Middlebury Manor Nursing and Convalescent Home

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1038 (N.L.R.B. 1976)

1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Middlebury Manor Nursing and Convalescent Home
and Retail Clerks International Association, Local
No 698, AFL-CIO Case 8-CA-9475
June 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
12, 1976, on complaint of the General Counsel against
Middlebury Manor Nursing and Convalescent Home,
herein called the Respondent or the Company The com-
plaint issued on November 6, 1975, on a charge filed on
September 22, 1975, by Retail Clerks International Associ-
ation, Local No 698, AFL-CIO, here called the Union
The sole question in the case is whether the Respondent
illegally refused to bargain with the Union in violation of
Section 8(a)(5) of the Act Briefs were filed by the General
Counsel and the Respondent
Upon the entire record and from my observation of the
witnesses, I make the following
On March 25, 1976, Administrative Law Judge
Thomas A Ricci issued the attached Decision in the
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) or the
National Labor Relations Act, as amended, th Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief,
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
i The Administrative Law Judge finds that Weisberger was at the August
21 meeting Those in attendance all agree that he did not attend that meet
ing
The Administrative Law Judge describes Respondents counterproposal
of November 11 1975 as the same proposal as previously submitted with
the 11 areas of dispute noted Actually the November II proposal was the
same as Respondents original counterproposal with amendments and
agreements reached prior to the April 25 1975 meeting It did not include
the various concessions made on April 25 in order to avoid a strike sched
uled for the following day which concessions had reduced the areas in
dispute to 11 Respondent s withdrawal from the concessions it had made
on April 25 resulted from a change of its ownership and its successful effort
to withstand the Union s strike In these circumstances we agree with the
Administrative Law Jadge that this change of position does not warrant a
finding that Respondent thereby engaged in bad faith bargaining See Mid
western Instruments Inc 133 NLRB 1132 (1961) Albany Garage Inc and
Albany Motor Parts Inc 126 NLRB 417 419 (1960) Stoner Rubber Compa
ny Inc 123 NLRB 1440 1442 (1959)
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge A hearing
in this proceeding was held at Akron, Ohio, on February
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation engaged in the
business of extended care nursing, with its principal place
of business in Akron, Ohio Annually it receives in excess
of $100,000 in gross revenue, and annually it receives sup-
plies from points located directly outside the State of Ohio
valued in excess of $5,000 I find that the Respondent is
engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that Retail Clerks International Association, Local
No 698 , AFL-CIO , is a labor organization within the
meaning of Section 2 (5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The facts of the case are very simple and there is no
dispute as to any of them The Union was certified by the
Board on November 13, 1974, as bargaining agent for the
55 or 60 lesser skilled employees of the Respondent's nurs
ing home The parties met for purposes of negotiating a
contract and bargained regularly, nine times-starting in
January 1975 and ending May 2, they exchanged very
comprehensive written proposals, they reached agreement
on a number of items in discussion, and they disagreed on
about 11 issues-representing most of the substantive eco-
nomic questions and elements of union security The
Union called a strike which started on May 6, between 15
and 20 employees did not quit work From May 6 to late
August, when the Union abandoned the strike, the Compa-
ny hired about 35 to 40 replacements When the Union
offered to return the strikers to work there were only five
vacancies and five strikers taken on The Respondent ad
vised the remaining strikers that as vacancies arose they
would all be offered employment if they wished
At the request of the Union the parties met again in
bargaining sessions on August 21 and on November 11
Between the two meetings the Union filed its unfair labor
practice charge The last meeting did not produce agree-
ment, the Union did not thereafter request another meet-
ing, and the parties never met again
The complaint is very precise, because the General
Counsel explicated it in response to a motion for bill of
particulars As exactly alleged, illegality is to be seen in the
224 NLRB No 140
MIDDLEBURY MANOR NURSING AND CONVALESCENT HOME
Respondent's "refusal to meet at reasonable times and
places," and "failure and refusal to submit counterpro-
posals " I shall recommend dismissal of the complaint be-
cause the simple facts do not show any failure or refusal to
meet at reasonable times, and because the second charge is
in reality a contention that, when parties reach an impasse
in bargaining, it is the employer's obligation-at the risk of
otherwise violating the statute-to offer some economic
improvements in conditions of employment-raises, longer
vacations, money improvements of one kind or another,
maybe checkoff to help the Union The law is clearly
otherwise l If an employer, as expressly provided in the
statute, is under no legal obligation to agree to any demand
made by a union, it follows by the most elementary reason-
ing that it is also free from any duty to raise its own ante in
the talking, or, indeed, to suggest any additional benefit for
the employees over and above what they at any given mo-
ment have
Before this strike began the principal owner of the nurs-
ing home was a certain man, he was represented in his
relations with the Union by Edward Kaminski, a lawyer,
and George Hennigin, organizing director, was acting on
behalf of the Union As the strike was about to end, or
after it was over (the record is ambiguous on this point),
Granville Terry, of the International Union as distin-
guished from the certified local, telephoned Kaminski and
asked to resume bargaining Kaminski agreed, and ex-
plained he would have to get in touch with Mr Weisberger,
who, during the strike, had replaced the previous owner of
the business Terry made the call on August 11, and the
next day Kaminski called him back, saying the employer
was ready to meet The two agreed to confer in the lawyer's
office and they did, on August 21 Here Kaminski had
Weisberger with him and Terry was accompanied by John
Bartlett, secretary-treasurer of Local 698
This was a regular bargaining session Bartlett had with
him the notes originally made by Hennigin of all the nego-
tiations that went on in the spring, those which aborted
into a strike, and Kaminski, of course, had his old confer-
ence notes reflecting also what had taken place during the
prestrike talks Terry testified the parties were there over
an hour, that the participants "went over the outstanding
differences from their notes," and "agreed and verified
what the outstanding differences were" Terry's statement
at the hearing immediately following this, that "there were
no negotiations," reflects pure fantasy by an agent whose
union has just lost a strike The meeting ended inconclu-
sively, and it is not clear exactly how matters were left
Bartlett simply testified, as to this meeting "I wanted a
response on them, on the remaining issues " Kaminski re-
called that Bartlett `asked for a proposal from the compa-
i Sec 8(d) reads as follows
For the purposes of this section to bargain collectively is the perfor
mance of the mu ual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good faith
with respect to wages hours and other terms and conditions of em
ployment or the negotiation of an agreement or any question arising
thereunder and the execution of a written contract incorporating any
agreement reached if requested by either party but such obligation
does not compel either party to agree to a proposal or require the
making of a concession
1039
ny," and that he, Kaminski, answered that the Union knew
what the employer's position was on everything Kaminski
also testified he told the Union two things that day (1) the
new owner might feel differently than the old one about
what conditions of employment should be, and (2) the
many items, conceded by the Respondent at the last mo-
ment before the strike and for the purpose of avoiding the
economic struggle, might now appear in a different light
The Union never offered to change its position on any item
in dispute, from the inception of the strike in May through
the August 21 meeting, clear up to the day of the hearing
As to what happened following the August meeting, all the
record shows is Bartlett's testimony that, on September 2,
he telephoned Kaminski to ask "why I didn't hear from
him," and that the answer was the lawyer "had to talk to
his clients " No one communicated with the Respondent
again and the Union filed its refusal-to-bargain charge on
September 22
On September 26, Kaminski wrote to the International,
saying he was not clear who was supposed to be doing the
bargaining now-the International or the Union-but di-
rectly offering to meet and negotiate at reasonable times
Terry wrote back on September 29, saying the lawyer
should get in touch with Bartlett On October 9, Kaminski
again wrote to the Union, explaining why he thought the
Federal Mediation and Conciliation Service might help,
that he had asked that office to assist, and that a meeting
would accordingly be arranged It was, and the parties met
a final time on November 11
This meeting was short and fruitless When the union
agents again asked if something happened, Kaminski
handed its agent a copy of the Respondent's original de-
tailed typewritten proposals-the same ones it had put into
Hennigin's hands back in January, the copy also showing,
in Kaminski's handwriting, the various agreements that
had been reached in the spring, and noting the outstanding
11 "issues in dispute," as the parties called them at the
hearing Kaminski did not contradict Hennigin s testimony
that at this last meeting the Respondent's express position
was that "everything that was agreed to was off the table
they were offering all new proposals "2
Hennigin literally talked himself out of the complaint If
he is to be believed, and I do believe him, the Respondent
did `submit counterproposals"-contrary to the precise
allegation set out in the complaint The trouble is the
Respondent's "new proposals" were the same as its old
ones, and Hennigin did not like them at all And this is
precisely what the whole case is all about When the com-
plaint speaks of the Respondent not having made any
"proposals,' what it really means is the Respondent did
not propose to make some improvement in the employees'
conditions of employment so that they might be better off
in consequence of the union representation for which they
had voted back in November 1974 The Union never
moved an inch-during or after the strike-from whatever
its position had been during the nine bargaining sessions of
the spring At the August 21 meeting Bartlett asked, ac-
cording to Hennigin `When he would get a counterpropo-
sal " Counter to what9 There were no "proposals" by the
2 Cf Great Falls Employers Council Inc 123 NLRB 974 982 (1959)
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union for the Respondent to "counter " Bartlett kept talk-
ing about "responses ," and the Company's failure to make
"responses " "What is it that you asked the company to
dog The witness To respond to me on the 11 remaining
issues To give me proposals of those 11 contract
items " When the opposing parties engaged in collective
bargaining reach a point of impasse on an "item," or an
issue in dispute between them , how does either one of them
"respond" to such issues, or make "proposals " related to
them , except by coming forward with some kind of conces-
sion" And this is all that the union agents were hoping for,
and asking Kaminski to give them In his letter to Kamin-
ski dated September 29, Terry no less than four times ac-
cused the Respondent of failure to "respond to unresolved
issues " Descriptive phrases, be they in the Charging
Party's ingenious correspondence or repeated in the form
of a complaint, cannot be given greater import than the
plain meaning of words It is not an unfair labor practice
for an employer not to make offers of economic improve-
ment advantageous to the employees Especially must this
plain statement stand in a case like this, where, with calcu-
lated care , there is no allegation of overall bad faith, such
that conceivably any detail of conduct might have some
relevance to the essential question Without themselves
suggesting any area of compromise that might have
changed the mutual loggerhead positions that had preced-
ed the strike, and that had persisted to that day in August,
the union agents were asking the Company now to give
them something of value-economic or union security-
that the employer had not offered before The Respondent
refused to do so, and it does not matter whether the lawyer
first said maybe his client would and later changed his
mind It is a fact that the Respondent offered nothing And
this is why plain language is indicated If it is of a mind the
employer does not have to give the bargaining agent any-
thing it requests Can it possibly be argued it must never-
theless give voluntarily
There are cases where failure to move at all in collective
bargaining , or even refusal to concede a related item here
or there, while not actions in themselves constituting unfair
labor practices , have been appraised as component ele-
ments in overall pictures of pervasive bad-faith bargaining
Such decisional precedents are completely inapposite here
There is no charge of bad faith , nor any contention that
this pinpointed "failure or refusal to submit counterpro-
posals"-to quote the complaint once again-must be
viewed in relationship to other mdicia of rejection of the
principle of collective bargaining The Respondent was
called to account in this proceeding only because of its
failure of generosity towards the Union following 3 months
of picketing in front of its premises Perhaps some day a
better procedure for collective bargaining may be evolved
But, for the moment , the Supreme Court has said
(N L R B v Insurance Agents International Union, AFL-
CIO [Prudential Insurance Company], 361 U S 477 (1960))
it is perfectly lawful for a union to strike while simulta-
neously calmly talking it over at the bargaining table This
means it could hit, and hurt, while pursuing the peaceful
process of persuasion When the attempt to hurt fails, as it
clearly aid in this case, it could hardly be held the employ-
er owes a duty in "response" to start offering gifts
Upon the foregoing findings of fact , and the entire rec-
ord, and pursuant to Section 10(c) of the Act, I issue the
following recommended
ORDERS
I hereby recommend that the complaint be, and it here-
by is, dismissed
3 In the event no exceptions are filed as provided in Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes