Clear Haven Nursing Home

CLEAR HAVEN NURSING HOME Community Medical Services of Clearfield, Inc., d/b/a Clear Haven Nursing Home and American Federation of State, County, and Municipal Em- ployees, District Council 85 and its Local 2665, AFL-CIO. Cases 6-CA-9889, 6-CA-9933, and 6 CA-10115 June 12, 1978 ORDER On July 25, 1977, a hearing opened in the above- entitled proceeding before Administrative Law Judge John F. Corbley of the National Labor Relations Board. Before the taking of any testimony, the Ad- ministrative Law Judge approved a non-Board settle- ment between the Respondent and the Charging Par- ty and granted a motion of the Charging Party for withdrawal of the charges, over the objections of counsel for the General Counsel. Thereafter, on August 19, 1977, the General Coun- sel filed with the Board a request for special permis- sion to appeal the Administrative Law Judge's ruling. submitting that the non-Board settlement, which the Administrative Law Judge approved and upon which he granted the motion for withdrawal of the charges, does not effectuate the purposes and policies of the Act. The General Counsel, therefore, requests that the appeal be granted, that the Administrative Law Judge's ruling be reversed, and that a hearing be held on the merits. On August 25, 1977, Respondent filed its opposition to the General Counsel's request and on September 7, 1977, the Charging Party filed an opposition to the request. After a careful consideration of the General Counsel's request and the briefs filed by the parties. we have decided, for the reasons detailed below, to grant the appeal and direct a hearing on the merits. The relevant facts of this case may be succinctly stated. In accordance with the allegations of the con- solidated complaint the General Counsel offered to prove by a preponderance of the evidence that the Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally terminating, without notice or bargaining, the existing employee health plan and submitting therefore a health plan that provided di- minished benefits, by insisting to impasse on changes in the scope of the recognized bargaining unit, and by failing and refusing to furnish the collective-bar- gaining agent with relevant information which the bargaining agent requested during negotiations. The General Counsel is also prepared to prove that Re- spondent violated Section 8(a)(l) and (3) by its fail- ure and refusal to reinstate a large number of em- ployees to their former or substantially equivalent positions of employment after the employees made an unconditional offer to return to work (the employ- ees had been engaged in a strike against Respondent which the complaint alleges was caused and pro- longed by Respondent's unlawful conduct).' Finally, the complaint alleges that this Respondent engaged in independent violations of Section 8(a)(1) of the Act by threatening employees with job loss, closure, and other retaliation if they persisted in their protect- ed activity, by warning employees there would be no union unless the Union came to terms, and by inter- rogating employees about their protected activity. The non-Board settlement approved by the Ad- ministrative Law Judge provided for the execution of a collective-bargaining agreement between Respon- dent and the Charging Party, the reinstatement by August 15, 1977, of 14 strikers who had not yet been reinstated at the time of the hearing, and the full reinstatement of 3 strikers who had been returned to work but not to their former or substantially equiva- lent positions. Finally, the settlement agreement pro- vided no backpay for the many employees who may have been discriminatorily denied reinstatement upon their unconditional offer to return to work. The legal principles which the Board will apply in determining whether or not to approve a settlement agreement and withdrawal of unfair labor practice charges are well settled. In Jack C. Robinson, doing business as Robinson Freight Lines, 117 NLRB 1483 (1957), the Board pointed out at 1485. . . .the Board's power to prevent unfair labor practices is exclusive, and . . . its function is to be performed in the public interest and not in vindication of private rights. Thus, the Board alone is vested with lawful discretion to de- termine whether a proceeding, when once insti- tuted, may be abandoned. Such discretion to dismiss charges will be exercised only when the unfair labor practices are substantially remedied and when, in the Board's considered judgment, such dismissal would effectuate the policies of the Act. The Board has also long recognized that the will- ingness of a charging party to withdraw charges is not necessarily a ground for dismissal of a complaint "for once a charge is filed, the General Counsel pro- ceeds, not in vindication of private rights, but as the representative of an agency entrusted with the power and the duty of enforcing the Act in which the public has an interest." The Ingalls Steel Construction Com- patnv, 126 NLRB 584 at fn. 1 (1960). And the Board One allegatiln concerning the alleged discriminatory discharge of em- plosee Autumn WVatson ,as disposed of hy an informal settlement agree- ment entered into hb all the parties The Admmnistratlse Law Judge granted a motion to seser this part of the case 236 NLRB No. 102 853 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has observed that "when a matter has ripened to the point of being before the NLRB for decision, we must, of course, give paramount weight to the public interest affected by withdrawal of the underlying charges." Retail Clerks International Association, Lo- cal Union No. 1288, AFL-CIO (Nickle's Pay-less Stores of Tulare County, Incorporated), 163 NLRB 817 at fn. 1 (1967). Turning to the facts of the case before us, we note at the outset that there is nothing minimal about the unfair labor practices of which this Respondent stands charged. Rather, the allegations of the consol- idated complaint, once established, would show a re- spondent who willfully and persistently flouted not only its basic collective-bargaining obligation under the Act but also its obligation to respect the exercise by employees of their protected rights. Thus, as the General Counsel points out in his request for special permission to appeal, this Board and the courts have long recognized that insistence to impasse on a non- mandatory subject of bargaining, here the composi- tion of the established bargaining unit, constitutes an unlawful evasion of the basic duty to bargain in good faith which the statute mandates and this Board is required to enforce.2 The General Counsel also con- tends that Respondent's insistence on altering the scope of the recognized unit, coupled with its ada- mant refusal to furnish the Union with relevant in- formation 3 and its numerous and flagrant acts of in- terference with employees' statutory rights, triggered a long and apparently bitter unfair labor practice strike during which Respondent never receded from its unlawful position. And, finally, the General Counsel submits that Respondent demonstrated its contempt for its employees' protected rights by dis- criminatorily failing and refusing to reinstate 71 un- fair labor practice strikers on their unconditional of- fers to return to work, and by delaying the reinstatement of 51 unfair labor practice strikers who had made unconditional offers to return.4 It is axio- matic that such conduct, if proved, is discriminatory conduct that "goes to the very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4. 1941). As indicated previously, the settlement agreement 2 See N. L R.B v. Wooster Div of Borg- Warner Corp., 356 U.S. 342 (1958); National Fresh Fruit & Vegetale (Companv and Qua/itr Banana (o., Inc., 227 NLRB 2014 (1977) 3 'he Board has had frequent occasion to point out that a refusal to supply relevant information to the collective-hargaining agent destroys the agent's ability to fulfill its proper role in the full development of collectise- bargaining negotiations, thereby frustrating the verN ends which the Act is intended to achieve. See Western ,lassachusoets E/lectric ( ompans, 234 NLRB No. 19 (1978). and cases cited therein. 4 Indeed, at the time of the hearing 14 former strikers had not yet been reinstated and 3 others had returned to swork but not to their old or substan- tially equivalent jobs. approved by the Administrative Law Judge over the General Counsel's opposition contemplates the for- mal execution of a collective-bargaining agreement and the full reinstatement of the employees who had been denied full reinstatement up to the time of the hearing in return for withdrawal of the charges and the abandonment of any claim for backpay. In our judgment this settlement agreement must be rejected as a wholly inadequate vehicle for effectuating the purposes and policies of the Act. First of all, we note the absence of any effective notice to employees con- cerning the rights of unfair labor practice strikers, including, inter alia, their right to full reinstatement even if their employer has hired replacements and must discharge those replacements. Moreover, inas- much as the proposed settlement agreement also to- tally ignores Respondent's alleged violations of Sec- tion 8(a)(1) of the Act, there is no notice language communicating to employees their right as employ- ees to engage in or to refrain from engaging in pro- tected concerted activity or their employer's under- taking to avoid conduct which would interfere with, restrain, or coerce them in the exercise of such rights. Nor is the absence of such a notice, particularly giv- en the circumstances of this case, a trifling omission. For, as we have pointed out, this Respondent has been charged with conduct that amounts to a rejec- tion of the fundamental purposes of the Act, the res- olution of industrial strife by peaceful means, and the protection of employees' right to engage in con- certed activity for their mutual benefit.' Of equal moment in reaching our conclusion that the proposed settlement is inadequate is the abroga- tion therein of this Respondent's liability for back- pay. In this connection General Counsel contends that the amount of backpay to which the discrimina- torily treated employees are entitled will likely ex- ceed $60,000. We find it inconceivable that the pub- lic interest in the vindication of statutory rights will be advanced or the underlying purposes and policies of the Act effectuated by acceptance of a settlement agreement that trades off employees' rights to be made whole for a wrongdoer's agreement to execute a contract. Finally, we would be remiss if we failed to chal- lenge our dissenting colleagues' analysis of this case. They claim we should approve this settlement be- cause it "fully protected the interests" of employees 5 It is, of course, well settled that the Board places a high priority on ensuring that employees are im fact fully informed of the Government's protection of their Sec. 7 rightsi. In achieving this goal the Board has uni- formly demanded the posting of a notice to employees as an essential ele- ment of the remedy for unfair labor practices. See Jeffro Manufacturing Co., a Ditision of Ball Corporation, 211 NLRB 787 (1974); Best Industrial Uni- t,3rm Supp!r Company,. Inc., etc., 210 NLRB 300 at fn. 2 (1974); Independent Shoe Workers of Cincinnati, Ohio (The United States Shoe Corporation), 203 NLRB 783 (1973). 854 CLEAR HAVEN NURSING HOME and a majority of employees voted to ratify it. They also predict that our disapproval of the proposed set- tlement will prove destructive of the parties' bargain- ing relationship and will frustrate the goal of industry harmony. And last, they suggest that the Board's time and money could be better spent on matters other than litigating this case. In the first place, as we have indicated previously, we are at a loss to understand how a settlement agreement that surrenders employees' entitlement to backpay can be said to protect their interests. Nor do the dissenters offer any illumination on this point for, in addition to glossing over the fact that this Respon- dent is charged with numerous and serious violations of Section 8(a)(1) and (3), as well as violations of Section 8(a)(5), they also gloss over the absence of any provision for backpay with the cryptic observa- tion that the wage rates contained in the new con- tract "were negotiated with the backpay expectations of the employees in mind." 6 The dissenters also make much of the 60-to-14 em- ployee vote in favor of the settlement.7 We find it not at all surprising that most employees, after having been embroiled in a long and unsuccessful strike al- legedly caused by their employer's unlawful conduct, might feel themselves constrained to forgo the oppor- tunity for the full vindication of their statutory rights in exchange for a "bargain basement" settlement. And, in any event, statutory rights are not, and can- not be, a matter for referendum vote. For, as we have taken pains to point out herein, there is an overriding public interest in the effectuation of statutory rights which cannot be cut off or circumvented at the whim of individual discriminatees. s Nor do we find merit in the dissenters' suggestion that by approving settlements of the sort proposed here we would encourage the friendly resolution of t Not surprisingly, the dissenters fail to remark on the inadequacy of the proposed settlement even when viewed. as the 5, insist on doing, solely from the standpoint of the relief afforded employees and the Union for this Re- spondent's alleged violations of Sec. 8(a)(5). Thus, for example. the dissen- ters ignore the absence of any recognition bh this Respondent of its obliga- tion to provide its employees' bargaining agent. upon request. with aon, information that is relevant to the agent's performance of its collectisc- bargaining duties. So far as this record shows, this Respondent successfully resisted ever) effort by the Union to acquire financial information which the Union averred was necessary before it could bargain intelligentls for a contract. Hence, it appears that the Union was forced toi bargain in the dark for the collective-bargaining agreement which the dissenters now hail as the capstone of the settlement. Apparently, the 14 employees who voted against the settlement do nol share our colleagues' enthusiasm for the settlement or share their conviction that the settlement protected employees' interests. a See, in this connection. Wiinstmon Rose and Mare Lo uise Roe. ai portn"r, ship d/b/a Ideal Donut Shop. 148 NLRB 236 (1964i There the Board point- ed out at 237, in rejecting what was, in effect, a proposed settlement agree- ment, "reinstatement and backpay' are remedies which the Board proslde, in the public interest to enforce a public right. No private right to such relief attaches to a discriminatee which he can bargain av, a or comproimise labor relations disputes and husband the Board's limited resources for other, and presumably worthier, matters. If we read our colleagues' opinion rightly, and we think we do, in effect they endorse the notion that employees should be asked to "foot the bill" for an employer who has long avoided its obligation to bargain in good faith (and, in the process of so doing. has trampled on employees' statutory rights), all in exchange for that employer's undertaking to "play fair" to the extent of negotiating a new collective- bargaining agreement. The essential unfairness of such a proposition aside.9 we wonder how our approval of settlements of this nature could be thought to serve as a deterrent to the commission of unlawful conduct or as a spur to the speedy and peaceful resolution of labor disputes b) collective bargaining,"' To the contrary, we think it is clear that we would encourage wrongdoers to subvert the collective-bargaining process by flouting their obligation to bargain in good faith if we ap- proved settlements whereby they could wipe the slate clean by offering to execute a contract on condition that employees be denied full remedial relief. Such settlements are neither fair nor effective as to past misconduct and would encourage further unlawful misconduct in the future to the detriment of the sta- bility of bargaining for which our colleagues hope. In this connection we agree with the General Counsel's contention that the Board's strong policy in favor of securing settlements must be balanced against the need for an effective remedy. We also agree that, if respondents can expect to win approval of settle- ments of the sort proposed here from Administrative Law Judges at the time of hearing, the whole settle- ment process at the prehearing stages will be under- mined and, ultimately, the litigation burden of the Board increased. Finally. the weakness of the dissenters' case is made clear bv their response to our reasons why this settlement must be rejected. Sidestepping the real is- sues, they attack a variety of strawmen, with an argu- ment perhaps more adjectival than logical. First. it is simply illogical of the dissenters to chide us for our supposed failure to distinguish properly between the allegation of a complaint and the actual finding of a violation. We would not have thought it necessary to point out that, for the limited purpose of "'Ae would ii mo]re require e emploees Io subsidlze their emplo)er's un- fair lihbor pracntics than .e i ould require an employer to finance an eco- rniniic strike aglinst iteIlf (f (Icwrail Fleir ril (Conpaini, 80 NL RB 510 1 1948t a iilthough theu dissenter Iilltltate othleriulse, the Board long agoe rejected the notion that lblhr reliatLos "harmon!" hetleen the parties would be fostered byh rubber stamping Inadequate setllement agreements Further- nmore, the Board recognized tIht such I goal. even If It could be achieved. would not be worth Ihe price See ( oro,n,ldIre Satc h ( 'ise (i., In , 114 N\LRB 15'i0 119 !,i l and cases citel therein a1 lSl9 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD passing on the acceptability of a proposed settle- ment, of necessity we begin with the assumption that the case is meritorious and the General Counsel is prepared to carry his burden of proof. ' Indeed it is, or should be, evident that taking the allegations of unfair labor practices as proved is, in cases of this nature, an essential part of the settlement procedure. Hence, any unqualified reference to "wrongdoers" or the like in this Decision is solely a consequence of this fundamental and necessary assumption and of our obligation ko explain why, more generally, settle- ments of the sort proposed here are unacceptable. The use of such terms obviously does not, in such circumstances, indicate any inclination on our part to decide the case on its merits before a hearing and in derogation of this Respondent's unquestioned right to a full and fair hearing. For the rest of it, the dissenters' response to our views requires but little comment. Thus the dissen- ters' assertion that the absence of an effective notice should be charged to the General Counsel's refusal to agree to the settlement is plainly unfounded. As we have taken pains to point out herein, the proposed settlement is deficient for myriad reasons and the General Counsel's refusal to join in it is plainly war- ranted. Hence, in seeking to shift to the General Counsel the blame for the absence of an effective notice, the dissenters are looking at the hole instead of the doughnut. The dissenters are correct, however, in suggesting that the issue of backpay deserves careful consider- ation. One wonders, nonetheless, what point they wish to make by stating that it is within the Board's discretion under Section 10(c) of the Act whether to grant backpay even if the allegations of the com- plaint are proved in their entirety. In its 43-year his- tory the cases in which the Board has ordered rein- statement without backpay as a remedy can be counted on the fingers of one hand. And the Board has taken such action only in the most extraordinary, indeed singular, circumstances. More germane to the backpay issue is our colleagues' apparently unhesi- tating acceptance of Respondent's computation of its potential backpay obligation in the vicinity of $30,000, as contrasted with the General Counsel's claim that Respondent's liability will exceed $60,000. The dissenters' unconcern for the amount of backpay liability is perhaps not surprising, they are, after all, satisfied with a settlement that denies backpay en- tirely. In passing, we note the dissenters' reference to the 7 In this connection we commend to our dissenting colleagues a close reading of Secs. 19124 1 and 191242 of the C(asehandling Manual (Part I) concerning the polics factors to be considered in achieving settlement of "meritorious" cases. Chairman's remarks on the occasion of his swearing in for a fifth term. It is sufficient to point out that nothing in those remarks obviously can be under- stood to endorse sacrificing the public interest in the vindication of statutory rights for the sake of reduc- ing the Board's caseload. Apparently the dissenters espouse a different philosophy. Accordingly, IT IS HEREBY ORDERED that the General Counsel's request for special permission to appeal the Adminis- trative Law Judge's ruling granting the Charging Party's motion for withdrawal of the charges be, and it hereby is, granted and that the Administrative Law Judge's approval of the non-Board settlement and ruling granting the Charging Party's motion be, and it hereby is, reversed. IT IS FURTHER ORDERED that the above-entitled pro- ceeding be, and it hereby is, remanded to the Region- al Director for Region 6 for further appropriate ac- tion. MEMBERS PENELLO AND MURPHY, dissenting: Although this case does not involve any major principle of substantive labor law, we think it is one of the most important in which we have participated since becoming Members of the Board. We say that because the decision of the majority exhibits an atti- tude toward administration of the Act which we find to be repugnant to its basic purposes and policies. At issue is whether our job is to force unwilling em- ployers and unions to continue lengthy and expen- sive unfair labor practice litigation detrimental to both sides and to the employees concerned, or whether it is to promote the settlement of union- management differences at the bargaining table on terms which are just and acceptable to employer, union, and employees alike. That may appear to be a rhetorical question, but the facts will testify that it is neither an exaggerated nor unfair description of the issue resolved by the Board today. This case began in early 1977 when the Union filed unfair labor practice charges against the Employer. Based upon the charges, the General Counsel issued a complaint on April 29, 1977,12 which alleged, inter alia, that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing the employees' health plan, by bargaining to impasse on a nonman- datory subject of bargaining, and by refusing to pro- vide the Union with relevant and necessary financial information for bargaining; that Respondent vio- lated Section 8(a)(1) by discharging employee Au- tumn Watson for engaging in protected, concerted activity: that Respondent's employees engaged in a strike in protest of Respondent's unfair labor prac- tices from January 8 until April 1, when they made 2 All dates herein are in 1977 unless otherwise indicated. 856 CLEAR HAVEN NURSING HOME an unconditional offer to return to work: and that Respondent refused to reinstate the strikers promptly to their former or substantially equivalent positions. In late July, the case came on for hearing before Administrative Law Judge John F. Corbley. How- ever, to resolve all of the issues in the case except that relating to the discharge of employee Watson,' the Union and the Employer decided that the charges should be withdrawn in exchange for the execution of a collective-bargaining contract upon which they had agreed and for an agreement providing for the reinstatement of all strikers to their former or sub- stantially equivalent positions by August 15. Over the objection of the General Counsel, the Administrative Law Judge accepted the settlement of the case on these terms. The majority has now chosen to reject that settlement and to remand the case for further litigation. The only sensible yardstick against which to mea- sure the settlement is the remedy to which the Union would be entitled if it won the entire case on the merits. To remedy the 8(a)(5) violations, the Board would order the Employer to rescind the change in the employees' health plan, to bargain with the Union in good faith, and to provide the Union with the relevant and necessary financial information for bargaining. The intent of such an order, of course. would be to facilitate the execution of a collective- bargaining contract by the Union and the Employer. However, under the settlement agreement, the Union and the employees have achieved the desired end- the benefits and protection of a labor contract- without need of such an order. In addition, if the Union should prevail on all counts in the litigation. the Board would order that all the strikers be re- turned to their former or substantially equivalent po- sitions, and that they receive backpay for the period between 5 days after their unconditional offer to re- turn to work and the time when they were actually reinstated. The settlement agreement provided for the reinstatement of the strikers, and, according to the union attorney, the wage rates contained in the labor agreement were negotiated with the backpay expectations of the employees in mind. In sum, the Union gained more for the employees with the settle- ment agreement than it would through litigation. To understand fully the dynamics of the settlement reached by the parties, the considerations which prompted it on each side, the purpose it served, and the way in which it was considered and ratified by the employees, we think it is worth quoting at length "3 The Administrative Law Judge granted a motion to sever the allegation concerning Watson from the remainder of the case. and it was settled bh a separate agreement entered into by all parties. including the General ( oun- sel. remarks made by counsel for the Union and for the Employer during the proceeding in which the agree- ment was accepted. The union attorney stated. Last night . . . two meetings were held with the majority of the Union. at which time I ex- plained all the details of the tentative collective bargaining agreement. I went through each particular detail that rep- resented a change in some manner or another of the previous agreement, and discussed every proposal of the Union's that's still been out- standing at the time .... I explained to the members present that should they ratify the bargaining agreement, they would be giving up their claim to back pay for the period after they offered unconditionally to return to work in April of 1977, until such time as they actually did return to work. We explained--we discussed the strengths and the weakness of the National Labor case and we discussed the advantages and disad- vantages of going forward into the litigation or accepting the collective bargaining agreement. We specifically explained that employees working under the collective bargaining unit as proposed would receive, during the life of the collective bargaining agreement, enough money in raises over what they were previously receiv- ing, to more than exceed the amount of back pay which they were claiming, presuming that should this litigation go forward, at least for a substantial period of time, there would be no collective bargaining agreement. After questions . . . for well over an hour at the first meeting. and forty five minutes at the second meeting. .... a vote was taken and the employees. with the full knowledge that doing so- with the full know ledge of ratification they were giving up claims of back pay. They over- whelmingly ratified the collective bargaining agreement. T1he ratification vote was 60 in favor, 14 against. I he attorney for the Employer told the Administrative L aw Judge. The terms of that agreement have been arrived at and arriving at those terms. the consideration was given extensively to the cost of litigating this issue. the relative strengths and weakness of our case and General Counsel's case, as well as en- suring that people are returned to work and that the Employer's establishment will run on a nor- mal basis. 857 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These comments graphically show that the agree- ment was entered into by the parties for legitimate reasons, that the agreement fully protected the inter- ests of the employees, and that, with full knowledge of their rights, the employees endorsed the agree- inent. Equally important with the advantages of settling the case on this basis for all involved, it is important to consider the destructive impact of upsetting the agreement on the parties' collective-bargaining rela- tionship and upon the lives of the individual employ- ees. The contract contains a clause stating that, if the settlement agreement is set aside by the Board, the collective-bargaining agreement becomes void ab ini- tio. This means that the majority decision will cause the employees to lose immediately the higher wage rates and all the benefits of the contract. It means that the Union will be required to give up the con- tract reached with the Employer on the hope that it can eventually get something less--a bargaining or- der. Bargaining may not even begin until after a court of appeals decision in the far future. In any event, by pitting the Employer against the Union in unwanted, protracted litigation, the Board is likely to make process of ultimately reaching a contract that much more difficult. Although the General Counsel has objected to the settlement, we believe the agreement serves the pub- lic interest as well as that of the private parties. Ap- proval of the settlement would have obviated the ne- cessity of considerable expenditures in time and money by the Board in trying and deciding the case. This Agency, with limited staff and resources, is cur- rently staggering under a load approaching 60,000 cases annually. For the Board to deal speedily and effectively with those cases that must be litigated, we have to accept settlements which attain the ends we desire without the need for going to hearing. Today's decision, however, amounts to a public announce- ment that the Board wants litigation for litigation's sake and that even settlement of an 8(a)(5) case by the execution of a collective-bargaining agreement is an inadequate substitute for litigation.'4 14 Such a statement is particularly puzzling in light of the Board's con- stant expressions of concern about the massive increases in our caseload. Indeed. the Board's plight was well illustrated in (Chairman Fanning's testi- mony before a congressional appropriations committee on January 25, 1978. in which he noted that the number of cases pending hearing before our Administrative Law Judges increased from 691 in June 1975 to nearly 1,3X00 by September 1977. I'he Chairman commented. "This trend must be arrested or the adverse consequences to the capacity of this Agency to en- courage the earlyN settlement of labor disputes. to serve the American public, and to maintain effective cost controls will be quite serious." We agree in addition with what the Chairma,, said in December 1977. in the ioccasion of his swearing in for his fifth term on the Board, "Instead of having our business increase bh h to 8 percent per sear, I hope we can reverse the trend because the Labor-Management community can settle their own affairs just as well as we. if thes only have understanding for each other " Ih:t is exactl, whait the parties did in this case. Although we find the emotionally charged lan- guage used throughout the majority opinion highly entertaining, our colleagues cannot make up in rhet- oric what they lack in logic. We feel constrained to point out first that the majority has taken but little care to preserve the distinction between a complaint alleging that a respondent violated the Act and an actual finding to the same effect. In fact, we regret to say that our colleagues' intemperate remarks leave the reader with the impression that they have already decided the case on the merits. Thus, the members of the majority refer to what the allegations of the com- plaint "once established," not if established, would show regarding Respondent's conduct. They refer twice without qualification to Respondent as a "wrongdoer," and to the "commission of unlawful conduct" and to "past misconduct" by Respondent. They term Respondent an employer "who has long avoided its obligation to bargain in good faith (and, in the process of so doing, has trampled on employ- ees' statutory rights) .... " And they refer to the employees' so-called entitlement to backpay" and the settlement's alleged "abrogation of this Respondent's liability for backpay," although the employees have neither a right to backpay nor Respondent a backpay liability at this point. Another important shortcoming of the majority decision, which we have touched briefly upon, is its stark failure to distinguish between the means and the ends of the collective-bargaining process. In the circumstances of this case, the primary purpose of a Board order, requiring Respondent to surrender to the Union relevant and necessary financial informa- tion and to cease from insisting to impasse upon dis- cussing a nonmandatory subject of bargaining, would be to supply in part the means necessary to enable the parties to reach agreement on a labor con- tract. However, as we have emphasized, this goal has already been achieved without intervention by the Board. Nonetheless, the majority complains that the Union was "forced to bargain in the dark," not hav- ing adequate information." But the Union does not assert that anyone has "forced" the Charging Party, an experienced Union, to negotiate in the dark. The Union is perfectly capable of deciding without the Board's help what information it needs to conclude a contract satisfactory to itself and to the employees it represents. The Union need not have entered into the settlement if it believed it possessed inadequate infor- '5 It ill behooves the majority to chide us with guessing concerning the facts. No support appears for their assertion that the Union was "forced" to bargain without adequate information or their guess as to why 14 persons voted against the settlement and 60 others voted for it. Nor is there any basis upon which the majority's evaluation of the effectiveness of the settle- ment can stand. Their observations are solely their own views and do not reflect any basic defects in the terms of the collective-bargaining agreement. 858 CLEAR HAVEN NURSING HOME mation to bargain, and it was free to attempt to se- cure through litigation the information allegedly de- nied it unlawfully. Similarly, the Union was at liberty to negotiate with Respondent concerning a nonman- datory subject of bargaining and to make an agree- ment altering the scope of the unit if it desired. Our colleagues also argue that the settlement does not provide for the posting of a notice adequate to insure the rights of the employees. We could not an- swer this contention better than did the Union itself in its brief: Such objection is ironic given that it was Coun- sel for the General Counsel's refusal to join in the settlement which has resulted in there being no notice posted. More significant with regard to this appeal is Counsel to General Counsel's failure to recognize that the settlement has a beneficial effect in terms of substantiating the policies of the Act, policies which are better arti- culated by the effectuation of this agreement than the posting of any notice. The issue of backpay requires more detailed com- ment. The majority takes the position that the Em- ployees' "right" to $50,000 in backpay has been sold out. But, as noted, the employees in question are not entitled to any backpay unless and until the relevant allegations of the General Counsel's complaint have been sustained, and even then it is within the Board's discretion whether to grant backpay under Section 10(c) of the Act. It should be noted as well that the majority relies on the General Counsel's unproved contention that Respondent's potential backpay lia- bility would amount to $50,000, but Respondent computes that it might at most be subject to backpa\ liability of about $30,000. We would also point out that our statement that the backpay expectations of the employees were taken into account in arriving at the wage rates in the contract is not merely a "cryptic observation" on our part, but was rather based upon representations made to the Administrative Law Judge by the attorneys for both sides. The Adminis- trative Law Judge specifically noted those represen- tations in approving the settlement agreement. Final- ly, as stated in the Union's brief, "[Tio the employees, the absence of backpay represented no barrier to the effectuation of their own desire to be protected by the collective bargaining agreement reached between the parties." We regard the employ- ees as adults who, with the assistance of their union representatives, are well qualified to make decisions affecting their future.'" One last matter remains to be addressed. The ma- jority says that Respondent "has been charged with conduct that amounts to a rejection of the funda- mental purposes of the Act, the resolution of indus- trial strife by peaceful means, and the protection of employees' rights to engage in concerted activity for their mutual benefit." But Respondent, which was entitled to litigate whether it had committed any un- lawful acts at all, instead voluntarily executed a col- lective-bargaining contract with the Union that was accepted by the overwhelming number of the repre- sented employees, and further agreed to reinstate all strikers to their former or substantially equivalent positions.'" Respondent has therefore shown its good faith in attempting to meet its obligations under the Act without compulsion from the Board. We hardly perceive this, though our colleagues apparently do, as the action of a "-willful and persistent" flouter of the labor laws. In voiding the settlement reached in this manner by the Union and the Employer, the Board has turned a blind eye to the overarching purpose for which it was established 42 years ago---the allevia- tion of industrial strife through the furtherance of collective bargaining. In so doing. it has set a short- sighted, pettifogging course, which insists upon liti- gating every alleged violation of law regardless of its negative consequences for the parties and the pres- ence of a just and efficient alternative. We emphatically dissent. I"Ae join in the t nln' ob,iheri\ation that. "[Olne begins to perceive ('Counsel for the General ('iunnel', argumnent here, in light of the ratifica- tion vote, as all abhstract defense of principle in expre-s contradiction to the wishes of the Inditiduals x ho,e right (I unr el for General ( Counsel iould protect" 11 but a relatilek small numbher of trikers had alread& heen rein- stlted bh the time the settlement ya, reached 859