Fountain Lodge, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 674 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fountain Lodge, Inc. and United Food and Commer-
cial Workers Union, Local No. 210
Patio Lodge, Inc. and United Food and Commercial
Workers Union, Local No. 210. Cases 15-CA-
8981 and 15-CA-8982
30 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon charges filed by the Union 17 May 1983,
the General Counsel of the National Labor Rela-
tions Board issued a consolidated complaint 24
June 1983 against Fountain Lodge, Inc. and Patio
Lodge, Inc., the Respondents, alleging that they
have violated Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act by refusing to meet with
the Union for collective-bargaining purposes and
insisting instead that bargaining take place by mail
exchange of proposals. On 5 July 1983 the Re-
spondents filed a joint answer admitting all the
complaint allegations except that alleging that their
conduct constituted an unfair labor practice.
On 28 July 1983 the General Counsel filed a
Motion for Summary Judgment. On 15 August
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondents did not file a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Proce-
dure provides that summary judgment shall be ren-
dered if the "pleadings, depositions, answers to in-
terrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving
party is entitled to a judgment as a matter of
law."' The Respondents have admitted the factual
allegations of the complaint. We conclude that the
General Counsel's Motion for Summary Judgment
should be granted because the uncontroverted facts
disclose that the Respondents have violated the
Act.
The Union has been the collective-bargaining
representative of a unit of certain nonprofessional
employees at Fountain Lodge's Baton Rouge, Lou-
isiana facility, and of a similar unit at Patio Lodge's
Baton Rouge, Louisiana facility, since 1 January
I See Lake Charles Memorial Hospital, 240 NLRB 1330 (1979).
269 NLRB No. 115
1981 and has been recognized as such since 15 June
1982.
Since about 1 November 1982 the Union has re-
quested the Respondents to meet and bargain col-
lectively with it as the representative of the em-
ployees in the units in question. The Respondents
have refused to meet with the Union, insisting that
bargaining initially take place by a mail exchange
of proposals. In their answer, the Respondents
state: "[The Respondents] acknowledge that they
have insisted on the preliminary bargaining being
done by the exchange of contract proposals until it
appears that the parties have reached some agree-
ments and are at a point where face to face meet-
ing would serve a purpose."
Section 8(d) of the Act defines "collectively bar-
gaining" as "the mutual obligation of the employer
and the representative of the employees to meet at
reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and condi-
tions of employment . . . ." The Board has held,
"[i]t is elementary that collective bargaining is most
effectively carried out by personal meetings and
conferences of parties at the bargaining table," and
that "[i]ndeed, the Act imposes this duty to meet."
U.S. Cold Storage Corp., 96 NLRB 1108 (1951),
enfd. 203 F.2d 924 (5th Cir. 1953). The Fifth Cir-
cuit, upholding the Board, noted that the Act's 8(d)
requirement "is not satisfied by merely inviting the
union to submit any proposition they have to make
in writing where either party seeks a personal con-
ference." 203 F.2d at 928. Accord: Alle Arecibo
Corp., 264 NLRB 1267, 1273 (1982), stating that an
employer "may not insist that negotiations be con-
ducted over the phone or by mail."
Because the Respondents admit their refusal to
meet and bargain with the Union, we find that they
have violated Section 8(a)(5) and (1) of the Act as
alleged. We therefore grant the General Counsel's
Motion for Summary Judgment.
FINDINGS OF FACT
1. JURISDICTION
The Respondents, both Louisiana corporations,
each operate nursing homes. During the 12 months
preceding the complaint's issuance, each derived
gross revenues in excess of $100,000, and each pur-
chased and received at its Baton Rouge, Louisiana
facility, products, goods, and materials valued in
excess of $10,000 from other enterprises located
within the State of Louisiana, each of which, in
turn, had received these products, goods, and mate-
rials directly from points outside the State of Lou-
isiana. We find that the Respondents are employers
engaged in commerce within the meaning of Sec-
674
FOUNTAIN LODGE, INC.
tion 2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
1I. ALLEGED UNFAIR LABOR PRACTICES
A. The Units and the Union's Representative
Status
The following employees of Fountain Lodge
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All aides, nursing assistants, orderlies, dietary
employees, housekeeping employees, ward
clerks, and maintenance employees employed
by Fountain at its Baton Rouge, Louisiana, fa-
cility; excluding all office clerical employees,
professional employees, registered nurses, li-
censed practial nurses, guards and supervisors
as defined in the Act.
The following employees of Patio Lodge consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full time and regular part-time employees
including all aides, orderlies, dietary employ-
ees, housekeeping employees, maintenance em-
ployees, ward clerks; excluding registered
nurses, licensed practical nurses, office clerical
employees, guards and supervisors as defined
in the Act.
Since about 1 January 1981 the Union has been the
designated exclusive collective-bargaining repre-
sentative of the employees in each unit above, and
the Respondents respectively have recognized the
Union as such since 15 June 1982.
B. The 8(a)(5) and (1) Violations
Since about 1 November 1982 the Respondents,
despite the Union's requests, have refused to meet
and bargain with the Union, as the exclusive repre-
sentative of the employees in the respective units
described in section II,A, for collective-bargaining
purposes and have insisted instead that bargaining
take place by mail exchange of proposals. Accord-
ingly, we find that the Respondents, by such con-
duct, have violated Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
By refusing, since about 1 November 1981, to
meet and bargain with the Union, upon the Union's
request, as the exclusive collective-bargaining rep-
resentative of employees in the respective units de-
scribed in section II,A, the Respondents have en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have violat-
ed Section 8(a)(5) and (1) of the Act, we shall
order it to cease and desist, to bargain on request
with the Union and, if an understanding is reached,
to embody the understanding in a signed agree-
ment.
ORDER
A. The National Labor Relations Board orders
that the Respondent, Fountain Lodge, Inc., Baton
Rouge, Louisiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain with United
Food and Commercial Workers Union, Local No.
210, as the exclusive bargaining representative of
the employees in the bargaining unit described in
paragraph 2(a) below.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, meet and bargain with the Union
as the exclusive representative of the employees in
the following appropriate unit on terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All aides, nursing assistants, orderlies, dietary
employees, housekeeping employees, ward
clerks, and maintenance employees employed
by Fountain at its Baton Rouge, Louisiana, fa-
cility; excluding all office clerical employees,
professional employees, registered nurses, li-
censed practial nurses, guards and supervisors
as defined in the Act.
(b) Post at its facility in Baton Rouge, Louisiana,
copies of the attached notice marked "Appendix
A."2 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
I 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. The National Labor Relations Board orders
that the Respondent, Patio Lodge, Inc., Baton
Rouge, Louisiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain with United
Food and Commercial Workers Union, Local No.
210, as the exclusive bargaining representative of
the employees in the bargaining unit described in
paragraph 2(a) below.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, meet and bargain with the Union
as the exclusive representative of the employees in
the following appropriate unit on terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All full time and regular part-time employees
including all aides, orderlies, dietary employ-
ees, housekeeping employees, maintenance em-
ployees, ward clerks; excluding registered
nurses, licensed practical nurses, office clerical
employees, guards and supervisors as defined
in the Act.
(b) Post at its facility in Baton Rouge, Louisiana,
copies of the attached notice marked "Appendix
B."3 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
I 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX A
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain with
United Food and Commercial Workers Union,
Local No. 210, as the exclusive representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, meet and bargain with the
Union and put in writing and sign any agreement
reached on terms and conditions of employment
for our employees in the bargaining unit:
All aides, nursing assistants, orderlies, dietary
employees, housekeeping employees, ward
clerks, and maintenance employees employed
by Fountain at its Baton Rouge, Louisiana, fa-
cility; excluding all office clerical employees,
professional employees, registered nurses, li-
censed practial nurses, guards and supervisors
as defined in the Act.
FOUNTAIN LODGE, INC.
APPENDIX B
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain with
United Food and Commercial Workers Union,
Local No. 210, as the exclusive representative of
the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
676
FOUNTAIN LODGE, INC.
WE WILL, on request, meet and bargain with the
Union and put in writing and sign any agreement
reached on terms and conditions of employment
for our employees in the bargaining unit:
All full time and regular part-time employees
including all aides, orderlies, dietary employ-
ees, housekeeping employees, maintenance em-
ployees, ward clerks; excluding registered
nurses, licensed practical nurses, office clerical
employees, guards and supervisors as defined
in the Act.
PATIO LODGE, INC.
677