Luther Manor Nursing Home

National Labor Relations Board - Board Decisions

Oct 31, 1985

277 N.L.R.B. 35 (N.L.R.B. 1985)

LUTHER MANOR NURSING HOME
Luther Manor Nursing Home and United Food and
Commercial Workers Union , Local No. 304A,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC. Case 18-CA--
7973
31 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 28 March 1985 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed answering briefs, cross-exceptions, and
briefs in support of their cross-exceptions.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,' and
conclusions,2 as modified, but not to adopt the rec-
ommended Order.
1. Administrative Law Judge William F. Jacobs,
in a decision and recommended Order issued 28
September 1982, found the Respondent presented
to the Union a wage offer during collective bar-
gaining that the Union accepted. Because the Re-
spondent in part unlawfully withdrew the offer
after it was accepted, Judge Jacobs recommended
the Respondent be ordered to cease and desist from
"[w]ithdrawing wage proposals previously agreed
upon." The Board adopted Judge Jacobs' decision
and recommended Order in pertinent part.3
In their 28 October 1982 negotiating session,
their first following Judge Jacobs' decision, the
parties reached agreement on all other outstanding
i The General Counsel excepts to the judge's failure to find that the
Respondent presented an economic proposal on 27 December 1982, false-
ly claiming to have presented it on 29 October 1982. The General Coun-
sel contends that, if found, the Respondent's misrepresentation would in-
dicate that it failed to bargain in good faith.
The judge considered the General Counsel's allegation and found that
the Respondent's having made the proposal after it agreed to a complete
contract violated Sec 8(a)(5) and (1) of the Act, regardless of whether it
made the proposal in October or December The judge found the Re-
spondent, by making the proposal, demonstrated to the Union that it
would neither bargain in good faith, nor execute the contract to which it
agreed
What the General Counsel requests we find is not materially different
from what the judge found based on the same conduct Accordingly, we
deny the General Counsel's exception.
2 Chairman Dotson agrees with his colleagues that the Respondent
violated the Act as alleged in taking action inconsistent with the Board's
order in Luther Manor Nursing Home, 270 NLRB 949 (1984), in which
the Chairman adopted the judge's decision in the absence of the Re-
spondent's exceptions Chairman Dotson also relies on his rationale set
forth in that case for the issuance of a general bargaining order
3 Luther Manor Nursing Home, supra, 270 NLRB 949.
35
issues. The Respondent, however, withdrew its
wage proposal entirely and contended there was no
agreement on the contract's effective dates.
Judge Nations, in the attached decision, found
the Respondent's unilaterally withdrawing its wage
offer violated Section 8(a)(5) and (1) of the Act.
This finding was, of course, mandated by the
Board's earlier Decision and Order. Judge Nations
further found that the wage offer provided it
would be effective 1 January 1981 through 31 De-
cember 1983, and we conclude that the parties in
practice used the wage offer's effective dates to de-
termine the duration of the entire contract.4 Ac-
cordingly, we agree with the judge that the parties
on 28 October 1982 reached agreement on a com-
plete collective-bargaining agreement, and that the
Respondent unlawfully refused to execute a written
contract embodying its terms.
Judge Nations also found that the Respondent's
obligation to provide the contract's wage increases
commenced on the date the parties reached agree-
ment, 28 October 1982. This finding, however, is
inconsistent with the parties' agreement that their
contract and its wage increases would commence 1
January 1981. We therefore do not adopt the
judge's finding and shall amend the remedy to re-
quire the Respondent to apply the contract accord-
ing to its terms, including its 1 January 1981 com-
mencement date.5
2. Judge Nations found that the Respondent vio-
lated Section 8(a)(3) of the Act, as well as Section
8(a)(5) and (1), by refusing to execute a written
contract. The General Counsel, however, did not
allege that the Respondent violated Section 8(a)(3)
by this conduct.
We shall therefore amend Conclusion of Law 6
to delete its reference to Section 8(a)(3) of the Act,
and we shall amend the recommended Order and
notice accordingly.
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law
6.
"6. By refusing to execute a collective-bargaining
agreement embodying the terms to which the Re-
spondent and the Union finally agreed on 28 Octo-
ber 1982, the Respondent violated Section 8(a)(5)
and (1) of the Act."
4 Thus, the Respondent on either 29 October or 27 December 1982
proffered what it called a "Wage & Effective Date Offer." The only ef-
fective date discussed in the offer is that for the proposed wage increases,
although the offer was intended to supplant the duration provisions in the
Union's previously proposed draft contract.
5 See Western Truck Services, 252 NLRB 688 (1980)
277 NLRB No. 7
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED REMEDY
Having found that the Respondent engaged in
certain unfair labor practices in violation of Section
8(a)(5) and (1) of the Act, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall order the Respondent to execute, on re-
quest, a collective-bargaining agreement embody-
ing the terms and conditions to which the Re-
spondent and the Union agreed, and to apply those
terms and conditions retroactively from 1 January
1981. We shall order the Respondent to make em-
ployees whole for the loss of earnings and other
benefits suffered as a result of the Respondent's'
failure to execute and abide by that agreement. The
Respondent shall reimburse the affected employees
in a manner consistent with Board policy as stated
in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962), enf. denied on other grounds 322 F.2d
913 (9th Cir. 1963).
ORDER
The National Labor Relations Board orders that
the Respondent, Luther Manor Nursing Home,
Sioux Falls, South Dakota, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to execute, on request, a collective-
bargaining agreement embodying the terms to
which the Respondent agreed with United Food
and Commercial Workers Union, Local No. 304A,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, CLC covering the employees
in the unit set forth below in paragraph 2 (c).
(b) Unilaterally withdrawing wage offers and
contract duration offers to which the Respondent
and the Union agreed.
(c) Continuing to make wage offers and other
proposals that vary from the terms and conditions
to which the Respondent and the Union agreed.
(d) 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) Execute, on request, a collective-bargaining
agreement (effective 1 January 1981 through 31
December 1983) embodying the terms and condi-
tions to which the Respondent and the Union final-
ly agreed on 28 October 1982.
(b) Apply the terms and conditions of the collec-
tive-bargaining agreement to which the Respond-
ent and the Union agreed, retroactively from 1 Jan-
uary 1981, and make employees whole in the
manner set forth in the amended remedy for any
loss of earnings and other benefits suffered as a
result of its failure to execute and abide by that
agreement.
(c) On request, bargain with respect to wages,
hours, and other terms and conditions of employ-
ment with the Union as the exclusive bargaining
representative of employees in the following unit:
All full-time and regular part-time licensed
practical nurses and service and maintenance
employees employed by the Respondent at its
Sioux Falls, South Dakota facility, but exclud-
ing administrator, assistant administrator, regis-
tered nurses, business office clericals, guards,
and supervisors as defined in the Act.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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
Order.
(e) Post at its Sioux Falls, South Dakota facility
copies of the attached notice marked "Appendix."6
Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
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.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
6 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 Nation-
al 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
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.
LUTHER MANOR NURSING HOME
WE WILL NOT refuse to execute, on request, a
collective-bargaining agreement embodying the
terms to which we agreed with United Food and
Commercial Workers Union, Local No. 304A,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, CLC covering all of you in
the unit set forth below.
WE WILL NOT unilaterally withdraw wage offers
and contract duration offers to which we and the
Union agreed.
WE WILL NOT continue to make wage offers 'and
other proposals that vary from the terms and con-
ditions to which we and the Union agreed.
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 execute, on request, a collective-bar-
gaining agreement (effective 1 January 1981
through 31 December 1983) embodying the terms
and conditions to which we and the Union finally
agreed on 28 October 1982.
WE WILL apply the terms and conditions of the
collective-bargaining agreement to which we and
the Union agreed, retroactively from 1 January
1981, and WE WILL make you whole with interest
for any loss of earnings and other benefits resulting
from our failure to execute and abide by that
agreement.
WE WILL, on request, bargain with respect to
wages, hours, and other terms and conditions of
employment with the Union as the exclusive bar-
gaining representative of all of you in the following
unit:
All full-time and regular part-time licensed
practical nurses and service and maintenance
employees employed by us at our Sioux ' Falls,
South Dakota facility, but excluding adminis-
trator , assistant administrator , registered
nurses , business office clericals , guards , and su-
pervisors as defined in the Act.
LUTHER MANOR NURSING HOME
Marlin O. Osthus, Esq., for the General Counsel.
Michael Alden, Esq., of Lincoln, Nebraska, for the Re-
spondent.
J. Peter Dowd, Esq., of Chicago, Illinois, for the Charging
Party.
DECISION
37
STATEMENT OF THE CASE
WALLACE H. NATIONS , Administrative Law Judge.
Pursuant to a charge filed December 3, 1982 ,1 and to
subsequently filed amended charges by United Food and
Commercial Workers Union , Local No. 304A, United
Food and Commercial Workers International Union,
AFL-CIO, CLC (the Union), the Regional Director for
Region 18 issued a complaint and notice of hearing and
amendment to complaint and notice of hearing , alleging
setting forth certain unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the Act, al-
leged to have been committed by Luther Manor Nursing
Home (Respondent). On October 4, 1984 , a hearing was
held before me in Sioux Falls, South Dakota . Subse-
quently, briefs were received from counsel for the Gen-
eral Counsel, Respondent , and the Charging Party.
1. THE BUSINESS "OF RESPONDENT
Respondent , a South Dakota corporation with an
office and place of business in Sioux Falls , South Dakota,
has been engaged in health care and operation of a nurs-
ing home, providing in-patient , medical , and professional
services for its residents . Respondent admits the jurisdic-
tional allegations of the complaint , and I find that it is
now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), 'and (7) of the Act, and a health care insti-
tution within the meaning of Section 2(14) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Facts and Issues
Pursuant to a Board-conducted election, the Union
was certified as the exclusive bargaining representative
of the unit described in paragraph 6 of the complaint.
The Union and Respondent thereafter met for the pur-
pose of negotiating a collective -bargaining agreement on
numerous occasions on January 25 and December 15,
1980. The parties could not reach an agreement and the
Union filed charges with the Board alleging that Re-
spondent had engaged in certain unfair labor practices.
Thereafter, the Regional Director issued a complaint al-
leging that Respondent had violated Section 8 (a)(1), (3),
and (5) of the Act by its actions. After a trial before Ad-
ministrative Law Judge William F. Jacobs, a decision
issued on September 28. The Charging Party and the
General Counsel filed exceptions to the decision, while
Respondent filed no exceptions. On May 30, 1984, the
Board issued a Decision and Order which affirmed the
judge's rulings, findings , and conclusions but modified
his recommended Order , making it more comprehensive.
I All dates are in 1982 unless otherwise stated
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's Order affirmed the administrative law
judge's findings that Respondent unlawfully withdrew a
wage proposal previously offered to all unit employees
and later withdrew the offer to full-time employees; Re-
spondent unlawfully withheld wage increase adjustments
for employees; and Respondent unilaterally and unlaw-
fully granted wage increases to employees, altered its
sick leave and absenteeism policies, and reclassified li-
censed practical nurse (LPN) employees to supervisory
positions.
After the issuance of the decision by Judge Jacobs,
Respondent and the Union met for the purpose of nego-
tiating a collective-bargaining agreement. No agreement
being forthcoming from Respondent, the Union again
filed charges with the Board alleging that Respondent
had violated the Act. The issues presented in the instant
proceeding are whether Respondent violated the Act by:
1. Withdrawing their previous offer regarding
contractual wage rates for the duration of the con-
tract in violation of Judge Jacobs Order.
2. Refusing to negotiate on proposed wages until
its backpay liability Case 18-CA-7117 was deter-
mined.
3. Presenting an economic proposal to the Union
to reduce employees future contractual wage in-
creases by an amount equal to the backpay they
could or would receive as a result of unfair labor
practices found in Case 18-CA-7117.
4. Proposing contractual wage rates for part-time
employees which were less than its existing wage
rate.
5. Presenting a proposal to the Union falsely
claiming that said proposal had been previously pre-
sented.
6. Failing and refusing to execute an agreement
reached between it and the Union.
B. The Alleged Withdrawal of a Previously Offered
and Agreed- Upon Wage Proposal and Refusal to
Execute an Agreed-Upon Collective-Bargaining
Agreement
The General Counsel alleges that on October 28, Re-
spondent unilaterally withdrew an offer regarding con-
tractual wage rates for the duration of the contract
which it had made on December 15, 1980, and which ac-
cording to Judge Jacobs and the Board , had been accept-
ed by the Union ; that the Union and Respondent had
otherwise reached a full and complete agreement on a
contract; that the Union had since requested Respondent
to execute the contract ; that Respondent refused and
continues to refuse to execute such contract ; and that
this constitutes a failure and refusal to bargain with the
Union in good faith in violation of Section 8(a)(1) and
(5).
Following the decision of Judge Jacobs, the Union and
Employer representatives first met on October 28.
Present for the Union were Attorney J. Peter Dowd,
Union Business Agent Jack Smith , Doyle Lauer, and
Mary Kerchove . Present for Respondent was John Tate.
Dowd opened the meeting by explaining to Tate that the
Union had requested negotiations to attempt to reach an
agreement based on the decision of the administrative
law judge in Case 18-CA-7117; that on the basis of that
decision, the Union hoped to reach a decision that could
be put into effect immediately; and that the Union was
prepared to discuss specifics and issues resolved by the
judge. Subsequently, the parties did discuss specific
issues. The parties reviewed the issue of health insurance
coverage in light of the judge's decision, and the Union
ultimately accepted the finding of the judge with respect
to health insurance. Similarly, in light of the judge's find-
ing that Respondent unlawfully removed LPNs from the
bargaining unit, the parties agreed on October 28 that
present LPNs would be considered supervisors, that the
number of LPN supervisors would not increase, and that
if LPNs did not qualify as supervisors within 1 year or
start as a supervisor, they would be returned to the bar-
gaining unit. The parties also reached agreement with
Respondent with respect to schedules and probationary
periods. Tate admitted that as a result of negotiations on
October 28, there were no outstanding issues barring a
contract except wages and effective dates.
During his testimony in this proceeding, Dowd ex-
plained that on October 28; at the beginning of the meet-
ing, the Union indicated its willingness to accept Judge
Jacobs' resolution of the wage issue in order to get a
contract. Dowd further indicated that on the same date,
Respondent might want to make some changes in the
offer found to have been made by Judge Jacobs because
of subsequent unilateral actions by Respondent after De-
cember 15, 1980. Dowd further stated, however, that if
the Union and Respondent could not reach an agreement
on those items, in any event the Union was prepared to
agree to the undisputed aspects of the judge's decision in
view of the fact that Respondent had not filed exceptions
to it.
Respondent admits that it withdrew its wage proposal
of December 15, 1980, but denies that this wage proposal
was previously agreed on. I find that Respondent's posi-
tion is without merit. Both Judge Jacobs and the Board,
in affirming his decision, found that the December 15,
1980 proposal had been agreed on. Both the judge's deci-
sion, as well as the Board 's order affirming it, required
that Respondent not withdraw the previously agreed-
upon wage proposal of December 15, 1980. Pursuant to
the judge's Order as affirmed by the Board, Respondent
was powerless to withdraw its offer, the Union was free
to accept the offer and on October 28, 1982, did so. I
find that by the Union's acceptance of the wage propos-
al, the parties had an effective total agreement as of Oc-
tober 28. I further find that it was unlawful for Respond-
ent to attempt to withdraw the wage offer having been
ordered by the judge and the Board not to do so.
Pargraph 10 of the complaint alleges that since about
November 29, the Union has requested Respondent to
execute a written contract. Respondent admits this. The
complaint further alleges that since about December 13,
Respondent, by letter, failed and refused to execute the
written contract submitted by Respondent. I have found
that the Union and Respondent reached full agreement
with respect to the terms and conditions of employment
LUTHER MANOR NURSING HOME
to be incorporated in the collective-bargaining agreement
as of October 28.
As noted by the General Counsel on brief, it is con-
ceivable that there might be a question with respect to
effective dates of the agreement . While the parties had
agreed in December 1980 that the effective dates of the
contract would be January 1, 1981 , to January 1, 1984, I
find, as requested by the General Counsel, that the wage
increases called for in the contract became effective on
October 28 , which is the date the parties reached con-
tractual agreement. Respondent 's obligations under the
terms of the contract , I have found to have been agreed
on, began on the date of the agreement , October 28,
even though the contract 's effective date is earlier.
C. The Alleged Refusal to Negotiate or Make
Proposals Concerning Wages
The General Counsel alleges that on October 28, Re-
spondent refused to negotiate or make an offer concern-
ing wages until its backpay liability in Case 18-CA-7117
had been determined ; that on December 27, Respondent
presented an economic proposal to the Union to reduce
its employees' future contractual wage increase by an
amount equal to the backpay the employees could or
would receive as a result of its unfair labor practice
found by Judge Jacobs in Case 18-CA-7117; that the
former conduct violated Section 8 (a)(1) and (5) of the
Act and that the latter conduct violated Section 8(a)(1)
and (3) of the Act.
Respondent admits that on October 28 it proposed de-
laying negotiations on wages until July 1, 1983, but
denied that this was for the purpose for delaying negotia-
tions on wages until its backpay liability was determined
and that it refused to negotiate wage rates and make
wage proposals . Further, Respondent admits that on De-
cember 27 it presented an economic proposal to the
Union which would have offset future wage increases by
any additional backpay liability , but denies it was at-
tempting to offset wage increases by a liability from any
unfair labor practices found by Judge Jacobs.
The General Counsel has alleged as further violations
of the Act Respondent's December 27 proposed contrac-
tual wage rates for part-time employees which were less
than Respondent 's existing wage rates for part-time em-
ployees. Respondent contends that it made the com-
plained of wage proposal on October 29, a fact which is
disputed by the Union which contends it never saw the
proposal until December 27. I find that regardless of
whether the proposal was presented on October 29, as
alleged by Respondent or on December 27, as contended
by the Union , Respondent' s actions constitute a violation
of the Act.
I have found that by withdrawing its wage proposal
found by Judge Jacobs to have been accepted by the
Union on October 28, Respondent has violated the Act. I
have further found that Respondent violated the Act by
refusing to execute the contract reached on October 28,
and' continues in violation of the Act by failing and re-
fusing to execute such agreement.
As I have found that Respondent 's action in withdraw-
ing its wage proposal on October 28 , and thereafter re-
fusing to execute its agreement with the Union, any pro-
39
posal it subsequently made to the Union with respect to
matters contained in the agreement constitutes a viola-
tion of the Act. Therefore, I consider the particulars of
the proposal made by Respondent to be of no particular
significance . The making of the proposal itself constitut-
ed a continuation of its bad-faith bargaining with the
Union and its intention to not execute a contract with
the Union covering the bargaining unit.
IV. THE EFFECT OF RESPONDENT'S UNFAIR LABOR
PRACTICES UPON COMMERCE
Respondent 's unfair labor practices, as found above,
occurring in connection with its operations described in
section I above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes, burdening
and obstructing the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall rec-
ommend that it be ordered to cease and desist therefrom
and that it take certain affirmative action designed to ef-
fectuate the policies of the Act.
As I have found that Respondent violated the Act by
refusing to execute the agreement reached on October
28, I shall also recommend that Respondent be ordered,
on request, to sign such agreement, to comply retroac-
tively to its effective date with its terms, and to make
whole the employees for any losses which they may
have suffered by Respondent's refusal to sign such agree-
ment, in accordance with the formula set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing
Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in an industry affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act and a health care
institution within the meaning of Section 2(14) of the
Act.
2. The Union, United Food and Commercial Workers
Union, Local No. 304A, United Food and Commercial
Workers International Union, AFL-CIO, CLC is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time LPN's and serv-
ice and maintenance employees employed by Respondent
at its Sioux Falls, South Dakota facility, excluding ad-
ministrator, assistant administrator , registered nurses,
business office clericals, guards, and supervisors as de-
fined in the Act constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since January 2, 1980, the above-named labor orga-
nization has been and is now the certified exclusive rep-
resentative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By withdrawing on October 28, the wage proposal
previously offered for all unit employees and found by
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the administrative law judge and affirmed by the Board
in Case 18-CA-7117 to have been accepted by the
Union, Respondent violated Section 8(a)(1) and (5) of the
Act.
6. By failing and refusing to execute the collective-bar-
gaining contract on which Respondent and the Union
had agreed to on October 28, Respondent has violated
Section 8(a)(1), (3), and (5) of the Act.
7. By continuing to make proposals which varied the
terms and conditions of the agreement reached between
Respondent and the Union on October 28, Respondent
has violated Section 8(a)(1) and (5) of the Act.
[Recommended Order omitted from publication.]