Clear Haven Nursing Home

National Labor Relations Board - Board Decisions

Jan 5, 1979

239 N.L.R.B. 1244 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Community Medical Services of Clearfield, Inc.,
d/b/a Clear Haven Nursing Home and American
Federation of State, County and Municipal Em-
ployees, District Council 85 and its Local 2665,
AFL-CIO. Cases 6-CA-9889, 6-CA-9933, and 6-
CA-10115
January 8, 1979
ORDER DENYING MOTIONS
On June 12, 1978, the Board issued its Order ' in
this proceeding granting the General Counsel's re-
quest for special permission to appeal the Adminis-
trative Law Judge's ruling granting the Charging
Party's motion for withdrawal of charges. The
Board's Order reversed the Administrative Law
Judge's approval of a non-Board settlement and re-
manded the proceeding to the Regional Director for
further appropriate action.
On August 18, 1978, Respondent and the Charging
Party filed a joint motion for reconsideration and
request for oral argument. On August 25, 1978, the
Chamber of Commerce filed a motion for leave to
file a memorandum amicus curiae and to participate
as amicus curiae in any further proceedings.
Thereafter, on August 25, 1978, the General Coun-
sel filed a statement in opposition to the joint mo-
tion. On August 31, 1978, the General Counsel filed a
supplemental statement in opposition, and on Sep-
tember 8, 1978, Respondent filed a response to Gen-
eral Counsel's supplemental statement in opposition.
In his statement in opposition and his supplemen-
tal statement, the General Counsel urges that the
joint motion be denied because it fails to raise any
issues not previously raised before and considered by
the Board. The General Counsel also argues that the
joint motion be denied for failure to comply with the
requirements of Sections 102.24, 102.26, and
102.48(d)(2) of the Board's Rules and Regulations.
The Board, having duly considered the matter, is
of the opinion that the joint motion must be denied.
First, we note that the joint motion for reconsider-
ation is untimely filed under the Board's Rules and
Regulations which provide that motions for recon-
sideration in unfair labor practice cases shall be filed
within 20 days after the service of the Board's Deci-
sion or Order.2 The joint motion herein was filed on
August 18, 1978, more than 2 months after the is-
suance and service of the Board's Order. Respon-
dent, in its response to the General Counsel's supple-
mental statement in opposition, concedes that the
Reported at 236 NLRB 853.
Sec. 102.48(d)(1) and (2) of the Board's Rules and Regulations, Series 8,
as amended.
General Counsel accurately set forth the relevant
provisions of the Rules and Regulations relating to
timeliness. Nevertheless, Respondent urges the
Board "to exercise its discretion in this regard" and
to accept the joint motion based on the "discretion-
ary provision" of Section 102.48(d)(2) that such mo-
tions must be filed within 20 days or within such
"further period as the Board may allow." Respon-
dent fails to note, however, that Section 102.48(d)(2)
of the Rules provides, in pertinent part, that a re-
quest for an extension of time for the filing require-
ment "must be received by the Board 3 days prior to
the due date and copies thereof shall be served
promptly on the other parties." No such request for
an extension of time was filed by the moving parties
herein, and, moreover, the moving parties have failed
to allege any extraordinary circumstances to justify
the untimely filing of the motion or to warrant fur-
ther consideration of the motion. Accordingly, we
find that the joint motion for reconsideration and
request for oral argument must be denied for untime-
liness under the Board's Rules and for lack of merit.3
In view of this disposition of the joint motion, we
shall also deny the motion for leave to file a memo-
randum amicus curiae of the Chamber of Commerce.
It is hereby ordered that the joint motion for re-
consideration and request for oral argument and the
motion for leave to file a memorandum amicus curiae
be, and they hereby are, denied.
MEMBERS PENELLO and MURPHY. dissenting:
The Charging Party and the Employer have filed a
joint motion for reconsideration of the Board's Order
in this case 4 and a request for oral argument. The
Chamber of Commerce of the United States has filed
a motion requesting permission to submit a brief as
amicus curiae and to participate in any further pro-
ceedings as amicus curiae. Unlike the majority, we
would grant each motion.
We believe the Board should reconsider its Order
in the instant proceeding not only for the reasons
given in our dissent from the issuance of that Order,
but also for further reasons offered by the parties
and the Chamber of Commerce.
Reviewing briefly the key facts, the complaint al-
leged that Respondent violated Section 8(a)(5) and
Although our dissenting colleagues propose to ignore the motion's
procedural infirmity. nevertheless they concede that the motion is untimely
under the Board's Rules and Regulations. As for the dissenters' discussion
of the motion on its merits, the arguments they now make were fully aired
in the original Board proceeding in this matter and, after careful consider-
ation. rejected by a majority of the Board. Inasmuch as our reasons for
rejecting the dissenters' views are set forth in detail in the original Order. no
further explication of our position is required here.
(4Comnunity Medical Services of Clearfield, Inc., d/b/a Clear Haven Nurs-
ing Home. 236 NLRB 853 (1978). The Board sustained a special appeal by
the General Counsel ornm the Administrative Law Judge's approval of a
non-Board settlement agreement and remanded the case to the Regional
Director "for further appropriate action."
1244
CLEAR HAVEN NURSING HOME
(I) of the Act by unilaterally changing the employ-
ees' health plan, by bargaining to impasse on a non-
mandatory subject of bargaining, and by refusing to
provide the Union with relevant and necessary finan-
cial information for bargaining, and that Respon-
dent's employees engaged in a strike in protest of
Respondent's unfair labor practices from January 8
until April 1, when they made an unconditional offer
to return to work; and that Respondent refused to
reinstate the strikers promptly to their former or sub-
stantially equivalent positions. Subsequently, the Ad-
ministrative Law Judge approved a settlement agree-
ment disposing of the charges underlying the
complaint. The settlement consisted of execution of a
collective-bargaining contract between the parties,
return of the strikers to work in their former or sub-
stantially equivalent positions, and compensation for
potential backpay which might be due the strikers in
the form of higher wage rates. Only the General
Counsel refused to join in this settlement.
In our original dissent, we took strong exception to
our colleagues' rejection of the settlement agreement.
We pointed out that the alleged 8(a)(5) violations
had been more than fully remedied by entry into a
labor contract, which is the goal of our collective-
bargaining system, whereas the usual 8(a)(5) reme-
dies are only means to that end. We noted also that
the reinstatement of the strikers to their former jobs
and the presence of wage rates in the labor agree-
ment reflecting the backpay expectations of the em-
ployees paralleled the remedy which would be pro-
vided by the Board if it found the strike to be an
unfair labor practice strike. Finally, we questioned
the wisdom of upsetting a settlement, overwhelm-
ingly approved by the employees as well as Respon-
dent and the Charging Party, which compelled need-
less and protracted litigation destructive to the
collective-bargaining relationship of the parties and
burdensome to the Board in light of its mounting
caseload.'
The bulk of unfair labor practice cases are disposed of in the various
Regional Offices by agreement of the parties. For example, in fiscal year
1977, 78.9 percent of the cases closed were disnosed of by formal or infor-
mal settlements. 42 NLRB Ann. Rep. 6 (1977). In fiscal year 1978, it was
even higher at 82.2 percent. By its decision in this case, the Board has
endangered this fine record and cast doubt as to the efficacy of any agree-
ment parties might reach in the regions which may deviate, even slightly,
from the remedy the Board "might" grant. If no modicum of deviation is to
be permitted, the parties can gain little or nothing by utilizing the settlement
route rather than by going to a heanng and decision by the Board.
Settlements are the lifeblood of this agency. In the last fiscal year, the
Board issued 1,146 unfair labor practice case decisions-the highest number
in its history, but still below its projected goal of 1,242 such cases for that
year. From this fact alone, it is evident that the Board's caseload threatened
to overwhelm it. It is obvious, therefore, that without the 82.2-percent settle-
ment rate achieved last fiscal year the operation of this Agency would have
been eriously impeded and its effectiveness severely, if not irreparably,
impaired. It is just as obvious that the Agency faces a similar situation this
year. There is no way the General Counsel can keep abreast of this nse in
Aside from this, however, the parties in their mo-
tion assert that, in the year since execution of the
collective-bargaining agreement, they have enjoyed
"harmonious labor relations," and they state that the
Board Order "can have no other effect than the im-
pairment of the collective bargaining relationship
which has developed and matured over the past
year." It thus appears that we accurately predicted
the negative consequences of the Board's unwise re-
fusal to approve the non-Board settlement. Yet, even
if our colleagues are unwilling at this stage to reverse
their earlier position, there is no good reason for
them not to allow additional written and oral argu-
ment as the parties request. They state that, if given
the opportunity, they will allay any concerns of the
Board about whether they entered into a "bargain
basement" settlement, whether the Charging Party
lacked sufficient information to negotiate for a con-
tract, and whether the settlement adequately took
into account potential backpay due the strikers.
The majority contends, however, that the joint mo-
tion should be denied, as it is untimely. It is true that
the motion was not filed within the time prescribed
in Section 102.48(d)(2) of the Board's Rules and Reg-
ulations, nor was any request made for an extension
of time to file the motion. However, that subsection
provides specifically that such motion "shall be filed
within 20 days, or such further period as the Board
man allow, after the service of its decision or order,"
thus clearly indicating that the Board may, in its dis-
cretion, entertain a motion that would otherwise be
untimely. Even more significant, Section 10(d) of the
Act states:
(d) Until 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.
This statutory provision is reflected in Section 102.49
of the Rules and Regulations. In our judgment, in the
circumstances of this case, where the outstanding
Board Order is likely to damage severely the collec-
tive-bargaining relationship of the parties, to say
nothing of setting an adverse precedent regarding
standards for accepting settlement agreements, the
Board should grant the joint motion despite its some-
what tardy submission.
We would also allow the Chamber of Commerce
cases or approach currency in his trial calendar if the settlement rate falls
much below the 82-percent level attained last year. Likewise, there is no way
the Board can decide the 1,382 unfair labor practice cases it has projected
for itself this fis.al year without that settlement rate being maintained.
Thus. by refusing to reconsider its earlier decision here the Board may well
be jeopardizing the settlement process and, consequently, its own effective-
ness.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take part in this proceeding as amicus curiae.
Should the Board Order stand, many settlement
agreements, including those involving collective-bar-
gaining contracts, may be attacked, negatively affect-
ing the industrial relations climate as well as the
Board's caseload.
1246