Driftwood Convalescent Hospital

National Labor Relations Board - Board Decisions

Sep 21, 1993

312 N.L.R.B. 247 (N.L.R.B. 1993)

247
312 NLRB No. 43
DRIFTWOOD CONVALESCENT HOSPITAL
1 The Respondent excepts ‘‘to each and every statement in the De-
cision, from page 7, line 45, to the end of the Decision.’’ We have
identified the nature of various exceptions by the Respondent from
its brief. The Respondent’s blanket exception to the judge’s decision
even as fleshed out by its brief does not well serve the purposes of
Sec. 102.46(b) of our Rules, which require specificity. To the extent
the Respondent’s brief does not make clear what the Respondent
excepts to, we deem the matters waived. See Sec. 102.46(b)(2).
2 The Respondent asserts that the judge’s conclusions of law are
the result of bias. After a careful examination of the record and the
judge’s decision, we are satisfied that this allegation is without
merit.
3 This remedial order, unlike the one at issue in H. K. Porter Co.,
397 U.S. 99 (1970), which required the employer to agree to a dues-
checkoff provision, does not compel an agreement. Rather, we mere-
ly require the Respondent to reinstate proposals it previously volun-
tarily presented during negotiations and subsequently withdrew in
contravention of the Act.
Valley West Health Care, Inc. d/b/a Driftwood Con-
valescent Hospital a/k/a Scenic Circle Care
Center and Hospital and Health Care Workers
Union, Local 250, Service Employees Inter-
national Union, AFL–CIO. Case 32–CA–12289
September 21, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 10, 1992, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1
and brief and has decided to affirm the judge’s rulings,
findings and conclusions,2 to modify the recommended
remedy, and to adopt the recommended Order as modi-
fied.
We agree with the judge that the Respondent vio-
lated Section 8(a)(5) and (1) by proffering the Union,
on December 16, 1991, a final proposal which: (1) did
not contain tentative agreements previously reached;
(2) did not contain proposals previously made; and (3)
substituted regressive proposals. In addition, we agree
with the judge that Respondent violated Section 8(a)(5)
and (1) by withdrawing that proposal and by engaging
in overall bad-faith bargaining.
To restore the status quo ante, the judge rec-
ommended that Respondent be required to offer the
substantive proposal that would have been made on
December 16, but for the unlawful conduct. That is,
Respondent’s proposal must include the tentative
agreements and the proposals previously made, and the
proposal must delete the regressive proposals. Under
the recommended Order, the proposal must remain out-
standing for a reasonable period of time. If the Union
accepts the proposal, the Respondent is required to
execute an agreement containing all the terms of that
offer, and to give that agreement retroactive effect.
Northwest Pipe & Casing Co., 300 NLRB 726 (1990).
See also Mead Corp., 256 NLRB 686, 686–687
(1981), enfd. 697 F.2d 1013 (11th Cir. 1983).
The judge also considered that the duration of the
agreement being proposed in the Respondent’s final
offer was: (1) dependent on the date of the Union’s ac-
ceptance; (2) binding for a period of 1 year from
‘‘lll, 1991’’ to ‘‘lll, 1992’’; and (3) auto-
matically renewed in the absence of the requisite no-
tice. Consequently, since the Respondent’s unlawful
withdrawal precluded the Union’s acceptance on Janu-
ary 13, 1992 (the date of the scheduled ratification
vote), the judge recommended that any agreement re-
sulting from the Union’s acceptance of the reinstated
proposal be binding from January 13, 1992, for a pe-
riod of 1 year up to and including January 13, 1993.
The judge noted that any uncertainty regarding the date
of the Union’s acceptance of the Respondent’s final
proposal must be resolved against the Respondent as a
wrongdoer.
We agree with the judge that restoration of the sta-
tus quo ante is best achieved by requiring the Re-
spondent to offer the substantive proposal that would
have been made but for the unlawful conduct, and by
requiring that the offer remain in effect for a reason-
able period of time.3
Contrary to the judge, however, we deny retroactive
effect to the Respondent’s final proposal. Unlike in
Mead and Northwest Pipe, the Respondent’s proposal
did not expressly provide for retroactivity. On the con-
trary, the duration clause in the Respondent’s proposal
expressly contemplates that any resulting agreement
will be binding prospectively for a period of 1 year.
Consonant with the manifest intent of the Respond-
ent’s proposal, we find that if the Union accepts this
proposal within a reasonable period of time after its re-
instatement, the resulting agreement will be binding
prospectively for a period of 1 year after execution of
the agreement.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Valley West Health Care,
Inc. d/b/a Driftwood Convalescent Hospital a/k/a Sce-
nic Circle Care Center, Modesto, California, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Reinstate its December 16, 1991 final contract
proposal and afford the Union a reasonable period of
time to accept that offer, and, if the Union accepts the
offer within said reasonable time, sign a contract con-
taining all of the terms of that offer and give the
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement prospective effect for 1 year from the date
of execution.’’
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 refuse to bargain collectively in good
faith concerning wages, hours, and other terms and
conditions of employment with Hospital and Health
Care Workers Union Local 250, Service Employees
International Union, AFL–CIO as the exclusive bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All licensed vocational nurses, nurse aides, house-
keeping, laundry, cook, dietary aide, and rehabili-
tation aide employees employed by us at our Mo-
desto, California, facility, excluding all other em-
ployees, including registered nurses, office clerical
employees, activity workers, guards, administra-
tive personnel, assistant supervisors, and super-
visors as defined in the Act.
WE WILL NOT renege on tentative agreements that
we have reached with the Union during collective-bar-
gaining negotiations or withdraw our collective-bar-
gaining proposals in order to frustrate collective bar-
gaining or to prevent the negotiation of a collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Union, as the exclusive representative of our employ-
ees in the bargaining unit with respect to wages, hours,
and other terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement.
WE WILL reinstate our December 16, 1991 final con-
tract offer and afford the Union a reasonable period of
time to accept that offer, and, if the Union accepts the
offer within a reasonable time, sign a contract contain-
ing all of the terms of that offer and give the agree-
ment prospective effect for a period of 1 year from the
date of execution.
WE WILL include in our reinstated December 16,
1991 final contract offer the tentative agreements we
previously reached with the Union concerning the in-
clusion of the licensed vocational nurses in the bar-
gaining unit, concerning the definition of employees’
seniority, and concerning the eligibility of employees
for 3 weeks of paid vacation.
WE WILL include in our reinstated December 16,
1991 final contract offer our proposal that we made
previously to the Union to share with the Union the
cost of the arbitrator when a contract dispute is submit-
ted to arbitration.
WE WILL include in our reinstated December 16,
1991 final contract offer our proposal which we made
previously to the Union to pay 50 percent of a unit
employee’s health and dental insurance costs during
his or her first year of employment, after 500 hours of
work, and to allow unit employees to pay for their de-
pendents’ coverage under the health and dental insur-
ance plans.
VALLEY WEST HEALTH CENTER, INC.
D/B/A DRIFTWOOD CONVALESCENT HOS-
PITAL A/K/A SCENIC CIRCLE CARE CEN-
TER
Jeffrey L. Henze, for the General Counsel.
N. Paul Shanley (Hubbert, Shanley and Cohen), for the Re-
spondent.
Paul Supton (Van Bourg, Weinberg, Roger & Rosenfeld), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which a hearing was held on August 6, 1992,
is based on an unfair labor practice charge filed by Hospital
and Health Care Workers Union, Local 250 (Union), on Jan-
uary 14, 1992, and a complaint issued on March 17, 1992,
by the Regional Director for Region 32 of the National
Labor Relations Board (Board), on behalf of the Board’s
General Counsel, alleging that Valley West Health Care, Inc.
d/b/a Driftwood Convalescent Hospital a/k/a Scenic Circle
Care Center (Respondent), violated Section 8(a)(1) and (5) of
the National Labor Relations Act (Act).
The complaint alleges that during its 1991 negotiations
with the Union for a collective-bargaining agreement to
cover an appropriate unit of Respondent’s employees rep-
resented by the Union, Respondent failed and refused to bar-
gain in good faith, in violation of Section 8(a)(5) and (1) of
the Act, by engaging in the following conduct: withdrew
from an agreement that licensed vocational nurses would be
included in the bargaining unit covered by the collective-bar-
gaining agreement; withdrew from an agreement to use em-
ployees’ original dates of hire to compute their seniority and
the vacation pay entitlement for employees with 5 or more
years of seniority; made a regressive grievance-arbitration
proposal under which the party requesting arbitration is to
bear the full cost of arbitration, which was contrary to its
previous bargaining proposal; withdrew its prior bargaining
proposal to pay 50 percent of the employees’ health insur-
ance costs during the first year (after 500 hours) and to pay
50 percent of the employees’ dental insurance costs (after
249DRIFTWOOD CONVALESCENT HOSPITAL
1 In its answer to the complaint, Respondent admits it is an em-
ployer engaged in commerce within the meaning of Sec. 2(6) and
(7) of the Act and meets the Board’s applicable discretionary juris-
dictional standard, and also in its answer, as amended at the hearing,
admits that the Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
2 Unless otherwise stated, all dates hereinafter refer to the year
1991.
3 As I have indicated supra, in its answer to the complaint, Re-
spondent admits that at all times material herein the Union has been
the exclusive representative of an appropriate unit of employees
which include those employed as licensed vocational nurses, and ad-
mits that Respondent has recognized the Union as the representative
of Respondent’s licensed vocational nurses.
4 However, the part of Respondent’s December 16 final contract
proposal which provides that ‘‘[t]he straight-time hourly rates of pay
shall be shown in Appendix A,’’ includes among the classifications
set forth in ‘‘Appendix A,’’ the classification of licensed vocational
nurse and the minimum starting hourly rate for the employees em-
ployed in that classification.
5 Respondent’s December 16 final contract proposal provides that
‘‘in all matters of layoffs and recalls, the principle of seniority shall
prevail’’ and further provides that for other matters involving the
‘‘selection’’ of unit employees, if skill, ability and experience are
relatively equal then the principle of seniority shall govern.
500 hours) and to permit employees to pay for dependent
coverage under these plans; and, failed to provide the Union
with an adequate opportunity to review and consider its final
contract offer presented on December 16, 1991, prior to
withdrawing said offer. In its answer to the complaint, Re-
spondent denied the commission of the alleged unfair labor
practices.1
On the entire record, from my observation of the de-
meanor of the sole witness, Rachael Bunton, and having con-
sidered the posthearing briefs submitted by counsels for the
General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent is a corporation doing business in Modesto,
California, where it has operated a nursing home since early
1989, when it acquired the nursing home from another em-
ployer. See Driftwood Convalescent Hospital, 302 NLRB
586 (1991).
On April 17, 1991, the Board issued its Decision and
Order in Driftwood Hospital, supra, finding that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to rec-
ognize and bargain with the Union as the exclusive bargain-
ing representative of the ‘‘licensed vocational nurses, nurses
aids [sic], housekeeping, laundry, cook, dietary aids [sic],
and rehabilitation aid [sic] employees’’ employed at Re-
spondent’s Modesto nursing home. In its answer to the com-
plaint in the instant proceeding, Respondent admits that since
April 17, 19912 the Union has been recognized by the Re-
spondent as the exclusive bargaining representative of an ap-
propriate unit of ‘‘all licensed vocational nurses, nurses aids
[sic], housekeeping, laundry, cook, dietary aids [sic], and re-
habilitation aid [sic] employees’’ employed at Respondent’s
Modesto nursing home.
In compliance with the Board’s Order issued in Valley
West Health Care Respondent commenced collective-bar-
gaining negotiations on August 14. Negotiation sessions were
held on August 14, September 16, 17, and 27, October 4, 16,
and 28, and December 3. The December 3 negotiation ses-
sion was the last one.
During the December 3 negotiation session the Union’s
negotiator asked Respondent to submit a final contract pro-
posal to the Union. Subsequently, on December 16 Respond-
ent’s attorney submitted to the Union, in writing, Respond-
ent’s ‘‘final proposal.’’ The terms of Respondent’s December
16 final contract proposal differed from Respondent’s prior
bargaining position, in certain respects, as described herein-
after.
The parties’ negotiators by the end of the December 3 ne-
gotiation session had agreed that, if the parties reached
agreement on the terms of a complete collective-bargaining
agreement, the unit employees employed as licensed voca-
tional nurses would be included in the contractual bargaining
unit, pending the results of any unit clarification petition that
Respondent might wish to file with the Board.3 However, the
‘‘recognition’’ provision of Respondent’s December 16 final
contract proposal, does not include the unit employees em-
ployed as licensed vocational nurses.4 Rather that part of the
final contract proposal reads, in pertinent part, as follows:
The Employer recognizes the Union as the sole exclu-
sive bargaining representative for the purpose of collec-
tive bargaining . . . of all nurse’s aides, housekeeping,
janitors, laundry, cook, dietary aide and rehabilitation
aide employees. Excluded from the foregoing recogni-
tion and bargaining unit shall be all other employees of
the Employer . . . .
The parties’ negotiators by the end of the December 3 ne-
gotiation session had agreed, if the parties reached agreement
on the terms of a complete collective-bargaining agreement,
that the agreement’s seniority provision would provide, inter
alia, that the unit employees’ seniority would be dated from
the date they first began to work at the Modesto facility and
not the date when Respondent acquired the facility and that
the agreement’s vacation pay provision would provide, inter
alia, that in computing whether employees had 5 years of se-
niority for purposes of vacation pay the employees’ original
dates of hire, rather than the date Respondent acquired the
facility, would be used. However, the seniority provision
contained in Respondent’s December 16 final contract pro-
posal, contrary to the above agreement, states that ‘‘[a] regu-
lar employees’ seniority is defined as his/her most recent pe-
riod of continuous service with the Employer (emphasis
added).’’5 Nor does the final proposal reflect the above
agreement concerning the computation of employees’ vaca-
tion pay. Rather it merely states that ‘‘after 5 years of con-
tinuous employment’’ full-time employees eligible for a va-
cation shall be granted 3 weeks of vacation with pay. It is
silent about how the 5 years’ period of continuous employ-
ment will be computed.
As of the end of the December 3 negotiation session, the
Respondent’s proposal concerning health and welfare which
had been made to the Union, included not only the provi-
sions which are contained in Respondent’s December 16
final contract proposal, but also provided that Respondent
would pay 50 percent of a unit employee’s health insurance
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and dental insurance costs during his/her first year of em-
ployment after the employee worked 500 hours and that Re-
spondent would allow a unit employee to pay for dependent
coverage under both the dental and health plans. The health
and welfare provision contained in the Respondent’s Decem-
ber 16 final contract proposal reads as follows:
Full time employees are eligible for coverage and may
elect to be enrolled for health and dental coverage
through the Employer’s OMI plan, or its equivalent, ef-
fective the first day of the calendar month after comple-
tion of 500 clock hours of work during the first year
of employment. During an employee’s second year of
employment and for all subsequent years, the Employer
will pay 60 percent of the employee’s cost of coverage.
As of the end of the December 3 negotiation session, Re-
spondent had proposed to the Union that when one of the
parties submitted a contractual dispute to arbitration pursuant
to the grievance and arbitration machinery set forth in the
parties’ collective-bargaining agreement, the ‘‘expense of the
arbitrator shall be shared equally between the parties’’ and
that the total cost of any stenographic record shall be paid
by the party ordering it. In its December 16 final contract
proposal Respondent withdrew this proposal and now pro-
posed that ‘‘[t]he expense of the arbitrator, including the re-
porter’s expense, shall be borne exclusively by the party re-
questing arbitration.’’
During the last negotiation session held on December 3,
as I have found supra, the Union’s negotiator asked Re-
spondent to submit a final contract proposal. Also, during
this meeting, the Union’s negotiator informed Respondent’s
representative that ratification by the Union’s members was
required before the Union agreed to a collective-bargaining
agreement. Previously, at the start of the negotiations, Re-
spondent had been informed by the Union that any collec-
tive-bargaining agreement would have to be ratified by the
membership.
The Union’s negotiator throughout the negotiations was
Jake Jacobs. He was accompanied to all of the negotiation
sessions by Union Field Representative Rachael Bunton, who
was assigned to, among other things, service the unit em-
ployees involved in this case.
On Monday, December 16, in response to Jacobs’ Decem-
ber 3 request for a final contract proposal, Respondent’s at-
torney David Cohen whose office is in Sacramento, Califor-
nia, faxed to Bunton’s office in Sacramento, the following
letter, addressed to Bunton:
Re: Scenic Circle Health Care – Employer Final Pro-
posal
Dear Ms. Bunton:
Enclosed with this letter please find a final proposal
from the management of Scenic Circle Health Care
with regard to the negotiations between your Union and
this facility, which final was requested by Mr. Jake Ja-
cobs during our last meeting on Tuesday, December 3,
1991. This offer is being placed on the bargaining table
by the Employer and is subject to acceptance by 12:01
a.m., Wednesday, December 25, 1991. If it is not ac-
cepted by the above date, this final offer will be re-
moved from the bargaining table and all proposals, of-
fers, and tentative agreements previously reached will
be null and void and will be subject to change.
If you have any questions regarding this matter,
please do not hesitate to call upon me.
On December 16, Bunton, who was away from her office
all day long on business, telephoned in for her messages in
the afternoon and was informed by her secretary about the
receipt of Respondent’s final contract offer and that the cover
letter which accompanied the offer set an acceptance dead-
line of December 25.
Since Jacobs, who was the Union’s negotiator, was on va-
cation from December 14 through January 5, 1992, Bunton
tried to get advice about this matter from the Union’s attor-
ney Paul Supton, and her immediate supervisor, Charley
Ridgell, the head of the Union’s Convalescent Home Divi-
sion. She was unable to speak to them, however, until Fri-
day, December 20, at which time she sent the following tele-
gram to Attorney Cohen:
THE UNION RECEIVED THE EMPLOYERS FINAL OFFER ON
DECEMBER 16, 1991, THE TIME FRAME THE EMPLOYER
IS DEMANDING FOR ACCEPTANCE BY DECEMBER 25,
1991 BY 12:01AM IS RIDICULOUS. THIS DEMAND IS IN-
APPROPRIATE DUE TO THE FACT THAT THE UNION RE-
QUIRES ADEQUATE TIME TO REVIEW YOUR PROPOSED
FINAL OFFER IN FULL AND TO NOTIFY OUR MEMBERS AT
SCENIC CIRCLE FOR A REVIEW AND VOTE OF YOUR PRO-
POSED FINAL OFFER. PLEASE RESPONSE AT YOUR EARLI-
EST CONVENIENCE.
Upon receipt of Bunton’s December 20 telegram, Attorney
Cohen promptly responded to Bunton, by letter, dated De-
cember 20, which reads as follows:
I am in receipt of the telegram which you sent De-
cember 20, 1991, in which you request an extension of
time to consider the employer’s final proposal in nego-
tiations at Scenic Circle Care Center. The Employer’s
final proposal was requested by the Union during a ne-
gotiating meeting on December 3, 1991, and therefore
it should have been expected by the Union, and then
prepared for in anticipation of having to call a meeting
to vote the membership. If it were not for the inept
handling of this matter by the Union, as evidenced by
your failure to request an extension for four days after
receiving the final proposal, you certainly could have
contacted and voted your membership in time, since as
far as I know the U.S. Postal Service and all telephone
companies are still operating in the greater Modesto
area. Instead you have waited until four days after re-
ceipt of the final to even request a continuance. The
deadline which was set was not ‘‘ridiculous’’ as you
stated, if you had pursued the matter in timely fashion.
However, in light of the Union’s request, and inabil-
ity to act with an entire week’s notice, I will hereby ex-
tend the time for consideration of the final proposal
until 12:01 a.m. January 1, 1992. If the contract is not
accepted by that time, then the final offer will be re-
moved from the bargaining table and all proposals, of-
fers, and tentative agreements previously reached will
be null and void and will be subject to change.
251DRIFTWOOD CONVALESCENT HOSPITAL
6 I note that the week of Monday, December 23, was Christmas
week and the week of Monday, December 30, was New Year’s
week.
7 Bunton’s office is in Sacramento, California, and Ridgell’s office
is in San Francisco, California, and Jacobs’ is in Oakland, Califor-
nia.
If you have any questions regarding this matter, or
if you would like directions on how to contact your
membership, please do not hesitate to call upon me.
Attorney Cohen’s December 20 letter was faxed to
Bunton’s office that same day, a Friday, and was received
by her late that afternoon. The next 2 days (Saturday and
Sunday), Bunton was off from work. She was also off from
work on Monday, December 23, through Wednesday, De-
cember 25.6 When she returned to work on the day after
Christmas, December 26, she telephoned her Superior, Char-
ley Ridgell, for his advice on how to deal with Attorney
Cohen’s December 20 letter.7 During their conversation
Bunton informed Ridgell that there appeared to have been
changes made in Respondent’s final contract offer from Re-
spondent’s previous bargaining position. Ridgell instructed
Bunton not to speak to Respondent about the final contract
offer until she and Jacobs had met and checked the contents
of the Respondent’s final contract offer against the Union’s
bargaining notes. Ridgell also told her that although Jacobs
was still on vacation, he was expected to be home on De-
cember 27 and that Bunton should telephone him at home.
On December 27 Bunton telephoned Jacobs at his home
and told him about the Respondent’s final contract offer and
the correspondence surrounding that offer, and they agreed to
meet to review the final offer, when Jacobs returned to work
from his vacation, and also agreed that the employee-mem-
bers’ ratification meeting would be held January 13, 1992. In
fact, at that time Bunton arranged to rent for January 13,
1992, the meeting room at the motel in Modesto, California,
which the Union usually uses for its membership meetings
held in Modesto.
On December 27, following Bunton’s conversation with
Jacobs, she faxed the following letter to Attorney Cohen:
Re: Ratification/Rejection Meeting on Employer’s Final
and Best Offer
Dear Mr. Cohen:
Upon returning from vacation on December 26,
1991, I received your fax and letter regarding Scenic
Circle’s Final Offer. Unfortunately, Jake Jacobs and a
rank and file member of the bargaining committee are
still on vacation. As such the Union is unable to com-
ply with your deadline of January 1, 1992, for ratifica-
tion of the contract. However, I have scheduled a meet-
ing with the members on Monday, January 13, 1992,
for a vote of the membership. This Will allow the ap-
propriate labor law prerogative for an adequate review
of your proposed offer and time to notify our members.
Please be advised that the Union will notify you imme-
diately after the last vote meeting on January 13, 1992
of the results of the membership vote.
Thank you for your attention to this matter.
Upon receipt of Bunton’s December 27 letter, Attorney
Cohen on the same day faxed the following letter to Bunton:
Re: Scenic Circle Final Offer – Deadline For Vote
Dear Ms. Bunton:
I am in receipt of your letter dated December 27,
1991, which was faxed to my office on this date. Con-
trary to your assertion, you were provided with notice
of the January 1 deadline on December 20th after re-
questing an additional continuance on that date. The
fact that Mr. Jacobs and a rank and file member of the
bargaining committee are on vacation, have no impact
on a deadline which was set by the employer and pre-
sented to you along with our final offer. It is not the
employer’s problem that Mr. Jacob’s and the rank and
file employee are not at work.
As I indicated in my letter on December 20, 1991,
the Union had requested the employer’s final proposal
as early as December 3, 1991, and therefore should
have anticipated its presentation and been prepared to
contact the membership and put this matter to a vote.
On December 16, 1991, you were provided with the
Employer’s final offer, and a deadline of December 25,
1991, was set. You delayed requesting a continuance
until December 20th, but at that time were granted a
week’s extension. The Union then delayed until Decem-
ber 27th to again seek more time. These dilatory tactics
and/or ineptitude will not longer be tolerated. Your re-
quest for an additional continuance until January 13,
1992, is denied.
The employer has already granted you one extension
of time in which to vote this document and stands by
our last proposal and the January 1, 1992 deadline. The
Union has had ample time to review all proposals made
by this employer and to contact your membership and
to put this matter to a vote. As indicated in my letter
dated December 20, 1991, if the final offer is not ac-
cepted by the deadline of 12:01 a.m., January 1, 1992,
then all proposals, offers, and tentative agreements pre-
viously reached will be null and void and will be re-
moved from the bargaining table, and will be subject to
change at any future negotiations.
B. Discussion
As I have found supra, the terms of Respondent’s final
contract proposal submitted to the Union on December 16
differed from Respondent’s prior bargaining position, in
these respects: the final contract proposal excluded the li-
censed vocational nurses from the contractual bargaining
unit, even though Respondent had previously agreed that if
it reached agreement with the Union on a contract, the li-
censed vocational nurses employed by Respondent would be
included in the contractual bargaining unit; the final contract
proposal defined an employee’s seniority as the employee’s
‘‘most recent period of continuous service with the Em-
ployer,’’ even though Respondent had previously agreed that
if it reached agreement with the Union on a contract, the
contract’s seniority provisions would provide, inter alia, that
a unit employee’s seniority would date from when the em-
ployee first began work at the facility and not the date when
Respondent acquired the facility; the final contract proposal
provided that ‘‘after 5 years of continuous employment,’’
employees eligible for a vacation will be granted 3 weeks of
vacation with pay, whereas Respondent had previously
agreed, that if it reached agreement with the Union on a con-
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I considered that the final contract proposal does not specifically
state whether the 5-year period of continuous employment will be
measured in terms of continuous employment with the Employer or
continuous employment at the facility. However, when this provision
is read in conjunction with that part of the final contract proposal
which specifically defines a unit employee’s seniority in terms of the
‘‘most recent period of continuous service with the Employer,’’ it
is clear that Respondent’s intent was to measure seniority for vaca-
tion pay purposes in terms of continuous employment with Respond-
ent and this was the way the Union would have reasonably con-
strued the provision.
9 The Union engaged in two strikes against Respondent; one for
a period of 3 days in October and another for a period of 1 day in
November. In its posthearing brief Respondent argues its withdrawal
from the tentative agreements herein and its substitution of regres-
sive proposals was not unlawful because ‘‘the Employer has success-
fully weathered a series of strikes by the Union, which altered the
respective bargaining positions and power at the negotiation table.’’
I have not considered this argument because it lacks evidentiary sup-
port. There is no evidence whatsoever that this was Respondent’s
reason for engaging in any of the conduct alleged to have violated
the Act in this proceeding. Under the circumstances, it would be
sheer speculation for me to infer that it was the change in the par-
ties’ relative bargaining strength, caused by the Union’s unsuccessful
strikes, that motivated Respondent’s conduct herein.
tract, the contract would provide that in computing whether
an employee has 5 years of seniority for purposes of vacation
pay, the employee’s original date of hire, rather than the date
Respondent acquired the facility, would be used;8 the final
contract proposal stated that during an employee’s second
year of employment and thereafter, Respondent was obli-
gated to pay 60 percent of the employee’s health and dental
insurance coverage under Respondent’s insurance plans,
however, the final contract proposal did not provide that dur-
ing an employee’s first year of employment Respondent
would pay any of these costs, nor did it provide for the cov-
erage of employees’ dependents under the Respondent’s
health and dental plans, whereas Respondent had previously
proposed to the Union that Respondent would pay 50 percent
of a unit employee’s health and dental insurance costs during
his/her first year of employment after the employee worked
500 hours, and that Respondent would also allow unit em-
ployees to pay for dependents’ coverage under both the den-
tal and health plans; and, the final contract proposal provided
that when either Respondent or Union exercise their right to
submit a contractual dispute to an arbitrator, under the con-
tract’s grievance-arbitration machinery, that ‘‘the expense of
the arbitrator, including the reporter’s expense, shall be borne
exclusively by the party requesting arbitration,’’ whereas
prior to the final contract proposal the Respondent had pro-
posed that the expense of the arbitrator would be shared
equally between the parties.
In summation, the record establishes that by virtue of the
terms of its December 16 final contract proposal, Respondent
engaged in the following conduct: reneged on its tentative
agreement that the licensed vocational nurses would be in-
cluded in the contractual bargaining unit; reneged on its ten-
tative agreement that the seniority of the unit employees
would be dated from the date they first began to work at the
facility, rather than from the date when Respondent acquired
the facility; reneged on its tentative agreement that employ-
ees’ seniority for purposes of vacation pay would be com-
puted using the employees’ original date of hire, rather than
the date Respondent acquired the facility; substituted regres-
sive proposals to take the place of the aforesaid tentative
agreements; withdrew its proposal to pay 50 percent of a unit
employee’s health and dental insurance costs during his/her
first year of employment, after the employee worked 500
hours, and to allow unit employees to pay for dependents’
coverage under both the health and dental plans, and instead
substituted a health and welfare proposal which omitted
those provisions; and, withdrew its proposal that the parties
share the expense of the arbitrator when a contractual dispute
was submitted to arbitration, and instead proposed that the
requesting party bear the expense of the arbitrator.
If an employer withdraws a bargaining proposal on which
tentative agreement has been reached and, in its place, sub-
stitutes a regressive proposal, this conduct has the inevitable
and foreseeable effect of obstructing and impeding the col-
lective-bargaining process. It is because of this that the law
is settled that ‘‘[t]he withdrawal of a proposal by an em-
ployer without good cause is evidence of a lack of good faith
bargaining by the employer in violation of Section 8(a)(5) of
the Act where the proposal has been tentatively agreed upon
. . .’’ Mead Corp. v. NLRB, 97 F.2d 1013 (11th Cir. 1983).
Thus, where, as here, the Respondent has withdrawn from
tentative agreements during negotiations, ‘‘the issue here is
not whether the Respondent acted in good faith, but whether
the Respondent had good cause in unilaterally withdrawing
from tentative agreements and concessions made.’’ Arrow
Smith & Door Co., 281 NLRB 1108 fn. 2 (1980). Accord:
Natico, Inc., 302 NLRB 668 (1991).
As I have found supra, by virtue of its December 16 final
contract proposal Respondent reneged on its tentative agree-
ment that licensed vocational nurses would be included in
the contractual bargaining unit; reneged on its tentative
agreement that the seniority of the unit employees would be
dated from the date they first began to work at the facility;
reneged on its tentative agreement that employees’ seniority
for purposes of vacation pay would be computed by using
the employees’ original dates of hire; and, submitted regres-
sive proposals to take the place of the aforesaid tentative
agreements it had reached with the Union.
Respondent failed to call a single witness to explain why
in its December 16 final contract proposal it repudiated the
above-described tentative agreements and substituted regres-
sive proposals. Nor did Respondent explain to the Union its
reason for engaging in this conduct. I therefore find Re-
spondent has failed to establish it had good cause for with-
drawing from the above-described tentative agreements and
substituting regressive proposals.9 Accordingly, I further find
that Respondent, by withdrawing from its tentative agree-
ments with the Union, bargained in bad faith with the intent
of obstructing meaningful bargaining and of frustrating the
negotiation of a collective-bargaining agreement, in violation
of Section 8(a)(5) and (1) of the Act.
I also find Respondent violated Section 8(a)(5) and (1) of
the Act by withdrawing its bargaining proposals which pro-
vided that the parties share the cost of an arbitrator, that Re-
spondent pay 50 percent of employees’ health and dental in-
surance plan costs after 500 hours of work during their first
year of employment, that employees be allowed to pay for
their dependents’ insurance coverage under Respondent’s
253DRIFTWOOD CONVALESCENT HOSPITAL
health and dental plans, and by substituting regressive pro-
posals in their place, in the December 16 final contract pro-
posal. The context in which Respondent engaged in the
aforesaid conduct establishes it was done with the intent to
obstruct meaningful bargaining and to frustrate the making of
a contract. For, as I have found supra, Respondent engaged
in this conduct at the same time it was obstructing and frus-
trating the bargaining process, in violation of the Act, by
withdrawing from several tentative agreements previously
reached with the Union and in their place substituting more
regressive proposals. Under the totality of these cir-
cumstances, and in view of Respondent’s failure to explain
its motive for withdrawing the aforesaid bargaining proposals
and substituting regressive proposals, I find Respondent’s
motivation was to obstruct meaningful bargaining and to
frustrate the making of a collective-bargaining agreement. I
further find that by engaging in this conduct Respondent bar-
gained in bad faith in violation of Section 8(a)(5) and (1) of
the Act.
Lastly, I find Respondent violated Section 8(a)(5) and (1)
of the Act by withdrawing its December 16 final contract
proposal in order to frustrate bargaining and to prevent the
negotiation of a collective-bargaining contract. My reasons
for this finding are as follows.
Respondent imposed such an unreasonably short time limit
on the Union’s acceptance of the Respondent’s December 16
final contract proposal, that when this factor is considered
with the other factors discussed infra, it warrants the infer-
ence that the deadline was designed by Respondent for the
purpose of frustrating the negotiation of a contract. Respond-
ent initially imposed a 9-day deadline, ending on Christmas
morning, and when the Union protested it could not meet
this deadline because it did not provide the Union with suffi-
cient time to review the final contract proposal and arrange
for its members to attend a ratification meeting, the Respond-
ent reluctantly gave the Union another 7 days, until New
Year’s Day, to accept the final contract proposal. In other
words, Respondent ultimately imposed a 16-day time limit
on the Union’s acceptance of the final contract proposal,
even though it must have known the following: the Union
would have to review and consider whether the Respondent’s
final contract proposal was satisfactory to the Union and the
employees it represented; the Union would have to arrange
for a meeting of its members employed by the Respondent
for the purpose of reviewing the proposal with them and to
conduct a ratification vote; and, the Union would have to en-
gage in the aforesaid conduct during the Christmas–New
Year’s holiday season, when it is not uncommon for people
to take time off from work or have their minds on less seri-
ous matters than their work or work-related matters. In fact,
when Union Representative Bunton notified Respondent’s at-
torney that the Union was unable to comply with Respond-
ent’s New Year’s Day deadline, Bunton explained to the Re-
spondent’s attorney that she had been absent from work for
several days during the week of Christmas and that the
Union’s negotiator Jacobs and one of the employees on the
Union’s negotiating committee were still on their vacations.
Nonetheless, Respondent refused to budge from its 16-day
deadline. I recognize that an employer has a legitimate inter-
est for imposing a deadline on a union’s acceptance of a con-
tract proposal. However, under the circumstances of this
case, the deadline imposed by the Respondent was unreason-
ably short and when this factor is considered with the other
factors discussed infra, it warrants the inference that the
deadline was designed by the Respondent for the purpose of
obstructing meaningful bargaining and to frustrate the nego-
tiation of a collective-bargaining contract.
Respondent’s reasons for imposing a 16-day time limit on
the Union’s acceptance of the Respondent’s December 16
final contract proposal, despite the Union’s objection, are so
unsatisfactory, that when considered in the context of the
other factors discussed herein, it warrants the inference the
deadline was designed by Respondent to frustrate the nego-
tiation of a contract. Respondent failed to call a single wit-
ness to explain why it imposed the 16-day deadline and re-
fused the Union’s request that it be extended. In other words,
Respondent failed to present evidence of the existence of a
legitimate employer interest in imposing a 16-day limit on
the Union’s acceptance of the Respondent’s final contract
proposal.
Respondent’s principal justification, as set forth in its at-
torney’s letters to the Union, was that Respondent thought
the 16 days gave the Union ample time to review and submit
Respondent’s contract proposal to the Union’s members for
ratification, because, as explained to the Union by Respond-
ent’s attorney in his December 27 letter: ‘‘[a]s I indicated in
my letter on December 20, 1991, the Union had requested
the employer’s final proposal as early as December 3, 1991,
and therefore should have anticipated its presentation and
been prepared to contact the membership and put this matter
to a vote.’’ This statement cannot be taken seriously and bor-
ders on the frivolous, because there is no evidence that when
the Union on December 3 asked Respondent to submit a
final contract proposal, that Respondent indicated it would
comply with this request or that it informed the Union of the
approximate date on which the Union could reasonably ex-
pect to receive the proposal. Nor is there evidence that the
Union knew of the contents of Respondent’s final contract
proposal before its receipt, or that prior to its receipt the
Union should have reasonably known of its contents. In fact,
as described supra, it is undisputed that Respondent’s De-
cember 16 final contract proposal differed from its prior bar-
gaining position in at least several significant respects, which
Respondent must have realized would require the Union’s
careful consideration. Thus, there is a lack of evidence to
support a finding that Respondent reasonably believed the
Union should have taken steps several days prior to its re-
ceipt of Respondent’s December 16 final contract proposal to
arrange for the proposal’s ratification by the Union’s mem-
bership. Absent such evidence, the statement of the Respond-
ent’s attorney to the Union that Respondent believed that the
Union should have taken such steps cannot be taken seri-
ously and borders on the frivolous.
Equally frivolous was Respondent’s statement to the
Union that it was not Respondent’s problem that the Union’s
negotiator Jacobs and one of the employees on the Union’s
negotiating committee were on vacation; a statement made
by Respondent’s attorney to the Union in response to the
Union’s explanation that the reason it was unable to comply
with Respondent’s New Year’s Day deadline was that Jacobs
and one of the employees on the Union’s negotiation com-
mittee were still on their vacations. I find that because the
events herein occurred in the midst of the Christmas–New
Year’s holiday season it should have been understandable to
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent that people might be on vacation during the pe-
riod that it was demanding the Union to act upon Respond-
ent’s final contract proposal. Also, since Jacobs was the
Union’s negotiator, it should likewise have been understand-
able to Respondent why the Union and the employees it rep-
resented would be hesitant to act upon Respondent’s final
contract proposal without Jacobs’ advice. Lastly, other than
its attorney’s statement to the Union that since the Union had
requested a final proposal on December 3, it should at that
time have anticipated its presentation and prepared for a rati-
fication meeting, Respondent did not explain why it refused
to accept what appeared to have been a perfectly legitimate
reason for the Union to ask for a short extension of Respond-
ent’s New Year’s Day deadline for the Union’s acceptance
of the Respondent’s final contract offer. I recognize that in
its posthearing brief Respondent’s attorney indicates that the
reason Respondent discounted the importance of Jacobs was
that it believed Union Representative Bunton was well quali-
fied to act in his place. I have not considered this argument
because no one from Respondent testified that this was what
prompted Respondent to require the Union to act on Re-
spondent’s final contract proposal, even though it knew the
Union’s negotiator was still on vacation. As I have found
supra, Respondent failed to present evidence of a legitimate
employer interest in imposing such a short time limit on the
Union’s acceptance of Respondent’s final contract proposal,
especially considering that the proposal was submitted at the
start of the Christmas–New Year’s holiday season and Re-
spondent knew that on account of the holidays the Union’s
negotiator was absent from work on vacation.
Respondent, as I have found supra, by virtue of the terms
of its December 16 final contract proposal repudiated several
tentative agreements reached previously with the Union and
in their place substituted regressive contract proposals, and
also withdrew two of its bargaining proposals made pre-
viously to the Union and substituted in their place regressive
proposals, and, as I have also found supra, engaged in this
conduct for the purpose of obstructing meaningful bargaining
and to frustrate the negotiation of a contract, in violation of
Section 8(a)(5) and (1) of the Act. Therefore, when the dead-
line which Respondent imposed on the Union’s acceptance
of the Respondent’s December 16 final contract proposal is
viewed in this context and in the context of the other factors
discussed supra, it warrants the inference that Respondent’s
motive for imposing the deadline was to obstruct meaningful
bargaining and to frustrate the negotiation of a contract.
In summation, when viewed in their totality, the aforesaid
factors—the unreasonably short time limit imposed by the
Respondent on the Union’s acceptance of the Respondent’s
December 16 final contract proposal, the lack of evidence of
a legitimate employer interest for Respondent’s imposition of
this time limit, the failure to withstand scrutiny of the rea-
sons Respondent gave to the Union to justify its imposition
of the time limit, and the inclusion in the December 16 final
contract proposal of provisions which were designed to ob-
struct meaningful bargaining and to frustrate the negotiation
of a contract—establish that when Respondent withdrew its
final contract proposal, after the Union failed to meet Re-
spondent’s deadline, that the withdrawal of the proposal was
motivated by Respondent’s desire to obstruct meaningful bar-
gaining and to frustrate the negotiation of a collective-bar-
gaining contract. I therefore find that by withdrawing its De-
cember 16 final contract proposal Respondent failed and re-
fused to bargain in good faith in violation of Section 8(a)(5)
and (1) of the Act. Northwest Pipe & Casing Co., 300
NLRB 726 (1990).
CONCLUSIONS OF LAW
1. Respondent 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. All licensed vocational nurses, nurse aides, house-
keeping, laundry, cook, dietary aide, and rehabilitation aide
employees employed by Respondent at its Modesto, Califor-
nia facility, excluding all other employees, including reg-
istered nurses, office clerical employees, activity workers,
guards, administrative personnel, assistant supervisors, and
supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material the Union has been and is now
the exclusive collective-bargaining representative of the em-
ployees employed in the aforesaid appropriate bargaining
unit, within the meaning of Section 9(a) of the Act.
5. By the terms of its December 16 final contract proposal,
Respondent reneged on tentative agreements previously
reached with the Union concerning the inclusion of the li-
censed vocational nurses in the bargaining unit, the definition
of employees’ seniority, and the eligibility of employees for
3 weeks of paid vacation, and engaged in this conduct for
the purpose of frustrating the negotiation of a collective-bar-
gaining agreement, thereby violating Section 8(a)(5) and (1)
of the Act.
6. By the terms of its December 16 final contract proposal,
Respondent withdrew its previous contract proposal to share
with the Union the cost of the arbitrator when a contract dis-
pute is submitted to arbitration and withdrew its previous
contract proposal to pay 50 percent of a unit employee’s
health and dental insurance costs during his/her first year of
employment after 500 hours of work and to allow unit em-
ployees to pay for their dependents’ coverage under both the
health and dental insurance plans, and substituted in their
place regressive proposals, and engaged in this conduct for
the purpose of frustrating the negotiation of a collective-bar-
gaining agreement, thereby violating Section 8(a)(5) and (1)
of the Act.
7. Respondent withdrew its December 16 final contract
proposal for the purpose of obstructing meaningful bargain-
ing and to frustrate the negotiation of a collective-bargaining
agreement, thereby violating Section 8(a)(5) and (1) of the
Act.
8. By engaging in the conduct set forth in paragraphs 5
through 7 above, Respondent engaged in over-all bad-faith
bargaining without a sincere desire to reach a collective-bar-
gaining agreement, thereby violating Section 8(a)(5) and (1)
of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act, I shall recommend that it be ordered to
255DRIFTWOOD CONVALESCENT HOSPITAL
10 I disagree with Respondent that ‘‘according to the court in
Mead, only where acceptance by the Union appears to be imminent
would the court require the Employer to put the final [offer] back
on the table for consideration by the union.’’ In Mead the court, as
did the Board, concluded that the respondent-employer violated Sec.
8(a)(5) and (1) of the Act by withdrawing its contract proposal
knowing that acceptance by the union was imminent. I can find
nothing, however, in the court’s opinion which would warrant the
conclusion that the court was implying that it is only in cases where
an employer withdraws its final contract proposal after a union’s ac-
ceptance appears imminent that it would be appropriate for the
Board to restore the status quo ante by requiring the employer to re-
instate its final contract offer.
11 Although there is no certainty that the Union would have ac-
cepted the Respondent’s final contract proposal on January 13, 1992,
any uncertainty must be resolved against Respondent as the wrong-
doer who is responsible for the uncertainty. See NLRB v. Remington
Rand, Inc., 94 F.2d 862, 872 (2d Cir. 1938). See also Bigelow v.
RKO Pictures, Inc., 327 U.S. 251, 256 (1946) (‘‘[t]he most elemen-
tary conceptions of justice and public policy require that the wrong-
doer shall bear the risk of the uncertainty which his own wrong has
created’’); Leeds & Northrup Co. v. NLRB, 391 F.2d 874, 880 (3d
Cir. 1968) (where there was uncertainty whether union would have
been able to resist employer’s demand to decrease employees’ share
of profits, had the employer not unlawfully refused to bargain, ‘‘the
Board can hardly be said to be effectuating policies beyond the pur-
poses of the Act by resolving the doubt against the party who vio-
lated the Act’’).
12 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
cease and desist and that it take certain affirmative action
necessary to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act by withdrawing its December 16, 1991, final
contract proposal in order to frustrate the negotiation of a
collective-bargaining agreement, I shall recommend an order
which, among other things, requires Respondent to reinstate
its December 16, 1991, final contract proposal for a reason-
able time and if the Union notifies the Respondent within
this reasonable time that the December 16 offer is accepted,
Respondent shall be required to sign a collective-bargaining
agreement containing all of the terms of that offer and to
give the agreement retroactive effect. Northwest Pipe & Cas-
ing Co., supra. See also Mead Corp., 256 NLRB 686, 686–
687 (1981), enfd. 97 F.2d 1013 (11th Cir. 1983).10
Having found that for the unlawful purpose of frustrating
the negotiation of a collective-bargaining agreement, Re-
spondent, by the terms of its December 16 final contract pro-
posal, reneged on tentative agreements previously reached
with the Union, and having found that for the same unlawful
reason, Respondent, by the terms of its December 16 final
contract proposal, also withdrew previous contract proposals,
and having further found that Respondent engaged in all of
this unlawful conduct, in the context of the withdrawal of its
December 16 final contract offer, for the unlawful purpose
of frustrating the negotiation of a collective-bargaining agree-
ment, I am of the opinion that restoration of the status quo
ante would best be achieved not only by requiring Respond-
ent to reinstate its December 16 final contract offer for a rea-
sonable time, but by also requiring Respondent to include as
a part of the reinstated December 16 final contract offer the
above-described tentative agreements and proposals unlaw-
fully omitted from its December 16 final contract offer.
I have considered that the duration of the collective-bar-
gaining agreement being proposed by the Respondent’s De-
cember 16 final contract proposal was dependent on the date
of the Union’s acceptance. In this respect, article 34 of the
final proposal provides in pertinent part:
This Agreement shall be binding from ll 1991,
for a period of one (1) year, up to and including ll
1992. It shall be considered as renewed from year to
year thereafter unless either party hereto shall give writ-
ten notice to the other of their desire to have the same
modified, and such notice must be given at least ninety
(90) days prior to the date of termination. . . .
Since it was Respondent’s unlawful withdrawal of
the December 16 final contract proposal which pre-
cluded the Union’s acceptance of the proposal on Janu-
ary 13, 1992, the date of the scheduled meeting of the
Union’s members to vote on the proposal, I shall rec-
ommend, consistent with the terms of the final pro-
posal, that the agreement resulting from the Union’s ac-
ceptance of the proposal be binding from January 13,
1992, for a period of 1 year up to and including Janu-
ary 13, 1993.11
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Valley West Health Center, Inc. d/b/a
Driftwood Convalescent Hospital a/k/a Scenic Circle Care
Center, Modesto, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith concern-
ing wages, hours, and other conditions of employment with
the Union, as the exclusive bargaining representative of the
employees in the following appropriate unit:
All licensed vocational nurses, nurse aides, house-
keeping, laundry, cook, dietary aide, and rehabilitation
aide employees employed by Respondent at its Mo-
desto, California, facility, excluding all other employ-
ees, including registered nurses, office clerical employ-
ees, activity workers, guards, administrative personnel,
assistant supervisors, and supervisors as defined in the
Act.
(b) Reneging on tentative agreements which we reach with
the Union during collective-bargaining negotiations or with-
drawing our collective-bargaining proposals in order to frus-
trate collective bargaining or to prevent the negotiation of a
collective-bargaining agreement.
(c) 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) On request, bargain in good faith with the Union, as
the exclusive bargaining representative of its employees in
the above-described appropriate bargaining unit with respect
256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
to wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Reinstate its December 16, 1991 final contract proposal
and afford the Union a reasonable period of time to accept
that offer or to make counterproposals in light of changed
circumstances, and, if the Union accepts the offer within said
reasonable time, sign a contract containing all of the terms
of that offer and give the agreement retroactive effect.
(c) Include in its reinstated December 16 final contract
offer the tentative agreements previously reached with the
Union concerning the inclusion of the licensed vocational
nurses in the bargaining unit, concerning the definition of
employees’ seniority, and concerning the eligibility of em-
ployees for 3 weeks of paid vacation.
(d) Include in its reinstated December 16, 1991 final con-
tract offer its proposal made previously to the Union to share
with the Union the cost of the arbitrator when a contract dis-
pute is submitted to arbitration.
(e) Include in its reinstated December 16, 1991 final con-
tract offer its proposal made previously to the Union to pay
50 percent of a unit employee’s health and dental insurance
costs during his/her first year of employment, after 500 hours
of work, and to allow unit employees to pay for their de-
pendents’ coverage under the health and dental insurance
plans.
(f) Post at its Modesto, California facility copies of the at-
tached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, 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.