Nansemond Convalescent Center

National Labor Relations Board - Board Decisions

Apr 3, 1981

255 N.L.R.B. 563 (N.L.R.B. 1981)

NANSEMOND CONVELESCENT CENTER 563
Nansemond Convalescent Center, Inc. and Profes-
sional and Health Care Division, Retail Clerks
International Union, Local 233, AFL-CIO.
Case 5-CA-10889
April 3, 1981
DECISION AND ORDER
On December 23, 1980, Administrative Law
Judge Charles M. Williamson issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief.
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, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
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 Respondent, Nansemond
Convalescent Center, Inc., Suffolk, Virginia, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph l(a):
"(a) Refusing to permit negotiation of economic
issues until all noneconomic issues are agreed upon,
thereby refusing to bargain collectively in good
faith with Professional and Health Care Division,
Retail Clerks International Union, Local 233,
AFL-CIO, herein designated Charging Party, as
the exclusive representative of its employees in the
following appropriate unit:
"All service and maintenance employees em-
ployed by Respondent at its Suffolk, Virginia,
facility, excluding office clerical employees,
registered nurses, licensed practical nurses, ac-
tivities and/or social directors, guards and su-
pervisors as defined in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent submitted a request for oral argument in conjunction
with its exceptions and brief. This request is hereby denied as the record.
the exceptions, and the briefs adequately present the issues and the posi-
tions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule and administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
255 NLRB No. 89
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to permit negotiation
of economic issues until all noneconomic issues
are agreed upon and WE WILL NOT refuse to
bargain collectively with Professional and
Health Care Division, Retail Clerks Interna-
tional Union, Local 233, AFL-CIO, as the ex-
clusive representative of all employees in the
appropriate unit described below and, if an
agreement is reached, embody it in a signed
contract. The appropriate unit is:
All service and maintenance employees
employed by us at our Suffolk, Virginia, fa-
cility, excluding office clerical employees,
registered nurses, licensed practical nurses,
activities and/or social directors, guards and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any of our
employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
NANSEMOND
CENTER, INC.
CONVALESCENT
DECISION
STATEMENT OF THE CASE
CHARLES M. WILLIAMSON, Administrative Law Judge:
This case is based on a complaint and notice of hearing
issued on November 6, 1979, by the Regional Director of
Region 5, of the National Labor Relations Board. The
charge, alleging violation of Section 8(a)(1) and (5) of
the National Labor Relations Act (herein called the
Act), as amended, was filed on April 27, 1979, by the
above-entitled labor organization, hereafter referred to as
the Charging Party. The hearing took place at Ports-
mouth, Virginia, on April 8 and 9, 1980. The complaint
alleges that Nansemond Convalescent Center, Inc., here-
after designated as Respondent, violated Section 8(a)(1)
and (5) of the Act, on and after January 23, 1979, by re-
fusing "to discuss economic issues until all noneconomic
issues of a collective-bargaining agreement were set-
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tied."' The General Counsel and Respondent filed post-
hearing briefs which have been carefully considered.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Virginia corporation, is engaged in the
operation of a nursing home at a location in Suffolk, Vir-
ginia. During the 12 months prior to the issuance of the
complaint, a representative period, Respondent derived
gross revenues from the operation of the nursing home in
excess of $100,000 and, during the same period of time,
purchased and received products valued in excess of
$50,000 directly from points and places located outside
the State of Virginia. Respondent admits, and I find, that
Respondent is, and has been at all times material herein,
an employer engaged in and affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE REPRESENTATIVE STATUS OF CHARGING
PARTY
The complaint alleges, Respondent admits, and I find
that the Charging Party was certified on September 5,
1978, in Case 5-RC-10516 as the exclusive collective-
bargaining representative of employees of Respondent in
the following appropriate unit:
All service and maintenance employees employed
by the Respondent at its Suffolk, Virginia, facility,
excluding office clerical employees, registered
nurses, licensed practical nurses, activities and/or
social directors, guards and supervisors as defined in
the Act.
Respondent further admits that since on or about Oc-
tober 12, 1978, it and the Charging Party have met "for
the purpose of engaging in negotiations with respect to
wages, hours and other terms and conditions of employ-
ment of employees" in the above-described unit.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Ground Rule on Nonecomonic Issues
The General Counsel's allegation of violation in this
case revolves around a bargaining procedure employed
by Respondent from the first meeting on October 12,
1978, until the following spring of 1979.
At the first meeting, the Charging Party Union's rep-
resentative, Rudy Pinto, presented Respondent's negotia-
I Counsel for the General Counsel, hereafter referred to as the General
Counsel, moved on the second day of the hearing to withdraw par. 7(b)
of the complaint alleging that Respondent withdrew from collective bar-
gaining with the Charging Party on or about March 13, 1979. The tran-
script, at p. 254, reflects a withdrawal of "paragraph 7" rather than
"paragraph 7(b)." The transcript is hereby amended to reflect the with-
drawal of "paragraph 7(b)." I granted the motion to withdraw this alle-
gation.
tor, Herbert B. Larrabee, with a complete set of contract
proposals. These proposals included both economic and
noneconomic items. After reviewing the Union's propos-
als, Larrabee testified that he suggested a negotiating
procedure of getting "the non-economic language agreed
to and out of the way and then go into economics." Lar-
rabee admitted that Pinto resisted making such an agree-
ment. Larrabee then expressed the desire that the parties
"cover each one of the non-economic areas, and later the
economic areas." He suggested that, when tentative
agreement was reached, the parties initial that particular
proposal and mark it "T/A." After the discussion had
continued "for an hour or so," Larrabee testified that the
parties had reached an understanding that this was the
manner in which they would proceed. There was no par-
ticular form of words by which Pinto gave his assent to
this ground rule, Larrabee testified, but his assent was in-
ferred from "his comments on ten, eleven, or twelve
items."2
Pinto testified that he did not remember any discussion
of this ground rule at the first bargaining session. He
stated that at the second meeting on November 9, 1978,
Larrabee told him that the Union's proposal had been
costed out and "it would have enormous economic
impact on the nursing home." Pinto stated that Larrabee
then said, "he was accustomed to resolving . . . the non-
economic issues before we got down to economics."
Pinto then stated:
I said our argument was that in the interest of being
expeditious, we will discuss and attempt to resolve
non-economic issues, but that didn't close the door
as we understood it to resolving economic matters.
We will just talk about non-economics first. And at-
tempt to get them resolved.
After Pinto ceased attending the bargaining sessions,
Lawrence C. Tueller and Jack Taylor took over as
spokesmen for the Union. Larrabee testified that he went
over this ground rule with them by way of "reminder."
Union Negotiator Tueller testified that the parties agreed
to negotiate about "the non-economics first before the
economics," but he stated that Pinto remarked that eco-
nomics could be discussed if the parties found themselves
unable to reach agreement on noneconomics. Union Ne-
gotiator Taylor, while admitting that the parties agreed
to cover noneconomic issues prior to taking up economic
matters, stated:
I am not sure when it was a firm, hard position that
we could not move into economics until all of the
non-economics were removed. It was at a subse-
quent meeting from the first. It may have been the
second or third meeting that I was involved in it. It
was fairly early in the negotiations ... . It was my
understanding that that is what Mr. Larrabee
2 Respondent's minutes of this bargaining session state: "Larrabee then
stated that he preferred to bargain on non-economics before economic
issues .... Larrabee continued by noting that there could be tentative
agreements on non-ecomonic items, and they could be out of the way pending
a decision on the entire package" (Emphasis supplied). G.C. Eh. 3, p. 3.
NANSEMOND CONVELESCENT CENTER 565
wanted. It was not my understanding that that was
my obligation.
Of particular importance in this case is the question of
whether Larrabee and the trio of union negotiators
reached an oral agreement that noneconomic issues
would be resolved prior to discussion of economic issues.
Respondent, in its brief, at 16, et seq., does not claim that
such an agreement existed: "In the present case, it has
been Respondent's position that the ground rule was in
the nature of an agenda." Respondent apparently contra-
dicts its Chief Negotiator Larrabee who testified:
Q. Mr. Larrabee, correct me if I am wrong, that
it is your position as the chief negotiator for Re-
spondent that at the first negotiating session, that is
the session on October 12, 1978, you and the negoti-
ator or the Union reached an agreement that you
would resolve non-economics before you moved
into economics, is that correct?
A. Eventually we did in that meeting, yes.
Further on, Larrabee reiterated this position:
The experiences that I had told the Union was
that it would be a wise approach in view of the size
of their demands to first get the non-economic lan-
guage agreed to and out of the way and then go
into economics . . . Mr. Pinto did not want to ap-
proach it that way .... So that after this pro-
gressed for an hour or so, I did reach understanding
with Mr. Pinto that this is how we would go
through the negotiations. [Emphasis supplied.]
It is true, as Respondent argues in its brief, that Larra-
bee testified at one point that his understanding with the
Charging Party was "simply an agenda for discussion."
However, the context of his entire testimony makes it
clear that he regarded this agreement on an "agenda" as
going beyond a simple undertaking as to the order of dis-
cussion. Thus, Larrabee described in specific detail to the
Union's negotiators how tentative agreements would
have to be arrived at and initialed on noneconomic issues
prior to proceeding to other matters. 3 Elsewhere, as set
forth above, he described the agreement as being one re-
quiring that noneconomic issues be "resolved" or
"agreed to and out of the way" before negotiation on
economic issues could begin. I therefore find that while
the parties may have agreed that noneconomic issues
would be discussed first, there was no agreement requir-
ing even a preliminary resolution of such issues as a con-
dition precedent to a discussion of economic issues.
While Respondent's negotiator, Larrabee, energetically
' Respondent, in its brief, defends its conduct at the bargaining table
by a quotation from Werne, Law and Practice of the Labor Contract,
Section 223 (1957); "Management is best advised not to talk wages or
money benefits until desired changes have been worked out on other as-
pects of the agreement. If the Union has won economic gains, it is not
likely to be much interested in management's suggestions for revising
such items as the transfer, layoff, grievance or leave procedure." I, of
course, make no comment on this strategic advice. The questions here
relate to whether Respondent obtained an agreement to this procedure
and the use made of the procedure in the context of the negotiations.
sought such an agreement, there was no meeting of the
minds on this issue.
B. Subsequent Negotiations
Meetings were held between the parties on October
12, 1978, November 9, 1978, November 24, 1978, De-
cember 12, 1978, December 21, 1978, January 5, 1979,
January 23, 1979, February 1, 1979, February 13, 1979,
February 22, 1979, March 13, 1979, April 9, 1979, April
20, 1979, and May 31, 1979.
At the November 9 session, the parties agreed tenta-
tively on preamble, recognition, and full agreement
clauses. At the third session on November 24,4 there was
considerable discussion concerning the possible effect of
the Union's change of negotiators on progress and agree-
ments already made in the negotiations. At the Decem-
ber 12 and 21 meetings, there was some discussion of
ground rules,5 a tentative agreement on a separability
clause and some discussion on a pending change in the
Federal minimum wage. At this time, Respondent in-
formed the Union that, absent objection, Respondent
would put the new minimums in place. Larrabee in-
formed the Union that only employees then being paid
less than the new minimum of $2.90 per hour would re-
ceive an increase.
At the January 5, 1979, meeting, Respondent had ap-
parently changed its mind as to the method of imple-
menting the change in the minimum wage. It no longer
desired to implement an increase only for employees
making less than the new minimum, but desired to give
an increase to its other employees so that its wage struc-
ture would not be compressed. The Union agreed to this
change,6 regarding it as an implementation of Respond-
ent's past practice in the area of minimum wage changes.
At the January 23 meeting, the Union attempted to
move into the area of economics. Larrabee resisted this
attempt, pointing out that the ground rules required the
parties to resolve all noneconomics before moving into
economics. 7 Larrabee, while insisting that he did not
refuse to discuss economics, nevertheless, as Respond-
ent's brief admits, "refused to make economic commit-
ments at that time." 8
This pattern continued for the next three meetings-
those of February 1, February 13, and February 22-be-
tween the parties. As Respondent admits, the Union tried
several times during these meetings to initiate negotia-
tions on economic issues. In each instance, Respondent
continued to insist on discussion of noneconomics.9 Re-
4 Jack Taylor became the Charging Party's chief spokesman at this
meeting. The various agreements between the parties are found variously
in the testimony of Larrabee, Pinto, Taylor, and Tueller.
s Resp. Exh. 3, p. 4, reflects the Union's frustration over the manner in
which negotiations were proceeding. There is a reiteration of the agree-
ment to address and negotiate (but not resolve) noneconomic issues prior
to taking up economic ones.
I make no inferences from the Respondent's change of position be-
tween December 21, 1978, and January 5, 1979, regarding this matter.
I This finding is based on the credited testimony of Tueller.
8 Larrabee drew a distinction here between making proposals and com-
mitments as against discussion and review of the parties' respective posi-
tions.
9 Respondent contends that no impasse was reached on noneconomics.
citing at Resp. brief, p. 9. numerous changes of position and new propos-
Continued
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's minutes of the February 13 meeting, for in-
stance, clearly express its position on the disputed bar-
gaining procedure: ". . . ground rules clearly state . . .
that no economics would be discussed until non-economic
issues are finalized or tentatively agreed to." (Emphasis
supplied.) Resp. Exh. 7, p.2.
The Union again sought negotiation on economic
issues at the eleventh bargaining session on March 13,
1979. Larrabee again explained that he needed to assess
the impact on the nursing home of the remaining none-
conomic issues. He stated that when such issues were un-
resolved he would be compelled to base his cost esti-
mates on the most expensive alternatives. After Larrabee
conducted a review of outstanding issues the Union men-
tioned that a successful strike authorization vote had re-
cently occurred. Union Negotiator Taylor then stated
that the parties were at impasse on noneconomic issues
and again requested that the parties move into econom-
ics. When Taylor began to read a portion of the Union's
economic proposals Larrabee repeatedly stated that Re-
spondent was not interested in talking about econom-
ics.' ° Following reiteration of this statement, Larrabee
finally stated: "If you want an economic proposal, I will
give you an economic proposal; $2.90 an hour."" Larra-
bee acknowledged that he was offering the minimum
wage and that employees would be moved back to that
level. 12 He further stated that this was Respondent's
entire economic offer. Items such as holiday pay, uni-
form allowance, sick pay, hospitalization, and vacation
benefits were not to continue.
Subsequently, on April 9, Larrabee reintroduced the
preexisting uniform allowance, holiday, and vacation
practices. However, he notified the Union that until Re-
spondent could obtain agreement in noneconomic areas,
it would not be willing to include anything in the con-
tract regarding the current sick leave and health insur-
ance benefits. He stated that this position would obtain
until tentative agreement was reached on noneconomic
areas. a
Respondent maintained its economic position at the
April 20 meeting. Its strategy was successful to the
extent that the Union dropped a proposal on workload
distribution and the parties were able to resolve the final
aspects of seniority provisions, both noneconomic mat-
ters. Again, when the Union attempted to move into eco-
nomics, Larrabee informed them that Respondent could
agree to nothing significant in economics until nonecono-
mics were substantially resolved. 4
als by both sides in such areas as discharge, discrimination, no strike, no
lockout clauses, recognition, scheduling, and seniority. I make no finding
on the question of impasse because, in my view of the case, the existence
or nonexistence of impasse is immaterial. Respondent seems to be con-
tending at Resp. brief, p. 9, that it was not obligated to negotiate eco-
nomics until impasse was reached on noneconomics. This is, I think, in-
consistent with its position, expressed elsewhere, Resp. brief, p. 4, that
the parties' agreement related only to an "agenda" for discussion.
10 Based on the credited testimony of Taylor.
i Based on the credited testimony of Taylor. See also Resp. Exh. 9, p.
4. the Respondent's minutes of this meeting.
12 See G.C. Exh. 2, a wage list of employees, to show that a wage cut
was being offered.
3 Admitted by Larrabee.
" See, e.g., Resp. Exh. II11, p. 5.
At the May 31 meeting (regarded as being "off the
record") Taylor testified that he offered to accept Re-
spondent's terms on noneconomics if Larrabee would
agree to the Union's leave of absence proposal. This
offer was rejected by Larrabee who, I find, commented
that the Union would have to inform the employees that
they should accept lesser benefits and economics than
currently in effect. This statement ended the negotiations
as far as the record in the instant case is concerned.
v. ANALYSIS
As heretofore stated, I have found that no binding
agreement to resolve noneconomic issues prior to mean-
ingful discussion of economic issues existed. The Union
had simply never agreed to this procedure. Nevertheless,
the record is clear that Respondent insisted on conduct-
ing the negotiations as if the Union had so agreed. Re-
spondent argues that it made economic proposals to the
Union on March 13, 1979, when it offered to pay the
minimum wage, an offer concededly involving a de-
crease in wages then paid. This clearly unacceptable
offer was used by Respondent as a device to impose its
procedural straitjacket on the negotiations. Thus, on
April 9, 17 days after its wage proposal, Respondent,
while adding several preexisting benefits to the minimum
wage offer,S continued to insist that until it could obtain
agreement in noneconomic areas, it would not include
anything in the contract regarding then current sick
leave and health benefits. On April 20, when the Union
attempted once again to move into the economic area,
Larrabee stated that Respondent could agree to nothing
significant in economics until noneconomics were sub-
stantially resolved. I make no per se finding, of course,
regarding the Respondent's wage offer. It has been clear
since the Act's inception that the Board does not sit in
judgment on the substantive proposals of the parties
before it. That does not require the trier of facts to be
blind to the implications and significance of proposals
made within the negotiating context. As the court stated
in N.L.R.B. v. Reed and Prince Manufacturing Co., 205
F.2d 131, 134-135 (Ist Cir. 1953) while:
[W]hile the Board cannot force an employer to
make a "concession" on any specific issue or adopt
any particular position, the employer is obliged to
make some reasonable effort in some direction to
compose his differences with the Union, if Section
8(a)(5) is to be read as imposing any substantial obli-
gation at all.
Here, imposing its own procedural straitjacket on the
negotiations, Respondent first sought the Union's agree-
ment to tentatively resolve all noneconomic issues prior
to meaningful discussion of economics; when the Union
insisted on meaningful economic discussions, Respondent
took a predictably unacceptable position on wages as a
way of forcing the Union into compliance with its proce-
dural wishes. Although accomplished in a more subtle
1' I do not find that these concessions regarding preexisting benefits
made Respondent's economic offer any the less predictably unacceptable
to the Union.
NANSEMOND CONVELESCENT CENTER 567
and indirect manner, Respondent's purpose is not distin-
guishable from that found violative of Section 8(a)(l) and
(5) in Yama Woodcraft, Inc. d/b/a Cat-Pacific Furniture
Mfg. Co., 228 NLRB 1337, 1342 (1977). Accordingly, I
find that Respondent, by its insistence on obtaining tenta-
tive agreement on noneconomic issues prior to meaning-
ful discussion of economic issues and its attendant refusal
to engage in meaningful bargaining on economic issues,
violated Section 8(a)(1) and (5) of the Act. Pillowtex Cor-
poration, 241 NLRB 40 (1979); Yama Woodcraft, Inc.,
supra; Romo Paper Products Corp., 220 NLRB 519, 525,
fn. 22 (1975). Barney Manufacturing, Inc., 219 NLRB 41,
45 (1975), cited by Respondent in support of its position,
is not in point. The question presented in Barney was
whether an offer of the minimum wage by Respondent
was indicative, in and of itself, of overall bad faith in the
negotiations. The question here does not concern overall
good or bad faith.' 6 Nor, as I have earlier indicated,
have I made any finding with regard to the substance of
the Respondent's wage offer. The question is, rather, the
use which Respondent made of its wage offer to impose
on the Union its own concept of the procedure to be fol-
lowed in bargaining. In making use of its wage offer in
that fashion, Respondent refused meaningful bargaining
on economic issues in violation of its duty under the Act.
Upon the basis of the foregoing, and the entire record,
I make the following:
CONCLUSIONS OF LAW
I. Nansemond Convalescent Center, Inc., the Re-
spondent herein, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Professional and Health Care Division, Retail Clerks
International Union, Local 233, AFL-CIO, the Charging
Party herein, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All service and maintenance employees employed
by the Respondent at its Suffolk, Virginia, facility, ex-
cluding office clerical employees, registered nurses, li-
censed practical nurses, activities and/or social directors,
guards and supervisors as defined in the Act constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since September 5, 1978, the Charging Party has
been, and is now, the exclusive representative of all em-
ployees in the aforesaid bargaining unit for the purpose
of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing, commencing January 23, 1979, to
permit negotiation of economic issues until all nonecono-
mic terms were tentatively agreed upon, and by refusing
to bargain on economic terms of a contract, Respondent
has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act.
la No allegation of overall bad faith was pled in the complaint. That
Respondent's violation may be of this more limited character is clear: "A
refusal to negotiate in fact as to any subject which is within Section 8(d).
and about which the union seeks to negotiate, violates Section 8(a)(5)
though the employer has every desire to reach agreement upon an over-
all collective agreement .... " .LR.B v. Benne Katz. etc., d/b/a Wil-
liamsburg Steel Products. Co., 369 U.S. 736. 742-743 (1962).
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the purposes and poli-
cies of the Act.
Having found that Respondent has refused to bargain
in good faith with the Charging Party, it will be recom-
mended that the Respondent bargain collectively in good
faith with the Charging Party as the exclusive repre-
sentative of the employees in the appropriate unit and, if
an understanding is reached, embody such understanding
in a signed agreement.
To place Respondent and the Charging Party in as
nearly the same situation as possible to that which exist-
ed before January 23, 1979, it will be recommended, as
requested by the General Counsel, that upon resumption
of bargaining and for 8 months thereafter the Charging
Party be regarded as if the initial certification year had
not expired. Burnett Construction Company. Inc., 136
NLRB 785 (1962).
I do not find that the evidence in this case, relating to
a single, improperly used bargaining technique of Re-
spondent, demonstrates that Respondent has a propensity
to violate its employee's rights under Section 7 of the
Act. I shall, therefore, recommend a narrow cease-and-
desist order. Hickmott Foods, Inc., 242 NLRB 1357
(1979).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 7
The Respondent, Nansemond Convalescent Center,
Inc., Suffolk, Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Professional and Health Care Division, Retail Clerks In-
ternational Union, Local 233, AFL-CIO, herein desig-
nated Charging Party, as the exclusive representative of
its employees in the following appropriate unit:
All service and maintenance employees employed
by Respondent at its Suffolk, Virginia, facility, ex-
cluding office clerical employees, registered nurses,
licensed practical nurses, activities and/or social di-
rectors, guards and supervisors as defined in the
Act.
t' In the event no exceptions are filed as provided by 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 recommended Order. and all objec-
tions thereto shall be deemed waived for all purposes.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes and policies of the Act:
(a) Upon request, bargain collectively with the Charg-
ing Party as the exclusive representative of all employees
in the aforesaid appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment and, if an agreement is
reached, embody such understanding in a signed agree-
ment. Regard the Charging Party, upon resumption of
bargaining and for 8 months thereafter, as if the initial
year following certification had not expired.
(b) Post at its premises in Suffolk, Virginia, copies of
the attached notice marked "Appendix."' 8 Copies of said
'8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's repre-
sentative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Order of the National Labor relations Board" shall read "Posted Pursu-
ant to a Judgment of a United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."