Fairfield Nursing Home

National Labor Relations Board - Board Decisions

Apr 6, 1977

228 N.L.R.B. 1208 (N.L.R.B. 1977)

1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fairfield Nursing Home and Local 1115, Joint Board,
Nursing Home and Hospital Employees Division.
Case 29-CA-5049 (formerly Case 2-CA-14318)
April 6, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On November 24, 1976, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a brief, and the Charging Party filed cross-
exceptions and a supporting memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusion) of the Administrative Law Judge2 and
to adopt his recommended Order.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATz, Administrative Law Judge: A hearing
was held in the above matter on September 13, 1976, in
Brooklyn, New York, upon a charge filed on June 1, 1976,
and a complaint issued on July 16, 1976 , alleging that
Respondent violated Section 8 (a)(5) and (1) of the National
Labor Relations Act, as amended, by refusing to pay wage
increases and holiday benefits required under subsisting
contracts covering employees in the appropriate bargaining
units. In its duly filed answer, Respondent denied that any
unfair labor practices were committed, and affirmatively
alleged separate defenses to the effect that (1) the
complaint in this case rests, at best, upon a simple breach
of contract as to which the Board should not assert
jurisdiction, or (2) alternatively, the Board, pursuant to the
doctrine in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971), should defer the issues
raised to contractual grievance arbitration provisions.
After close of the hearing, briefs were filed on behalf of
the Charging Party and Respondent.
Upon the entire record in this proceeding, including
consideration of the posthearing briefs, and observation of
the witness while testifying, I make the following:
FINDINGS OF FACT
1. JURISDICTION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Fairfield Nursing
Home, Bronx, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
i Chairman Murphy does not adopt the Administrative Law Judge's In. 6
concerning the present policy of the Board with respect to Collyer Insulated
Wire, a Gulf and Western Systems Co, 192 NLRB 837 (1971 ), or the viability
of the view expressed in Oak Cliff-Golman Baking Company, 207 NLRB
1063 (1973), by former Chairman Miller Chairman Murphy agrees that the
matter here was not deferrable under Collyer solely because Respondent's
conduct constituted a basic repudiation of the bargaining relationship and
struck at the heart of the collective-bargaining process. See, however, Roy
Robinson , Inc d/b/a Roy Robinson Chevrolet, 228 NLRB 829 (1977),
and General American Transportation Corporation, 228 NLRB 808
(1977), in which the Chairman has set forth her position on deferral under
Collyer
2 In adopting the Administrative Law Judge 's Decision , we do not adopt
either his conclusions with regard to Board policy concerning the
parameters of Collyer Insulated Wire, supra, or the positions he has directly
or indirectly ascribed to Board Members with respect thereto In addition,
Members Fanning and Jenkins do not adopt his findings that the grounds
on which former Chairman Miller relied in Oak Clff-Golman Baking Co.,
supra, for refusing to defer to arbitration pursuant to Collyer, is "viable
precedent " and diapositive of the Collyer issue herein Instead, consistent
with their steadfast declination to subscribe to the policy enunicated in
Collyer for the reasons expressed by them in Collyer and subsequent cases,
including Oak CliffGolman, they would not defer to arbitration here
228 NLRB No. 165
Respondent is a partnership with a principal place of
business located in the Bronx, State of New York, where it
operates a nursing home and health-related facility. During
the calendar year preceding issuance of the complaint, a
representative period, Respondent in the course and
conduct of said operation derived revenues in excess of
$100,000, and purchased goods and materials valued in
excess of $50,000 which were transported and delivered to
the aforesaid facility directly in interstate commerce from
States of the United States other than the State of New
York.
The complaint alleges , the answer admits, and I find
that, at all times material herein, Respondent is, and has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
Local 1115, Joint Board, Nursing Home and Hospital
Employees Division, is, and at all times material herein has
been , a labor organization within the meaning of Section
2(5) of the Act.
in. THE ALLEGED UNFAIR LABOR PRACTICES
The issues in this case, under Section 8(a)(5) and 8(d) of
the Act, emerge from an employer's admitted refusal to pay
wage increases and holiday benefits set forth in subsisting
collective-bargaining agreements . There is no claim or
evidence that this conduct, which arises out of a long,
apparently harmonious bargaining relationship, was
FAIRFIELD NURSING HOME
prompted by discriminatory considerations, or anything
other than an asserted inability to pay. Essentially the case
turns on a policy question relative to whether, and under
what circumstances, the Board should invoke its remedial
machinery with respect to noncompliances with the terms
of a collective-bargaining agreement , a question recently
considered by the Board in Oak Cli f-Golman Baking
Company, 207 NLRB 1063 (1973).
By way of background, it is noted that Respondent has
bargained with the Union for a number of years as
exclusive representative of its employees in four separate
collective-bargaining units, consisting of blue collar em-
ployees, registered nurses, licensed practical nurses, and
nursing supervisors.[
Respondent's facility provides services to patients, some
75 percent of whom are covered by medicaid. At all times
material , operating costs , including labor, borne with
respect to medicaid patients, have been subsidized by
Federal and state reimbursement to Respondent. There is
no dispute that these reimbursements , at least up to 1975,
were paid by the State of New York and adjusted upward
to cover increases in labor costs.
In 1975, the subsisting collective-bargaining agreements
covering Respondent's employees called for a general wage
increase to be effective in January of that year. Those
increases were not paid by Respondent when due, and to
say the least, the issue raised thereby became the subject of
discussions between the Union and Respondent during the
ensuing months .2 Also during 1975, negotiations began
under a wage reopener clause.
On October 6, 1975, an agreement was reached with
respect to both the future work terms and the past
nonpayments by Respondent. Pursuant thereto, Respon-
dent agreed to pay retroactive increases dating back to
January 1, 1975, with the parties also executing separate 4-
year renewal agreements in the separate units, with
effective dates of January 1, 1976. The new agreements
called for, inter alia, general increases to be effective on
January 1, 1976, payable on January 7, 1976, and increased
holiday benefits.
During negotiations preliminary to the agreement of
October 6, 1975, the question of state reimbursement, as
had been true during bargaining over the past 6 years, was
raised by Respondent on a regular basis. Past failures to
honor obligations under the contracts by the Employer
were attributed to substantially delayed receipts from the
State. Thus, while the Union sought new agreements, with
"catch-up" increases for Respondent's employees, the
Employer resisted, indicating that its difficulties in obtain-
ing reimbursement from the State impaired its ability to
meet past obligations and representing that it could not
afford additional benefits without substantially increased
i In the course of the hearing, the parties stipulated that nursing
supervisors do not possess statutory indicia of supervisory authority within
the meaning of Sec 2(11) of the Act.
2 During 1975, the reimbursements from the State were delayed
substantially Respondent did not receive payment for wage adjustments
made in 1974 until October 1975
Respondent's plight during 1975 was not limited to its inability to pay the
increases due on January 1, 1975. Thus , in either August or September 1975,
Respondent had insufficient cash to meet a current payroll With the
cooperation of the Union, the Employer was able to borrow the money to
meet the wage obligation without any disturbance at the home
1209
reimbursement from the State .3 Indeed, the Employer,
consistent with the concern generated by its recent
experience , sought contractual protection whereby any
future increases would be conditioned upon receipt of
reimbursement . The Union successfully resisted inclusion
of any such provision . Nonetheless , according to the
testimony of George Molloy , Respondent's administrator,
new 4-year contracts were executed with general increases,
on assurances from the Union that state money would be
made available .4
By mailgram dated January 2, 1976, the Union was
notified by Respondent as follows:
WE ARE OBLIGED TO ADVISE YOU REGRETFULLY THAT
THE FAIRFIELD NURSING HOME WILL BE UNABLE TO MEET
ITS COMMITMENT TO PAY AN ACROSS-THE-BOARD WAGE
INCREASE OF $12 A WEEK TO ITS EMPLOYEES WHICH WAS
TO HAVE BEEN PAID AS OF JANUARY 1, 1976, AND WOULD
HAVE BEEN DUE ON JANUARY 7, 1976, THE PAYROLL DAY,
OR ANY INCREASE WHATSOEVER IN THE LIGHT OF
GOVERNOR CAREY'S PROPOSED CHANGE IN THE
REIMBURSEMENT FOR MEDICAID BY MEANS OF THE
INSTITUTION OF A FREEZE ON PRESENT RATES TO NURSING
HOMES. WE WILL BE UNABLE TO MAKE ANY FURTHER
PAYMENTS WHATSOEVER UNTIL WE KNOW WHAT RATE
THE STATE WILL FIX FOR FAIRFIELD WITH RESPECT TO
MEDICAID AND THAT MAY NOT BE OBTAINABLE FOR
POSSIBLY ANOTHER THREE MONTHS.
The existence of the freeze referred to in the mailgram
was confirmed by a letter , dated January 9, 1976, from
Donald B. Davidoff, associate director, State of New York,
Department of Health . That letter , in material part, states
as follows:
Dear Mr. Molloy:
There are two aspects to 1976 Medicaid reimburse-
ment which will have a dramatic effect on all health
facilities. First, we will no longer recognize rate appeals
based on labor increases. That policy has been
implemented by an amendment to part 86 of the
Commissioner's Rules. It is in effect now. Therefore,
your contract with Local 1115, calling for increased
benefits will not be honored on an appeal basis. In
addition, it is likely that the Legislature will enact an
absolute freeze on nursing home rates for 1976 and the
first part of 1977.
Your own words indicate that you have negotiated a
contract which calls for "enormously increased wages
and other fringe benefits." It is precisely this sort of
situation which our new rules have been designed to
avoid. We fail to see how the granting of enormous
3 The amount of the medicaid subsidy is determined by an established
formula utilizing the Employer's 1972 cost experience as the base, which is
upped pursuant to a preset inflation factor. When costs exceed those to be
reimbursed under this formula, the State may allow exceptions on a appeal
by the employer. Until 1975, the State honored such appeals by Respondent
on every occasion
4 Although Molloy's testimony is somewhat contradictory on the
question of whether a formal proposal was made to the Union conditioning
payment of increases upon the availability of reimbursement, I find that
such proposals were made by Respondent and rejected by the Union
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases will directly effect the upgrading in the
quality of care rendered. Since public funds are
obviously limited, major constraints must be placed
upon all users of public funds, including health
facilities. The financial position of the State and its
political subdivisions cannot permit the continued
increase in health care costs. All concerned will be
required to live substantially at present cost levels,
while finding newer and in some cases more efficient
ways of rendering care.
Sincerely yours,
/s/Donald B. Davidoff
Donald B. Davidoff
Associate Director
As of the date of the hearing, Respondent had not paid
the general increases due on January 1, 1976, and the
additional holiday benefits.
In its answer, Respondent raised a number of affirmative
defenses, all calculated to prevent Board intervention in
this dispute under the terms of the collective-bargaining
agreements . Thus, it is urged that the subject matter raised
in the complaint ought be deferred to arbitration pursuant
to the Board's policy in Collyer Insulated Wire, 192 NLRB
837 (1971), and also that, since the subject matter of the
complaint relates exclusively to Respondent's violation of a
collective-bargaining agreement , the dispute does not
involve an unfair labor practice but, at best, a simple
breach of contract, beyond the remedial authority of the
Board. The posthearing brief of Respondent, in renewing
these arguments , asserts in the alternative that, if the merits
are to be considered, nonperformance under the contract
should be excused either on the basis of impossibility of
performance, or on the ground that the agreement was
induced by misrepresentations on the part of the Union.
In treating with the defenses, I agree with the observation
of Respondent that, viewing the evidence in the light most
favorable to the Charging Party and the General Counsel,
any unfair labor practice fmding in this case would
exclusively derive from a breach of contract. It is also true
that, throughout its history, the Board has not had the
resources , or interest, or possibly not even the authonty,5
to implement Section 8(d) of the Act to its full, literal
scope, and thereby to provide an additional forum for the
redress of simple contract violations. On the other hand,
the Board has recognized that an employer's failure to
abide by duly negotiated wage provisions constitutes a
somewhat extraordinary breach which threatens the very
existence of the bargaining relationship, and hence war-
rants redress under the Act.
5 In 1947, during consideration of the Taft-Hartley amendments to the
Act, a provision was dropped in conference which would have made it an
unfair labor practice for an employer "to violate" the terms of a collective-
bargaining agreement 80th Cong Ist seas S 1126, sec 8(a)6, 8 (b)5 S Rept.
105, pp 20-21. The conference report states as follows-
Once parties have made a collective -bargaining contract , the enforce-
ment of that contract should be left to the usual processees of the law
and not to the National Labor Relations Board . H R Conference
Report 510, 80th Cong 1st secs 42 (1947).
6 The expression of policy limiting Collyer to unfair labor practice issues
With respect to the latter, a Board panel (Chairman
Miller, Members Fanning and Jenkins) first articulated its
rationale for invoking its process against such breaches in
Oak C1fGolman Baking Company, 207 NLRB 1063
(1973). That case arose out of an employer's reduction of
wage rates below levels required by a governing collective-
bargaining agreement, at a time when the employer's
business faced "a dire financial crisis." The decision to
effect the wage cuts was made by the employer as an
alternative to closing its operation and thereby losing good
employees. When the union refused to agree to the cuts, the
employer implemented its plan without union assent.
There, as here, the employer challenged the Board's
authority to remedy contract violations, and also urged
deferral to arbitration. These assertions were rejected.
The grounds for rejecting these defenses are equally
applicable on the facts presented here. Thus, with respect
to the Collyer issue, here , as in Oak Cliff-Golman, there is
.,no room for any finding, that the contract's terms even
arguably authorized the action taken by Respondent," and,
"the question of whether Respondent's action was in
violation of its statutory obligations does not turn on any
underlying dispute over the meaning of the contract
terms."6
With respect to the claim that the alleged misconduct, at
most, constituted a breach of contract, the Board in
rejecting that defense, stated as follows:
It cannot be gainsaid that an employer's decision in
midterm of a contract to pay its employees for the
remainder of the contract's terms at wage rates below
those provided in the collective-bargaining agreement
affects what is perhaps the most important element of
the many in the employment relationship which
Congress remitted to the mandatory process of collec-
tive bargaining under the Act. Because so substantial a
portion of the remaining aspects of a bargaining
contract are dependent upon the wage rate provision, it
seems obvious that a clear repudiation of the contract's
wage provision is not just a mere breach of the contract,
but amounts, as a practical matter, to the striking of a
death blow to the contract as a whole, and is thus, in
reality, a basic repudiation of the bargaining relation-
ship. We believe the jurisdiction granted us under the
Act clearly encompasses not only the authority but the
obligation to protect the statutory process of collective
bargaining against conduct so centrally disruptive to
one of its principle functions - the establishment and
maintenance of a viable agreement on wages.?
The Board's holding in Oak C1/Golman is broadly
expressed, and seemingly free of exceptions. In finding the
involving a real or genuine question of interpretation was expressed in Oak
Cli f-Golman solely by Chairman Miller . However, it is noted , parenthetical-
ly, that the other participants on that panel, Members Fanning and Jenkins,
dissented from the majority 's position in Collyer, and have consistently
opposed the deferral policy. It does not appear that the three members of
the Board presently constituting the Collyer majority (Chairman Murphy
and Members Penello and Walther) have rejected Chairman Miller's
position as it appears in Oak Cliff-Golman . Accordingly , Chairman Miller's
independently expressed view is regarded as viable precedent in the face of
the precariously close division among the Board members
7 207 NLRB at 1064
FAIRFIELD NURSING HOME
violation, the Board discounted as irrelevant the fact that
the employer acted upon economic necessity and in good
faith, with its sole motive and intent being the preservation
of jobs. Accordingly, that decision is dispositive of both
Respondent's contention based on Collyer, and that based
on the claim that the operative unfair labor practice
constitutes a contract violation .8
Also unpersuasive are Respondent's defenses, which go
to the merits, whereby it urges that its failure to grant the
increases as scheduled be excused. Firstly, on the facts
presented, the doctrine of impossibility of performance
does not apply. That concept is not to be invoked to relieve
performance of a contractual obligation upon a contingen-
cy where, on entry, that very risk was known, but not
regulated by the final accord reached. The discharge of
contractual obligations knowingly made is not excused
simply because, as here, subsequent developments bear out
an obliged party's concern which had been previously
expressed during the negotiations, and which acknowledge
that he may have made a bad deal. On the evidence
presented here, this is just such a situation. The issue of
medicaid reimbursement was raised at each of the
bargaining sessions leading to the settlement of October 6,
1975. I am convinced, despite the somewhat shifting
testimony of Molloy on this subject, that Respondent
sought protection in those negotiations from the possibility
that reimbursement would not cover the increases sought
by the Union, that the Union refused to include such a
provision in the contracts, and that Respondent assented to
the final agreements knowing that it lacked such protec-
tion.
Although Respondent also claims that such assent was
induced through material misrepresentations by the Union,
here again I find no merit in Respondent's position. I have
no reason to disbelieve the uncontradicted assertions by
Molloy that in September 1975, a month before the final
agreement of October 6, Hyman Juvall, the Union's
secretary-treasurer, represented that he had received
information from a third party; namely, a representative of
a multiemployer association9 with whom the Charging
Party bargains, to the effect that "money would be made
available to help finance huge expenses made in behalf of
pensions and prepaid legal as well as wages." Juvall also
promised to channel Molloy to a party in Albany who
would look more favorably on Respondent's effort to
obtain increased reimbursements. At the final meeting on
October 6, Alex DeLaurentis, the Union's vice president,
accused Molloy of not talking to the right people in
Albany. Molloy admits that he had, by that time, already
talked to everybody in Albany, that he knew certain things
were about to happen concerning the medicaid reimburse-
ment policy of the State, but that he did not know
authoritatively what would occur. As I understand Mol-
loy's testimony, as of October 6 he had every reason to
believe and did fear that upward revision in state
8 There is no merit in the contention that Respondent has not
"terminated or modified" an agreement within the meaning of Sec. 8(d).
Respondent makes this claim based upon the fact that , while Respondent
has not paid the wage and holiday increases on a timely basis, it is perfectly
willing to do so if and when it receives medicaid reimbursement for their
cost The short answer here is that the refusal to honor the contractual
commitment at the scheduled time, without consent of the Union, is a
allotments would be as difficult to achieve in the immedi-
ate future as had been true in the recent past. Although
Juvall and DeLaurentis may have indicated at the
September 6 bargaining session that they had information
that the State would pick up the cost of the increases
sought by the Union, the circumstances indicate (1) that
Molloy at the time was aware that their information came
from secondary sources, (2) that there was no expression to
him indicating that this information was based on special
knowledge of an authoritative nature, and (3) that Molloy
was not reasonably subject to influence by such representa-
tions on the part of the Union. Considering the Union's
persistent opposition to contract language conditioning
increases upon medicaid reimbursement , and Molloy's
experience with the State during the period immediately
preceding the October 6 bargaining session, he knew, or
should have known, that representatives of the Union had
no intention and were in no position to give binding
assurances that the State would finance the increases
Respondent agreed to that day. In short, members of
Respondent's negotiating team knew, or should have
known, that the Union's representations were no more than
argumentative, self-serving puffing, obviously calculated to
foster Respondent's agreement to new contracts on its
terms.
In sum, there is no basis under generally accepted
contract principles, or Board law, which negates the unfair
labor practice evident upon this record.io
In so finding, the possibility that harsh consequences
might befall Respondent and the employees by issuance of
a conventional remedy in this case has not been over-
looked. Yet, I do not pass upon Respondent's claim that
adherence to the contract would produce insolvency for, as
indicated by Oak C1Golnian, supra, the economic impact
of compliance with agreed-upon wage standards does not
give rise to a material issue . That view is soundly
predicated both from the standpoint of the exercise of
legitimate Board authority and administrative consistency.
The damage to the bargaining process fomented by the
conduct in issue here is the same , regardless of whether it is
borne of an intent to increase profits at the expense of
employees, to hedge against declining profits, or, indeed, to
survive. Redress of such a violation ought not turn on
whether an employer has convinced the Board that it
makes no economic sense to issue a remedy . On the other
hand, Board efforts to protect the stability of the bargain-
ing process do not save harmless the beneficiaries of the
appropriate remedy. It is entirely possible that strict
compliance with the agreements in this case would be
counter to their economic interests as well. If so, produc-
tion of detailed and complete financial data to the
exclusive representative would enable the latter to assess
the situation and, if so inclined, to educate its membership
as to the need for adjustments. Only when confronted with
such evidence is a labor organization in a position to
modification of the agreement , and the Board has so held See Washington
Employers, Inc., Diamond Ice and Storage Co, et a!, 200 NLRB 825 (1972).
9 Employer members of that association operate nursing facilities
iO In my opinion, the fact that Respondent's labor costs are financed by
governmental agencies, rather than market revenues , furnishes no basis for a
departure from the controlling precedent
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise a reasoned judgment and to act on behalf of the
represented employees insofar as their interests are linked
with continued operation by their employer . In sum, if in
fact Respondent 's claim as to the onerous nature of the
instant agreements is genuine , the solution lies in reopened
negotiations in an atmosphere of total candor. Any
reformation of the contract must evolve through that
process, and not through Respondent 's prayers that the
Board withhold its jurisdiction . Since I have found that
valid , enforceable agreements were executed, in the final
analysis , under Oak Cliff-Golman, it is for the Union to
decide - not the employer or the Board - whether a
rollback in economic gains represents the most provident
course under the circumstances.
Based upon the foregoing , I find that Respondent
violated Section 8(a)(5) and ( 1) of the Act by unilaterally
refusing to make timely payment of the increases in wage
rates and holiday benefits as set forth in the applicable
bargaining agreements in derogation of its obligations
under Section 8(d) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this case , I make the following:
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. The following constitute units appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
(a) All blue collar employees , excluding registered
nurses, licensed practical nurses , nursing supervisors,
confidential and office and clerical employees , occupa-
tional therapists , supervisors , watchmen and guards.
(b) All licensed practical nurses , excluding all other
employees , registered nurses , nursing supervisors, occu-
pational therapists , confidential and office and clerical
employees , supervisors, watchmen and guards.
(c) All registered nurses , excluding all other employ-
ees, licensed practical nurses , nursing supervisors,
occupational therapists , confidential and office and
clerical employees , supervisors , watchmen and guards.
(d) All nursing supervisors , excluding all other
employees , registered nurses , licensed practical nurses,
occupational therapists , confidential and office and
clerical employees , supervisors , watchmen and guards.
4. At all times material herein the Union has been the
exclusive bargaining representative of the employees in the
aforesaid units within the meaning of Section 9 (a) of the
Act.
5. By refusing to pay a general wage increase and
holiday benefits at the time required under the terms of the
collective-bargaining agreements with the Union , Respon-
dent has engaged in , and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. 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 has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the purposes of the Act,
including the posting of the notice attached to this
Decision.
Having found that Respondent unlawfully failed to make
timely payment of wage increases and holiday benefits
under the terms of the collective-bargaining agreement, it
shall be recommended that Respondent be directed to
restore the wage rates in effect and holiday benefits in
accordance with said agreements , and to refrain from
refusing to comply with the terms thereof, without first
reaching agreement with the Union . Further, it shall be
recommended that Respondent make whole the employees
in the above-described appropriate units for any losses they
may have suffered as a result of the unilateral refusal to
pay benefits when due and to include thereon interest at
the rate of 6 percent per annum, as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), subject of
course to any agreement reached through further collec-
tive-bargaining negotiations.
The Charging Party urges that I recommend a variety of
special remedies. Insofar as it requests an order patterned
after that provided by the Board in Mackie's Roofing and
Sheet Metal Co., Inc., and Mackie's Roofing and Sheet Metal
Worker,ii such a remedy is regarded as entirely inappropri-
ate to effectuate statutory policies in the circumstances of
this case . Mackie's Roofing concerns not only a complete
repudiation of the contract, but also a withdrawal of
recognition, and an overall effort to avoid further dealings
with an exclusive representative. The remedies provided
there are clearly inapposite where, as here, the record
evidences far more narrow unfair labor practices, hardly
suggesting an intent or disposition on the part of Respon-
dent to rid itself of the Union. The Charging Party also
urges that a remedy in accordance with Tiidee Products,
Inc., 194 NLRB 1234 (1972), be recommended so as to
reimburse the Union for attorneys fees and litigation
expenses . The Board has repeatedly indicated that such
relief is only available where Respondent's defenses to the
unfair labor practice allegations are "frivolous." Board
precedent on which the instant complaint is predicated has
not received court approval. To brand a challenge to such
precedent as frivolous, and to award the special remedies
which attach to such a conclusion, is to obstruct the
congressional scheme, by imposing penalties on those
seeking judicial review concerning defenses which, upon
consideration by the courts, might well be regarded as
"debatable," if not meritorious defenses. The circumstan-
ces do not warrant the type of relief considered by the Board
in Tiidee Products, Inc., supra.
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this proceed-
11 221 NLRB277(1975)
FAIRFIELD NURSING HOME 1213
ing, and pursuant to Section 10(c) of the Act, the following
is hereby recommended:
ORDER 12
The Respondent, Fairfield Nursing Home, borough of
the Bronx , New York City, State of New York, its officers,
agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 1115,
Joint Board, Nursing Home, and Hospital Employees
Division, as the exclusive representative of its employees in
the following units with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment:
All blue collar employees, excluding registered
nurses, licensed practical nurses , nursing supervisors,
confidential and office and clerical employees, occupa-
tional therapists, supervisors, watchmen and guards.
All licensed practical nurses, excluding all other
employees, registered nurses , nursing supervisors, occu-
pational therapists, confidential and office and clerical
employees, supervisors, watchmen and guards.
All registered nurses, excluding all other employees,
registered nurses, licensed practical nurses , occupation-
al therapists, confidential and office and clerical
employees, supervisors, watchmen and guards.
All nursing supervisors, excluding all other employ-
ees, registered nurses , licensed practical nurses, occupa-
tional therapists, confidential and office and clerical
employees, supervisors, watchmen and guards.
(b) Refusing to comply with the terms of a subsisting
bargaining agreement by failing to pay general wage
increases and holiday benefits on a timely basis, or by
refusing to pay other negotiated terms and conditions of
employment to employees in the above-described appropri-
ate bargaining units during the effective term of the
contract covering said employees, without first reaching
agreement with the Union concerning such modifications.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act:
(a) Immediately put into effect the wage rates and
holiday pay benefits called for by the terms of the
collective-bargaining agreements covering employees in the
above-described units, and make said employees whole for
any loss of pay they may have suffered as a result of such
failure to provide such benefits on a timely basis, and
include interest thereon at the rate of 6 percent per annum
as set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), unless through good-faith negotiations the Respon-
dent and Union reach some other final accommodation.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its health facility in the borough of the Bronx,
New York City, New York, copies of the attached notice
marked "Appendix ." 13 Copies of said notice , on forms
provided by the Regional Director for Region 29, after
being duly signed by Respondent 's authorized representa-
tives, shall be posted immediately upon receipt thereof and
be maintained by Respondent 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 ensure
that said notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 29 in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
12 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
13 In the event the Board's 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act, and has
ordered us to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT refuse to bargain collectively with
Local 1115, Joint Board, Nursing Home and Hospital
Employees Provisions, as the exclusive representative
of employees in the units described below, concerning
rates of pay, wages , hours of employment, and other
conditions of employment. The units are:
All blue collar employees, excluding registered
nurses, licensed practical nurses, nursing supervi-
sors, confidential and office and clerical employ-
ees, occupational therapists, supervisors, watch-
men and guards.
All licensed practical nurses, excluding all
other employees, registered nurses, nursing super-
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visors, occupational therapists , confidential and
office and clerical employees , supervisors watch-
men and guards.
All registered nurses excluding all other
employees , registered nurses , licensed practical
nurses, occupational therapists, confidential and
office and clerical employees , supervisors, watch-
men and guards.
All nursing supervisors , excluding all other
employees , registered nurses , licensed practical
nurses, occupational therapists , confidential and
office and clerical employees , supervisors, watch-
men and guards.
WE WILL NOT refuse to pay wages, holiday benefits,
or any other term or condition of employment at the
time due under the terms of the collective-bargaining
agreements covering employees in the above -described
units , without first reaching agreement with the Union
on any modification of the terms of the contract.
WE WILL immediately provide the employees in the
above-described units the wages and benefits called for
by the contracts and make them whole for any loss of
pay they may have suffered as a result of our failure to
on a timely basis provide such benefits , unless through
good-faith negotiations the Union agrees to some other
formula for redressing our unlawful conduct.
FAIRFIELD NURSING HOME