Cliffside Health Care Center

National Labor Relations Board - Board Decisions

May 27, 1986

279 N.L.R.B. 1126 (N.L.R.B. 1986)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T. Marshall Corp ., t/a Cliffside Health Care Center
and 1115 Nursing Home and Hospital Employ-
ees Union, a Division of 1115 Joint Board.
Cases 22-CA-11659 and 22-CA-11919
27 May 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, with its princi-
pal office and place of business in Cliffwood Beach, New
Jersey, provides health care and related services. During
the 12 months preceding the issuance of the complaint,
Respondent received gross revenues in excess of
$100,000. Respondent admits that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and I so find.
On 5 August 1983 Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, T. Marshall
Corp., t/a Cliffside Health Care Center, Cliffwood
Beach, New Jersey, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
Marta Figueroa, Esq., for the General Counsel
Morris Tuchman, Esq. (Gluck & Tuchman, Esqs.), New
York, New York, for the Respondent.
Richard M. Greenspan, Esq. (Charles R. Katz, P. C),
New York, New York, for the Respondent
DECISION
STATEMENT OF THE CASE
D BARRY MORRIS, Administrative Law Judge This
case was heard before me at Newark, New Jersey, on
February 9, 1983 On charges filed on June 1 and Octo-
ber 8, 1982,1 a consolidated complaint was issued on No-
vember 26 alleging that T. Marshall Corp., t/a Cliffside
Health Care Center (Respondent) violated Section
8(a)(1) and (5) of the National Labor Relations Act. Re-
spondent filed an answer denying the commission of the
alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally and file briefs. Briefs were filed by the Gen-
eral Counsel and by Respondent.2
On the entire record of the case, including my obser-
vation of the witnesses, I make the following
I All dates refer to 1982 unless otherwise specified
2 Respondent 's motion to correct transcript is granted
II. THE LABOR ORGANIZATION INVOLVED
1115 Nursing Home and Hospital Employees Union, A
Division of 1115 Joint Board (the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A The Issue
The issue in this proceeding is whether Respondent
violated Section 8(a)(1) and (5) of the Act by unilaterally
increasing the wages of certain employees.
B The Facts
1. Background
Since August 18, 1980, the Union has been the certi-
fied bargaining representative of the employees in a bar-
gaining unit consisting of all registered nurses, licensed
practical nurses, and service and maintenance employees
employed by Respondent at its Cliffwood Beach facility.
On March 16, 1982, Administrative Law Judge Julius
Cohn issued a decision in Case 22-CA-10828, a prior
unfair labor practice proceeding involving the parties
herein.3 In that case Respondent was found to have uni-
laterally changed the wage rates, benefits, and other con-
ditions of employment of its employees in the appropri-
ate unit, in violation of Section 8(a)(5) of the Act
Alex DeLaurentis, vice president of the Union, credi-
bly testified that on March 29, soon after he received a
copy of the above-mentioned decision, he wrote to Re-
spondent asking for data necessary for the commence-
ment of negotiations. The requested information was pro-
vided to DeLaurentis in handwritten form on April 16.
Pursuant to DeLaurentis' request for a more legible list,
Respondent provided him with a typewritten document
in May. This document shows each employee's name,
address, job title, date hired, weekly salary, number of
hours worked per week, and the effective dates and
amounts of the last three wage increments.
DeLaurentis credibly testified that, on receipt of this
document, he noticed that on March 1 Respondent had
granted wage increases to various employees. DeLauren-
tis' unrebutted testimony is that Respondent granted the
March 1 increases without notice to the Union and with-
out negotiating The Union did not request bargaining
s The Board adopted the judge 's findings and conclusions and issued
its Order on April 21, 1982
279 NLRB No. 166
CLIFFSIDE HEALTH CARE CENTER
over the March 1 increase, but instead filed a charge
with the Board on June 1.
On October 1 DeLaurentis received a mailgram from
Respondent, advising him of a wage increase and an ad-
ditional holiday to be given to the employees on October
3. In unrebutted testimony DeLaurentis credibly testified
that he was not aware of these proposed changes prior
to receipt of the mailgram. The Union did not request
bargaining over the October 3 wage increase and the ad-
ditional holiday, and it is undisputed that there were no
negotiations concerning these changes The Union filed a
charge concerning these changes on October 8.
2. March increase
Geraldine Crockett, administrator of Respondent, testi-
fied that the raises given in March were given only to
those employees who were hired after October 3, 1981,
and who, accordingly, had not received the October
1981 increase . Indeed, counsel for Respondent stated that
the March increase was merely to supplement the Octo-
ber 1981 increase and that inasmuch as the October in-
crease was already covered by the Board's order of
April 1982, it would be unnecessary for an additional
order to issue concerning that increase . The record,
however, does not sustain Respondent's position. Gener-
al Counsel's Exhibit 6 shows that registered nurses, Blake
and Hughes, each received an increase on March 1, al-
though they both received increases on October 3, 1981,
and they had both been hired prior to that date.
3. October increase
With respect to the October increase , Respondent ap-
pears to be making two arguments. Respondent's con-
troller, Thomas Armour, testified that the October wage
increase did not deviate from the "impasses offer" that
was proposed to DeLaurentis in May 1981. If it is Re-
spondent's contention that the October increase was per-
mitted because of an existing impasse, that contention
clearly must fail. The general criteria for determining im-
passe are set forth in Taft Broadcasting Co., 163 NLRB
457, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968), in
which the Board held:
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
The record in this proceeding does not establish that
an impasse existed . The fact that Respondent 's witness
stated that the May 1981 proposal constituted an "im-
passe offer" is not sufficient to establish the existence of
impasse. Indeed, counsel for Respondent conceded that
he was "not relitigating" whether an impasse existed in
May 1981 In addition, inasmuch as the October 1981
unilateral increases were found to violate Section 8(a)(5)
of the Act, this, too, would indicate that no prior im-
1127
passe existed . See M. A. Harrison Mfg. Co., 253 NLRB
675, 676 ( 1980), enfd . 682 F . 2d 580 (6th Cir . 1982).
The mailgram which DeLaurentis received on Octo-
ber 1 advised the Union of a wage increase and an addi-
tional holiday to be given to the employees on October
3. In its brief, Respondent argues that this 2-day notice
was sufficient . I disagree . In M. A . Harrison Mfg. Co.,
supra , 253 NLRB at 676 , the company notified the union
of wage increases 3 days prior to the increases taking
effect. The Board found that such short notice was not
"adequate opportunity to bargain " In the circumstances
of this case , I find that Respondent 's conduct "precluded
meaningful collective bargaining." Id.
CONCLUSIONS OF LAW
1. Respondent 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 mean-
ing of Section 2(5) of the Act.
3. All registered nurses, licensed practical nurses, and
all service and maintenance employees employed by Re-
spondent at its Cliffwood Beach facility , but excluding
all professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By unilaterally , and without adequate notice to the
Union , changing wage rates, benefits , and other condi-
tions of employment of the employees in the appropriate
unit , Respondent violated Section 8(a)(5) and ( 1) of the
Act.
5. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and, on request,
bargain collectively with the Union, as the exclusive rep-
resentative of the employees in the appropriate unit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, T. Marshall Corp., t/a Cliffside
Health Care Center, Cliffwood Beach, New Jersey, its
officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Unilaterally making wage increases or other
changes in benefits, terms, and conditions of employ-
ment , in derogation of its bargaining obligation, for its
employees represented by 1115 Nursing Home and
* If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
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 pur-
poses
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hosptial Employees Union, a Division of 1115 Joint
Board , in the appropriate bargaining unit described
below; provided, however, that nothing herein shall re-
quire Respondent to vary such minimum salary schedules
as are already established . The appropriate unit is:
All registered nurses, licensed practical nurses, and
all service and maintenance employees employed by
Respondent at its Cliffwood Beach facility, but ex-
cluding all professional employees , guards and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively and in good faith
with the above-named labor organization , as the exclu-
sive representative of the employees in the unit described
above.
(b) Post at its office in Cliffwood Beach , New Jersey,
copies of the attached notice marked "Appendix."t;
Copies of the notice, on forms provided by the Regional
Director for Region 22, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately 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 Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally make wage increases or
other changes in benefits, terms, and conditions of em-
ployment, for employees in the bargaining unit described
below without first engaging in collective bargaining
with 1115 Nursing Home and Hospital Employees
Union, a Division of 1115 Joint Board , although this
does not mean we are now required to lower any mini-
mum salary schedules presently established for these em-
ployees. The unit is:
All registered nurses, licensed practical nurses, and
all service and maintenance employees, employed
by us at our Cliffwood Beach facility, but excluding
all professional employees , guards and supervisors
as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the National Labor
Relations Act.
WE WILL, on request, bargain collectively and in good
faith with the above-named labor organization as the ex-
clusive representative of all the employees in the unit de-
scribed above.
b 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 Nation-
al 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 "
T. MARSHALL CORP., T/A CLIFFSIDE
HEALTH CARE CENTER