Sumner Home for the Aged

National Labor Relations Board - Board Decisions

Nov 17, 1976

226 N.L.R.B. 976 (N.L.R.B. 1976)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sumner Home for the Aged and Retail Clerks Inter-
national Association Local No. 698, AFL-CIO.
Case 8-CA-9539
November 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On June 22, 1976, Administrative Law Judge Rob-
ert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The Administrative Law Judge found that during
a September 18, 1975, meeting following the Union's
unsuccessful strike Union Representative George
Hennigin informed Respondent's attorney, George
DeBruin, that the Union would agree in advance to
any forthcoming proposals on the 10 or so unre-
solved issues between the parties. In effect, Hennigin
offered to let the Respondent "write its own ticket."
Debruin, in turn, agreed that he would type up and
send to the Union a complete contract including all
agreements reached prior to the strike and the Re-
spondent's proposals on the unresolved items. There-
after, despite the Union's repeated demands, the Re-
spondent failed to furnish the Union with either a
complete proposed draft agreement or with specific
proposals on any of the 10 unresolved items.
On these facts the Administrative Law Judge con-
cluded that Respondent has unlawfully refused to
bargain by failing to reduce to writing and execute
an agreed-upon contract. The Administrative Law
Judge recommended that Respondent's unlawful
conduct be remedied by requiring Respondent, upon
request, to sign the bargaining contract agreed to on
September 18, 1975, and to give retroactive effect to
the terms and conditions of the contract from that
date.
To the extent that the Administrative Law Judge
found and remedied herein an H. J. Heinz ' type vio-
lation, we must disagree with his finding and recom-
i H J Heinz Company v NLRB , 311 U S 514 (1941)
mended remedy. Contrary to the Administrative Law
Judge, we find on this record no basis for concluding
that agreement was reached on September 18 on the
substantive terms of a collective-bargaining agree-
ment.
Although it is settled that the technical rules of
contract law are not necessarily controlling in cases
arising under the Act,' it is plain on the facts of the
instant case that the parties never reached final
agreement with its concomitant obligation to reduce
their agreement to writing and sign it. Thus the rec-
ord reveals that when the parties met for the last time
on September 18 the unresolved items that separated
them from final agreement included union shop,
checkoff, wages, health and welfare insurance, em-
ployee Christmas bonus, management rights, and the
term or duration of the contract. Not only was there
no agreement on these and other items, but so far as
this record shows the Respondent had never pre-
sented any specific contract proposals with respect to
these matters. Thus Hennigin, responding to the
Home's October 20 suggestion that the Union submit
a "paste up" of the agreements reached by the parties
prior to September 18, wrote to Respondent's coun-
sel:
I am unable to provide you with Sumner
Home's position on these [unresolved] issues in
the contract language because it was never pro-
posed. Mr. DeBruin was to make such a proposal
on these issues as per our September 18, 1975
meeting. [Emphasis supplied.]
Absent any proposals on the table on the several
major open issues between the parties we fail to see
how the promises exchanged on September 18, on
the Union's part to accept any proposals that might
be made and on the Respondent's part to make such
proposals, can be taken as having created a complete
bargaining agreement requiring only that the parties
reduce their agreement to writing and sign it.3 Simply
2 See Crimptex, Inc, 211 NLRB 855, 857 ( 1974), Restaurant Association of
the State of Washington, Inc, 190 NLRB 133, 138-139 (1971), and cases
cited therein at 139
3 Raven Industries, Inc, 209 NLRB 335 (1974), relied on by the Adminis-
trative Law Judge in support of his findings and conclusions, is plainly
distinguishable on the facts In Raven Industries the union representative
had agreed to the employer's proposal that the matter of sick leave and sick
pay, the only open item left on the agenda, would "remain as it is" How-
ever, through inadvertence, the agreement on this item was omitted from
subsequent drafts prepared by the parties At the final session intended for
execution of the contract the Union called the omission to the employer's
attention Thereupon, the employer refused to sign and maintained that
there was disagreement on the sick leave/ sick pay issue On these facts the
Administrative Law Judge had little difficulty in finding that the parties had
reached agreement on the substantive terms of a contract Accordingly, the
respondent in that case was ordered to execute the agreement
The Administrative Law Judge's reliance on Kevin Steel Products, 209
NLRB 493 (1974), is also misplaced. Kevin Steel deals with the situation in
which parties sign or accept an interim agreement stipulating that the agree-
ment will be supplemented or superseded by other agreements to be negoti-
226 NLRB No. 155
SUMNER HOME FOR THE AGED
put, until the Respondent submitted its proposals to
the Union there could be no agreement on the sub-
stantive terms of a collective-bargaining contract.
Hence there could be no finding of a violation predi-
cated solely on a failure to reduce to writing and
execute an agreed-upon contract.
In view of our findings above, we shall modify the
Administrative Law Judge's recommended Remedy
to require Respondent, upon request, to furnish the
Union with a complete draft contract including both
the agreements reached by the parties in negotiations
prior to September 18, 1975, and Respondent's pro-
posals on all the items that were unresolved on and
after that date.
In addition, we find in agreement with the Admin-
istrative Law Judge that Respondent violated Section
8(a)(5) of the Act by refusing to, give the Union a list
of employees' names and addresses ° and by refusing
to present the Union with contract proposals on un-
resolved issues despite its September 18 undertaking
to do so. We also agree with the Administrative Law
Judge That the record as a whole supports a finding
that Respondent's overall conduct after the Septem-
ber 18 meeting with the Union demonstrated a lack
of desire to reach final agreement in derogation of
the obligation to bargain in good faith.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National 'Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Sum-
ner Home for the Aged, Akron, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order as so modified:
ated in the future The Board in such instances has upheld the validity of
such interim agreements against the contention that they are void for uncer-
tainty Such a result is clearly in accord with familiar contract law principles
but just as clearly is not authority for finding a complete collective-bargain-
ing agreement on the facts of the instant case.
On the basis of the facts herein, Chairman Murphy finds this case distin-
guishable from Autoprod Inc, 223 NLRB 773 (1976), in which she dissented
from a finding that the employer' s refusal to furnish the names and address-
es of its employees constituted a violation of the Act There , in her opinion,
General Counsel failed to establish that the collective -bargaining represen-
tative was having difficulty communicating with the employees it repre-
sented and, thus the requested information was neither relevant nor neces-
sary for the union to carry out its bargaining obligation . Here , on the other
hand, the Respondent had an employee complement about three times the
size of the unit in Autoprod, 24 of them were replacements for striking em-
ployees, and access to all the employees was made difficult by the Home's
walled-in premises and the fact that the employees lived scattered through-
out a 25-mile area In any event, the Chairman believes that Respondent's
agreement to furnish the requested information , on which it subsequently
reneged , is by itself sufficient to distinguish this case from Autoprod
S In our view the promises exchanged on September 18 at most create a
contract to make a contract See, in this regard , I Corbin , Contracts, § 29
(1963)
977
1. Substitute for existing paragraph 1(b) the fol-
lowing:
"(b) Refusing, upon request of the aforesaid
Union, to furnish the Union with a complete pro-
posed collective-bargaining agreement containing
both the agreements reached by the parties prior to
September 18, 1975, and Respondent's proposals on
all unresolved issues, and refusing to furnish to the
said Union, upon request, the full names and home
addresses of all the unit employees."
2. Substitute for existing paragraph 2(a) the fol-
lowing:
"(a) Upon request, furnish the Union with a com-
plete proposed collective-bargaining agreement pur-
suant to the understanding reached with the Union
on September 18, 1975, and, if the Union agrees to
such proposed contract, sign the contract."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, so long as Retail Clerks Interna-
tional Association, Local No. 698, AFL-CIO, is
your duly authorized bargaining representative,
continue to recognize that Union and meet and
bargain with it in good faith concerning your
wages and other terms and conditions of em-
ployment and embody in a signed agreement
any understanding reached.
WE WILL, upon request, furnish the Union
with a complete proposed collective-bargaining
contract and sign such contract should the
Union accept it.
WE WILL furnish to the aforesaid union, upon
request, a list of the full names and home ad-
dresses of all unit employees. The appropriate
unit is:
All housekeeping employees, maintenance
employees, laundry employees, kitchen em-
ployees and nurses aide employees, excluding
all registered nurses, licensed practical nurses,
office clericals, and professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to
form labor organizations, to join or assist the
above-named or any other- labor organization, to
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain
from any and all such activities.
SUMNER HOME FOR THE AGED
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on April 9, 1976, in Akron, Ohio, pursuant to
charges duly filed and served,' and a complaint issued on
January 14, 1976. The complaint presents questions as to
whether the Respondent violated Section 8(a)(1) and (5) of
the National Labor Relations Act, as amended. In its an-
swer, duly filed, the Respondent conceded certain facts
with respect to its business operations, but it denied all
allegations that it had committed any unfair labor prac-
tices.
At the hearing, all parties were represented. All were
given full opportunity to examine and cross-examine wit-
nesses and to file briefs. The General Counsel presented
oral argument, but oral argument was waived by the other
parties. On May 24, 1976, the Respondent submitted a
brief.2
Upon the entire record in the case, including the brief
and the argument of counsel, and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Sumner Home for the Aged, herein Home or Respon-
dent, a nonprofit corporation organized under the laws of
the State of Ohio, with its main office and place of business
located in Akron, is engaged in providing a residence and
extended nursing care for the aged. Annually, in the course
and conduct of its business, it derives revenues in excess of
$100,000 and receives goods valued in excess of $2,000 di-
rectly from points located outside the State of Ohio.
In a consent election conducted by the Board on No-
vember 27, 1974, the Union won a majority of the valid
votes cast and on December 5, 1974, the Regional Director
certified it as the exclusive representative of the employees
in the agreed-upon appropriate unit. Sumner Home for the
Aged, Case 8-RC-9709.3 At no time throughout the course
i The charge was filed on October 21, 1975
2 On May 7, 1976, the General Counsel submitted a motion to amend
official transcript wherein he asked that the transcript of the hearing be
corrected It is now granted and the record is corrected in accordance there-
with
3 In the representation matter the parties agreed upon the following unit
All housekeeping employees, maintenance employees, laundry employ-
ees, kitchen employees and nurses aide employees, excluding all regis-
tered nurses, licensed practical nurses, office clericals and professional
employees, guards and supervisors as defined in the Act
of the representation proceedings did the Respondent raise
a jurisdictional issue.
In the present refusal-to-bargain hearing, subsequent to
the execution of the consent election agreement and subse-
quent to the election and certification of the Union, the
Respondent, in its answer, for the first time, contested the
jurisdiction of the Board. In its bnef, the Respondent con-
tends that the Board should not assert jurisdiction because
it is not a proprietary nursing home, but a nonprofit orga-
nization that provides a residence for aged persons in Sum-
mit County, Ohio. There is no merit to this argument.
In an early case involving this field, the Board stated
that it perceived no essential difference between a "home
for the aged" operation and that "of a nursing home."
Drexel Home, Inc., 182 NLRB 1045, 1046 (1970). The facts
in the instant situation confirm this earlier conclusion of
the Board in Drexel Thus, Christine Hunter, executive di-
rector of the Respondent, testified that the Respondent is
licensed by the State of Ohio to operate a home for the
aged with a nursing unit. The persons who apply for resi-
dence at the Home are examined and selected by the exec-
utive board Each must be in reasonably good health for
the applicant's age. Upon acceptance, the applicant must
turn over his entire estate to the Home and must also agree
to assign social security payments and all other income to
the Home. In return, the Home assures the new resident
that he will be provided for throughout the rest of his life
and, in the event of illness, will be cared for in the Home's
infirmary. Hunter testified that there are, currently, 84 resi-
dents at the Home, of whom 25 are in the infirmary. At the
time of the hearing the youngest resident was 74, and the
oldest, 99 years of age, with the average age being 84.8
years. Under the amended Act, the jurisdiction of the
Board now extends to "health care institutions," including
those not operated for profit (61 Stat. 137, 29 U.S.C. 152).
Section 2(14) of the Act, as amended, reads: "The term
`health care institution' shall include any hospital, conva-
lescent hospital, health maintenance organization, health
clinic, nursing home, extended care facility, or other institu-
tion devoted to the care of sick, infirm, or aged persons."
(Emphasis supplied.) On the basis of the findings as to the
Respondent's business, set forth above, the operations of
the Home clearly bring it within the statutory definition of
a "health care institution" as that term is used in the 1974
amendments to the Act Consequently, there is no validity
to the Respondent's argument, advanced in its bnef, that
as a residence for the elderly, the Home is not subject to
the jurisdiction of the Board.
Neither is there merit to another argument raised by the
Respondent, namely, that most of the Home's dollar in-
flow is not revenue within the Board's jurisdictional stan-
dards because it is derived from trust funds.4 The Board
has held that dollar inflow is revenue regardless of its
source. Drexel Home, Inc., supra, The National Lutheran
Home for the Aged, 203 NLRB 408, 409 (1974). Moreover,
This unit is now found appropriate for the purposes of collective bargaining
within the meaning of Sec 9(b) of the Act
At the hearing, counsel for the Respondent stated that the Home has a
substantial amount of income, " well in excess of $100,000 a year re-
ceived as income from various trust funds of which the First National Bank
of Akron is a Trustee"
SUMNER HOME FOR THE AGED
this last argument of the Respondent was an attack on the
Board's assertion of jurisdiction under its discretionary
standard as to dollar inflow. Since it was not raised during
the representation matter, it was untimely when introduced
for the first time at the hearing in the present case.'
In view of the facts, as found above, it is now held that
the Respondent is engaged in commerce within the mean-
ing of the Act, and, therefore, is subject to the jurisdiction
of the Board.
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local No. 698,
AFL-CIO, herein Local 698, or Union, is a labor organiza-
tion within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
As found earlier, the Union was certified on December
5, 1974, as the exclusive bargaining representative for all
employees in the appropriate unit. The Respondent admits
that Local 698 was certified on the above date, but it de-
nies that the Union has maintained its majority status.
All of the events in question occurred within the certifi-
cation year. As the certified bargaining agent the Union
enjoyed an irrebuttable presumption of majority during
that first 12 months. NL.R.B. v. Ray Brooks, 348 U.S. 96,
101-103 (1954). Subsequent to the expiration of the certifi-
cation year the Union had a rebuttable presumption of
majority status. De Palma Printing Co., 204 NLRB 31, 32
(1973). At the hearing the Respondent offered no evidence
which would rebut the presumption of the Union's contin-
ued majority status subsequent to the end of the certifica-
tion year. Accordingly, it is now found that at all times
since December 5, 1974, and continuing to the present, the
Union has been the representative for the purposes of col-
lective bargaining of the employees in the unit described in
footnote 3, and, by virtue of Section 9(a) of the Act, has
been, and is now, the exclusive representative of all the
employees in said unit for the purposes of collective bar-
gaining.
From January 20, 1975, to April 17, 1975,6 the Union
and the Respondent had in excess of 10 collective-bargain-
ing conferences. George Hennigin, organizer and represen-
tative of Local 698, represented the Union at all the meet-
ings. The negotiating team for the Home consisted of
Walter E. DeBruin, attorney, Christine Hunter, executive
director of the Home, and a Mr. Chapman, described by
S See Travel Rest, Inc, d/b/a Gateway Motor Lodge, 222 NLRB 851, 852
(1976), where the Board stated "The representation case jurisdictional issue
raised by the Respondent in this proceeding was or could have been litigat-
ed in the prior representation proceeding , and the Respondent does not
offer to add at a hearing any newly discovered or previously unavailable
evidence , nor does it allege that any special circumstances exist herein
which would require the Board to reexamine the decision made in the repre-
sentation proceeding We therefore find that the representation case juris-
dictional issue is not properly litigable in this unfair labor practice proceed-
in1•All dates hereinafter are for the year 1975 unless otherwise noted
979
Hennigin as the trustee for the Home, but not otherwise
identified. On April 19, the Union called a strike which
lasted until August 20. On the latter date the Union termi-
nated the strike. Hennigin testified that he advised the
members to call off the strike because it had failed and
because this action would allow them to apply for their old
jobs and, if not reemployed, they would be entitled to un-
employment compensation. Thirty-one employees had
joined in the strike.? Of this number 14 asked for reemploy-
ment.8 None, however, was reinstated.
Hennigin credibly testified that before the strike began
the parties had agreed on all sections in the Union's pro-
posed contract except for 10 items. The areas on which
there was no agreement were as follows: union shop,
checkoff, a seventh paid holiday, jury duty pay, wages,
credit union deductions, health and welfare insurance, em-
ployees' Christmas bonus, management rights, and termi-
nation of the contract.
Throughout the negotiations which preceded the strike,
the principal representative and spokesman for the Re-
spondent at all the bargaining sessions had been Walter E.
DeBruin, who was also counsel for the Home. Hennigin
was the chief negotiator for the Union. At some time in
early September, Hennigin telephoned DeBruin to request
a resumption of negotiations. DeBruin told him that he
would meet with him on September 18 and that at that
time he would consult with the Union on a raise the Home
was planning to give its employees.
Hennigin and DeBruin had a short meeting at the
Union's office on September 18. Hennigin credibly testi-
fied that at the outset of their discussion he told DeBruin
that the Company had won the strike and that, as a result,
it could dictate the terms of any agreement reached on the
unresolved issues. He then told DeBruin that the Union
would agree in advance to any proposal that the Home
made as to the latter. Hennigin asked that DeBruin take all
of their prior agreements, as well as whatever the Respon-
dent was proposing on the unresolved issues, including
wages, type them up and send them to the Union. Accord-
ing to Hennigin, DeBruin promised that he would do so.
Hennigin also asked that DeBruin supply the Union
with a list of the names and addresses of the current em-
ployees at the Home, so that the Union could submit the
proposed contract to them for ratification. When on the
stand, Attorney DeBruin acknowledged that he told Hen-
nigin that he would furnish the names and addresses of the
employees. He denied, however, that Hennigin asked for a
written proposal of what the Home would sign as a con-
tract. According to DeBruin, Henmgin asked that a date be
set for the resumption of collective bargaining, and his re-
sponse was that he would get back to Hennigin after ascer-
taining what his client wanted to do with respect to further
negotiations.
DeBruin testified that, in fact, he never talked with the
client thereafter. Shortly after September 18, he left the
area on a vacation. According to DeBruin, when he re-
7 At the time of the election there were approximately 56 employees in the
unit
8 Executive Director Hunter testified that , subsequent to the termination
of the strike, the Home has had no communication from any of the other 17
who were among the original group of strikers.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turned to his office on about September 29 he turned the
case over to a colleague, Attorney Edward C. Kaminski,
and has had no further contact with the Respondent.
In a letter dated October 9, Hennigin, unaware that De-
Bruin was withdrawing from the case, wrote the latter to
complain that although 3 weeks has elapsed since their
meeting he had not yet received a typed copy of the Re-
spondent's proposal, or a list of the names and addresses of
the current employees.
In a response dated October 10, Kaminski stated that
thenceforward he would be representing the Home and
that if the Union had an agreement to propose the Home
would be ready to discuss it at a meeting to be scheduled
by the Federal Mediation and Conciliation Service
(FMCS). Kaminski questioned the Union's need for a list
of the names and addresses of the employees and asked
what guarantees the Union would propose to insure that
the Home's current employees would not be subjected to
coercion, intimidation, and assault.
In a letter dated October 14, Hennigin replied as fol-
lows:
Dear Mr. Kaminski:
For your edification, I met with Mr. de Bruin on
September 18, 1975 and agreed in advance to any pro-
posal by Sumner Home on the unresolved issues of
bargaining. I asked Mr. de Bruin to have our agree-
ment typed including whatever he was proposing on
the unresolved issues. He said he would do so and that
was the last I heard on the subject until I received
your letter dated October 10, 1975.
I also asked Mr. de Bruin for a list of current em-
ployees and their addresses for the purpose of con-
ducting a ratification meeting. As to your request for
guarantees concerning the safety and security of these
employees, I refer you to the National Labor Rela-
tions Act, statutory laws of the State of Ohio, ordi-
nances of the City of Akron, and the practices of in-
junctive relief offered by the courts.
I am available for any meetings that you may think
necessary but I would point out that it will be four
weeks this Thursday since I met with Mr. de Bruin.
Unless I receive your proposed contract this week I
must conclude that you are engaged in a stalling tactic
for the purpose of avoiding the execution of a contract
prior to the end of the certification year and will test
such conclusion before the National Labor Relations
Board.
Kaminski replied in a letter dated October 20. At the
outset he stated that he found it impossible to piece togeth-
er even a tentative complete contract and he suggested that
Hennigin put together a draft "using as suggested language
Sumner Home's position on the unresolved issues as that
position existed prior to the meeting of April 17." 9 At the
9 No agreements were reached on April 17 This was the last session
before the strike and it was very brief At that point a Federal mediator was
endeavoring to assist the parties in resolving their differences On that date
the parties remained in separate rooms and after the mediator explained to
each group the position of the other, the meeting was adjourned. According
to DeBruin , the entire session lasted about 20 minutes He testified that, as
a result "There were no negotiations on that day, that evening "
same time, Kaminski wrote that the Home was considering
changes in its position as to some of the items agreed upon
prior to the strike on the ground that they had been conces-
sions made in order to avert the strike. In this connection
he enumerated the clauses on management rights, no-
strike, and grievance and arbitration, as among those
which the Home would revise. Kaminski again expressed
concern about the Union's demand for an employee list of
names and addresses and suggested that the issue be put on
the agenda for discussion at a bargaining session. Counsel
for the Respondent concluded his letter with the statement
that he was "looking forward to meeting with you soon.
In a letter dated October 22, Hennigin wrote as follows
to the Respondent's counsel:
Dear Edward,
I am suprised that the 3 negotiators for Sumner
Home were unable to provide you with a record of our
agreements. Since I did keep accurate notes I am en-
closing a paste-up of all agreements reached on the
Sumner Home contract in the precise language agreed
to. Not included are those issues on which no agree-
ment was reached and they include:
I. Union Shop
2. Check off
3. A seventh paid holiday
4. Jury Duty Pay
5. Wages
6. Credit Union deductions
7. Health and Welfare insurance
8. Employees Christmas bonus
9. Management's rights
10. Term of the contract
I am unable to provide you with Sumner Home's
position on these issues in contract language because
it was never proposed. Mr. deBruin was to make such
a proposal on these issues as per our September 18,
1975 meeting.
I am again asking that I receive Sumner Homes pro-
posals and state my willingness to meet for negotia-
tions. I have never been contacted by Mr. Roach of
the FMCS for negotiations as you said would happen
in your October 10, 1975 letter.
So that there can be no confusion about my willing-
ness to meet for negotiations, which might be suggest-
ed to any one reading your last two letters to me and
who did not know better, I am requesting that we meet
in my office at 3 P.M. this Friday, October 24, 1975
for purposes of negotiations.
Kaminski replied, in a letter dated October 27:
Dear George:
Thank you for your letter of October 22, 1975.
Please be advised that there is substantial dis-
agreement with what you say was previously agreed to
in the "paste-up of all agreements ." Upon studying
your letter and enclosures , it is evident that it is neces-
SUMNER HOME FOR THE AGED 981
sary to meet in order to determine what the issues are
after all this time.
Mr. Chapman is at this time in the hospital for surgery
and will not be out for another week or two . At that
time , I will determine with him when he is able to
resume negotiations and will be in touch with Mr.
Roach about a meeting date . If this is not agreeable to
you and you find it necessary to meet earlier than that,
please let me know and I will see what I can do. How-
ever , I am running a very heavy trial schedule for the
next several weeks now but I will do whatever is nec-
essary to keep the negotiations going and ultimately
reach a mutually acceptable agreement.
In the letter of October 20, Kaminski stated that he was
desirous of meeting with the Union . In his response of Oc-
tober 22 , Hennigin proposed that they meet on October 24.
In his letter of October 27, Kaminski made no reference to
that suggestion , but stated that after Chapman , an official
of the Home , was out of the hospital he would be in touch
with Roach of the FMCS as to a meeting date . Hennigin
testified , however , credibly and without contradiction, that
thereafter the Union received no further communication
from Kaminski or from any other representative of the Re-
spondent as to a meeting , and that the Union never re-
ceived any calls from Roach or any other mediator for the
FMCS.
In his letter of October 20, Kaminski stated that , in view
of the outcome of the strike , the Home would revise its
position as to several clauses , including those on manage-
ment rights, no-strike , and grievance and arbitration. At
the hearing , Hennigin credibly testified that at the last
meeting of the parties prior to the strike , held on April 17,
the Home made no new proposals as to any of the 10 items
listed in his letter of October 22, supra. According to
Hennigin 's credible testimony, sometime before the April
17 meeting the Respondent agreed with the Union on the
language of clauses on a no-strike provision and on a griev-
ance and arbitration procedure . He further testified , credi-
bly, that before the strike the Respondent had never made
a specific proposal as to a management rights clause.
Hennigin testified that the enclosure which he sent to
Kaminski with his letter of October 22 represented all the
items on which the parties had agreed before the strike.
According to the union representative , he had kept a com-
plete set of notes of each negotiating session , representa-
tives of both parties had initialed many of them to indicate
their agreement on most of the provisions, and it was from
this data that he put together the attachment which he
mailed to counsel for the Respondent on October 22. At
the hearing, Hennigin acknowledged that all agreements
reached prior to the strike on specific clauses were tenta-
tive, pending final agreement on the complete contract.
B. The Alleged 8(a)(5) and (1) Violations; Findings and
Conclusions in Connection Therewith
1. The refusal to supply the Union with the names and
addresses of employees in the unit
At his meeting with Attorney DeBruin on September 18,
Hennigin asked that the Respondent supply the Union
with the names and addresses of all current employees. He
explained that the Union would need this information in
order that it be able to contact them in connection with the
necessary ratification vote on any proposed collective-bar-
gaining agreement . At the hearing DeBruin acknowledged
that he had made such a commitment . In fact , however, the
Respondent never complied with this agreement . Instead,
in his subsequent exchange of correspondence with the
Union, Attorney Kaminski contended that no need had
been spelled out to justify the union request for this infor-
mation and , further , that there was a past history of harass-
ment of employees by the strikers which caused the Re-
spondent to be concerned about the safety of its current
employees if their identities and their home addresses were
disclosed.
Shortly after the strike began the Respondent petitioned
the Court of Common Pleas in Summit County for an in-
junction to restrain the pickets from blocking ingress and
egress to the Home , to limit the number of pickets, and to
enjoin all acts of violence or threats of violence. Such a
decree was entered by that court on May 28, with the con-
sent and approval of counsel for the Union. Although the
decree enjoined the commission of all forms of picket line
misconduct , as a consent decree entered without a hearing,
it was not supported by findings of the court that the
Union had committed any acts of violence. At the hearing
in the instant matter , counsel for the Respondent acknowl-
edged that no contempt proceedings were ever brought for
any alleged violations of this injunction . Moreover , Henni-
gin testified , credibly and without contradiction, that no
one was ever convicted of a crime as the result of any
incident which occurred on the picket line, nor were any
8(b)(1)(A) charges filed against the Union during the
course of the strike . At the hearing the Respondent pre-
sented no evidence that disclosing the identity and address-
es of its current employees would pose any dangers for
them.
The General Counsel established that the Union had no
effective channel for communicating with the present em-
ployees of the Home other than by written means. The
premises of the Respondent are completely surrounded by
a brick fence or retaining wall. There are three entrances
from three separate adjoining streets. All of them are nar-
row and not wide enough to permit more than one car at a
time to pass through . Almost all of the employees arrive
and depart by automobile . At the hearing the Respondent
acknowledged that the employees of the Home are dis-
persed throughout Summit County , a large and densely
populated area, and that they live from 2 blocks to 25 miles
distant from the Home . In testifying as to the Union's need
for a list of the employees names and addresses for the
purpose of communicating with the members of the bar-
gaining unit , Hennigin stated that it was impossible to
reach them by any attempt at handbilling . According to
the union representative, since most of the employees ar-
rive and depart by automobile , handbilling at the narrow
entrances and exits to the Home would almost inevitably
cause traffic congestion and subject the Union to charges
that it was violating the state court injunction by blocking
ingress and egress. He further testified that the Union does
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not now have, nor has it ever had, access to any bulletin
boards at the Home, and that it has no stewards or other
representatives who are allowed inside the premises.
Under the circumstances present here, the Union had a
well-established right to the names and addresses of the
employees in the unit. Pearl Bookbinding Company, Inc.,
213 NLRB 532 (1975); Generac Corporation, 215 NLRB
351 (1974); Cowles Communications, Inc., 172 NLRB 1909,
1910 (1968). Nor was there any valid basis on which the
Respondent could condition its response to this demand.
Curtiss-Wright Corporation, Wright Aeronautical Division v.
N.L.R.B., 347 F.2d 61, 68-69 (C.A. 3, 1965). The informa-
tion sought was peculiarly within the knowledge and con-
trol of the Respondent and the Union plainly had a right to
the material requested in order that it be able to fulfill its
statutory duty of acting as the bargaining agent for all em-
ployees in the unit. The Respondent's refusal to supply this
information to the Union, after Attorney DeBruin initially
promised to provide the list, constituted a violation of Sec-
tion 8(a)(5) and (1) of the Act. Pearl Bookbinding Company,
Inc., supra; Generac Corporation, supra; Auloprod, Inc., 223
NLRB 773, fn. 2 (1976); Viewlex, Inc, 204 NLRB 1080,
1082 (1973).10
2. The issue as to the Respondent's alleged refusal to
execute a final agreement; findings and conclusions with
respect thereto
Hennigin testified that at their meeting of September 18,
after telling DeBruin that the Union had lost its strike and
would agree to whatever the Respondent would propose on
the bargaining issues that were unresolved prior to the
work stoppage, he asked that DeBruin have their agree-
ment typed, including whatever the Respondent was pro-
posing on the unresolved issues. According to Hennigin,
DeBruin agreed to do so. At the hearing DeBruin denied
that Hennigin asked for a written proposal of what the
Home would sign as a contract. Hennigin's account of the
meeting on September 18, however, was credible and the
entire exchange of correspondence which he thereafter had
with counsel for the Respondent is consistent with the tes-
timony which he gave as to what was said between him and
DeBruin at their conference on September 18. Consequent-
ly, it is my conclusion that, contrary to DeBruin's testi-
mony, the latter did promise the union representative that
he would prepare from his notes of their earlier confer-
ences a complete contractual proposal that would also in-
clude the Respondent's position on the previously unre-
solved issues.
DeBruin had been the principal spokesman for the Re-
spondent throughout the negotiations. On November 8,
1974, as counsel for Respondent, he signed the Stipulation
for Certification Upon Consent Election and thereafter he
acted as its chief negotiator at all collective-bargaining
meetings held prior to the strike. During the strike, as
10 It is further found that there was insufficient evidence to support the
Respondent's claim that furnishing the Union with the names and addresses
of all unit employees would result in harassment and possible violence to
those employees Pearl Bookbinding Company, Inc, supra, Magma Copper
Company, San Manuel Division, 208 NLRB 329, In 1 (1974)
counsel for the Home, he signed the consent decree which
the Court of Common Pleas entered on May 28. After the
strike, it was he who telephoned Hennigin to request a
meeting in order to discuss the wage increase which the
Home proposed to effectuate. At no time during the bar-
gaining negotiations was it ever suggested that DeBrum
lacked authority to enter into an agreement. Manifestly,
DeBruin had real, as well as apparent, authority to bind
the Respondent when he met with Hennigin on September
18 and promised that the Respondent would prepare a
complete contract. Donkins Inn, Inc., 214 NLRB 1 (1974);
Welch Aircraft, Inc, 219 NLRB 93 (1975).
The General Counsel is correct in his contention, urged
at the hearing, that this is not a case where the Union
merely asked for proposals from an employer after an im-
passe. Here, DeBruin agreed to a complete package on
September 18 that would consist of all previously agreed-
upon terms plus the Respondent's dictated terms on the
outstanding issues that were still unresolved.
Section 8(d) of the Act sets forth the obligation of an
employer, or a union, engaged in collective bargaining to
execute a written contract, upon request, incorporating any
agreement reached." Moreover, the cases are consistent
that subsequent events do not alter the obligation to adhere
to an agreement that has been reached. Thus, the interven-
tion of a strike between the time when an agreement has
been arrived at, but before its execution, does not serve to
void the employer's obligation to sign the completed con-
tract. Crimptex, Inc., 211 NLRB 855, 854-855 (1974), enfd.
517 F.2d 501 (C.A. 1, 1975), Supplemental Decision, 221
NLRB 595 (1975). Similarly, the obligation to go forward
with execution of the agreement remains, even when the
final draft is subject to various corrections in the language.
North Bros. Ford, Inc., 220 NLRB 1021 (1975). In Raven
Industries, Inc., 209 NLRB 335 (1974), enfd. as to this point
508 F.2d 1289 (C.A. 8, 1974), a union was certified on
February 2, 1972. On January 30, 1973, and after numer-
ous bargaining conferences, the Union presented what it
thought was an agreed-upon draft for signature. At that
point it developed that there was an incomplete meeting of
the minds as to certain provisions. After further discus-
sions, on April I1 the Union informed the employer that it
would execute the agreement on the employer's version
and terms. At that point the employer refused to execute
the agreement on the ground that the union's certification
year had expired and that it no longer represented the em-
ployees. The Board rejected this argument and found that
when the Union offered to execute the agreement in the
form presented by the employer a contract had arisen, and
that the employer violated Section 8(a)(5) when it refused
to execute the contract. Raven Industries, Inc., supra at 337-
339.
The situation in the above-cited case is similar to that in
the instant matter. Hennigin had kept careful notes of the
11 See Sec 8(d) which provides, in relevant part " to bargain collec-
tively is the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and conditions of
employment, or the negotiation of an agreement or any question arising there-
under, and the execution of a written contract incorporating any agreement
reached if requested by either party " (Emphasis supplied)
SUMNER HOME FOR THE AGED 983
collective-bargaining sessions which preceded the strike.
On September 18, he and DeBruin reached an agreement
on all the terms of a contract, with the Respondent given
complete freedom to dictate those terms which the parties
had never resolved previously thereto. Instead of present-
ing its dictated terms to the Union, however, the Re-
spondent engaged in the subterfuge of protesting that it
could not draft the agreed-upon language and then claim-
ing that it was repudiating certain agreements that had
been reached on April 17. In fact, no agreements had been
reached on the latter date, but a substantial number had
been agreed upon in bargaining sessions held prior to that
time . After Hennigin accepted DeBruin's offer to draft the
previously agreed-upon terms of their agreement and to
add the Respondent's dictated terms, DeBruin suddenly
dropped out of the picture after having represented the
Home in all negotiations since at least the preceding No-
vember when the consent election agreement was signed. A
party to collective-bargaining negotiations is always free to
substitute a new representative. That, however, does not
mean that, with the arrival of a new negotiator, all earlier
agreements may be repudiated and bargaining must begin
anew . Nevertheless that was, in effect, what Attorney Ka-
minski proposed with his arrival on the scene. In his initial
letter to Hennigin he brushed aside DeBruin's commitment
to submit a final contract and suggested that if the Union
had an agreement to propose the Respondent would dis-
cuss it. On October 20, Kaminski wrote that he himself
could not piece together even a tentative complete contract
and he proposed that Hennigin draft what the latter under-
stood to be the Home's position prior to April 17, mean-
while protesting that there was disagreement over those
terms and that further meetings were necessary. When
Hennigin, in his letter of October 22, submitted a complete
summary of all the previously agreed-upon terms of a con-
tract and requested a meeting with Kaminski on October
24, the latter did not answer until October 27. When he did
respond, he protested that there was disagreement over the
terms , and stated that further meetings were necessary.
Then, however, he proceeded to point out various difficul-
ties in connection with any meeting in the near future. In
the meantime, of course, the certification year was rapidly
expiring.
On the basis of the foregoing facts, it is now found that,
after DeBruin agreed on September 18 that the Respon-
dent would present a completed contract to the Union, the
Respondent thereafter refused to abide by this commit-
ment and failed to reduce to writing and to execute a con-
tract on which agreement had been reached. In so doing
the Respondent violated Section 8(a)(5) and (1) of the Act.
Raven Industries, Inc., supra, enfd. as to this point 508 F.2d
1289 (C.A. 8, 1974); Kevin Steel Products, Inc., 209 NLRB
493, 499 (1974); cf., Bruce E. Kronenberger and Herbert
Schoenbrod d/bla American Needle & Novelty Company,
Kentucky Manufacturing Company and Harrisburg Manu-
facturing Company, 206 NLRB 534, 544 (1973); General As-
bestos & Rubber Division, Raybestos-Manhattan, Inc., 183
NLRB 213, 217-218 (1970). During the period of negotia-
tions prior to the strike the Union had submitted a pro-
posed contract and the Respondent had agreed upon many
of its provisions. The latter, however, submitted no written
counterproposals of its own. After the strike and when the
Union sought to finalize an agreement by offering to let the
Respondent dictate the terms as to all items on which there
had been no previous agreement , the Respondent did noth-
ing. Under these circumstances, the Respondent was at the
very least bound to offer counterproposals. Globe Cotton
Mills v. N.L.R.B., 103 F.2d 91, 94 (C.A. 5, 1939). Since it
did not do so, by such conduct it further violated Section
8(a)(5). Moreover, in view of the facts found with respect
to the Respondent's course of conduct during the negotia-
tions subsequent to the strike, it is my conclusion that the
Respondent's entire course of action throughout the period
from and after September 18, 1975, was lacking in a good-
faith desire to arrive at a final agreement in its negotiations
with the Union. For this reason, it is now found that the
Respondent's violation of Section 8(a)(5) and (1) com-
menced on September 18, 1975. Cabinet Manufacturing
Corporation, 140 NLRB 576, fn. 2 (1963).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By its conduct set forth and found in section III, su-
pra, the Respondent has engaged in, and is continuing to
engage in, unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
3. Said unfair labor practices and each of them have
affected, affect, and, unless permanently restrained and en-
joined, will continue to affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, the Respondent should be or-
dered to cease and desist from engaging in, or continuing,
such or like violations; and, since the Union accepted the
Respondent's terms and called upon the Respondent to
execute a collective-bargaining agreement accordingly, the
Respondent should be required to execute such agreement
in the form in which the Union requested the Respondent's
agreeement on September 18, 1975. Further, the Respon-
dent should be required to post the usual notice to its em-
ployees.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDER12
The Respondent, Sumner Home for the Aged, Akron,
Ohio, its officers, agents, successors, and assigns, shall:
12 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
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Withdrawing recognition from or failing and refus-
ing to bargain in good faith with Retail Clerks Internation-
al Association, Local No. 698, AFL-CIO, while that Union
is lawfully entitled to recognition as the bargaining repre-
sentative of the following appropriate bargaining unit of
the Respondent's employees:
All housekeeping employees, maintenance employees,
laundry employees, kitchen employees and nurses aide
employees, excluding all registered nurses, licensed
practical nurses, office clericals, and professional em-
ployees, guards and supervisors as defined in the Act.
(b) Refusing, upon request of the aforesaid union, to
sign the collective-bargaining agreement as requested by
the Union at the parties' meeting on September 18, 1975,
and refusing to furnish to the said union, upon request, the
full names and home addresses of all the unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the right
to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and to refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, forthwith execute and sign the collec-
tive-bargaining contract agreed to on September 18, 1975,
and give retroactive effect to the terms and conditions of
the contract from September 18, 1975, with interest at 6
percent per annum for the loss of any benefits which would
have accrued to the employees under the contract the Re-
spondent refused to sign.
(b) If no such request is made, then, upon request, bar-
gain collectively with Retail Clerks International Associa-
tion, Local No. 698, AFL-CIO, as the exclusive representa-
tive of the employees in the appropriate unit and, if an
understanding is reached, embody such understanding in a
signed contract.
(c) Upon request, furnish to the above-named labor or-
ganization the full names and home addresses of all em-
ployees in the unit.
(d) Post at its place of business in Akron, Ohio, copies
of the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by the Respondent's
authorized representative, shall be posted by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, as to what
steps the Respondent has taken to comply herewith.
13 In the event the Board's Order is enforced by a Judgment of the 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 "