Pinewood Care Center, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1979

242 N.L.R.B. 816 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pinewood Care Center, Inc.; Truscan Corporation;
Michael E. Lee, Don R. Bybee, Ronald J. Gabriel-
sen and Dave Garner, copartners d/b/a Pinewood
Properties and Service Employees International
Union, Local No. 6, AFL-CIO. Case 19-CA-10162
June 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 9, 1979, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the General Counsel
submitted 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 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 briefs,'
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
In the remedial portion of his Decision, the Admin-
istrative Law Judge recommended, inter alia, that Re-
spondents Pinewood Care Center, Inc., and Truscan
Corporation be ordered to make whole employees in
the bargaining unit for any loss of pay or other bene-
fits suffered as a result of Respondents' unilateral
changes in the hours and insurance coverage of em-
ployees. Respondents contend that the application of
this portion of the remedy to former employee Min-
nie Bomar would be inequitable. Mrs. Bomar died in
March 1978, 1 month after the new insurance plan
was put into effect by Respondents without bargain-
ing with the Union. While the insurance plan in ques-
IRespondents have requested oral argument. This request is hereby de-
nied, as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 Respondents have excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB
544 (J)0), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
I As explained in his partial dissent in Spruce Up Corporation, 209 NLRB
194, 203 (1974), a case relied upon by the Administrative Law Judge in the
instant case, Chairman Fanning believes that under N. L. R. B. v. Burns Inter-
national Security Services, Inc., 406 U.S. 272 (1972), the bargaining obliga-
tion of a successor employer commences at the point when an employer
manifests an intent to retain the employees of its predecessor, rather than at
the point when a successor actually employs a majorityl of its predecessor's
employees. See also Charles Starbuck and Diane Starbuck d/b/a Starco
Farmers Market, 237 NLRB 373 at fn. 4 (1978).
tion increased the cost of insurance to employees and
decreased the cost to Respondents, it also provided
for life insurance coverage, whereas the prior plan did
not. The record reveals that Mrs. Bomar's beneficiary
received between $6,000 and $6,500 in life insurance
benefits as a result of the unilateral change in insur-
ance coverage implemented by Respondents. Accord-
ingly, we shall modify the Order proposed by the Ad-
ministrative Law Judge and shall specify that the
estate of former employee Bomar shall not be reim-
bursed for any increase in the cost of insurance in-
curred by employee Bomar as a result of Respon-
dents' conduct.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondents,
Pinewood Care Center, Inc., and Truscan Corpora-
tion, Coeur d'Alene, Idaho, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole the employees in the appropriate
unit for any loss of pay or other benefits and for any
increase in the cost of insurance benefits that resulted
from Respondents' unilateral changes in employees'
hours and insurance coverage, with interest computed
in the manner specified by the Administrative Law
Judge; however, the estate of former employee Min-
nie Bomar shall not be reimbursed for any increase in
the cost of insurance upon which benefits were subse-
quently realized."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that all allegations con-
cerning Pinewood Properties be dismissed.
' In addition, inasmuch as the Order proposed by the Administrative Law
Judge did not explicitly provide that unit employees be made whole for the
increase in insurance costs resulting from the unilateral change in insurance
coverage effected by Respondents, we shall modify par. 2(b) of the Order to
explicitly require the restitution of those increased costs.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Service
Employees International Union, Local No. 6,
AFL-CIO, as the exclusive bargaining represent-
242 NLRB No. 86
816
PINEWOOD CARE CENTER, INC.
ative of our employees in the following appropri-
ate unit:
All nurses aides, orderlies, head housekeepers.
housekeepers, head laundry employees, laun-
dry employees, kitchen employees, helpers,
and cooks employed at Pinewood Care Center
in Coeur D'Alene, Idaho, but excluding all
other employees, registered nurses, licensed
practical nurses, office clerical employees,
guards, and supervisors, as defined in the Act.
WE WILL NOT unilaterally, without consulta-
tion with the Union, change work schedules,
hours of work, insurance coverage, or other
terms and conditions of employment of the em-
ployees in the above-described unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed by Section 7 of
the Act.
WE WILL bargain collectively upon request
with the Union.
WE WILL reestablish and continue the Blue
Cross insurance coverage for our employees in
the above-described unit; and WE WILL continue
the work schedules and hours of work and other
terms and conditions of employment in effect on
December 31, 1977, until such time as we negoti-
ate in good faith with the Union to agreement or
to impasse.
WE WILL make whole the employees in the
above-described unit for any loss of pay or bene-
fits or increase in the cost of insurance benefits
that resulted from our unilateral changes in in-
surance and work schedules.
TRUSCAN CORPORATION
PINEWOOD CARE CENTER, INC.
DECISION
HAROLD A. KENNEDY, Administrative Law Judge: This
proceeding was initiated by a charge filed by Service Em-
ployees International Union, Local No. 6, AFL CIO. re-
ferred to as the Union, on February 7, 1978.' Following the
filing of an amended charge by the Union on March 13,
1978, the Regional Director for Region 19 of the National
Labor Relations Board issued a complaint on March 16,
1978, charging Truscan Corporation with violating Section
8(a)(5) and (1) of the National I.abor Relations Act, re-
ferred to as the Act, in connection with the operation of a
nursing home facility called "Pinewood Care Center" at
Coeur d'Alene, Idaho. An answer was thereafter filed, and
the case come on for hearing at Spokane, Washington, on
May 31, 1978. Following a discussion at the hearing as to
I The original charge named D. J. Convalescent Care, Inc. d/b/a Pine-
wood Manor as the employer.
which persons and firms were properly before the Board
and who should be named as Respondents in the proceed-
ing, the hearing was adjourned by agreement. An amended
complaint, based on a second amended charge filed on June
2, 1978, was issued by the Regional Director on June 15,
1978. An answer to the amended complaint was duly filed.
and a hearing was held at Spokane, Washington, on August
16 and 17. 1978.
The amended complaint alleges violation of Section
8(a)(5) and (I) of the Act and names the following as Re-
spondents: Pinewood Care Center, Inc; Truscan Corpora-
tion; and Michael E. Lee, Don R. Bybee, Ronald J.
Gabrielsen, and Dave Garner, copartners d/b/a Pinewood
Properties. The amended complaint alleges that Respon-
dents violated Section 8(a)(1) of the Act as follows:
1. On January 27, 1978, Steve Gilliland, the head regis-
tered evening shift nurse, told: (a) a union shop steward to
leave the premises of Pinewood Care Center because she
was engaging in union activities; and (b) other employees
they would receive a warning for discussing union affairs
with the shop steward.
2. On January 30. 1978, Mary Malloy, administrator of
Pinewood Care Center, issued a written reprimand to a
union shop steward for engaging in protected concerted ac-
tivities.
The amended complaint alleges Respondents violated
Section 8(a)(5) of the Act after January 1, 1978. by unilater-
ally: (a) altering work schedules and reducing the hours of
work of certain employees; and (b) instituting new health
and welfare benefits on or about February 1, 1978.2 The
response to the amended complaint denies that Respon-
dents committed any of the unfair labor practices alleged.
The pleadings, stipulations, and undisputed evidence of rec-
ord establish the existence of the following facts:
1. D. J. Convalescent Care, Inc.. d/b/a Pinewood Manor
Convalescent Center, referred to as "D-J," operated a nurs-
ing home facility at Coeur d'Alene. Idaho, for some time
prior to December 31, 1977.3
2. Michael E. Lee, Don R. Bybee, Ronald J. Gabrielson.
and Dave Garner, copartners d/b/a Pinewood Properties,
purchased the nursing home from D-J on December 31,
1977. Such purchase included the personal property of the
home and D-J's interest in the 10-year lease of the real
property where the home was located. On January 1, 1978,
Pinewood Properties sublet the lease of real property to
Pinewood Care Center, Inc. Also on January 1, 1978, Pine-
wood Properties leased the personal property of the nursing
home to Pinewood Care Center. Inc. (G.C. Exh. 7 and 8).
3. Pinewood Care Center, Inc., referred to as "PCCI," is
an Oregon corporation. Since on or about December 31.
1977, PCCI has operated the nursing home facility at Coeur
d'Alene, Idaho, without interruption in substantially the
same manner and with substantially the same job classifica-
tions and employees as D-J had prior to that date.
4. On January 1, 1978, PCCI and Truscan Corporation
signed a "Management Agreement" whereby Truscan Cor-
2 The complaint alleges that these 8(aXS) violations constituted violations
of Sec. (aXI) of the Act as well. The amended complaint also alleges that
Respondents violated the Act by discontinuing the deduction of employees'
union dues and the payment for annual physical examination of employees,
but these charges were withdrawn at the hearing.
D J was not named as a Respondent.
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poration accepted responsibility for managing the nursing
home and for providing it with accounting services.4
5. Truscan Corporation, referred to as "Truscan," is an
Oregon corporation with offices at 4335 River Road North.
Salem, Oregon. It is admitted that Truscan and PCCI
"share some directors, share some officers and have the
same offices." Respondent's brief concedes that the "offi-
cers, directors and ownership of the Respondent (sic) is ac-
curately portrayed in GC-3." General Counsel's Exhibit 3
shows Michael E. Lee and Don R. Bybee as president and
executive vice president, respectively, of PCCI, with PCCI
being owned by Truscan Enterprises as sole stockholder.
Michael E. Lee and D)on R. Bybee are shown, respectively,
as president and executive vice president of Truscan Corpo-
ration, which is owned by Michael E. Lee as sole stockhold-
er. Michael E. Lee is also shown as president and sole
stockholder of Truscan Enterprises, Inc., a holding com-
pany. Michael E. Lee is a partner of Pinewood Properties,
along with Don R. Bybee, Ronald J. Gabrielsen, and David
Garner.'
6. It is admitted that Truscan and PCCI are engaged in
interstate commerce as defined in the Act. It is also admit-
ted that PCCI is a successor employer of D-J.
7. On March II, 1977, the Union was certified as the
collective-bargaining agent of the following unit of employ-
ees of D J:
All nurses aides, orderlies, head housekeepers, house-
keepers, head laundry employees, laundry employees,
kitchen employees, helpers and cooks employed by the
employer at its Coeur D'Alene, Idaho operation, ex-
cluding all other employees, registered nurses, licensed
practical nurses, office clerical employees, guards and
supervisors as defined in the Act.6
4Don Bybee, executive vice president of PCCI and Truscan Corporation,
testified that Truscan Corporation performs management services for about
16 other nursing homes and one restaurant.
Truscan Enterprises has not been named as a Respondent. Michael E.
Lee and Don R. Bybee are also directors of Truscan Enterprises, Inc. Bybee
testified that Pinewood Properties has no office or employees, and that its
lease of property to PCCI provides the only income to the partnership.
Bybee stated that Pinewood Properties is an Idaho partnership with Lee,
Bybee, Gabrielsen, and Garner all being "general partners." Gabnelsen and
Garner each contributed $50,000 to the partnership, but neither Lee nor
Bybee made any financial contribution. PCCI was incorporated on Novem-
ber 10, 1977. Truscan Enterprises, Inc. was incorporated in late 1977, and
Pinewood Properties was established about the same time, According to
Bybee, Truscan Corporation started operation in December 1974. There has
been no board meeting of PCCI since its incorporation.
6 Par. 9(a) of the complaint, as revised, describes the appropriate unit as
follows:
All nurses aides, orderlies, head housekeepers, housekeepers, head laun-
dry employees. laundry employees, kitchen employees, helpers and
cooks employed at Pinewood Care Center in Coeur d'Alene, Idaho, but
excluding all other employees, registered nurses, licensed practical
nurses, office clerical employees, guards and supervisors as defined in
the Act.
Marc Earls, president of Service Employecs International Union, Local 6.
headquartered in Seattle, Washington, testified that Local 6 merged with
Local 202 of the Service Employees International Union, based in Spokane.
Washington. He added:
At the time of negotiations of a new agreement there was a decertifica-
lion petition filed, an election was held, and the results of the election
was a certification of the Service Employees International Union, Local
6, as the bargaining representative. Subsequent to the election results,
the employer signed a new collective bargaining agreement ... and that,
I believe, became effective March 1, 1977.
It was stipulated that in January 1978. there were 58 em-
ployees working at the Coeur d'Alene nursing facility--34
as nurse's aides, 5 as laundry workers, 4 in the housekeep-
ing department, and 15 in the kitchen. Some employees
were part time and some were full time.
8. The Union is a labor organization as defined in the
Act.
9. D-J and the Union had signed a collective-bargaining
agreement on March 9, 1977. covering the period Decem-
ber 1, 1976. to November 30, 1978 (G.C. Exh. 18). The
parties later agreed to revise the wage rates effective De-
cember 1. 1977 (G.C. Exh. 19).
10. Ralph Chinchurreta and Brent Brocksome visited the
Coeur d'Alene nursing facility as representatives of Truscan
on or about December 20, 1977 just prior to the change of
ownership of the facility. Victor Johnson, the administrator
and operator of the D J facility, introduced the two repre-
sentatives to most of the staff which had assembled in the
dining room. The meeting began shortly after 2 p.m. and
lasted 10 to 15 minutes. At the time of the meeting, Chin-
churreta was director of operations for Truscan, and Brock-
some was regional director of operations. It was explained
that Brocksome was responsible for Truscan's operations in
Idaho and would be more concerned with the facility's op-
erations. At the time of the hearing, Chinchurreta was serv-
ing as regional director of Truscan.'
I1. On January 6, 1978, attorney Brad Coleman sent a
letter to Union Local 6 President Marc Earls at the latter's
Seattle, Washington, address advising that his firm repre-
sented "Michael E. Lee and Don R. Bybee, the new pur-
chasers of Pinewood Convalescent Center" and that they
were willing "to immediately begin negotiations for a new
union contract" (G.C. Exh. 15). Arrangements were eventu-
ally made for a meeting to be held at Truscan offices in
Salem, Oregon, on February 27, 1978. The meeting began
about 10:15 a.m. and lasted no more than 30 minutes. Lee,
Bybee. and Chinchurreta attended the meeting with Earls.
Earls indicated that the new owners should observe the
terms of the collective-bargaining agreement that the Union
and D-J had signed, and Lee indicated a willingness to sign
a collective-bargaining agreement similar to one that Trus-
A sign up sheet offered in evidence indicates that approximately 50 em-
ployees attended the meeting, although the employee witnesses thought less
than that number were present.
The employees who attended the meeting were led to believe that only the
highest positions of the facility would be affected by the change in owner-
ship. Laundry worker Irene Waddell testified credibly that Chinchurreta told
the staff that it would disregard rumors about changes being made "because
things were going to stay as they were." Elsie Johnson, another impressive
witness who performed laundry and nurse's aide work, testified that Chin-
churreta said that only changes "at the very top" would be made, and that
"he expected us to continue as we were." Jessie Stewart, a nurse's aide,
remembered Chinchurreta had said that it was a "nice facility" and that
"there'd be no changes."
The defense testimony of the then administrator, Mary Malloy, and the
two Truscan representatives concerning the December 1977 staff meeting
was less impressive than the evidence given by the employees. The defense
testimony was directed at what was nor said at the meeting. Brocksome was
not sure what he had said at the meeting, but he claimed that he had told the
employees that "there are bound to be changes." Chinchurreta said he had
made no statement about any changes being made. Chinchurreta could not
recall what Brocksome had said, but indicated that the practice at such a
meeting was not to say that there would be no changes. Malloy stated that
she "never heard them say there would be no changes."
818
PINEWOO) CARE CENTER. INC.
can had negotiated for another of its facilities. Lee indi-
cated that Truscan would make any changes it felt neces-
sary before an agreement was made with the Union. Earls
asked questions concerning reported changes in working
hours and insurance of employees working at the Coeur
d'Alene nursing facility. Provisions of the D-J-union con-
tract were discussed briefly, and the meeting ended in an
unfriendly atmosphere. Truscan officials later sent a pro-
posed agreement to Earls, but no agreement was ever
reached between the parties.
12. Shortly after the new owners took charge of the nurs-
ing facility, changes were made in the terms and conditions
of employment without notifying the Union. By January
16, 1978, a number of employees had complained to Union
Business Representative Betty Williams, stationed at Spo-
kane, Washington, about a reduction in hours. This
prompted Williams to file a "blanket grievance" on behalf
of the employees at the Coeur d'Alene facility (G.C. Exh.
27). The hours of nurse's aides, "dietary" personnel. em-
ployees working in the laundry and in other areas of the
nursing home were reduced beginning in January 1978. The
Union was advised of further reductions or "modification"
of hours on or about February 28, March 10, and April 25
(G.C. Exh. 25, 26, and 27).9 Effective February 1, 1978, the
insurance for employees at the nursing facility was
changed. Blue Cross coverage, which had been previously
in effect, was cancelled, and a new insurance coverage was
obtained from "IGA." The new IGA group plan included
life insurance and was, in some respects at least, broader
than Blue Cross. The premium paid by the employer
($2,400 or 46 percent of the total cost), was reduced, how-
ever, and the cost to the employees was increased.'0 Under
the Blue Cross plan, the single rate premium had been paid
by the employer. The employees were made aware of the
change in insurance by a notice posted in late January
1978.
13. The Coeur d'Alene facility suffered a net loss of
$8,998 in January 1978, $166 in February, $2,623 in March,
$7,153 in April, $10,810 in May, and $11,405 in June.'
'While testifying, Williams gave the names of six employees who had
claimed a loss of hours. (Shop Steward Byers said 10 or 15 had spoken to her
about the loss of hours.) Williams sought to "discuss the situation" with the
Administrator Mary Malloy at the Coeur d'Alene home, but never did so.
Union Official Richard MacLeod met with Malloy on or about March 31,
1978, but nothing was resolved. MacLeod, who met with Malloy on that
date because of Williams' illness, apparently was not knowledgeable of the
issues raised by the grievance, and Malloy was without authority to deal
with the Union.
I Administrator Malloy said she made the decision, at least initially, to
reduce the hours of the staff at the nursing home. She recalled that kitchen
personnel were given an opportunity to work in other departments. but some
refused to do so. See also the notice posted on February 10, 1978 (Resp. Exh.
3).
10 Darolyn Byers and Irene Waddell testified that each of them had paid
$17.71 a month for insurance after the change to the IGA plan was put into
effect, but were not charged for the Blue Cross coverage that was provided
by D-J. Elsie Johnson said the cost of insurance for herself and her husband
went from $29.10 each month under Blue Cross to $66.10 each month under
IGA.
" Bybee testified that the increase in the minimum wage on January 1,
1978 had some impact on the wage scale at the Coeur d'Alene nursing facil-
ity. However, he said it was decided in February to set up a new program of
Intermediate Care for the Mentally Retarded, commonly referred to as
ICFMR, because of the "low census" (reduced number of patients) and high
costs. He indicated heavy costs were incurred to get the program underway,
but that most of those costs would be eventually reimbursed by the govern-
ment.
14. On or about January 29. 1978. Shop Steward Darl-
lyn Byers went to the nursing home shortly after 9 p.m. and
left a half an hour or so later.'" She went to the facility after
receiving a call from Jessie Stewart. a nurses aide, who
complained that a posted work schedule indicated that she
(Steward) would he losing 2 days of work." Byers was off
duty at the time of her visit and spent virtually all of her
time at the facility that evening in the staff room, where
employees take breaks, talking with Stewart and other em-
ployees. Charge Nurse Steve Gilliland entered the staff
room briefly and while there oiced disagreement with
Byer's interpretation of the status of the Union's collective-
bargaining agreement. Shortly thereafter. Gilliland asked
Byers to leave the premises on the basis that she was inter-
fering with the work of employees. Gilliland also indicated
that Stewart and others would be given warning slips for
talking to the shop steward that evening. On JanuarN 30,
1978. Administrator Malloy wrote a letter to Byers making
reference to "off duty visitations" on Byers' part on January
25, 1979. The letter indicated that "warning records" would
be issued in the future to "staff members who disrupt the
work day" (G.C. Exh. 28).'4
The Alleged Unilateral Changes
Respondents concede that PCCI is a successor employer
of D-J." They do not challenge the appropriateness of the
bargaining unit or the fact that the Union enjoys majority
status. They of course could hardly do either, as the work
force continued intact and operated the nursing home facil-
ity just as it had before the change of ownership. The Union
had been certified as bargaining representative of the unit
on March I 1, 1977. And obviously PCCI was aware of the
presence of the Union at or about the time of the take over
on January 1, 1978, as the attorney for the principal officers
of PCCI, Michael Lee and Don Bybee. informed the Union
by letter dated January 6. 1978, that the D-J operation had
been purchased and they, as "the new purchasers." were
willing "to immediately begin negotiations for a new union
contract." The real question raised under the allegations of
the complaint relating to the unilateral changes in work
conditions is whether a successor employer of D-J was free
to make changes in the working conditions without consult-
ing with the Union and before undertaking to negotiate a
new collective-bargaining agreement.
The General Counsel and Respondents rely on the "per-
fectly clear" dictum contained in the Supreme Court's deci-
sion in N.L.R.B. v. Burns International Security Services.
Inc., 406 U.S. 272 (1972). which states:
Although a successor employer is ordinarily free to
set initial terms on which it will hire the employees of a
predecessor, there will be instances in which it is per-
1i Charge Nurse Steve Gilliland made a note that Byers came to the facil-
ity at 9:05 and was asked to leave at 9:45 p.m. Other witnesses thought she
stayed no more than 30 minutes.
) The 2 days of work were later restored to her.
" Malloy testified that she had seen the shop steward in the facility during
Byers' off duty hours on January 25, and that the January 30 letter related to
that visit and not the later evening visit when Byers met and talked with
Jessie Stewart.
I5 The responsibility of Truscan and members of the Plnewod Properties
partnership is dealt with later in this decision.
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fectly clear that the new employer plans to retain all of
the employees in the unit and in which it will be appro-
priate to have him initially consult with the employees'
bargaining representative before he fixes terms. In
other situations, however, it may not be clear until the
successor employer has hired his full complement of
employees that he has a duty to bargain with a union,
since it will not be evident until then that the bargain-
ing representative represents a majority of the employ-
ees in the unit as required by § 9(a) of the Act, 29
U.S.C. § 159(a).' 6
Respondents contend that PCCI, as the successor of D J,
was able, under Burns, to establish its "initial terms" of
employment at the time of the take over as it was not "per-
fectly clear" that all of the employees in the bargaining unit
were going to be retained. Thus, Respondents argue, the
successor employer was free to cut back or reschedule the
hours of employees of the facility and institute a new insur-
ance program for them without violating the Act. The diffi-
culty with Respondents' position is that the record indicates
it was perfectly clear at the outset of the take over that the
successor planned to retain all of the employees in the bar-
gaining unit on the same basis as they had been previously
employed by D-J. Respondents admit in their answer the
allegations of the amended complaint (Par. 2(b)) that
"[s]ince on or about December 31, 1977, PCCI has been
engaged in the operation of Pinewood Care Center without
interruption and in substantially the same manner and with
substantially the same job classifications and employees as
D-J." Truscan Official Brocksome claimed that he in-
formed employees at the late December 1977 meeting that
there would be changes. But persuasive testimony of em-
ployee witnesses who were there convinces me that they
were not so advised, and it is apparent that no changes were
contemplated by the PCCI and Truscan officials.
N.L.R.B. v. Wayne Convalescent Center, Inc., 465 F.2d
1039 (6th Cir. 1972), relied on by Respondents, does give
some support to their position. The successor employer in
that case had been the holder of a mortgage on a nursing
home and, following foreclosure, continued to operate the
home without interruption with substantially the same per-
sonnel. Within a month or so of the take over, the successor
unilaterally granted certain wage increases and changed the
rates of pay for vacations, sickness, and overtime. The
court held that the new employer was under a duty to bar-
gain with the incumbent union, but that the changes in pay
were proper under Burns as being "merely the initial terms
of employment."
The Wayne case is distinguishable from the case at bar,
however, and, as the General Counsel's attorney indicates
in his brief, the decision has been given limited effect. In
Wayne, the successor was not aware of the presence of the
union at the time of the take over. Also, the nursing facility
in the instant matter may not have been in a financially
healthy position at the time of the take over, but it was not
"moribund."
The later decision of the same court in Spitzer Akron, Inc.
v. N.L.R.B., 540 F.2d 841 (6th Cir. 1976) is more persuasive
than Wayne. The Spitzer family had consummated the pur-
l Burns makes it clear that a successor employer is not bound by the terms
of a contract agreed to by the predecessor employer and the Union.
chase of an automobile dealership known as East Town
Chrysler-Plymouth on September 4, 1970, 5 days after the
collective-bargaining agreement between East Town and
the incumbent union had expired. At an employees' meet-
ing held the same evening, the employees were told that
wage scales and benefits would be greater than before. The
court noted that the work force was hired before the an-
nouncement of the changes in wages and benefits, which
were put into effect without consultation with the union,
and that a member of the Spitzer family had visited East
Town in August before the purchase and had stated that he
"[wanted] every man to stay on the job, and ... carry on as
usual." Finding the employees to have been "misled by
'tacit inference' into believing they would be retained with-
out change in the conditions of employment." the court
held that the unilateral changes made on September 4 were
unlawful "under the teachings of Burns." The court's rea-
soning is instructive [540 F.2d at 844.]:
We construe Burns as relating to the timing of the
changes-whether they predate or postdate the com-
mencement of the duty to bargain. As soon as the duty
to bargain arises, the successor company cannot insti-
tute changes without consulting with the union. As the
Seventh Circuit held in Bachrodr.
Once the duty to bargain is triggered, a successor
employer's responsibilities are akin to those of an
ordinary employer prior to the negotiation of a for-
mal labor contract but after a bargaining representa-
tive has been selected when he has the duty to bar-
gain and, the corollary duty, not to institute changes
without consulting the union. 468 F.2d at 969.
Under Burns, the successor employer can set the ini-
tial terms upon which rehiring is conditional, provided
that takes place before the duty to bargain arises. Gen-
erally, another successor can set the initial terms uni-
laterally' without violating the Act, since prior to the
rehiring of his predecessor's employees, which consti-
tute the majority of his work force in an appropriate
unit, there is no duty to bargain. See Nash, Successor-
ship After Burns, 7 Ga.L.Rev. 664, 671 (1973); Pate,
The Impact ol' Burns, 7 Ga.L.Rev. 687, 693-694 (1973)
[hereinafter cited as Pate]; Note, The Bargaining Obli-
gations of Successor Employers, 88 Harv.L.Rev. 759,
778 (1975). The only instance in which the duty to
bargain may precede the formal rehiring of employees
is where "it is perfectly clear" the otherwise successor
plans to retain a sufficient number of the predecessor's
employees so that the union's majority status will con-
tinue. See Pate, supra at 694: Note, Contract Rights and
The Successor Employer, The Impact of Burns Security,
71 Mich.L.Rev. 571, 580 (1973).
In Burns, the duty to bargain did not mature until
late June, at a time when the successor had hired the
requisite complement of his predecessor's employees.
The Court, however, rejected the union's challenge to
changes in working conditions unilaterally instituted
by Burns in July, since they had been incorporated in
the initial employment contracts in early June, and
thus necessarily predated the duty to bargain. Accord-
ingly. these changes were merely initial terms set by
the successor.
820
PINEWOOD CARE CENTER. INC.
In the present case, when the changes were insti-
tuted by the Company on September 4, there already
existed a duty to bargain with the incumbent union.
Not only was the Company's operational structure and
practice the same as it was before the transfer of own-
ership, but the Company had hired, prior to instituting
the changes, the employees of its predecessor, which
constituted the majority of its work force ....
Assuming arguendo, that the formal rehiring took
place after September 4, it appears, nevertheless, that a
duty to bargain existed when the unilateral changes
were instituted. The record establishes that it was "per-
fectly clear" in early August that the Company in-
tended to rehire a sufficient number of employees to
maintain the Union's majority status. Del Spitzer in-
formed the employees that he "[wanted] every man to
stay on the job, and would carry on as usual." Conse-
quently, there is sufficient evidence to support a duty
to bargain which preceded the formal rehiring of the
East Town employees. Moreover, there is nothing to
indicate that the employees were aware of the pro-
posed changes in early August; accordingly, these
changes can not be considered as initial terms of rehir-
ing under Burns. See Bachrodt, 468 F.2d at 969.
The court in Spitzer went on to explain that its earlier
decision in Wayne was not really inconsistent, as there was
no duty to bargain at the outset of the take over in Wayne.
The Court pointed out that in Wayne the new owners had
considered converting the nursing facility to a "bed and
board facility," and "it was not 'perfectly clear' that Wayne
planned to retain a sufficient number of employees to con-
tinue the union's majority status." Thus, according to the
Court, the changes in conditions of employment in Wayne
were initial terms of employment."
The instant case is very similar to Howard Johnson Com-
pany, 198 NLRB 763 (1972), and Good Foods Manufactur-
ing and Processing Corporation, Chicago Lamb Packers,
Inc.-Division, 200 NLRB 623 (1972), in which successor
employers planned to retain the employees of their prede-
cessors and did so." The Board in Howard Johnson, after
"The Court in N.LR.B. v. Ivo H. Denham and Geraldine A. Denham
d/bla The Denham Company, 469 F.2d 239 (9th Cir. 1972) also effectively
distinguished Wayne on the basis that it did not involve a situation where
there was a take over of the predecessor's "workforce intact." The Court in
Spitzer noted that the Supreme Court had remanded Denham, as well as the
Seventh Circuit's first decision in N.LR.B. v. Bachrodt Chevrolet Co., 468
F.2d 963 (7th Cir. 1972), cited in the above quotation from Spitzer. The
Seventh Circuit in Zim's Foodliner, Inc., d/b/a Zim's IGA Foodliner, and
S & O, Inc., etc. v. N.LR.B., 495 F.2d 1131 (1974), after noting that its
Denham decision had been remanded by the Supreme Court, pointed out
that the Supreme Court's language in Burns concerning the "unilateral
changes doctrine" should allow an employer who initially accepts pre-exist-
ing employment terms to "subsequently have second thoughts about the
matter" The Court indicated, however, that the time in which to establish
voluntary adoption of initial terms "is quite brief."
" The Howard Johnson and Good Foods cases were cited by the Board in
its later decision in Spruce Up Corporation, 209 NLRB 194, 195 (1974), in
which the Board gave its interpretation of the Supreme Court's "caveat" in
Burns:
We concede that the precise meaning and application of the Court's
caveat is not easy to discern. But any interpretation contrary to that
which we are adopting here would be subject to abuse, and would, we
believe, encourage employer action contrary to the purposes of this Act
and lead to results which we feel sure the Court did not intend to flow
noting the Burns' dictum quoted above, held that the suc-
cessor employer was not free to change the terms of em-
ployment unilaterally. Quoting from the Board's decision:
As noted, Respondent's regional manager told the
predecessor's employees that their employment would
continue after the change in ownership. This retention
of all of the employees in the units obligated Respon-
dent to bargain with the Unions before it fixed initial
wages and terms of employment, and we find that Re-
spondent, by failing to do so, violated Section 8(a)(5)
and (I) of the Act.
See also Virginia Sportswear, Incorporated, 226 NLRB 1296
(1976) and L.A. Beefland, Inc., 232 NLRB 1189 (1977).
Quite apart from its contention with respect to the Burns'
caveat, Respondents argue the unilateral changes in work
schedules, involving a cutback in hours of work from some
employees, were permissible under the Act on the basis that
any successor could have succeeded to D-J's right under
the collective-bargaining agreement with the Union "to
transfer, assign or otherwise reallocate the work schedule of
employees," subject only to the seniority provisions of the
agreement. I do not so read the agreement, which also em-
powered D-J to "layoff" employees, as it did not authorize
a change in the hours or days of work of employees. In any
event, the contract did not authorize a change in employees'
insurance coverage. See The Dow Chemical Company, 212
NLRB 333 (1974) although it involved a contract which
unquestionably gave the employer less authority than the
one between D-J and the Union.
from its decision in Burns. For an employer desirous of availing himself
of the Burns right to set initial terms would, under any contrary inter-
pretation, have to refrain from commenting favorably at all upon em-
ployment prospects of old employees for fear he would thereby forfeit
his right to unilaterally set initial terms, a right to which the Supreme
Court attaches great importance in Burns. And indeed, the more cau-
tious employer would probably be well advised not to offer employment
to at least some of the old work force under such a decisional precedent.
We do not wish-nor do we believe the Court wished-to discourage
continuity in employment relationships for such legalistic and artificial
considerations. We believe the caveat in Burns, therefore, should be
restricted to circumstances in which the new employer has either ac-
tively or. by tacit inference, misled employees into believing they would
all be retained without change in their wages, hours, or conditions of
employment, Icitation omitted] or at least to circumstances where the
new employer, unlike the Respondent here, has failed to clearly an-
nounce its intent to establish a new set of conditions prior to inviting
former employees to accept employment.
For these reasons, we find that Fowler's expressions to the old em-
ployees were not within the Court's caveat, and we conclude that those
expressions did not operate to forfeit his right to set initial terms.
The successor employer in Spruce Up had announced in February, before his
take over on March 3, of a general willingness to hire the predecessor's
employees if they would accept different commission rates. The Board found
that a majority had been employed by at least April 14, at which time the
successor was obligated to recognize and bargain with the incumbent union.
The Board stated recently in Charles Starbuck and Diane Starbuck d/bla
Starco Farmers Market, 237 NLRB 373, 374 (1978) that it has consistently
followed its Spruce Up interpretation of Burns, adding that "where the offer
of different terms was subsequent to the expression of intent to retain the
predecessor's employees, the Board has regarded the expression of intent as
controlling and has found that the new employer was obligated to bargain
with the union before fixing terms." And see Nazareth Regional High School
v. N.LR.B., 549 F.2d 873 (2d Cir. 1977) where the Court held that a succes-
sor school could initiate new terms of employment where, although it had
indicated an intention to retain the whole staff, it mailed out letters to most
of the faculty inquiring whether they wished to teach on new terms.
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents further contend that the changes in the in-
surance and hours of work were not unlawful since the
Union never made an "affirmative request" to bargain on
the unilateral changes made. It is essential, however, that a
union be made aware of unilateral changes before it is
called upon to make a request to bargain with respect to
them. When the Union learned of the changes that were
made, it promptly expressed objections. No waiver oc-
curred because the changes were a fail accompli. 9
Finally, Respondents argue that an impasse was reached
between the parties on February 27, 1978, and that a suc-
cessor employer was thereafter free, under Burns. to negoti-
ate new terms and conditions of employment without vio-
lating the Act. Thus, Respondents argue, that "even if
Respondents had engaged in unfair labor practices by insti-
tuting unilateral changes any wrong or damage accruing as
a result of these practices were cured by the February 27th
meeting." This contention is rejected. While "the new pur-
chasers of Pinewood Convalescent Center" indicated in its
letter of January 6, 1978, to the Union that they were will-
ing to "begin negotiations with the union for a new con-
tract," there was never an offer from them to bargain over
the changes in hours and employees' insurance program.
Any bargaining on February 27 was after the fact, since the
unilateral changes had already been put into effect. See
Missourian Publishing Company, Inc., 216 NLRB 175
(1975).
The unilateral changes violated Section 8(a)(5) and (I) of
the Act.
The 8(a)(1 }) charges
The determination with respect to paragraph 10(a) of the
amended complaint relates to credibility. There is no ques-
tion about the fact that Shop Steward Byers (whose mar-
ried name is "Usrey") and the employees with whom she
met in the staff room one evening in late January 1978 were
engaged in protected activities so long as the employees
were on their break time. While the General Counsel's wit-
nesses indicated that they believed that the shop steward
stayed at the facility less than 30 minutes and talked only
with employees who were on their (15 minute) break time, I
am inclined to credit on this point the testimony of Gilli-
land who took note of and recorded the time when Byers
arrived and left the facility. Significantly, Byers agreed that
there could have been only four employees covering five
wings at the hospital that evening after 9 p.m. and that
three of them could well have been talking to her. Jessie
Stewart also acknowledged that there could have been only
four employees on duty after 9 p.m. and that there were
three with Byers when she (Stewart) left the room. I am not
persuaded that all of the employees in the staff room with
the shop steward that evening were on break time, even if
their reaks were being taken in a staggered manner.
The evidence of record does not indicate that Gilliland
told Byers that she had to leave the premises of the nursing
home "because she was engaging in union activities" as the
complaint asserts. Byers herself indicated that she under-
19 In the cases cited in Respondents' brief (pp. 14 17), the Union was
aware of the employer's proposed actions. There was clearly no waiver in
N.L.R.B. v. Burron-Dixie Corporation, 210 F.2d 199 (0th Cir. 1954). for
there was an "implied" request to bargain.
stood that she was still free to come to the nursing home
and talk to employees while they were off duty. Further, the
evidence does not indicate that Gilliland "told other em-
ployees that they would be] receiving a warning for dis-
cussing union affairs with the shop steward," as alleged.
Jessie Stewart, the General Counsel's witness on this issue,
testified that Gilliland said he was going to "write us all up
. .because Dee was taking up our working time." Para-
graph 10(a) of the amended complaint will therefore be dis-
missed.
Paragraph 10(b) of the amended complaint also was not
established by the record and will be dismissed. The Gen-
eral Counsel has tied the January 30, 1978, "reprimand"
letter of Administrator Malloy to Byers' visit on the evening
of January 29. Malloy testified, however, that she wrote the
January 30 letter over an entirely separate incident which
had occurred in the early afternoon of January 25, 1978-
when Byers spent 1-1/2 hours of her off duty time at the
facility.20 Malloy did not take exception to Byers talking
that day with Lois Neff while she was off duty, but she did
object to her speaking with personnel (i.e., Irene Waddell)
on duty in the laundry room. The purpose of the January
30 letter, Malloy said, was to let Byers know that there was
a new administrator at the facility and that the policies of
the prior operator no longer applied. Again, Byers did not
understand the letter to mean that she could no longer
speak to employees during their off duty time.
Responsibility of Truscan and Pinewood Properties
Respondents concede that Pinewood Care Center. Inc., is
a successor employer of D.J. Convalescent Care, Inc., but
assert that it is the "sole employer" of the employees of the
Coeur d'Alene nursing home facility. Respondents concede
that Truscan is an "agent" for PCCI (as the term is used in
the Act), and that Truscan's actions are attributable to
PCCI. They contend, however, that Truscan cannot be con-
sidered a joint employer with PCCI on the basis that Trus-
can does not deal with employees at the nursing home "in
its own capacity." Respondents assert that there is no juris-
diction over the Pinewood Properties partnership, since it
has not been shown to be in commerce. Respondents fur-
ther assert that the partnership has no employees, that Lee,
the "effective 'owner' of both Pinewood [PCCI] and Trus-
can," has only one-fourth interest in the partnership and
that the two partners having management positions with
PCCI and Truscan-Lee and Bybee do not have voting
control of the partnership.
As Respondents point out, citing Radio & Television
Broadcast Technicians Local Union 1264, International
Brotherhood of Electrical Workers, AFL-CIO v. Broadcast
Service of Mobile, Inc., 380 U.S. 255 (1965), the controlling
criteria for determining "nominally separate business enti-
ties to be a single employer" are "interrelation of opera-
tions, common management, centralized control of labor
relations and common ownership." There is ample proof in
20 Byers obviously thought Malloy's January 30 letter did relate to the visit
Byers made the night before, and Gilliland's testimony indicated that there
could have been a connection. But Malloy testified credibly that she did not
know of Byers' evening visit on January 29 when the January 30 letter was
prepared.
822
PINEWOOD ('ARE ('ENER. INC
the record on each of' these elements with respect to the
relationship between Truscan and PCCI.
The day-to-day operations of Truscan and PCCI show
that both have been closely interrelated. he two corpora-
tions share the same officers. They utilize the same counsel
and agent for service. Under the arrangements existing be-
tween the two firms, PCCI must reimburse Truscan for ser-
vices rendered by the director of nursing and the adminis-
trator at the nursing home facility. Expenses of Truscan
officials for travel, entertainment, and other "operational
field work for the Pinewood Care Center" must he paid for
by PCCI. In June 1978, Truscan arranged for the advance
of funds so PCCI could meet its payroll.
Truscan and PCCI have common management. Through
the appointment of a manager, who is empowered to em-
ploy others "as may be required" to operate the f'acility.
Truscan has the exclusive control over the operations of
PCCI. Under its "Management Agreement" with PCCI.
Truscan supervises "all bookkeeping, accounting and cleri-
cal services, incident to the efficient operations and mainte-
nance of the Home." including the maintenance of payroll
records. See General Counsel's Exhibit 9 also General
Counsel's Exhibit 10.
There is centralized control of labor relations between
Truscan and PCCI. Truscan has handled all matters relat-
ing to labor relations for PCCI. Truscan made it clear to the
Union that in connection with its representation of employ-
ees in the bargaining unit at the Coeur d'Alene facility, it
must deal only with Truscan officials.
Finally., Truscan and PCCI have the same ownership:
Michael Lee effectively owns both corporations. It is thus
clear that a joint employer relationship has existed between
Truscan and PCCI. My recommended order will, therefore.
run against Truscan and PCCI. See J. J. Gumherg, Co. and
Pennle Park South, Inc., 189 NLRB 889 (1971).
I find Truscan and PCCI are jointly and severally liable
for the unlawful unilateral changes made in the hours and
insurance of the employees at the Coeur d'Alene nursing
home facility. Pinewood Properties will not be named in the
order, however, as the partnership has acted only as a lessor
of the property used in operating the nursing home. The
business of the partnership is limited to furnishing of prop-
erty for the operation of the nursing home facility and, as
the General Counsel points out, presumably Lee or Bybee
would handle any business problems that Pinewood Prop-
erties might have. I am unable to conclude, however, that
the partnership has engaged in any conduct that should
subject the partners to a cease and desist order.2'
THE REMLI)Y
Having found that PCCI and Truscan have violated Sec-
tion (a)(5) and (1) of the Act by unilaterally changing
21 The cases cited by the General Counsel in support of his argument for
holding Pinewood Properties are inapposite. American Theatre Corporation
d/bla Pussycat Theatre; et al., 220 NLRB 295 (1975), involved "corporate
forms" which did not reflect business realities, but constituted "a single en-
terpnse ... for purposes of asserting jurisdiction." In Jackson Manor Nursing
Home, Inc., and/or Isaac Mi:rahi dt/b/a Jackson Manor Nursing Home, 194
NLRB 892 (1972), the lessor of the nursing home was held, along with the
lessee. as a joint employer because the lessor had the right to participate in
collective bargaining and withhold consent to any labor contract reached.
work schedules or the hours of work and insurance cover-
age of employees at the Coeur d'Alene, Idaho. nursing fa-
cility, I shall recommend that they cease and desist there-
from and take affirmative action designed to fulfill the
policies of the Act. I shall recommend that the two corpora-
tions cease and desist from making such unilateral changes
in the terms and conditions of employment and that they
make whole the employees of the bargaining unit for any
loss of pay or benefits that they may have suffered as a
result of the unilateral actions, with interest as prescribed in
F 1'. I'oolw/orth Companv, 90 NRB 289 (1950): Isis
Pluanhing & lHetriing ('o., 138 NL.RB 716 (1962); and Flor-
ida Steel Corporatiion, 231 NLRB 651 (1977). Further, I
shall recommend that P'CI and Truscan be ordered to
cancel such unilateral changes and continue the schedule or
number of hours of work, insurance and conditions of em-
ployment in effect on December 31, 1977. until such time as
said Respondents negotiate in good faith with the Union to
agreement or to impasse.
C(oN( I tI()tNS ()F LAWV
As a result of the foregoing findings of fact, and the
whole record. I enter the following conclusions of law:
I. Respondents Pinewood Care Center, Inc., and Trus-
can Corporation are, singly or jointly, employers engaged in
commerce within the meaning of Section 2(2). (). and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By implementing changes in insurance. work sched-
ules and the hours of work of employees at the C'oeur d'Al-
ene nursing facility without consulting with the Union, Re-
spondents Pinewood ('are C('enter. Inc.. and Truscan
Corporation violated Section 8(a)(5) and () of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. No other violations of the Act as alleged were estab-
lished.
Upon the fregoing findings of' fact, conclusions of law.
and the entire record. and pursuant to Section 1O(c) of the
Act, I hereby issue the following recommended:
ORDER:
Respondents Pinewood Care Center, Inc.. and Truscan
Corporation, their officers. agents, successors, and assigns,
shall:
1. C('ease and desist rom:
(a) Refusing to bargain collectively with the Union as
the exclusive bargaining representative of employees in the
following appropriate unit:
All nurses aides, orderlies, head housekeepers, house-
keepers, head laundry employees, laundry employees.
kitchen employees, helpers, and cooks employed at
22 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 by Sec
102 48 of the Rules and Regulations. be adopted bh the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pinewood Care Center in Coeur d'Alene, Idaho, but
excluding all other employees, registered nurses, li-
censed practical nurses, office clerical employees,
guards, and supervisors, as defined in the Act.
(b) Unilaterally changing work schedules, hours of work,
insurance, or other terms and conditions of employment of
the employees in the above-described unit without consult-
ing with the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Cancel the unilateral changes heretofore made in em-
ployees' work schedules, hours of work, insurance, or other
terms and conditions of employment of the employees in
the above-described appropriate unit and continue the
hours, insurance, and other terms and conditions of em-
ployment in effect on December 31, 1977, until such time as
Respondents negotiate in good faith with the Union to
agreement or to impasse.
(b) Make whole the employees in the appropriate unit
for any loss of pay or other benefits that they may have
suffered as a result of the unilateral changes in hours and
insurance of employees, with interest in the manner pre-
scribed in the "Remedy" Section of this Decision.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rel-
evant and necessary to a determination of compliance with
this Order.
(d) Post at their Coeur d'Alene, Idaho, place of business
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director
for Region 19, after being duly signed by Respondents' rep-
resentatives, shall be posted by them immediately upon re-
ceipt thereof and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Reason-
able steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
D 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 Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
824