Homestead Nursing Center

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 678 (N.L.R.B. 1993)

678
310 NLRB No. 114
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
reviewed the record and find no basis for reversing the findings.
2 We find merit in the General Counsel’s exceptions to the judge’s
remedy, and shall therefore modify his recommended Order by af-
firmatively requiring the Respondent to rescind its unlawful with-
drawals from tentative bargaining agreements and thereby put those
proposals back on the bargaining table. Paradise Post, 297 NLRB
876, 896–897 (1990).
3 The Respondent is a wholly owned subsidiary of Genesis Health
Ventures (Genesis), which operates a chain of approximately 40 non-
union and about 5 union nursing homes.
4 Neither the face of the document relied on by the Respondent,
nor the testimony attendant to its introduction in evidence, referred
to the 25-cent figure being implemented retroactively.
Homestead Nursing & Rehabilitation Center and
District 1199C, National Union of Hospital and
Health Care Employees, AFSCME, AFL–CIO.
Case 4–CA–19699
March 12, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 19, 1992, Administrative Law Judge
Martin J. Linsky issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, the Respondent filed cross-exceptions and a brief
in support of its cross-exceptions and in reply to the
General Counsel’s exceptions, and the General Counsel
filed a brief in response to the Respondent’s cross-ex-
ceptions.
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 briefs and has de-
cided, for the reasons set forth below, to affirm the
judge’s rulings, findings,1 and conclusions, and to
adopt the recommended Order as modified below.2
The judge found, and we agree, that the Respondent
violated Section 8(a)(5) and (1), inter alia, by chief ne-
gotiator Jean Roane’s withdrawal on March 15, 1991,
from a tentative bargaining agreement with the Union
to increase the hourly rate of nurse aides by 40 cents
on completion of their state certification requirement,
without providing a good cause for the withdrawal.
Thus, the judge credited testimony showing that Roane
stated that she was withdrawing from the agreement
because no more than a 25-cent-per-hour certification
increase had been given to the nurse aides at the other
nonunion nursing homes operated by Genesis Health
Ventures3 and giving more at Homestead might en-
courage union organizing activity at its unorganized fa-
cilities, and because Roane was without authority to
agree to more than a 25-cent-per-hour raise.
The Respondent excepts to the judge’s credibility
finding and further argues that the judge erred by con-
sidering the withdrawal in isolation, thus failing to take
into account that the Respondent on March 5, 1991,
had tendered a wage proposal that substituted overall
superior wage increases. The Respondent contends that
its new proposal provided for a 25-cent-per-hour cer-
tification increase retroactive to October 1990, in addi-
tion to offering a 45-cent-per-hour increase in the start-
ing wage and correspondingly higher periodic merit
wage increases for certified nurse aides.
Even assuming, as the Respondent asserts, that a
substitution of a more progressive wage increase for
the one tentatively agreed on may negate a showing of
bad faith, we find that the record does not substantiate
the Respondent’s contention that its 25-cent-per-hour
increase proposal provided for retroactivity.4 More-
over, we find, in agreement with the judge, that the
Respondent’s own reasons for withdrawing from the
tentatively agreed-on 40-cent-per-hour increase—i.e.,
that such an increase might encourage union activity at
its nonunion homes and that Roane lacked authority—
manifest a failure to bargain in good faith. We accord-
ingly affirm the judge’s finding that the Respondent
bargained in bad faith by withdrawing without good
cause from tentative agreements reached with the
Union.
The General Counsel excepts to the judge’s failure
to find that the Respondent engaged in overall bad-
faith bargaining, inter alia, by its purported refusal to
exceed the terms and conditions of employment in ef-
fect at Genesis’ other nursing homes. The General
Counsel cites the judge’s own findings, i.e., that this
was one of the Respondent’s asserted reasons for its
unlawful withdrawals, in support of a claim that such
conduct clearly demonstrates that the Respondent
maintained a predetermined and inflexible bargaining
posture.
Contrary to the General Counsel, we affirm the
judge’s dismissal of that complaint allegation because
the evidence is insufficient to establish that the Re-
spondent’s 1991 bargaining proposals reverted in any
other respect to the terms and conditions maintained,
or contained in the common employee handbook used
at the other nonunion nursing homes operated by Gen-
esis. There is thus no evidence from which to conclude
that the Respondent had a predetermined overall bar-
gaining position with no room for negotiation on indi-
vidual proposals.
679HOMESTEAD NURSING CENTER
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Homestead Nursing & Re-
habilitation Center, Willow Grove, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a) of the
Order.
‘‘(a) Rescind the withdrawals from the tentative bar-
gaining agreements reached with the Union prior to
March 15, 1991, and, on request, bargain in good faith
with the Union concerning wages, hours, and other
terms and conditions of employment. If an under-
standing is reached, embody that understanding in a
written, signed agreement.’’
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, in bargaining with District 1199C,
National Union of Hospital and Health Care Employ-
ees, AFSCME, AFL–CIO (the Union), that represents
our employees, unlawfully withdraw from tentative
agreements such as agreements on pay raises for
nurses aides on certification and agreements on pro-
viding photo identifications for our employees.
WE WILL NOT unilaterally implement wage increases
without giving prior notice and opportunity to bargain
to the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our withdrawals from the tentative
agreements reached with the Union prior to March 15,
1991, and on request, bargain in good faith with the
Union concerning wages, hours, and other terms and
conditions of employment. If an understanding is
reached, WE WILL embody that understanding in a writ-
ten, signed agreement.
WE WILL, if and only if requested by the Union, re-
scind the wage increase we unlawfully implemented in
the fall of 1991.
HOMESTEAD NURSING & REHABILITA-
TION CENTER
Bruce G. Conley, Esq., for the General Counsel.
Thomas M. Cloherty, Esq., of Hartford, Connecticut, for the
Respondent.
Gail Lopez-Henriquez, Esq., of Philadelphia, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On April
8 and July 31, 1991, a charge and amended charge where
filed by District 1199C, National Union of Hospital and
Health Care Employees, AFSCME, AFL–CIO (Charging
Party or Union), against Homestead Nursing and Rehabilita-
tion Center (Respondent).
On August 9, 1991, following an investigation, the Na-
tional Labor Relations Board, by the Regional Director for
Region 4, issued a complaint, which, as later amended at the
hearing before me, alleges the Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act), during and following unsuccessful negotiations for a
first contract with the Union. More specifically, that Re-
spondent encouraged employees to file a petition to decertify
the Union, engaged in bad-faith bargaining with the Union
by, among other means, unlawfully withdrawing from pre-
viously agreed-to proposals, and unlawfully and unilaterally
implemented certain pay proposals without giving prior no-
tice and opportunity to bargain to the Union.
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me in Philadelphia, Pennsyl-
vania, on February 3, 4, and 27, 1992.
On the entire record in this case, to include posthearing
briefs submitted on behalf of the General Counsel and Re-
spondent, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a wholly owned subsidiary of Genesis
Health Ventures, is, and has been at all times material, a
Pennsylvania corporation, engaged in the operation of a nurs-
ing home located in Willow Grove, Pennsylvania.
During the past year, in the course and conduct of its busi-
ness operations described above, the Respondent derived
gross revenues in excess of $100,000 and purchased and re-
ceived goods valued in excess of $20,000 directly from
points outside the Commonwealth of Pennsylvania.
The Respondent admits, and I find, that it is, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and a health care institution within the meaning of Section
2(14) of the Act.
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Respondent is 1 of approximately 45 nursing homes
owned by Genesis Health Ventures. The vast majority of
these nursing homes are not organized.
On November 3, 1989, following a Board-conducted elec-
tion, the Union was certified as the exclusive collective-bar-
gaining representative of a unit of Respondent’s employees.
Negotiations for a first contract between Respondent and
the Union began on January 18, 1990. The parties met 12
times between January 18 and December 17, 1990. They did
not meet again until March 5, 1991. Between March 5 and
May 15, 1991, the parties met eight times. A Federal medi-
ator was present at most of the negotiating sessions to in-
clude the last one. Although the parties met a total of 20
times, they did not reach agreement on a contract.
It is alleged that Respondent violated the Act in a number
of ways during the time that the negotiations were continuing
and also violated the Act several months after the last negoti-
ating session when it unilaterally implemented certain wage
changes.
The allegations will be addressed separately.
B. Withdrawal From Tentative Agreements
The Board in Atlanta Hilton & Towers, 271 NLRB 1600,
1603 (1984), referred to the seven traditional indicia of bad-
faith bargaining:
Such conduct includes delaying tactics, unreasonable
bargaining demands, unilateral changes in mandatory
subjects of bargaining, efforts to bypass the union, fail-
ure to designate an agent with sufficient bargaining au-
thority, withdrawal of already agreed upon provisions,
and arbitrary scheduling of meetings.
The totality of circumstances are examined in deciding
whether there has been bad-faith bargaining. Rhodes-Holland
Chevrolet, 146 NLRB 1304 (1964).
When negotiations began Jean Roane, the chief negotiator
for Respondent and director for labor relations for Genesis
Health Ventures, made it clear that agreements on particular
items were not final until the parties had reached agreement
on a complete contract. Roane is a lawyer and a former em-
ployee of the National Labor Relations Board. I credit her
testimony on this point because, among other reasons, it
makes sense. Repudiating tentative agreements is not bad-
faith bargaining per se but is a factor that together with oth-
ers might make out a case for bad-faith bargaining. It is
sometimes called regressive bargaining. Withdrawing from
previously agreed to items, however, should be done for
good cause. In other words, the party withdrawing from a
tentative agreement needs a good cause to do so and the ab-
sence of good cause can render the withdrawal an unfair
labor practice in violation of Section 8(a)(1) and (5) of the
Act. Natico, Inc., 302 NLRB 668 (1991); Arrow Sash &
Door Co., 281 NLRB 1108 fn. 2 (1980).
In the instant case it is specifically alleged that Respond-
ent withdrew from two agreements. One of the agreements
was that nurse aides, one of several groups of employees in
the bargaining unit, on becoming state certified, would re-
ceive a 40-cent-per-hour increase in pay and the other agree-
ment was that Respondent would provide employees with
photo identifications.
Pennsylvania passed a law requiring that nurses aides in
nursing homes become state certified. The Union proposed
early in the negotiations that nurse aides receive a 50-cent-
per-hour increase in pay when they become state certified.
On May 9, 1990, Respondent presented a counterproposal
to the Union, which was received in evidence as General
Counsel’s Exhibit 9. The Respondent’s own written proposal
provided for a 40-cent-per-hour increase for nurses aides
upon certification. At the May 9, 1990 negotiating session
Donna Ford, an executive vice president of the Union and
its chief negotiator in those negotiations, and Jean Roane, the
chief negotiator for Respondent, agreed that nurses aides
would receive a 40-cent-per-hour increase when they became
state certified. In other words, the Union accepted Respond-
ent’s proposal on this issue.
On March 15, 1991, Jean Roane withdrew from the agree-
ment to give nurses aides a 40-cent-per-hour increase in pay
on certification. According to the credited testimony of
Donna Ford, Roane withdrew because nurses aides in other
nursing homes operated by Genesis Health Ventures had
been given only a 25-cent-per-hour increase in pay on certifi-
cation and it would not make sense to give more to Respond-
ent’s nurses aides since that might encourage unionization at
some of Genesis’ nonunion facilities and that she (Roane)
was without authority to agree to more than a 25-cent-per-
hour raise.
This is not good cause for withdrawing from this agree-
ment and I find that Respondent violated Section 8(a)(1) and
(5) of the Act when it withdrew from its prior agreement on
this discreet issue of the certification raise.
At the negotiating table the Union, through Donna Ford,
informed Respondent that the employees, especially those
working at night, were concerned about security at the facil-
ity. At the April 2, 1990 negotiating session Ford reiterated
what was already in the Union’s initial contract proposal that
security guards be hired and that employees be issued photo
identifications. Respondent agreed to this proposal at this
session. General Counsel’s Exhibit 6, which was the Union’s
initial proposal provided in article XXVI, section 12, as fol-
lows:
The Employer shall provide a safe environment at all
times including security guards and Photo Identification
for all employees. [Emphasis in original.]
Respondent’s written counterproposal with respect to arti-
cle XXVI, section 12 was ‘‘yes.’’ (See G.C. Exh. 7.) Ford
credibly testified that at the April 2, 1990 session agreement
was reached on this issue as corroborated by the exhibits re-
ferred to above.
At a negotiating session in the spring of 1991 Roane, on
behalf of Respondent, told Ford that she was withdrawing
from the agreement to provide security guards but still
agreed to provide photo identifications to all employees.
Ford, on behalf of the Union, agreed to modify article XXVI,
681HOMESTEAD NURSING CENTER
section 12, to merely require that Respondent furnish em-
ployees with photo identifications.
On March 25, 1991, Jean Roane, on behalf of Respondent,
withdrew from the agreement regarding providing employees
with photo identifications.
It is clear from the testimony of Donna Ford, the testi-
mony of Georgia Johnson, a union organizer who was on the
union negotiating team, and the written proposal and
counterprosals of the Union and Respondent respectively,
that agreement was reached on the photo identifications mat-
ter. Jean Roane claims there was no final agreement and that
she had only agreed to cost it out. I find there was agreement
to furnish photo identifications. Roane withdrew from that
agreement because she claimed she costed it out and fur-
nishing photo identifications would be too expensive and, in
addition, photo identifications were not provided to employ-
ees at Genesis’ other facilities. However, Roane had no cost
data to present at the hearing before me nor could she re-
member what the cost was for providing photo identifica-
tions. Further, Roane’s boss, Jeffrey Jasnoff, director of
human resources for Genesis Health Ventures, testified he
had no knowledge for any costing out of providing photo
identifications to Respondent’s employees.
The bottom line is that Respondent did not have good
cause to withdraw from its agreement to provide photo iden-
tifications and, therefore, violated Section 8(a)(1) and (5) of
the Act when it withdrew from its agreement on this matter.
Respondent bargained in bad faith with the Union when it
withdrew from its agreement on raises for nurses aides upon
certification and its agreement to provide photo identifica-
tions to its employees. This regressive bargaining was de-
signed to frustrate and did frustrate bargaining in this case
even though the parties were able to reach agreement on a
number of other issues. Houston County Electric Coopera-
tive, 285 NLRB 1213, 1214–1215 (1987).
C. Promise of Benefit to Employees and
Decertification Effort
As noted above the Union and Respondent agreed in May
1990 to a 40-cent-per-hour increase for nurses aides on cer-
tification.
The parties met several more times during 1990 and held
their last meeting in 1990 on December 17. They did not
meet again until March 5, 1991.
Genesis Health Ventures operates approximately 45 nurs-
ing homes. In late 1990 it gave a 25-cent-per-hour increase
to the nursing aides on certification in many of its nonunion
facilities, some of which are located in the same general geo-
graphical area as the facility involved in this litigation.
The nurses aides at Respondent’s facility were upset that
they were not getting a pay raise on certification like the
nurses aides at the nonunion facilities.
A number of the nurses aides at Respondent’s facility
complained to the onsite management about this and onsite
management brought it to the attention of Jean Roane, Re-
spondent’s chief negotiator. Roane called Donna Ford, the
Union’s chief negotiator, and sought permission to imme-
diately implement a 25-cent-per-hour raise on certification
for nurses aides at Respondent’s facility. The Union objected
on the grounds that more than 25 per hour had been agreed
on, i.e., 40 per hour, and the Union wanted to sign a com-
plete contract and any raises could be retroactive. I note that
the issue of retroactivity of pay raises was not fully litigated
before me and is a matter of dispute between the parties. It
does not effect this decision however.
On March 6, 1991, Jean Roane met with a number of
nurses aides at Respondent’s facility who wanted to hear Re-
spondent’s position reference the pay increase for nurses
aides on certification.
I credit Jean Roane, who, as noted above, is a lawyer and
a former employee of the National Labor Relations Board,
that she merely told the employers at the meeting that Re-
spondent could not give any raises to the nurses aides on cer-
tification because that was a matter to be decided in negotia-
tions with the Union which represented the nurses aides. The
audience of nurses aides, which numbered between 16 and
25, may reasonably have concluded that if there was no
union in place the nurses aides would get the raise but
Roane’s accurate statement of the law is not the functional
equivalent of an unlawful promise by Respondent to give the
raise if the Union is decertified.
According to Cynthia Reddy, who is still an employee of
Respondent, and who was present at the meeting, Roane
said, ‘‘[I]f we [the employees] wanted to get rid of the prob-
lem that we could vote the Union out. Well, we had to get
a petition and get names on it, and then she said, I guess,
I shouldn’t be saying this, because its against the National
Labor Relations Act, and I could be locked up for it.’’ Fur-
ther, according to Reddy, Roane said that the employees
would be better off without the Union, because all they want
to do is take money out of your checks.
After the meeting broke up Cynthia Reddy testified that
she overheard Jean Roane in a private conversation tell
Yvonne Rose, another nurse aide, that if she wanted to solve
the problem all she had to do is get a petition.
Jean Roane categorically denied that she said what Reddy
claims she said to the employees at the meeting and what
Reddy claims she said to Yvonne Rose. Yvonne Rose did
not testify. Reddy testified that she was with employees Eliz-
abeth Humphrey, Michelle Sawyer, and Yvette Shockley,
when she overheard Roane speaking with Rose. Humphrey,
Sawyer, and Shockley did not testify.
While Cynthia Reddy appeared to be basically an honest
person so did Jean Roane. No witness corroborated Reddy
but two witnesses, Joan Scott and Sandra McLean, both em-
ployees of the facility, corroborated Roane by testifying that
they were at the meeting with employees and Roane did not
say anything about a petition. Common sense suggests to me
that Roane, who is a lawyer and a former Board employee,
would not say what Reddy claims she heard Roane say to
a group of 16 to 25 nurses aides and, in particular, would
not say she could be ‘‘locked up’’ for what she was saying.
I also do not believe that Roane would say to an individual
employee, Rose, within sight and sound of several other em-
ployees, Reddy, Hunphrey, Sawyer, and Shockley, what
Reddy claimed she said.
Roane was righteously indignant on the stand in her cat-
egorical denial that she said what Reddy claims she said. I
believe her denial.
Accordingly, Roane neither promised a pay raise if the
Union was rejected by the employees nor did she solicit em-
ployees to circulate a petition to decertify the Union. Hence,
the Act was not violated as alleged in the complaint. It goes
without saying that if Roane had encouraged the employees
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Joan Scott did circulate a petition to decertify the Union after the
meeting with Roane but credibly testified she received assistance on
this from the National Labor Relations Board itself and not from any
representative of Respondent’s management or Jean Roane.
2 Kimberly Hall, Hillside House, Milford, Seaford Retirement and
Rehab Center, Bayside Nursing, Crystal City Nursing, Glendale
Health Care, Abington Manor Nursing, Highland Nursing Home,
Magnolia Gardens, Mallard Bay, and Mifflin Health Care Center.
3 Henry Nicholas, president of the Union, substituted for Donna
Ford as chief negotiator for the Union at some of the last negotiating
sessions. Nicholas testified that it would be ‘‘dealbreaker’’ if every
employee did not get a raise on the signing of a collective-bar-
gaining agreement. Respondent would not budge from its position
that raises would be based on a merit system and conceivably some
employees would not get a raise. Hence, impasse may have been
reached but again not after good-faith bargaining.
to circulate a decertification petition that would have been an
unfair labor practice.1 Hancock Fabrics, 294 NLRB 189
(1989).
D. Failure to Delegate Proper Authority to Jean Roane
and Did Respondent Maintain a Predetermined and
Inflexible Position in Negotiations
It is alleged that Respondent since November 28, 1990,
has failed to delegate sufficient authority to Jean Roane to
bind the Respondent to proposals agreed on during negotia-
tions.
I find no merit in this allegation in spite of the fact that
the record reflects that Jean Roane withdrew from previously
agreed-upon proposals regarding the pay increase for nurses
aides on certification and the providing of photo identifica-
tions for employees. By and large Roane’s authority was suf-
ficient for the parties to agree to a contract.
It is also alleged that Respondent violated the Act by
maintaining a predetermined and inflexible position that it
would not agree to terms and conditions of employment for
Respondent’s employees which exceeded those presently at
other nursing homes operated by the Respondent’s parent
company, Genesis Health Ventures. While it is true that Re-
spondent sought to keep holidays, vacation, pay, etc., more
or less the same at various facilities this is not necessarily
bad-faith bargaining. McCullough Corp., 132 NLRB 201
(1969). In any event there was evidence that there were
variances in pay and other terms and conditions of employ-
ment at different facilities owned by Genesis. The
uncontradicted testimony of Jeffrey Jasnoff, Genesis’ director
of human resources, was to the effect that no less than 12
nursing homes had different pay or terms and conditions of
employment from those sought by Respondent in its negotia-
tions with the Union in this case.2
E. Definition of Membership
During the negotiations the parties first discussed a union-
security clause, which the Union wanted but Respondent was
opposed to, and then discussed a maintenance of membership
clause in the contract. It is alleged that Respondent violated
the Act by, in essence, arguing about the definition of the
term member and suggesting to the Union that employees
sign new applications for membership in order to be consid-
ered members of the Union. The Union was taking the posi-
tion that any employee who signed an application for rela-
tionship form was a member of the Union.
I do not find a violation based on these discussions be-
tween Respondent and the Union concerning who is a mem-
ber of the Union for purposes of a union-security clause or
a maintenance-of-membership clause because the parties
were basically clarifying their mutual understanding of a
clause or word in a contract and this, absent unusual cir-
cumstances, is not a violation of the Act.
F. Respondent’s Implementation of Pay Increases
Respondent admits that in the fall of 1991 several months
after the last negotiating session between the parties which
took place on May 15, 1991, Respondent implemented its
proposal with respect to granting a 25-cent-per-hour increase
for nurses aides on completion of the state certification re-
quirement and implemented its last proposal for new starting
pay rates for employees in the unit.
Respondent argues that it had a right to unilaterally imple-
ment these wage changes because the parties had reached im-
passe in their negotiations. An employer may unilaterally im-
plement its last best offer on impasse but only if impasse is
reached after good-faith bargaining has taken place. Re-
spondent may possibly have bargained to impasse in this
case but it did so in bad faith. See section III,B, above. Since
Respondent engaged in bad-faith bargaining when it with-
drew from its agreement to pay a 40-cent-per-hour increase
to nurses aides on state certification and when it withdrew
from its agreement to furnish photo identifications to its em-
ployees it was not at liberty, even if at impasse, to unilater-
ally implement the wage changes it implemented in the fall
of 1991 without first furnishing prior notice and opportunity
to bargain to the Union. This is a violation of Section 8(a)(1)
and (5) of the Act. Taft Broadcasting Co., 163 NLRB 475
(1967), affd. 395 F.2d 633 (D.C. Cir 1968.)3
IV. REMEDY
The remedy in this case is the issuance of an order to Re-
spondent to bargain in good faith with the Union, to cease
and desist from this or similar misconduct, and to rescind the
pay changes it implemented if and only if requested to do
so by the Union.
CONCLUSIONS OF LAW
1. Homestead Nursing and Rehabilitation Center (Re-
spondent) is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. District 1199C, National Union of Hospital and Health
Care Employees, AFSCME, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act,
by the following acts:
(a) Withdrawing from its agreement to pay a 40-cent-per-
hour increase to nurses aides on certification;
(b) Withdrawing from its agreement to furnish photo iden-
tifications to unit employees; and
(c) Unilaterally implementing new wage increases without
giving prior notice and opportunity to bargain to the Union.
4. The unfair labor practices of the Respondent described
above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
683HOMESTEAD NURSING CENTER
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Homestead Nursing & Rehabilitation
Center, Willow Grove, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Withdrawing unlawfully from agreements reached dur-
ing bargaining.
(b) Unilaterally implementing wage increases without first
giving prior notice and opportunity to bargain to the Union.
(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) Bargain in good faith, on request, with the Union con-
cerning wages, hours, and other terms and conditions of em-
ployment.
(b) Rescind, if and only if requested by the Union, the un-
lawfully implemented wage increases put into effect in the
fall of 1991.
(c) Post at its facility in Willow Grove, Pennsylvania, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure the said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.