Health Care Services Group

National Labor Relations Board - Board Decisions

Jun 13, 2000

331 N.L.R.B. 333 (N.L.R.B. 2000)

HEALTH CARE SERVICES GROUP 333
Health Care Services Group, Inc. and United Food
and Commercial Workers Union, Local 1444,
affiliated with United Food and Commerical
Workers International Union, AFL–CIO–CLC.
Case 30–CA–14061
June 13, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On June 10, 1998, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Acting
General Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.
The General Counsel has excepted to the judge’s fail-
ure to include in his Order a provision requiring the Re-
spondent to reinstate the tentative bargaining agreements
reached with the Union effective August 11, 1997. We
find merit in the General Counsel’s exceptions and, con-
sistent with Board precedent, shall modify the Order to
require the Respondent to reinstate the tentative agree-
ments to restore “the status quo between the parties be-
fore the unfair labor practices began.” NLRB v. Beverly
Health & Rehabilitation Services, 187 F.3d 769, 772
(8th Cir. 1999), enfg. New Madrid Nursing Center, 325
NLRB 897, 903 (1998).1
We shall also modify paragraphs 1(e) and 2(a) of the
Order to conform to the violations found and issue a
new notice to employees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Health
Care Services Group, Inc., Hinsdale, Illinois, its officers,
agents, successors, and assigns, shall, with regard to its
laundry and housekeeping employees employed at
Audubon Health Care Center, Bayside, Wisconsin, take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(e).
“(e) Engaging in regressive bargaining without good
cause or justification.”
2. Substitute the following for paragraph 2(a).
“(a) On request, bargain in good faith with the Union,
as the exclusive bargaining representative of its employ-
ees in the above-described bargaining unit with respect
to wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
such understanding in a signed written agreement.”

1 As we noted in The Independent, 320 NLRB 1029 fn. 3 (1996),
“[n]othing in our Order prevents the parties, during their ongoing col-
lective-bargaining negotiations, from mutually agreeing to reopen and
reconsider in light of changed circumstances, subjects on which they
have tentatively agreed.”
3. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Reinstate, for the purposes of good-faith bargain-
ing, the tentative agreements reached with the Union
effective August 11, 1997.”
4. Substitute the attached notice for that of the admin-
istrative 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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these pro-
tected concerted activities.

WE WILL NOT fail and refuse to bargain in good
faith with the United Food and Commercial Workers
Union, Local 1444, affiliated with United Food and
Commercial Workers International Union, AFL–CIO–
CLC, as the exclusive bargaining representative in the
following unit:
All full and regular part-time laundry and house-
keeping employees, who perform laundry and
housekeeping services at Audubon Health Care
Center, Bayside, Wisconsin.
WE WILL NOT fail to appear at and/or cancel sched-
uled bargaining sessions, unless there is a compelling
reason to do so and the Union has been notified in ad-
vance.
WE WILL NOT fail to provide the Union in a timely
manner, on request, with proposals on unresolved issues.
WE WILL NOT renege on tentative agreements
reached with the Union during collective bargaining.
WE WILL NOT engage in regressive bargaining
without good cause or justification.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL on request, bargain in good faith with the
Union, as the exclusive bargaining representative of
employees in the above-described bargaining unit with
respect to wages, hours, and other terms and conditions
331 NLRB No. 49
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
of employment and, if an understanding is reached, em-
body such understanding in a signed written agreement.
WE WILL regard the Union as the exclusive bargain-
ing agent of employees in the bargaining unit for 1 year
commencing with the resumption of negotiations be-
tween the Union and our company.
WE WILL meet with the Union on specified sched-
uled dates as agreed on by the parties.
WE WILL formulate and give to the Union, in a
timely manner, proposals on unresolved issues and not
regress from these proposals without good cause or jus-
tification.
WE WILL reinstate, for the purposes of good-faith
bargaining, the tentative bargaining agreements we
reached with the Union effective August 11, 1997.
HEALTH CARE SERVICES GROUP, INC.
Joyce Ann Seiser, Esq., for the General Counsel.
Timothy E. Smith, District Manager, Pro Se, of Bayside,
Wisconsin, for the Respondent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This
case was tried in Milwaukee, Wisconsin, on April 27, 1998.
The charge was filed November 13, 1997,1 and the complaint
was issued February 27, 1998.
On the entire record, including my observation of the de-
meanor of the witnesses,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is headquartered in the State of
Pennsylvania. It maintains a regional office in Hinsdale, Illi-
nois, and provides laundry and housekeeping services at the
Audubon Health Care Center, a nursing home, in Bayside,
Wisconsin. It annually provides services valued in excess of
$50,000 for customers located outside of the State of Wiscon-
sin. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union, United Food and Com-
mercial Workers Local Union 1444, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent has failed to
bargain in good faith with the Union. Local 1444 was certified
as the exclusive bargaining representative of the employees in
the following unit on March 3, 1997:

All full-time and regular part-time laundry and house-
keeping employees of the employer who perform contract
laundry and housekeeping services at Audubon Health
Care Center, excluding all other employees, guards, and
supervisors, as defined in the Act.

On April 9, Bruce Thompson, a union business representa-
tive, held his first meeting with Respondent to discuss negotia-

1 All dates are in 1997 unless otherwise indicated.
2 Both parties waived briefs. The General Counsel filed a memoran-
dum of law at the close of the hearing.
tions for a collective-bargaining agreement.3 Attending this
meeting in Thompson’s office for Respondent were James
Schreck, its regional manager for the territory covering Wis-
consin, district manager, Timothy Smith, and James Rehn, a
management trainee. At this meeting Schreck and Smith told
Thompson that Smith had authority to negotiate for Respon-
dent, but would keep Schreck advised of any tentative agree-
ments. Thereafter, Smith was Respondent’s only representa-
tive at the negotiating sessions.
The April 9 meeting lasted about 2 hours. It consisted pri-
marily of an exchange of information. The parties agreed to
meet again on May 16. This time period was extended at Re-
spondent’s request to give it sufficient time to assemble a pro-
posal.
All subsequent meetings prior to March 1998, were also at
Thompson’s office. At the parties’ second meeting on May 22
the Union presented Respondent with a proposed collective-
bargaining agreement and explained its proposal to Smith.
Respondent did not present any proposals to the Union. Bruce
Thompson informed Smith that he had authority to negotiate
for the Union, although any agreement would have to be ap-
proved by a majority of bargaining unit employees. Smith
reiterated that he had authority to negotiate for Respondent.
The union proposal was not complete. Some subjects, such
as health and welfare, and attendance were not addressed be-
cause the Union was waiting for Respondent to provide it with
information as to the Company’s existing practices.
Thompson and Smith met a third time on June 13. Tim
Smith sat across Thompson’s desk as Thompson reviewed the
union’s proposals with him. When Smith indicated agreement
with the proposals, Thompson made a notation in the left hand
margin “Agreed BT/TS 6/13.” On June 13 Smith indicated his
consent to the union proposals regarding recognition of the
Union, nondiscrimination and union security. Initially the
parties disagreed on the probationary period for new hires,
during which Respondent could terminate an employee at will.
They did however agree to a 60-day period, with an opportu-
nity in certain situations for a 30-day extension of this period.
Agreement was also reached on the demarcation of full-time
and regular part-time employees.
Tentative agreement was also reached on June 13 with re-
spect to union proposals regarding seniority, hours of work,
overtime, rest periods, vacancies, uniforms, physical examina-
tions, jury duty, and funeral pay. The parties also tentatively
agreed on Local 1444’s proposals on leaves of absence, union
stewards, and a grievance procedure. Additionally, Smith
indicated consent to a no-strike/no-lockout provision, one
regarding a union bulletin board and visitation rights for union
officials. Thompson promised Smith that he would not visit
Audubon Health Care until the Union had a collective-
bargaining agreement with the nursing home.4 The parties
also tentatively agreed on a savings clause and a successorship
provision and agreed to meet again on July 17.
3 I have credited Bruce Thompson’s testimony regarding the negotia-
tions. Respondent presented no witnesses to contradict him.
4 Local 1444 is also the certified bargaining representative of a unit
of Audubon employees. On April 25, 1997, the Board found Audubon
to be in violation of Sec. 8(a)(1) and (5) for its refusal to bargain with
the Union, Audubon Health Care Center, 323 NLRB No. 85 (1997)
(not published in bound volume). As of April 27, 1998, the Union had
not negotiated a collective-bargaining agreement with Audubon.
HEALTH CARE SERVICES GROUP 335
Without notifying Thompson, Smith failed to show up for
their July 17 meeting. A few days later he called to say that he
failed to attend due to a work emergency. The parties met
again on July 19. The Union agreed to allow Respondent to
bring employees into Audubon from outside the bargaining
unit if it could not get enough bargaining unit employees to
work overtime. It also deleted a proposal allowing employees
leave without pay to attend union conventions.
The parties’ fifth meeting was held in Thompson’s office on
August 11. They reached tentative agreement on an article
granting bargaining unit employees 3 personal leave days after
1 year of service. They agreed on articles regarding paid holi-
days, sick leave, and vacations. The Union withdrew its re-
quest for a pension plan.
On this date the Union made its first proposal regarding
wages. Smith indicated Respondent’s agreement to Thomp-
son’s proposed $6.25 starting rate for new employees. Re-
spondent was already paying its new hires at Audubon $6.25
per hour. Smith and Thompson also agreed to a schedule
gradually raising new employees’ salaries to $7 per hour after
2 years of service with Respondent. Smith also indicated ten-
tative agreement to a 30-cent-per-hour wage increase for cur-
rent employees effective March 1, 1998, and March 1, 1999.
The Union withdrew other proposals. At the end of the Au-
gust 11 session the parties had the remaining unresolved is-
sues: the union’s request for a wage increase for current em-
ployees retroactive to March 3; shift differentials; and the
management-rights clause.
Tim Smith did not show up for the parties’ next scheduled
meeting on August 21, nor did he notify Thompson until a few
days later. He failed to come to Thompson’s office again for a
meeting scheduled for September 4. A few days later, the two
negotiators talked on the telephone. Smith said he had no
proposals to offer yet and had not had a chance to discuss the
negotiations with his boss, Jim Schreck.
On October 9, Smith came 90 minutes late to a scheduled
meeting with Thompson. He did not bring with him any pro-
posals and again said he had not had a chance to discuss Re-
spondent’s positions with Schreck.
Smith canceled a meeting scheduled for October 21, but
faxed Respondent’s “Initial response to union contract” to
Thompson on October 30. The document contained little of
the parties’ previous tentative agreements. For example, al-
though Respondent had tentatively agreed to maintain its exist-
ing $6.25 starting wage rate for new hires, the October 30
proposal contained a $6 rate. Respondent also proposed a 0–4
percent wage increase, based on performance, for new hires
after a 6-month review and the same increase for current em-
ployees.
On November 5 Smith met with Thompson again. Thomp-
son presented Smith with the union’s first proposal on man-
agement rights. He asked Smith for proposals on this issue, as
well as retroactive wage increases for current employees, shift
differentials and management rights. The union’s initial unfair
labor practice charge was filed a week after this meeting.
On December 12 the parties met once more. Respondent’s
only proposal was a 1–4 percent wage increase based on its
assessment on each employee’s performance.
Smith presented the Union with a one page final offer on
January 6, 1998. It included a 0–4 percent increase in the
wages of current employees, effective 10 days after the signing
of the collective-bargaining agreement. It rejected a retroac-
tive increase and any shift differentials. For new employees,
Respondent proposed a $6-per-hour rate, with a 50 cent raise
upon completion of a probationary period and another 25-cent
raise after 1 year. Thereafter, they would be eligible for a 0–4
percent increase based on performance. The Union rejected
this offer and the Company withdrew it. Respondent also
proposed disciplinary rules on January 6, which it withdrew 2
weeks later.
On February 26, 1998, the parties met at the Board office in
Milwaukee. The company proposed an annual 10-cent-per-
hour increase for current employees in 1998, 1999, and 2000.
Smith also proposed a wage schedule for new employees start-
ing at $5.75 per hour and progressing to $5.85 after 1 year, $6
per hour after 2 years, and $6.15 after 3 years. After a break in
the negotiations, Smith proposed a different pay schedule for
current employees making $6.25 per hour. They would get
$6.40 effective January 1, 1998, $6.55 on January 1, 1999, and
$6.70 on January 1, 2000. Smith offered no proposals for
those employees making more than $6.25 per hour. Further
meetings on March 26, April 13, 17, and 25 (2 days prior to
the instant hearing), produced no further agreements. On
April 17 the Union demanded adherence to the tentative
agreements reached by August 11, 1997. Respondent rejected
this demand.
Analysis and Conclusions
In Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984),
the Board summarized the obligations of employers and un-
ions under Section 8(a)(5):

Under Section 8(d) of the Act, an employer and its
employees’ representative are mutually required to “meet
at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of em-
ployment . . . but such obligation does not compel either
party to agree to a proposal or require the making of a
concession.” Both the employer and the union have a
duty to negotiate with a “sincere purpose to find a basis of
agreement,” but “the Board cannot force an employer to
make a ‘concession’ on any specific issue or to adopt any
particular position.” The employer is, nonetheless,
“obliged to make some reasonable effort in some direc-
tion to compose his differences with the union, if Section
8(a)(5) is to be read as imposing any substantial obliga-
tion at all.”
It is necessary to scrutinize an employer’s overall
conduct to determine whether it has bargained in good
faith. “From the context of an employer’s total conduct,
it must be decided whether the employer is lawfully en-
gaging in hard bargaining to achieve a contract that it
considers desirable or is unlawfully endeavoring to frus-
trate the possibility of arriving at any agreement.” A
party is entitled to stand firm on a position if he reasona-
bly believes that it is fair and proper or that he has suffi-
cient bargaining strength to force the other party to agree.
. . .
Although an adamant insistence on a bargaining posi-
tion is not of itself a refusal to bargain in good faith
. . . other conduct has been held to be indicative of a lack
of good faith. Such conduct includes delaying tactics, un-
reasonable bargaining demands, unilateral changes in
mandatory subjects of bargaining, efforts to bypass the
union, failure to designate an agent with sufficient bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
gaining authority, withdrawal of already agreed-upon
provisions, and arbitrary scheduling of meetings.5

Several of the indicia mentioned above are present in the in-
stant case and lead me to conclude that Respondent did not
bargain in good faith. Most notable are Respondent’s with-
drawal from all of the tentative agreements it had reached with
the Union prior to August 11, and what appears to be the lack
of authority given to Timothy Smith to commit Respondent to
any proposals. It is not indicative of a lack of good faith for
Smith to keep his supervisor, James Schreck, informed of all
tentative agreements. It would not necessarily be an indication
of bad faith for Respondent to ask the Union to revisit a lim-
ited number of issues after Schreck’s review. What does indi-
cate a lack of good faith is Smith’s lack of authority to commit
Respondent to any proposals and the long delay in raising
objections and making counteroffers to union proposals on
which there had been tentative agreement.
Similarly, Respondent’s failure to make any proposals until
October 30, 6-1/2 months after bargaining began, is indicative
of a lack of good faith, Bryant & Stratton Business Institute,
321 NLRB 1007, 1041–1043 (1996). Moreover, Respondent
never made any comprehensive proposal to the Union.
Possibly the clearest indication of bad faith and the lack of
any intention of reaching agreement with the Union is Re-
spondent’s regressive bargaining, Homestead Nursing Center,
310 NLRB 678 (1993). For example, on August 11 Respon-
dent agreed to a starting wage rate for new employees of
$6.25 per hour, the rate it was paying such employees at the
time. Two and half months later, Respondent repudiated this
agreement and proposed a lower starting wage rate of $6 per
hour. On February 26, 1998, Respondent made an even more
regressive proposal. Health Care Services offered no explana-
tion for this regression. It strongly suggests an intent to pre-
vent the negotiation of a collective-bargaining agreement.
Other factors also indicate a desire to frustrate any agree-
ment. Smith’s failure to show up at several negotiating ses-
sions, without providing the Union notice that he would do so,
indicates a lack of serious intent on the part of Respondent, see
Calex Corp. v. NLRB, 144 F.3d 904 (6th Cir. 1998). Similarly,
Respondent’s proposals which left it with unfettered discre-
tion with regard to wage increases, in the context in which
they occurred, suggests that such proposals were made largely
to frustrate agreement of any kind.
CONCLUSION OF LAW
By refusing to bargain collectively in good faith with the
Union, Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent will be ordered to resume negotiations with the
Union on request and bargain collectively in good faith con-
cerning wages, hours, and the other terms and conditions of
employment, and if an understanding is reached, to embody it
in a written agreement.

5 Case citations from the Board’s decision have been omitted.
Where an employer, after a union’s certification, has failed
or refused to bargain in good faith with that union, the Board
ensures that the union has at least 1 year of good-faith bargain-
ing during which its majority status cannot be questioned,
Mar-Jac Poultry Co., 136 NLRB 785 (1962). Given the lack
of any indication that Respondent has ever bargained with the
Union in good faith, I conclude that this year shall begin to run
on the resumption of bargaining between the parties.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Health Care Services Group, Inc., Hins-
dale, Illinois, its officers, agents, successors, and assigns, shall,
with regard to its employees at Audubon Health Care Center,
Bayside, Wisconsin,
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with the
Union as the exclusive bargaining representative of the em-
ployees in the following appropriate unit:

All full and regular part-time laundry and housekeeping
employees, who perform contract laundry and housekeep-
ing services at Audubon Health Care Center, excluding
all other employees, guards, and supervisors as defined in
the Act.

(b) Failing to appear at and/or canceling scheduled bargain-
ing sessions, unless there is a compelling reason to do so and
the Union has been notified in advance of the bargaining ses-
sion.
(c) Failing to provide the Union, on request, with proposals
on unresolved issues.
(d) Reneging on tentative agreements reached with the Un-
ion during collective bargaining.
(e) Engaging in regressive bargaining.
(f) 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 effec-
tuate 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 bargaining unit with respect to wages, hours,
and other terms and conditions of employment.
(b) Regard the Union as the exclusive agent of its employ-
ees for 1 year commencing with the resumption of bargaining
between the parties.
(c) Meet with the Union on specific scheduled dates as
agreed upon by the parties.
(d) Formulate and give to the Union in a timely manner,
proposals on unresolved issues and not regress from them
without good cause or justification.
(e) Within 14 days after service by the Region, post at the
Audubon Health Care Center, Bayside, Wisconsin, copies of
the attached notice marked “Appendix.”7 Copies of the notice,
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
7 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-
HEALTH CARE SERVICES GROUP 337
on forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since April 9, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible offi-
cial on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.