Pine Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1977

230 N.L.R.B. 320 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pine Manor Nursing Home, Inc. and Laborers' Local
Union No. 246, a/w Laborers' International Union
of North America, AFL-CIO. Case 15-CA-6101
June 20, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On March 23, 1977, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Pine Manor
Nursing Home, Inc., Tuskegee, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Producrs,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Respondent has requested oral argument. The request is hereby
denied as the record, the exceptions, and briefs adequately present the issues
and the positions of the parties.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Tuskegee, Alabama, on September 20 and 21,
1976. Upon a charge filed and served May 17, 1976, and an
amended charge filed and served on July 16, the Regional
Director for Region 15 issued the complaint in this
proceeding on July 28, 1976. The complaint alleges that
Pine Manor Nursing Home, Inc., herein called Respondent
or the Company, violated Section 8(aXi) and (5) of the Act
by unilaterally and without notice to Laborers' .Local
Union No. 246, a/w Laborers' International Untin of
North America, AFL-CIO, herein called the Union,
instituting and implementing a group hospitalization and
life insurance program and further by failing and refusing
to bargain with the Union in good faith. Respondent filed
an answer denying the commission of unfair labor
practices.
IssuEs
Whether since November 17, 1975, Respondent has
refused to bargain in good faith with the Union as
exclusive representative of its employees, without any
intention of entering into a collective-bargaining agree-
ment.
Whether on or about April 1, 1976, Respondent
unilaterally and without notice implemented a group
hospitalization and life insurance program covering em-
ployees in the bargaining unit.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs
submitted by the General Counsel and Respondent have
been carefully considered.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent, an Alabama corporation, is engaged in
nursing care at its nursing home facility in Tuskegee,
Alabama. During the past year preceding the issuance of
the complaint herein, Respondent received gross revenues
in excess of $100,000. At the hearing Respondent admitted
and I find that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
An election was conducted among Respondent's em-
ployees on February 11, 1975, in which the Union obtained
a majority of the votes. The Company thereafter filed
timely objections and, after consideration by the Regional
Director and the Board, the Board certified the Union as
230 NLRB No. 40
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PINE MANOR NURSING HOME
the exclusive bargaining representative of the employees in
the unit on June 2, 1975.'
On April 24, 1975, during the pendency of the investiga-
tion of objections, the Union wrote Respondent requesting
a meeting for the purposes of contract negotiations and
further requesting that Respondent submit certain infor-
mation regarding employees' names, classifications, and
other data relating to the employees. Respondent's counsel
replied on May 13 stating that it would not bargain at that
time since a certification has not as yet issued. The
information requested was not then delivered, nor has the
request ever been complied with in its entirety.
B. Facts
The first meeting for the purposes of bargaining was held
at Respondent's premises on August 11 or 12, 1975.2 At the
outset Respondent, who was represented by its executive
director, Virginia Y. Cook and its attorney, Carl A.
Morring, Jr., protested the presence of a former employee
as a member of the Union's negotiating committee.
However, Joseph D. Speller, international representative of
the Union, who represented the Union throughout the
course of negotiations, insisted that this person remain and
he did. The Union then presented a package of 16
proposals and requested to see company proposals.
Morring stated that he had been too busy with court
matters and therefore had not the time to prepare
proposals for Respondent. He suggested however that
Speller read the Union's proposals and he would then ask
questions and inquire about them. According to Speller, he
read the Union's proposal as to jury duty and, although
Cook stated that in her view there was no need for this
proposal at all, Morring said that he would feel obliged to
comply with state law. Speller stated that there was no
further discussion of jury duty. Morring testified that after
suggesting certain additions and deletions to the jury clause
as originally proposed by the Union, language acceptable
to both parties was agreed upon for inclusion in an
agreement when one would finally be drafted.
Speller also read a proposal as to civic responsibilities
dealing mainly with the opportunity employees should
have to vote in elections. It was Mrs. Cook's feeling that
employees should vote on their own time, Speller said that
the Company did not offer to rephrase the union proposal
or make a counterproposal. Both Morring and Cook
testified that a proposal called civic responsibilities was
discussed along with the question of jury duty and that the
parties had agreed on language which would be acceptable
if a contract were signed. They were unable to give any
details as to the so-called civic responsibility proposal or
i The appropriate unit as certified by the Board is:
All nurses aides, orderlies, dietary department employees, housekeep-
ing department employees, and laundry employees; excluding regis-
tered nurses, charge licensed practical nurses, executive secretaries,
watchmen and/or guards and supervisors as defined in the Act.
2 The exact date is in doubt but it is of no moment.
3 1 find that in these matters as well as other subjects to be hereinafter
discussed. I am unable to credit the testimony of Cook. When she took the
stand, she apparently had no real recollection of what occurred at these
various bargaining sessions. She first attempted to testify from notes
admittedly made and prepared by her attorney. She herself had made no
the language that was agreed upon nor are there any
documents or evidence indicating what the final language
would be.3
Speller then read a proposal for a bulletin board and
explained the rationale for it when pressed by Cook and
Morring. Cook stated that there was no need for such a
board, but if there was going to be one the Union would
have to procure and pay for it. Both Cook and Morring
stated that agreement had been reached whereby Respon-
dent would provide the space if the Union brought the
bulletin board.
Speller then read a proposal for two rest breaks and
Cook replied that the employees were already receiving one
and she was not about to agree to two breaks. In her
testimony Cook maintained that she finally agreed to two
rest breaks, but Morring did not include such agreement in
his recital of what occurred at the August 12 meeting.
Speller began to read a proposal for promotional
opportunities but was interrupted by Cook who said there
was no need since employees only worked in three
classifications, laundry, housekeeping, and nursing and
that she would not agree to any such proposal.
The parties met again on August 18, 1975, according to
Speller. Neither Cook nor Morring referred to a meeting on
this date during the course of their testimony, both of them
indicating that the next meeting occurred on November 20.
While Speller agrees that there was a meeting on Novem-
ber 20, he asserts they also met on August 18. As Speller
testified in a direct, sincere, forceful, and well-organized
manner, as contrasted with the testimony of Cook, I shall
credit his testimony to the effect that there was a meeting
on August 18.
At the August 18 meeting attended by Speller, Morring,
and Cook, the Union made no new or additional proposals
nor did the Company present any counterproposals
although requested to do so by Speller. Morring replied
that he did not have the time to prepare anything because
he had been too busy. Speller commenced by reading the
Union's third proposal relating to medical services which
included a provision for free physical examinations. Speller
maintained that Respondent should give all new employees
a physical examination. Cook would not agree, stating that
if the employees needed physicals they could go to the
county health department and moreover the Company
could not afford these examinations. She did say that her
husband, Dr. Cook, came over once a year for an annual
examination of employees. Her reply was similar with
regard to that portion of this proposal that Respondent
make available immunization shots, maintaining that
employees could receive them at the public health
contemporaneous notes at the hearing. Cook thereafter left the stand and in
the hearing room she appeared to be making notes while her attorney was
testifying as well as utilizing the notes made by the attorney to refresh her
own recollection. She resumed the stand and her testimony concerning the
bargaining sessions was elicited after she consulted her notes made at the
hearing or through flagrantly leading questions. In addition it appeared that
her affidavit given to the Board agents during the course of the investigation
of this matter was oftentimes at variance with her testimony. Thus, in
connection with the matters of jury duty, civic responsibilities, and bulletin
board proposals, her statement revealed that she could not recall them being
discussed at this particular meeting and that the only thing she remembered
being agreed upon was that Speller would submit proposals to the Company
at their next meeting.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department. Nor would Cook agree to emergency medical
treatment for an employee who became ill on the job.
Respondent's representatives made it clear at this
meeting that it would not discuss any of the proposals in
the Union's submission of August 11 which entailed any
financial cost to Respondent because it would not discuss
any matter dealing with economic questions. When Speller
stated that the Union was attempting to negotiate in good
faith, Morring said that he is only required to discuss but
not to agree. There ensued some discussion concerning the
Union's proposal as to disciplinary and adverse actions
and, as no agreement was reached, Speller suggested that
Respondent give the Union a counterproposal and Mor-
ring said he would get back to him on it. At the end of this
meeting, Speller specifically asked Morring when the
Company would submit counterproposals and Morring
replied that he could not give a specific date but it would
be in due time.
On October 17, in accordance with a commitment he
made at the August 18 meeting, Speller transmitted on
behalf of the Union a second package containing addition-
al proposals including economic subjects. The parties did
meet on November 20 and once more Speller asked
Morring for company proposals, but Morring told him he
had been too busy and did not have an opportunity to
prepare them. In response to a comment by Speller that the
Union was prepared to negotiate around the clock if
necessary to obtain some improvements for the employees
before the holidays, Cook stated that the Company could
not afford to grant a pay raise or agree to improvements in
fringe benefits because it was in the red. At this meeting the
Union's holiday proposal which contained a provision for 7
paid holidays was discussed. Cook said that she would not
agree to this under any circumstances and would only
agree to continue the 5 holidays. Later in the meeting
Speller told the Company that in order to show movement
the Union would consider accepting 6 days of holiday pay,
but Cook again said that she would not accept anything
more than 5 days. Speller then tried to discuss the
compensation and classification proposal of the Union and
Cook again repeated that she could not afford any pay
raises. Speller requested a counterproposal on this matter,
but Cook made it clear to him that the Company was not
going to give any proposal with regard to wages and indeed
the Union never received one. Morring testified that this
meeting on November 20 was a short one and nothing was
really accomplished. He does recall Speller mentioning
wages and indicates that there was some discussion
concerning the Union's proposal as to a no-strike no-
lockout clause. Morring also said that it was at this meeting
that Respondent mentioned to the Union its own effort to
implement an insurance program. On the other hand, Cook
who at first was not sure whether the insurance matter was
brought up at this meeting or a later one in December
finally fixed on December 8 as the time that the Company
itself mentioned insurance. Louise Hubbard, the nursing
home administrator, stated that she attended all of the
bargaining sessions and on direct examination stated that
she was not sure that insurance was discussed at this
November 20 meeting. On cross-examination, she said that
insurance was discussed on November 20 in connection
with a proposal made by Speller.
The next meeting was on December 8 which began by
Speller asking Morring why the Company had been slow in
submitting proposals and Morring reiterated that he had
been too busy. Speller again emphasized that the Union
was anxious to reach an agreement before Christmas, but
Cook repeated that the Company could not afford to give
them anything and she was not going to give them
anything. At this meeting, Speller attempted to discuss the
Union's seniority proposal and Cook said it was not
acceptable and there was no need to discuss it. However,
Morring stated he would review the proposal and give a
counterproposal on seniority. Holidays were again men-
tioned but Cook once more said she was not going to
change from 5 holidays. In the course of this meeting,
Speller pointed out that as a result of the Company's tactics
there might be a strike. Morring continued to state that he
was not obligated to agree but only to sit down at the
bargaining table. When Speller offered to modify the
Union's position as to compensation, Cook and Morring
said this would make no difference because the nursing
home was being operated at a loss and they could not agree
to any wage increase. According to Speller they then
discussed the Union's proposed sick leave plan in conjunc-
tion with the insurance program proposed by the Union.
Cook replied that the Company could not afford that type
of fringe benefit. Morring and Cook both stated that this
was a short meeting because Cook was ill. Cook said that at
this meeting she mentioned that Respondent was going
through with its own insurance program. However, on
cross-examination she stated as appeared in her affidavit
that she had only talked about insurance in October or
November and in February rather than in December.
The next meeting occurred on January 20 at the
Company's premises. A mediator from the Federal Media-
tion and Conciliation Service, Reebals, was present at this
meeting, the FMCS having previously been notified and
requested to attend by the Union. Respondent submitted a
proposal concerning seniority, which was not discussed as
the Union required time to review it. Speller then asked
Morring for the Company's counterproposal on economic
issues. At this point Cook said that Respondent could not
afford increases and no proposals on economic matters
were ever going to be made by the Company to the Union.
When Speller reminded them that they were there to
negotiate in good faith and it appears that the Company
was dragging its feet, Cook said that she just wished that
the Union would go away. Speller then brought up his
holiday proposal telling Cook he believed that Martin
Luther King's birthday was sensitive in Alabama and the
black people would like to celebrate it. Cook's position was
that she would only agree to 5 holidays but that the people
could take any 5 days they wanted. There was then some
discussion of the Union's medical services proposal, with
Cook and Morring adhering to their original position that
employees wanting physicals or shots could get them at the
county health department. Speller then brought up the
Union's insurance and sick leave proposal discussing them
interchangeably. However, Cook reiterated Respondent's
position that it could not afford any such proposals and
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PINE MANOR NURSING HOME
would not accept them. After the discussion about
insurance and sick leave, the mediator suggested that he
speak separately with each of the parties. Following its
caucus with the mediator, the Union came forth and
withdrew a number of its proposals including a night bonus
plan, shift differential, educational leave, retirement plan,
and insurance plan. Upon this action, Cook commented
that the Union had made the right decision because she
was not about to respond to these proposals as the
Company was broke. Actually, the Union never received
any counterproposal from the Company dealing with
economics.
The testimony of Respondent's witnesses concerning the
discussion of these matters related by Speller in connection
with the meeting on January 20 is contained in their
accounts of events allegedly occurring at the February 11
meeting. This is undoubtedly caused by the fact that
Respondent's witnesses had no recollection of the meeting
on August 18 which results in the parties having a different
chronology. In any case Morring testified that the mediator
was present at the February 11 meeting. Both Morring and
Cook testified substantially that during this meeting Cook
told Speller that she had been working on an insurance
program for all eight of their homes for at least 2 years but
had stopped it because of the pending matters before the
National Labor Relations Board. She said that now
negotiations with an insurance agent had reached the point
where she would like to institute this program. According
to Cook, she said that she had two very good plans and
Speller replied "that was great," and "that was what he was
there for," and she should go ahead and give these benefits
to the employees. He said he would withdraw his plan,
which he did. Morring and Cook stated that this was the
end of the insurance proposal. They also said there was
nothing in writing either from the Union or Respondent
confirming it or any other documentation relating to
insurance. Other witnesses, Hubbard, the administrator
and Sasser, an administrator of one of the other of Cook's
nursing homes, testified generally that the Union withdrew
its insurance proposal at the meeting on February 11; and
Wright, a witness on behalf of the Union, testified that
insurance was not discussed at that particular meeting. In
his testimony on rebuttal, Speller himself responded to
questions on this subject by stating it was on February I
that he withdrew his insurance program proposal along
with other proposals following a caucus with the mediator.
Prior thereto he had testified that this occurred on January
20. While the substance rather than the date is the
important factor, I find upon all the evidence that the
Union did in fact withdraw its insurance proposal on
February II. However, I further find that, following a
caucus with the mediator, it withdrew the insurance
proposal along with other proposals in an apparent effort
to encourage movement at the bargaining table, rather
than because the Company was going to institute its own
program as testified by Cook and other witnesses for
Respondent. Apart from my general credibility resolution
discussed above, this appears to me to be the most
plausible occurrence. Noting the lack of any writing on this
subject, it is hardly likely that the Union would have
withdrawn its proposal in the manner suggested by
Respondent without obtaining any knowledge as to the
details of the Company's insurance plan, a fact which is
confirmed by the testimony of Respondent's witnesses.
Speller further testified that at the January 20 meeting
there was a discussion of the Union's proposed no-
strike/no-lockout clause. This proposal contained language
to the effect that the Union would not cause a work
stoppage in the event of a dispute and the Union would not
sanction or encourage such a strike and indeed would
encourage employees to return to work. Morring stated
that in his opinion unions did not seem able to control the
workers and he wanted a provision which would cancel the
contract in the event employees went on strike and failed
immediately to return. Morring finally said that he would
try to get language on no-strike/no-lockout which he
would send to Speller. Speller also attempted to have some
discussion concerning uniforms, but Cook said that she
would not undertake any additional expense in that area
because the Company was already paying an additional 5
cents an hour for uniforms and she could not afford more,
even though Speller maintained that the 5 cents currently
being paid was insufficient for employees to purchase and
maintain uniforms. Speller sought to discuss the annual
leave or vacation proposal, but Cook said that she would
not agree to the Union's proposal of 2 weeks after 2 years
under any circumstances as the employees were already
getting I week after I year and the Company could not
afford anything more than that. Speller's attempt to discuss
modifications in the Union's wage plan was met with a
response from Cook that there would be absolutely no
movement or counterproposals on this or other economic
matters.
There was no testimony by Respondent's witnesses
concerning discussions, on January 20, on the subjects of
leave of absence, uniforms, annual leave, and wages as
related above by Speller. It is clear, however, that the
positions of the parties regarding no-strike/no-lockout
remained the same as reported by Speller regardless of the
dates on which those positions were set forth. Similarly, as
to the proposals on vacation, uniforms, and wages, the
Company's position remained consistent that it would not
move on any of these things as they involved economic
matters. Both Cook and Morring did testify, however, that
there was discussion on January 20 concerning the
vacation proposal, maintaining that the language was
agreeable except that the Union sought 6 holidays and the
Company remained firm on its offer of 5.
On January 26, 1976, the Union transmitted some
modified proposals regarding paid sick leave, paid vaca-
tion, and compensation and classification. Also on January
28, Respondent's counsel sent the Union counterproposals
on the subjects of holidays, emergency leave, and leave of
absence. Both parties agree that the mediator was present
at the February II meeting, but, as set forth above, they
disagree as to what subjects were discussed at the meeting.
Speller testified that Morring read the Company's holiday
proposal offering only 5 holidays. Speller attempted to get
the Company to agree to a sixth holiday on Martin Luther
King's birthday, but Cook reiterated that she would not
agree to more than 5 holidays. There was some discussion
as to union representation, Speller requesting that the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stewards be given time to represent employees. Although
Cook said that they would have to do this on their time,
Morring suggested that perhaps something could be
worked out. It was at this meeting, according to Speller,
that, after a caucus with the mediator, the Union told
Morring that it was time for management to demonstrate
that it was willing to negotiate in good faith that the Union
has exhibited this by withdrawing some proposals, and the
Company should try to reach an agreement. Speller stated
that if there were no movement, the Union would invoke
section 8(g) of the Act. Morring told Speller to do what he
had to do, but all that he, Morring, was obliged to do was
to sit and meet, and the law did not require him to agree to
anything.
Speller then attempted to discuss a sick leave proposal
pointing out that employees would have no income if they
became ill. Cook said she was not about to agree to this
because she had to call in a part-time employee to
substitute for an absent employee. When he brought up the
matter of vacations, Cook repeated that she would only
agree to whatever the employees were presently receiving.
In addition, Cook said that she could not afford to grant
any wage increases. Speller stated that at the meeting there
was some talk of the insurance package but that he was not
informed by either Cook or Morring that the Company was
formulating its own program and did not agree to
withdraw his proposal so that the Company could
implement its plan.
Thereafter, Speller received by mail, dated February 19,
Respondent's counterproposals on the subjects of union
representation, no-strike/no-lockout, and annual leave.
The parties then met at Morring's suggestion on March 4.
At this meeting, Morring handed Speller seven written
proposals from the Company on the subjects of statement
of purpose, definition of employees included and excluded,
absolute management prerogative, equitable distribution of
work in employees' absence, union organizational activi-
ties, collection of dues, and cancellation of contract after
10 days of an unauthorized strike. The collection of dues
article provided that there would be no solicitation of
employees for union membership or dues on Company
time, and the Union was to agree that Respondent may
take disciplinary action for a violation of that provision.
Speller told Morring that such a clause was just an outright
denial and not negotiation. He also stated that the Union
could not agree to the cancellation of the contract in the
event of an unauthorized strike. Speller then pointed out
that the absolute management prerogative clause was one
that the Union would have to study and get back to him on
it. Respondent's proposal regarding union organizational
activities was also discussed, Speller remarking that the
Union could probably work something out with this
proposal if they could get some response on the economic
package.4
Also at this meeting Cook, who had been maintaining
throughout the negotiations that the Company did not
4 It may be pointed out that, were the Company to promulgate a rule
such as contained in its proposal regarding the distribution of union
literature, such action would be unlawful.
I Cook recollected the occasion when the state auditors were present at
the nursing home and puts it at March 30. She says that she asked Speller to
talk to the auditors that day and that they told him "we will be glad to show
have any money, told Speller that the state auditors were
working on her books across the hall and she was sure that
they would tell him that the Company was operating in the
red. She then introduced Cook to the auditors as a
representative of the Union who was trying to get her to
improve the wages and that they should tell him she was
broke. According to Speller, the auditors just smiled and
made no comment. There was no further discussion as to
this.5
According to Cook, there was a meeting on March 4, in
which Morring had commented that they were jumping
from one proposal to another without getting organized.
Cook said Morring then presented Speller with 15 written
counterproposals on a variety of subjects already dis-
cussed. Morring stated that these represented clauses he
had redrafted and upon which there was agreement to be
incorporated into a contract. However, no document
evidencing these 15 proposals has been submitted. The
only documents presented are the three written proposals
transmitted to the Union by Morring's letter of February
19, and the seven written proposals of Respondent, which
were dated March 3 and were handed to Speller at the
meeting of March 4. Although Cook stated that these 15
proposals had been agreed upon and would be made part
of a contract if and when a contract was signed, she had
also stated in an affidavit that she never said during
negotiations that she would or would not agree to any
proposal going into a contract.
Subsequently, by letter dated April 6, 1976, to the
Federal Mediation and Conciliation Service, the Union
requested that Section 8(g) of the Act be invoked and that
a board of inquiry be appointed. In a letter dated April 19,
to this board, Morring noted a number of proposals as
being still open, which would have been included among
the 15 alleged by Cook to have been agreed to be included
in a contract.
The board of inquiry set up by the FMCS met on April
21, and, during the course of the hearing, it was established
that Respondent has implemented its group insurance and
hospitalization program for the employees. The Company,
in support of its statement that it was financially unable to
meet the Union's economic demands, submitted certain
financial statements to the chairman which at the latter's
insistence became available to the Union. This was the first
time that the Union had an opportunity to see any records
of Respondent. Moreover, after this meeting employees
called Speller's attention to the fact that early in April the
administrator of the nursing home passed around a paper
detailing certain benefits employees would receive under
the insurance plan. Up to that point, Speller said he had no
notice of the implementation of the plan.
On April 29, the board of inquiry issued its report of
investigation and recommendations for settlement of the
issues in dispute. Among other things, the board found that
Respondent had made a small profit in the fiscal year
1974-75 and therefore recommended an increase in wages
you that she is operating at a loss." With regard to this matter, I would
credit the version of Speller to the effect that the auditors just smiled and
said nothing. It is not likely, in my view, that independent state auditors
would comment on their work or make the statement attributed to them by
Cook to a stranger.
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PINE MANOR NURSING HOME
of 5 cents per hour, as well as some other economic
benefits.6
Speller testified that he wired the chairman of the board
of inquiry, advising that the Union would accept his
findings and so notified Morring. The parties then met on
June 9, during which meeting Morring advised Speller that
the Company was not going to accept the Board's findings.
He also informed Speller that it would serve no purpose for
the Union and Company to negotiate further because of
the unfair labor practice charges filed by the Union. This
was confirmed by Morring, in writing, dated June 10.
There have been no other meetings.
Robert Silone testified for Respondent that he was an
insurance agent who had been working for some time in
1975 on an insurance plan for Respondent's nursing
homes. He stated that he completed his work sometime
around Christmas and then obtained proposals from
insurance companies in January. He received the go-ahead
from Respondent early in 1976 and the plan was sent for
approval by the state medicaid authorities which was
granted in March and the plan became effective April 1.
Silone stated that he recalls visiting Respondent's nursing
home and explaining the details of the insurance plan at a
meeting of employees.
C. Discussion and Analysis
I. The alleged unlawful unilateral change
It is uncontroverted that effective April 1, 1976, Respon-
dent instituted its hospitalization and health insurance
program. Respondent asserts that in the course of negotia-
tions it had mentioned to the Union that it had been
working on an insurance program for the past 2 years. This
was reasserted, according to Respondent's witnesses, at a
meeting on February II 1, and the Union withdrew its own
insurance proposal following Cook's statement that she
would like to implement her own program. As noted above,
I have discredited Respondent's version of that meeting
with regard to the insurance program and found that the
Union withdrew its own insurance plan along with several
other proposals following a caucus with the mediator in
order to encourage movement at the bargaining table. I do
not find it likely that the Union would have withdrawn its
own proposal and assented to a program of Respondent
without any knowledge of the details or benefits to be
derived from such program. In this connection, there is no
evidence or any allegation on the part of Respondent that
it provided the Union with any information or summary of
its own proposed program. In addition, there is the
testimony of Respondent's witness, Silone, its insurance
agent, who stated that he was working on such a program
in 1975 and had completed his studies in December of that
year. It is clear that Respondent had been preparing an
insurance program to encompass not only the nursing
home involved herein but others owned by Respondent's
principals, without notifying the Union. The fact that the
Union voluntarily withdrew its own proposal during the
course of bargaining does not relieve Respondent of its
obligation to notify the Union of its intention to institute
6 The report of the board of inquiry was received in evidence upon
request of Respondent.
an insurance program. Accordingly, I find that by
implementing its insurance program on April I without
notice to the Union Respondent unilaterally changed the
working conditions of the employees in the unit and
thereby violated Section 8(aX1) and (5) of the Act.
N.LR.B. v. Katz, 369 U.S. 736 (1962).
2. The alleged failure to bargain in good faith
The facts as set forth and found above are a distillation
from the testimony of what I believe to have occurred
during negotiations. There has been confusion, as pointed
out, concerning the dates of the bargaining sessions with
the result that what was discussed or occurred on a certain
date, according to one party, happened on another date
according to the other party. Nevertheless, for the most
part the dates are not significant.
The issue of course is whether on the basis of the entire
record Respondent did or did not bargain in good faith.
The standard laid down by Section 8(d) for the measure-
ment of "good faith" is not rigid but, necessarily, is an
elastic concept having meaning "only in its application to
the particular facts of a particular case." N.LR.B. v.
American National Insurance Company, 343 U.S. 395, 410
(1952). The problem "is essentially to determine from the
record the intention or state of mind of [the Employer] in
the matter of [his] negotiations with the Union. In this
proceeding, as in many others, such a determination is a
question of fact to be determined from the whole record."
N.LRKB. v. National Shoes, Inc., 208 F.2d 688, 691 (C.A. 2,
1953).
To determine whether a party's conduct demonstrates an
unlawful failure to abide by the duty to bargain in good
faith is an elusive inquiry. And, once the parties begin to
meet and talk at the bargaining table, objective standards
are not readily at hand. N.LRtB. v. Herman Sausage Co.,
275 F.2d 229, 231 (C.A. 5, 1960). But merely meeting
together or showing a willingness to talk does not discharge
the duty to bargain. Tex Tan Welhausen Company v.
N.LR.B., 419 F.2d 1265, 1268 (C.A. 5, 1969). To mechani-
cally go through the forms of bargaining is not sufficient
because parties are required not only to meet but to
negotiate and bargain in good faith. The statute requires
that they enter discussions with an "open and fair mind
and a sincere purpose to find a basis of agreement."
N.LRB. v. A. W. Thomspon, Inc., 449 F.2d 1333 1335
(C.A. 5, 1971). The Board itself has stated "collective
bargaining is not simply a series of formal meetings
between employer and union where each maintains a 'take
it or leave it' attitude; it presupposes a desire to reach
ultimate agreement. The mere willingness of one party in
the negotiations to enter into a contract of his own
composition also does not satisfy the good-faith bargaining
obligation." Wal-Lite Division of the United States Gypsum
Co., 200 NLRB 1098, 1101 (1972). Applying these princi-
ples to the instant case, I find that Respondent has failed in
its duty to bargain in good faith with the Union as the
exclusive representative of its employees and thereby
violated Section 8(aX5) and (1) of the Act.
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My finding is based on a number of factors which
emerge from the record as a whole. Bargaining commenced
in August 1975 by the submission of the Union's proposals,
followed by additional union proposals including wage
rates in October. From the outset, the meetings were
marked by Respondent's steadfast refusal to discuss any
matters relating to economics, and its rather desultory
discussion of noneconomic union proposals. Also Respon-
dent failed to submit any counterproposals despite requests
by the Union, each time pleading that its counsel or
negotiator was too busy to prepare any. Finally, after many
months, Respondent brought forth on January 20, 1976, a
single proposal dealing with the subject of seniority. It
followed this by submitting proposals on three items by
mail on January 28, and an additional three items on
February 19. By letter dated March 3 Respondent
submitted seven proposals for union consideration. Of
course none of these proposals pertained to monetary
considerations. During this period of time whenever
pressed by the Union for a response to its economic
proposals, or a request by the Union that Respondent
submit counterproposals on these subjects, Respondent
continued to state that it was losing money, and was unable
to afford any wage increase or any other benefit that would
involve the additional expenditure of money. There was a
constant refrain to the effect that Respondent was not
legally obligated to agree to anything but had merely to
agree to listen. Needless to say, this statement is an
incorrect statement of the law as Respondent had the
obligation to meet and bargain in good faith, and this is
also indicative of a frame of mind demonstrating intransi-
gence and a refusal to discuss mandatory subjects of
bargaining. Time after time, Cook refused to discuss any
matters regarding wages, or fringe benefits requiring the
payment of money. While it is clear that Respondent was
not under any obligation to agree to a wage increase or
economic fringe benefits, it certainly was under an
obligation to discuss these matters.
Several of Respondent's counterproposals similarly
indicate a lack of good faith in its bargaining. Thus, a
counterproposal entitled "Union Organization Activities"
contains a provision prohibiting distribution of union
literature on company premises, a rule which if promulgat-
ed and enforced by Respondent would be clearly in
violation of Section 8(aXl) of the Act. Another proposal in
its March 3 package, entitled "Cancellation of Contract for
Unauthorized Strike," would provide for the cancellation
of the contract in the event employees struck for a period
of 10 days. Respondent also proposed to prohibit solicita-
tion of employees for union membership or dues on
company time, again a provision which, if enacted, would
be violative of the Act. These are proposals to which no
self-respecting union could agree, and submitted as they
were in March, almost 8 months after the commencement
of bargaining, is another measure of the bad faith of
Respondent and its apparent resolve not to reach any
agreement. N.LR.B. v. Reed & Prince Mfg. Co., 205 F.2d
131, 139 (C.A. 1, 1953). Nor is it sufficient that the parties
may have agreed to language that was acceptable should
an agreement. be reached, as was the case here in
connection with the jury duty and bulletin board proposal
of the Union.
I have found that Respondent violated the Act by
unilaterally and without notice instituting a health and
insurance plan on April 1. This is of course an independent
violation of the Act, but it also demonstrates the lack of
good faith on the part of Respondent. Respondent had
been pleading poverty since the beginning of these
negotiations, and had refused to discuss any union
proposal, including insurance, which would entail the
increased expenditure of money. Nevertheless, it instituted
its own insurance program effective April 1, 1976, an
obvious incurring of financial expense on its part. More-
over, Respondent, through its insurance agent, had been
exploring the matter of insurance since sometime in 1975,
another indication of its lack of candor when it refused to
discuss the Union's proposal from the very outset.
Finally, at the last meeting of the parties on June 9,
Respondent took the position that it would no longer meet
with the Union while unfair labor practice charges were
pending before the Board. This position was reduced to
writing by letter dated June 10 and is part of the record
herein. The Board has stated in such situations that: "It is
well settled that the pendency of unfair labor practice
charges against an employer does not relieve it of its duty
to bargain with the Union filing those charges and that a
refusal to bargain because of pending charges constitutes
bad-faith bargaining on its part." Rauland, Division of
Zenith Radio Corporation, 187 NLRB 785 (1971). As this
issue was fully litigated, although not alleged in the
complaint as an independent violation, I find by such
conduct Respondent refused to bargain within the meaning
of Section 8(aX5) and (1) of the Act.
In conclusion, I find that the totality of the bargaining
contract establishes that Respondent's state of mind
throughout the negotiations was one of unwillingness to
reach agreement, and reveals that Respondent approached
the bargaining table with a closed mind and intransigent
position about numerous mandatory bargaining subjects,
amounting to a take-it-or-leave-it attitude. I find, therefore,
that Respondent has refused to bargain in good faith with
the Union.7
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
7 Wal-Lite, Division of United States Gypsum Company, supra.
326
PINE MANOR NURSING HOME
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
I have found that Respondent has failed to bargain in
good faith with the Union and I shall therefore order it to
cease and desist from its refusal to bargain collectively with
the Union and, upon request, to bargain collectively with
the Union as the exclusive representative of its employees
in the appropriate unit, and, if an understanding is reached,
to embody such understanding in a signed contract. The
Union having been certified on June 2, 1975, as the
exclusive collective-bargaining representative of employees
in the appropriate unit, and Respondent having immedi-
ately thereafter engaged in bad-faith bargaining as de-
scribed above, I shall recommend that the Union's
certification be extended for a period of I year from the
date of the commencement of actual bargaining. Mar-Jac
Poultry Company, Inc., 136 NLRB 785 (1962).
It has been also found that Respondent unilaterally
changed the working conditions of its employees by
implementing an insurance program. I shall, therefore,
further recommend that Respondent be required to restore
the status quo ante as existed prior to the implementation of
the insurance program should the employees so desire.8 I
shall also recommend that Respondent cease and desist
from unilaterally changing conditions of employment.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All nurses aides, orderlies, dietary department
employees, housekeeping department employees, and
laundry employees; excluding registered nurses, charge
licensed practical nurses, executive secretaries, watchmen
and/or guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. Since November 17, 1975, by failing and refusing to
bargain in good faith with the Union, as collective-
bargaining representative of Respondent's employees in
the aforesaid appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By unilaterally changing working conditions through
the implementation of an insurance program effective
April 1, 1976, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
8 Atlas Tack Corporatrion 226 NLRB 222 (1976).
9 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 Order, and all objections thereto shall be
deemed waived for all purposes.
7. By the foregoing conduct and its refusal to bargain
with the Union, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8 (a)(1)
of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER9
The Respondent, Pine Manor Nursing Home, Inc.,
Tuskegee, Alabama, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Laborers' Local
Union No. 246, a/w Laborers' International Union of
North America, AFL-CIO, as the exclusive representative
of its employees in the above-described collective-bargain-
ing unit.
(b) Unilaterally instituting and implementing an insur-
ance program; provided, however, that nothing herein shall
be construed as requiring Respondent to vary or abandon
any economic benefit or any condition of employment
which it has heretofore established.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms and
conditions of employment with Laborers' Local Union No.
246, a/w Laborers' International Union of North America,
AFL-CIO, as the exclusive collective-bargaining represen-
tative of all the employees in the appropriate unit described
above, and, if an agreement is reached, embody it in a
signed contract.
(b) Restore the status quo ante with respect to the
insurance program should the employees through their
Union so desire.
(c) Post at its nursing home in Tuskegee, Alabama,
copies of the attached notice marked "Appendix." 10
Copies of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
'o In the event that the Board's 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."
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally, and without consultation
with Laborers' Local Union No. 246, a/w Laborers'
International Union of North America, AFL-CIO,
institute or implement insurance programs; provided,
however, that nothing herein shall be construed as
requiring us to vary or abandon any economic benefit
or any term or condition of employment which has
been established.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain collectively con-
cerning rates of pay, wages, hours of employment, and
other terms and conditions of employment with
Laborers' Local Union No. 246, a/w Laborers' Interna-
tional Union of North America, AFL-CIO, as the
exclusive representative of all the employees in the
appropriate unit described below and, if an agreement
is reached, WE WILL embody it in a signed contract.
The appropriate unit is:
All nurses aides, orderlies, dietary department
employees, housekeeping department employees,
and laundry employees; excluding registered
nurses, charge licensed practical nurses, executive
secretaries, watchmen and/or guards and supervi-
sors as defined in the Act.
Wn WILL restore the status quo ante with respect to
the insurance program should the employees through
their Union so desire.
PINE MANOR NURSING
HOME, INC.
328