Rockford Manor Intermediate Care Facility

National Labor Relations Board - Board Decisions

May 29, 1986

279 N.L.R.B. 1170 (N.L.R.B. 1986)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EPI Corporation d/b/a Rockford Manor Intermedi-
ate Care Facility and General Drivers, Ware-
housemen and Helpers Local Union No. 89, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and
Helpers of America . Case 9-CA-22178-1
29 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 November 1985 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. i
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i Member Dennis concurs in the result , finding it unnecessary to rely
on the judge's analysis of the contract 's "zipper clause" and management-
rights clause In finding the Union waived its right to bargain about the
Respondent 's decision to institute a different health plan , Member Dennis
relies on art XIV of the parties' contract, which provided that unit em-
ployees would "participate in the Company 's health and life insurance
programs on the same basis as" employees at nonuniomzed facilities.
During the contract 's term , the health carrier notified the Respondent of
a steep rate increase under the existing plan and offered a more nominal
increase under a new program The Respondent chose the new program
The parties' contract did not limit in any way the Company's freedom in
selecting health insurance plans for employees at nonunionized facilities
Thus, the contract language plainly and literally means that once the Re-
spondent implemented the changes for other facilities , it was required to
extend the changes to the bargaining unit employees
Engrid Emerson Vaughan, Esq., for the General Counsel.
James Kenneth Howell, Business Agent, of Louisville,
Kentucky, for the Charging Party.
John Greenebaum, Esq. and Tom Fenton, Esq., of Louis-
ville, Kentucky, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard by me in Louisville , Kentucky, on
17 September 1985 on an original unfair labor practice
charge filed on 2 July 1985 and a complaint issued on 16
August 1985 alleging that Respondent violated Section
8(a)(5) and ( 1) of the Act by instituting a new and differ-
ent health insurance plan without prior notice to or af-
fording the Union an opportunity to negotiate and bar-
gain In its duly filed answer, Respondent denied that
any unfair labor practices were committed. Following
the close of the hearing, briefs were filed on behalf of
the General Counsel and the Respondent.
Based on the entire record in this proceeding, includ-
ing consideration of the posthearing briefs, and my op-
portunity directly to observe the witnesses while testify-
ing, as well as their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Kentucky corporation, maintains a
place of business in Louisville, Kentucky, from which it
operates a chain of nursing homes, which provide medi-
cal and health care services. The operation includes the
Rockford Manor facility, located in Shively, Kentucky,
the sole facility involved in this proceeding. In the
course of the operation, during the 12-month period
prior to issuance of the complaint, a representative
period, Respondent derived gross revenues in excess of
$100,000, and purchased for the account of its Shively,
Kentucky facility, products, goods, and materials valued
in excess of $50,000, shipped directly from points outside
the State of Kentucky.
The complaint alleges, the answer admits, and it is
found that Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and a
health care facility within the meaning of Section 2(14)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and it is
found that General Drivers, Warehousemen and Helpers
Local Union No. 89, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union) is now, and has
been at all times material, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
The refusal-to-bargain allegation in this case stems
from Respondent's unilateral decision to substitute a new
health insurance program for that which was in effect
when the subsisting collective-bargaining agreement was
executed. More specifically, the undisputed facts show
that on 1 August 1983 the Union was certified as the ex-
clusive bargaining representative in a service and mainte-
nance unit Shortly thereafter, negotiations commenced,
resulting in the execution of a collective-bargaining
agreement with a term 1 March 1984 through 28 Febru-
ary 1986 During negotiations, the Union proposed a
health care plan administered on a multistate basis jointly
by the Teamsters Union and other employers. Respond-
ent resisted, countering with a demand that its existing
plan underwritten by Blue Cross/Blue Shield be re-
279 NLRB No. 170
ROCKFORD MANOR CARE FACILITY 1171
tained. That plan, prior to the advent of the Union, had
always been financed on a contributory basis, with pre-
mium liability shared on a 50/50 basis between employ-
ees and the Company. Prior to settlement of the contract
issues, in a letter dated 28 October 1983, the attorney for
the Employer summarized the status of the health care
issue as follows-
Health and Welfare Benefits-The Union has pro-
posed Teamsters Plan C-5.
The Company has proposed to continue its health
and life insurance program on the same basis as at
present.'
Ultimately, the Union acceded and agreed to accept
the Company's plan. In the final contract, the sole refer-
ence to health insurance appeared in article XIV, which
provided as follows:
[F]ull time employees will participate in the Compa-
ny's health and life programs on the same basis as
other employee members of the group. . . .
During the term of the contract, sometime prior to
June 1985, Respondent was notified by Blue Cross/Blue
Shield that there would be a steep increase in premiums
under the existing plan. To avoid these large increases,
Respondent was given the option to select a new pro-
gram at a far more nominal increase in cost The new
plan was called "Assurance Plus."2 Prior to June 1985,
the Employer decided to accept the less expensive alter-
native, rejecting the considerably higher rates under the
existing policy. As was customary, the more modest in-
crease would be shared equally by the Employer and
employees. On 21 June, employees were formally noti-
fied of the change.3 The Union was given no voice in
this election and was unaware that a change was contem-
plated until after its announcement.
Assurance Plus, in terms of coverage and benefits, was
identical to the prior policy, although the lifetime ceiling
on major medical claims was increased from $250,000 to
$1 million . The negative feature was a network of penal-
ties designed to facilitate a new set of eligibility require-
ments affecting certain benefit claims. The carrier appar-
ently viewed these new requirements as enabling full
maintenance of benefit levels, with a minor increase in
premiums, through controls on liability for unnecessary
in-patient hospital expenses. A publication of the carrier
explains the purpose behind Assurance Plus as follows:
[w]e think A+ is the answer to raising health costs.
The program offers you and your employer a
' See G C Exh 3
z The cost of the changes to be effective 1 July 1985 were as follows
Coverage Existing Assurance Existing
Premium Plan Plan
Family $16362 $ 168 13 $191 88
Single 61.59 63.34 72.07
3 See G C Exh 5(a)
change to actually control health insurance cost-
not shift them. It gives you the opportunity to ac-
tively participate in the management of your own
health care. And, while you are doing your part to
control the overall cost of health care, you will also
be containing your company's cost of your health
benefit program.
The new conditions were as follows.
1. Preadmission certification
With respect to "elective" hospitalization, advance
certification by the carrier is required to ensure that in-
patient stay is consistent with the coverage requirements
of the contract and to reflect prior agreement between
the insured's physician and representative of the carrier
about the length of stay. Absent precertification, benefits
are subject to a 50-percent reduction. This feature also
affords the carrier the option of review, during the in-
sured's hospital stay, with provisions for agreed-upon ex-
tension in length of stay
2. Second opinion
Under this requirement, certain in-patient, elective sur-
gical procedures require a second opinion. Should the in-
sured fail to comply, the carrier will pay only 50 percent
of the benefits.
3. Out-patient surgery
Under this limitation, certain surgical procedures are
defined as ambulatory only, and, as such, are subject to
full benefits only if performed in a hospital out-patient
department, emergency room, or an ambulatory surgical
facility Absent precertification by the carrier about spe-
cial need, failure to have these procedures performed on
an ambulatory basis will result in a loss of 50 percent in
benefits.
4. Early admissions
Under this limitation, absent a showing of special med-
ical necessity, benefits will not be paid for hospitalization
prior to the day before scheduled in-patient surgery.
5. Preadmission testing
This provision ensures that diagnostic laboratory and
X-ray tests are performed prior to hospital admission, a
feature designed to protect against unduly prolonged
hospital stay required solely to permit physicians to
review test results, a procedure that should be completed
prior to admission
B Concluding Analysis
1. Preliminary Statement
"It is settled that an employer violates Section 8(a)(5)
and (1) of the Act by unilaterally changing terms and
conditions of employment without first providing the
collective-bargaining representative of its employees with
a meaningful opportunity to bargain about the changes."
Lauren Mfg. Co., 270 NLRB 1307, 1308 (1984); NLRB v.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benne Katz, 369 U.S. 736 (1962). This obligation extends
to health insurance , as under established precedent, this
employment term constitutes a mandatory subject of col-
lective bargaining . W. W. Cross & Co. v. NLRB, 174 F.2d
875 (1st Cir. 1949); Garrett Flexible Products, 276 NLRB
704 (1985); Lauren Mfg Co., supra.
Initially , Respondent contends that neither the change
in premium , nor the adoption of "Assurance Plus" modi-
fied any condition of employment. Without passing, at
this juncture, on whether Respondent was acting within
permissible limits of the governing collective-bargaining
agreement, the preexisting practice, or both, it is clear
that the higher cost and risk of benefit forfeiture, each
independently had a detrimental impact on employment
terms and, at least facially, was subject to the duty to
bargain . See, e . g., Garrett Flexible Products , supra.
Respondent next defends on grounds that the Union,
through the process of contract negotiation , waived its
interest in the subject matter. Under settled authority,
such a waiver is not to be lightly inferred, but demon-
strated by a clear, unmistakable expression on the part of
the Union. Beacon Piece Dyeing, 121 NLRB 953, 956
(1958); Metropolitan Edison Co. v. NLRB, 460 U.S. 693
(1983). In assessing intent "[t]he Board looks to a variety
of factors, including the evidence of contract negotia-
tions, the precise wording of the relevant contractual
provisions , and the completeness of the bargaining agree-
ment ." Bancroft-Whitney Co., 214 NLRB 57 (1974). Re-
spondent argues that by virtue of historic practice and
the terms of the settlement reached in negotiations, the
Employer retained flexibility to select on its own among
options made available by Blue Cross/Blue Shield.
2. The increased employee contribution
Reserving for the moment on the overall change in
health policy, there is merit in Respondent's view that
the Act provides no recourse to the bargaining agent in
connection with the 1985 increase in premium expense.
Historically, all were aware of the consistent practice
whereby premium costs were distributed on a 50/50
basis between employee and Company. Periodic in-
creases , like those made in 1985 , were not unusual. They
were never within control of the Employer, but based
entirely upon determinations by Blue Cross/Blue
Shield.4 Such increases were always absorbed within the
50/50 formula, the ratio remaining intact , with added ex-
pense shared equally by Respondent and employees
alike . s Acceptance by the Union of the Company 's estab-
lished health and welfare plan did not require the Em-
ployer to alter that formula. Adherence to the past prac-
tice by management is inoffensive to principles of good-
faith bargaining in such circumstances . See Luther Manor
* By virtue of the Respondent's agreement with the carrier, the latter
reserved the right to change premium costs upon 30 days notice (See It
Exh 2(a), p 19 0, art XVI, sec C )
" This is precisely what occurred during the term of the contract in
the summer of 1984, when the carrier placed a similar increase in effect
The Union 's failure to object is consistent with an understanding that pre-
mium increases might well be dictated by the carrier during the life of
the agreement, as well as its acquiescence to the practice whereby such
rate increases would be absorbed without disrupting the historic contnbu-
tory arrangement.
Nursing Home, 270 NLRB 949, 959 (1984); House of the
Good Samaritan, 268 NLRB 236 (1983); A-V Corp., 209
NLRB 451 (1979). As the Union had failed to question
management 's handling of the earlier 1984 increase in
that very same fashion, the element of tact assent is
present.
The propriety in the Employer's distribution of the in-
crease is rendered even more compelling by certain lan-
guage in the management -rights clause incorporated in
article IV of the subsisting contract, as follows:
Except to the extent expressly abridged or limited
by a specific provision of this agreement, the Com-
pany reserves and retains, solely and exclusively, all
of its inherent rights, functions and prerogatives of
management as such . . . prerogatives existed prior
to the execution of this agreement.
Virtually the same language was recently viewed by the
Board as preserving management 's right to act unilateral-
ly, to the extent that its action was within the framework
of a preexisting practice. See Carolina Carton Co., 272
NLRB 718 (1984).
In sum , for the above reasons, it is concluded that the
increase in health care costs passed on to employees in
June 1985 would not alone supply a predicate for Board
intervention in connection with the dispute giving rise to
the unfair labor practice charge in this proceeding.
3. The switch to "Assurance Plus"
In contrast with the foregoing , Respondent 's election
to supplant the existing health plan with the less costly
"assurance plus" arrangement entailed a discretionary
choice, neither frozen by practice,6 nor dictated by
forces outside Respondent's control. Normally discre-
tionary action with respect to employment terms is sub-
ject to the duty of prior consultation and bargaining.
See, e .g., Garrett Flexible Products, supra ; Hanes Corp.,
260 NLRB 557 (1982); Charles Mfg., 245 NLRB 39
(1979). Nonetheless, according to Respondent, it was re-
lieved of any such obligation by virtue of three different
articles of the collective-bargaining agreement.
First, Respondent points to article XIV, the only pro-
vision in the contract specifically referring to health in-
surance . In relevant part, it is stated therein that:
Full time employees will participate in the Compa-
ny's health and life insurance programs on the same
basis as other employee members of the group.
According to the Employer , the "group" in question
pertains to nonunion employees covered by the same
Blue Cross/Blue Shield policy at other nursing homes
operated by EPI corporation. In their case, the employer
in June 1985 opted for Assurance Plus. With this as its
factual premise, the Employer argues that by virtue of
article XIV, Respondent had the right unilaterally to
s There is no evidence that the health care program had been modified
on any prior occasion since certification of the Union Thus, the element
of acquiescence being absent , no practice arose in this latter connection
which could be deemed binding on the Union
ROCKFORD MANOR CARE FACILITY
make that same selection on behalf of the employees in
the unit represented by the Charging Party Respond-
ent's argument begs the question . Even if the Union
should have known that the "group" mentioned in article
XIV meant those employed at other EPI nursing homes,
that provision, though implying assent to the principle of
a single unified, companywide program, would not
convey an intent on the part of the Union to waive its
right to participate in deliberations about which option
was the more appropriate for all. On this issue, article
XIV is too ambiguous to reflect union assent to the exist-
ence of a right in the Employer to make extra unit
judgements which would be binding on represented em-
ployees The language in question appeared for the first
time in the Employer's last offer; it was never discussed
in any negotiating session ,' and, as far as can be dis-
cerned from the instant record , its scope , meaning, and
intent was never deliberated nor explained.8
Thus, I reject the contention that article XIV reflects
a specific bargain, permitting the Company to take what-
ever action it pleased with respect to the scope and con-
tent of the health benefits program. Simply put, article
XIV is neutral , neither authorizing nor limiting the em-
ployer's right unilaterally to discern which health care
option should be applied to employees in the appropriate
unit.
The inconclusiveness of article XIV, the only provi-
sion mentioning "health insurance ," is by no means de-
terminative of the issue. For other terms of the contract
are far more refined in their manifestation of mutual
assent to the right of the Employer to act unilaterally
with respect to matters arising while the contract is in
force. Thus the agreement included a highly detailed
"zipper clause ," article I, and an equally comprehensive
management-rights clause, article IV. There is merit in
r In contrast with Respondent 's position , the General Counsel con-
tends that during negotiations , Respondent represented affirmatively that
there would be no changes in the content of the plan for the life of the
agreement In support , the General Counsel points to testimony adduced
from Business Agent Kenneth Howell and employee negotiator Martha
Hebner to this effect Based on the total circumstances , I am convinced
that the bargaining included neither reference to what would occur in the
event of midterm changes initiated by the earner , nor mention of that
possibility . Moreover, it is unlikely that the Respondent would have of-
fered, blindly , to guarantee that employees would not be adversely affect-
ed in the event of any such changes The testimony of Howell and
Hebner is rejected as not based on actual statements made on behalf the
Respondent , but as merely representative of their interpretation of an am-
biguous reference made on Respondent 's behalf that "health . insur-
ance [would continue] on the same basis as at present "
8 Thomas Forschee, Respondent 's employee relations consultant, who
participated in the 1983/1984 negotiations , testified that the language in
question was drafted by Respondent in response to what had been identi-
fied as a union concern Thus, according to his testimony, when negotia-
tions were resumed to February 1984, a mediator reported that the Union
feared that on acceptance of the Employer's established health plan, the
Employer might provide greater benefits to employees at its nonunion
health care facilities According to Forschee , the new language was in-
corporated in article XIV to alleviate this concern I have reservations
concerning Forschee's reliability Moreover, although his testimony
would constitute unreliable hearsay if true , his explanation would indicate
merely that the language was designed to protect unit employees against
disparate benefits , rather than any intent on the part of the Union to yield
elsewhere Beyond that, however , his account does neutralize Respond-
ent's contention that the final version of article XIV entailed a substan-
tive change , designed to relieve any bargaining obligation on the part of
the Company.
1173
Respondent's contention that under the controlling
precedent, these provisions, given their ordinary mean-
ing, substantiate mutual intent to waive bargaining
during the contract term with respect to all subjects left
unregulated within the four corners of the parties ' agree-
ment . Thus, unmistakable language is incorporated in ar-
ticles I and IV which designates the contract as the sole
source of employee benefits, on the one hand, and the
sole limitation on management 's historic prerogatives to
treat them unilaterally, on the other. By way of illustra-
tion , article I, in material part provides as follows:
This Agreement constitutes the entire Agreement
between the Company and the Union. The parties
acknowledge that during the negotiations which re-
sulted in this Agreement , each had the unlimited
nght and opportunity to make demands and propos-
als with respect to any subject or matter not re-
moved by law from the area of collective bargain-
ing, and that the understandings and agreement ar-
rived at by the parties after the exercise of those
rights and opportunities are set forth in this Agree-
ment . Each voluntarily and unqualifiedly waives the
right to bargain collectively with respect to any
subject or matter not specifically referred to in this
Agreement, even though such subject or matter
may not have been within the knowledge or con-
templation of either or both of the parties at the
time they negotiated this Agreement.
It is further understood and agreed . . . that this
document correctly sets forth the effect of all pre-
liminary negotiations , understandings, and agree-
ments and superceded [sic] any previous agree-
ments , whether written or verbal.
The employees covered by this Agreement are enti-
tled only to those certain aspects of wages, hours,
or working conditions which are specifically cov-
ered by this Agreement. All aspects of wages,
hours, or working conditions which are not covered
by this Agreement may be changed, altered, contin-
ued, or discontinued without consultation with the
Union.
Article IV, insofar as material, recites the following:
Except to the extent expressly abridged or limited
by a specific provision of this Agreement, the Com-
pany reserves and retains , solely and exclusively, all
of its inherent rights functions and prerogatives of
management as such rights, functions and preroga-
tives existed prior to the execution of this Agree-
ment . Such rights , functions and prerogatives in-
clude , but are not limited to, the Company 's right to
establish , continue and change , from time to time,
policies, practices and procedures for the conduct
of the business . . . . Recognizing the desirability of
avoiding any impediment to the exercise by the
Company of its management rights , functions and
prerogatives in a manner beneficial to the employ-
ees, it is agreed that no such right, function or pre-
rogative shall be limited by any practice or course
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of conduct or otherwise than by the express provi-
sions of this Agreement.
To the extent that any function of management is
not expressly limited by the terms of this Agree-
ment , such a function may be exercised unilaterally
by the Company.
Turning to precedent , it is noted that in United Tech-
nologies Corp ., 274 NLRB 609 (1985), and Kohler Co., 273
NLRB 1580 (1985 ), management prerogative provisions
were essential to holdings that a labor organization had
waived its interest in the subject matter of bargaining. In
each , the contract terms accepted by the union were far
less specific than the language in the present article IV.
Here , the management rights retained by article XIV are
not only defined via broad language preserving tradition-
al prerogatives , but that provision specifically addresses
the problem of midterm bargaining , reciting : "[i]t is
agreed that no such right , function or prerogative shall
be limited . . . otherwise than by the express provisions
of this Agreement." Linkage between this limitation and
the statutory duty to bargain in good faith is supplied
through further language stating: "[a]ny function of man-
agement . . . not expressly limited by the terms of this
Agreement , .. may be exercised unilaterally by the
Company."
Although consistent with the trend evident in the
above-cited cases , Columbus Electric Co., 270 NLRB 686
(1984), would appear to focus more directly on the im-
mediate issue herein . In that case, contemporaneous with
a longstanding bargaining relationship , the employer
maintained a Christmas bonus over the years , which had
never been incorporated in any collective-bargaining
agreement. In 1982 the parties agreed to a "zipper
clause ," without specific discussion about its impact on
the Christmas bonus. During the term of the contract,
the Christmas bonus was discontinued unilaterally. The
zipper clause involved included more generalized termi-
nology than presented here it stated as follows:
It is the intent of the parties that the provisions of
this agreement will supersede all prior agreements
and understandings , oral or written , express or im-
plied, between such parties and shall govern their
entire relationship and shall be the sole source of
any and all rights or claims which may be asserted
in arbitration hereunder or otherwise.
The Union for the life of this Agreement hereby
waives any rights to request to negotiate, or to ne-
gotiate or to bargain with respect to any matters
contained in this Agreement.
A panel majority (Chairman Dotson and Member
Hunter , with Member Zimmerman concurring) reversed
the administrative law judge and concluded that "the
zipper clause agreed to by the parties constituted a clear
and unmistakable waiver of the Union 's right to bargain
over the elimination of the Christmas bonus ." As I inter-
pret that decision, a waiver may be found with respect to
a subject never mentioned in bargaining , if the contrac-
tual language itself is so clear to negate any reasonably
founded misunderstanding concerning its impact on that
condition of employment. Moreover , the Board once
more found a waiver upon contractual language far more
generalized , in terms of its impact on the bargaining
process, than that involved here . It is not without signifi-
cance that , in Columbus Electric, the judge , in finding a
violation , noted that the result might have been different
and a waiver found if the zipper clause under scrutiny in
that case applied to "subjects" not contained in the labor
contract . 270 NLRB at 691 . In contrast with the agree-
ment before him, the zipper clause involved in this case
states "each voluntarily and unqualifiedly waives the
right to bargain collectively with respect to any subject
or matter not specifically referred to in this Agreement,
even though such subject or matter may not have been
within the knowledge or contemplation of either or both
of the parties at the time they negotiated this Agree-
ment ." See Aeronca, Inc. v. NLRB , 650 F . 2d 501 (4th Cir.
1981); NLRB v. Southern Materials Co., 447 F.2d 15 (4th
Cir. 1971 ). Indeed , in the instant case , a further safeguard
against Board intrusion in a fashion disruptive of the bar-
gain struck appears in language stating: "employees cov-
ered by this Agreement are entitled only to
those. . .wages , hours , or working conditions which are
specifically covered by this Agreement . . . . [and those]
. . not covered by this Agreement may be changed, al-
tered , continued, or discontinued without consultation
with the Union ." The intention of the parties to remove
from midterm bargaining any issue not specifically regu-
lated by the contract borders on the redundant and
hardly could have been manifested with greater clarity.
See Prudential Insurance Co., 275 NLRB 208 (1985).
In sum , it is apparent that the parties did not specifi-
cally address the issue of midterm adjustments in the
health program during their contract deliberations. Nev-
ertheless , it is clear that they negotiated a complete
agreement , including terms, which are incisive , direct,
and specific in their assault on the existence of any nego-
tiating responsibility during the term of the contract, and
in their desire to commit unresolved issues to manage-
ment prerogatives as they existed on entry of the agree-
ment . Accordingly , it is found that by entering that
agreement , the Charging Party waived its interest in bar-
gaining with respect to carrier -induced changes in the
health benefit plan. Accordingly, the complaint shall be
dismissed in its entirety.
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 mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8 (aX5) and (1)
of the Act by , in June 1985, unilaterally adopting the
Blue Cross/Blue Shield "Assurance Plus Program" with-
out notifying , consulting, or providing an opportunity to
bargain to the exclusive representative of employees in
the appropriate unit.
ROCKFORD MANOR CARE FACILITY 1175
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
9 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the poses