were employees of Respondent
at the time they testified and were thereliore not likely Io he abricating false
testimony adverse to their Employer who still controlled their work futures
I regard the testimonies of these three witnesses as complimentary rather
than contradictory. hearing in mind that t is rare that all participants n a
group meeting recall eerything that was said in exactll the same words
" The union agents herein are headquartered n (incinnati.
271
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
all those who might strike, and employees would not find
employment at another nursing home because of their
union activities.
In early August 1977 Bomar, Sr., told Kathryn Vawter.
when on her own initiative she explained to him that the
Union's outstanding proposals were not its final position.
that he would be willing to work with employees if they
would drop the whole thing and form a little union. He
added that if employees struck they could easily be re-
placed.
Forshee spoke to Vawter several times during the 1977
negotiations;" he told her on one occasion that he was in-
terested in finding out and working out problems, and on
another occasion he asked her why employees wanted a
union, to which she replied wages and benefits. Harold Bo-
mar, Jr.. concedes that Forshee reported the likes and dis-
likes of employees to the Company.
At the March 28. 1978, meeting, after the settlement of
Case 9-CA-11627, the parties did little other than review
previous proposals. Respondent suggested some minor
amendments of its proposals which did not materially
change their substantive content.
Respondent agreed to a no-strike no-lockout provision at
the April 21 meeting, but no other new agreements were
reached. The charge in Case 9 CA 12460 was filed on
April 26, and no further meetings were held until Novem-
ber 20.
On November 20 Greenebaum asked permission to tape
record the bargaining. The Union refused. Greenebaum
then asked if he could bring his secretary to meetings to
take notes. Day agreed that he could. Nothing else of con-
sequence transpired, and the meeting adjourned.
A verbatim record of the last two meetings of December
I and 7, 1978, was taken by Greenebaum's stenographer,
Toni Burrus.'3 On December 1 Respondent gave the Lnion
a "Statement of Position," purportedly summarizing its
posture on the various proposals in prior meetings. The
Union examined it for about I hour and declined to com-
ment on its accuracy. The meeting then adjourned. The
Union submitted a proposal on December 7 like that of
June 2, 1977, minus a seniority provision, pay for former
employees appearing in legal proceedings at the request of
the Employer, employee services, a requirement that the
Company provide information to employees about the col-
lective-bargaining agreement and furnish information
monthly on pay and classification changes to the Union.
workload distribution clause, and severance pay. All of
these provisions were in the Union's original proposal of
June 2. Additionally, the December 7 proposal contained a
management rights clause which is essentially an amended
version of Respondent's proposed clause with union inser-
1 Forshee called every employee individually into Bomar. Sr.'s, office, but
the content of conversations other than those with Vawter is not shown.
' I credit Burrus that she faithfully recorded all that was said at these two
meetings. Tlhe Union had granted permission for this procedure and knew
that Burrus was keeping a record. I am satisfied that the record she made is
accurate. was properly authenticated by her, was openly obtained with the
acquiescence of the Union. and was properly admitted into evidence. Car-
penrer Sprinkler Corporation 238 NLRB 974 11978). involving a urrepritiouv
recording relating to negotiations, does not require a different result.
lions of restrictions on Respondent's right to change policy,
to set the order of layoff and recall, to retire employees
before age 65. and to assign overtime. The Union's pro-
posed clause omits the right to set wages, holidays, vaca-
tions. retirement benefits, jury pay, and other fringe benefits
which were included in the company proposal as within its
"absolute and unfettered right and power." After delivery
of this proposal. Day asked Greenebaum what wages the
Company would pay. Greenebaum took the position that
the statutory minimum wage was all that Respondent
would agree to. The meeting adjourned without further ne-
gotiation.
Throughout the bargaining Respondent consistently re-
fused to agree to any wage or fringe benefits that were not
compulsory under state or Federal law.l4 TIhus. it would
only agree to pay the minimum wage required by Federal
law. pay the overtime required by Federal law, and grant
breaks required by Kentucky law. It declined to proffer
specific vacation benefits. offering instead to "make an ef-
fort" to continue its existing vacation policy. With regard to
holidays, it offered to recognize unspecified holidays, sub-
ject to operational convenience. It proposed to retain the
right to grant leaves of absence for an> reason. Although
the Company agreed to checkoff. it insisted that it be revo-
cable at anytime and refused to accept a union security
clause. It agreed to military leave (also required by Federal
statute), a no-lockout provision in exchange for a no-strike
provision. and proposed to "make every effort" to continue
its existing medical and surgical coverage. It agreed not to
discharge without cause. to place one word in its manage-
ment rights clause which would not change its meaning at
all, to provide employee lists. and to provide a statement of
the intent and purpose of the contract.
(C()N I tSI(NS
Respondent intended from the outset of negotiations to
frustrate agreement with the Union. This is shown by its
reneging on its earlier agreement for an 8-hour workday.
Attorney Greenebaum's suggestion to union negotiator
Questa on July 20 that he walk away and forget about it.
and Greenebaum's statement to Questa on the same day
that. "There will be no contract." The course of action Re-
spondent intended to pursue to achieve this end is revealed
in Greenebaum's statement to Questa after the meeting that
Respondent would meet but not agree, and that the Union
might as well strike if it intended to. A more overt state-
ment of intention to go through the motions of bargaining
without bargaining in good faith is difficult to imagine, and
Respondent's subsequent conduct in the negotiation meet-
ings demonstrates that this intention remained constant. I
am convinced that Respondent's contract proposals were
designed to perfect its intention by presenting the Union
with extremely unpalatable offers which would, if accepted.
have required the Union to relinquish its bargaining rights
to Respondent's whim. The vague promises that Respon-
dent would "make every effort" to continue existing bene-
fits. when there is no showing that there was any reason or
a1 Respondent's brief concedes that it was its intention t} reserve the right
to adjust wages and holiday and vsaatiln benefits.
272
BROWNSBORO ILLS NUJRSIN(; HOME. INC.
intent to discontinue them, or. in the case of wages. pay the
required minimum "at least" fall far short of definite pro-
posals contractually enforceable. When coupled with Re-
spondent's all encompassing management rights proposal
that would effectively bar any bargaining by the Union on
wages. hours, or working conditions not specifically agreed
to, it is obvious that Respondent's proposals. which were
never varied in any material sense. would in effect strip the
Union of its statutory bargaining rights for the term of the
contract.
That Respondent entered negotiations with the fixed in-
tent of giving nothing in the way of wages or other benefits
to its employees is further supported by Harold Bomar,
Sr.'s. July' 16. 1977, statement to all his employees that he
could do nothing for them unless they rejected the Union.
and he would make some offers to them if they did so. His
accompanying suggestion that they form their own union,
repeated later by him to Kathryn Vawter together with a
promise to work with the employees if they did so, empha-
sizes that Respondent also intended to either render the
Union ineffectual for want of employee support or cause it
to be supplanted by a more pliable collective-bargaining
agent. Moreover, the engagement of Forshee, a professional
employee relations consultant. to ferret out employee
wishes during the negotiations smacks of an effort to under-
mine the Union's status. Respondent makes no showing
that there was any other need for his services, and Forshee's
questioning of Vawter as to why employees wanted a union
during a period when he also told her that his purpose was
to work out employee problems is indicative that the true
purpose of his employment was the erosion of union sup-
port.
Viewed against this background of employer intent to
frustrate bargaining, Respondent's conduct in negotiations
takes on transparent meaning. Respondent made no con-
cessions of any significance, and its bargaining posture re-
mained fixed in all substantial particulars. The mere fact
that Respondent met and talked with the Union is of no
consequence in the circumstances. "[T]o sit at a bargaining
table, or to sit almost forever, or to make concessions here
and there, could be the very means by which to conceal a
purposeful strategy to make bargaining futile or fail."
N.L.R.B. v. Herman Sausage Company, Inc.. 275 F.2d 229.
232 (5th Cir. 1960).
I am persuaded that Respondent's bargaining conduct
after the settlement agreement was intended to frustrate
agreement and was not good-faith bargaining as required
by the statute. I therefore find and conclude that Respon-
dent, on and after March 28, 1977, in continuing implemen-
tation of its prior stated intention, failed and refused to
bargain in good faith with the Union and thereby violated
Section 8(a)(5) and (1) of the Act. By so doing Respondent
failed to comply with the settlement agreement in Case 9
CA-11627. and the Regional Director properly set it aside.
I further find that Respondent failed and refused to bar-
gain in good faith with the Union during the 1977 negotia-
tions and thereby violated Section 8(a)(5) and (I).
Respondent. by its officer and agent Harold Bomar, Sr..
interfered with, restrained, and coerced its employees in the
exercise of their Section 7 rights and thereby violated Sec-
tion 8(a)(1) of the Act by soliciting them to abandon the
Union, soliciting them to form a new union, promising
them benefits if the)' did so, interrogating them as to why
they sought union representation, threatening to replace
them if they went on strike. ' threatening them with inabil-
ity to find employment at another nursing home because of
their union activities, and telling them that he was not
going to let the Union take over his business.'"
Respondent. by its agent Tom Forshee. coercively inter-
rogated Kathryn Vawter in violation of Section 8(a)(l) of
the Act by asking her why employees wanted a union.'7
Moreover. I find that Tom Forshee. on Respondent's be-
half, solicited grievances and impliedly promised to remedy
them in violation of Section 8(a)(1) of the Act by telling
Vawter that he was interested in finding out and working
out problems. all in the context of seeking out and reporting
employees' desires to Respondent's officials.
Upon the foregoing findings of fact and conclusions
based thereon and upon the record in this case. I make the
following:
C()N( I tSI()NS () LAW
1. Brownsboro Hills Nursing Home, Inc.. is an employer
engaged in commerce within the meaning of Section 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 following employees of Brownsboro Hills Nursing
Home. Inc.. constitute a unit appropriate for collective bar-
gaining:
All full-time and regular part-time nursing employees,
housekeeping employees and dietary employees em-
ployed by the Respondent at its facility located at 2141
Sycamore Avenue. Louisville. Kentucky but excluding
all temporary employees. casual employees (including
sitters), registered nurses, licensed practical nurses, all
office clerical employees. professional employees,
guards and supervisors as defined in the Act.
4. At all times since April 29, 1977. and continuing to
date the Union has been the certified exclusive representa-
tive of all the employees within said appropriate unit for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By engaging in bargaining with the Union in bad faith
with no intention of entering into any final binding collec-
tive-bargaining agreement Respondent has engaged and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (I) of the Act.
6. By soliciting employees to abandon the Union and
form a new union and by promising benefits for so doing
Respondent interfered with. restrained, and coerced them
15 There is no eidence that the Union or the employees contemplated
striking. and Bomar Sr., gratuitously postulated such a possibilit) for the
purpose of uttering his threat.
' This last statement takes on an implication that Respondent would not
bargain in good faith with the Union in the context of his solicitations and
promises with respect to ridding the Compan) of the Union
1 Vawter's testimon\ on this is credible and uncontroverted. The matter is
closel related to the subject matter of the complaint and appears to have
been part of Respondent's effort to undermine the Union. 4Ackerman Manu-
arctrlurng Coimpani. 241 NLRB 621 11979)
273
)E('CISIONS OF NA'I IONAI LABOR RELATIONS BOARID
in the exercise of their Section 7 rights and violated Section
8(a)( ) of the Act.
7. By interrogating employees about their union sympa-
thies and desires and those of others Respondent violated
Section 8(a)( I of the Act.
8. By threatening to replace employees if' they went on
strike Respondent violated Section 8(a)( I ) of the Act.
9. By threatening employees with inability to find other
employment because of their union activities and thereby
implying that other employers would be informed of such
activities by Respondent Respondent violated Section
8(a)(I) of the Act.
10. By telling employees it would not let the Union take
over its business, which in context implied that it would
refuse to bargain in good faith with the Union, Respondent
violated Section 8(a)(l) of the Act.
Ii. By soliciting grievances from employees and promis-
ing to remedy them at a time it was legally obligated to
bargain with the Union on wages, hours, and working con-
ditions Respondent violated Section 8(a)(1 ) of the Act.
TilE REM)DY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist from further violations and post an appro-
priate notice to employees.
I shall further order that Respondent bargain collec-
tively, upon request, with the Union as the exclusive repre-
sentative of the employees in the appropriate unit and, if an
understanding is reached, embody such understanding in a
written agreement.
In order to insure that the employees will be accorded the
services of their selected bargaining agent for the period
provided by law, I shall order that the initial period of cer-
tification will begin on the date that Respondent com-
mences to bargain in good faith with the Union. See Mar-
Jac Poultny Company, Inc., 136 NLRB 785 (1962); Com-
merce Company d/b/a Lamar Hotel. 140 NLRB 226; 229
(1962), enfd. 329 F.2d 600 (5th Cir.), cert. denied 379 U.S.
817 (1964); Burneltt Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (lOth Cir. 1965).
Pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERs
The Respondent. Brownsboro Hills Nursing Home. Inc..
Louisville, Kentucky, its officers, agents, successors, and as-
signs, shall:
1s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1. Cease and desist from:
(a) Refusing to bargain with Retail Clerks Union Local
445, Retail Clerks International Association, AFL ('IO. as
the exclusive bargaining representative of its employees in
the unit described above by negotiating in bad faith with no
intention of entering into a collective-bargaining agree-
ment.
(b) Soliciting its employees to abandon the Union and
form a new union and promising benefits for so doing.
(c) Coercively interrogating employees concerning their
union sympathies and desires and those of other employees.
(d) Threatening to replace employees if they strike.
(e) Threatening employees with inability to find other
employment because of their union activities.
(f) Threatening employees with a refusal to bargain in
good faith with the Union.
(g) Soliciting and promising to remedy employee griev-
ances.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Upon request, bargain in good faith with Retail
Clerks Union Local 445. Retail Clerks International Associ-
ation, AFL-CIO, as the exclusive representative of all em-
ployees in the aforesaid appropriate unit and, if an under-
standing is reached, embody such understanding in a
written agreement.
(b) Post at its Louisville. Kentucky, facility copies of the
attached notice marked "Appendix."'9 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 9. after being signed by Respondent's authorized
agent, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places. including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that these no-
tices are not altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
I1 IS FUR IItiR ORDERED that the initial period of certifica-
tion of' Retail Clerks Union Local 445. Retail Clerks Inter-
national Association. AFL CIO, will begin on the date that
Respondent commences to bargain in good faith with said
Union.
19 In the event that this Order is enforced by a Judgment ol 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abor Relations Board"
274