Abingdon Nursing Center

ABINGDON NURSING CENTER 781 Abingdon Nursing Center and Laborers International Union of North America, Local 538, AFL-CIO, or its designated affiliate. Cases 38-CA-1199 and 38-CA-1308 June 20, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 29, 1972, Trial Examiner Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party filed limited exceptions, and the General Counsel filed limited exceptions and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,I and conclusions2 and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, Abingdon Nursing Center, Abingdon, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as modified herein: 1. Redesignate paragraphs 2(d), (e), and (f) as (f), (g), and (h), respectively, and add the following: "(d) Upon request, reinstate the hours of kitchen employees as they existed prior to mid-March 1971, and make the kitchen employees whole for any loss they may have suffered as a result of this change, as provided for in that portion of the Decision entitled `The Remedy'." "(e) Upon request, reinstate the hot lunch program for employees as it existed prior to March 7, 1971." 2. Substitute the attached notice for the Trial Examiner's notice. 1 In finding that Respondent did not bargain in good faith , we do not rely on the Trial Examiner's conclusion that Respondent's failure to grant some form of union security is an indicia of bad faith. No exceptions were filed to the finding that Respondent failed to bargain concerning the effects of its discontinuance of the Christmas hams. Accordingly, we adopt the Trial Examiner's finding that such conduct constitutes a violation 2 The Trial Examiner stated that Respondent agreed with the Union's proposals with respect to departmental seniority whereas the record shows that such proposal was made by Respondent and agreed to by the Union. 3 The Trial Examiner found, inter ala, that Respondent's unilateral action in establishing a new system of hours for kitchen employees without consulting the Union, and Respondent's unilateral elimination of the hot lunch program on or about March 7, 1971, violated Sec 8(a)(5) and (1) of the Act To remedy these unfair labor practices , the Trial Examiner has recommended that Respondent be ordered to cease and desist from such unlawful activity The General Counsel, however, has excepted to the Trial Examiner's failure to recommend that Respondent be ordered to reinstate the working conditions as they existed prior to the unfair labor practices and to make the affected employees whole for any loss they may have suffered as a result of Respondent's conduct. We agree with the General Counsel that such additional remedial relief would effectuate the purposes of the Act. We therefore shall amend the order and notice to provide that Respondent, upon request , be ordered to reinstate the hours of kitchen employees as they existed prior to mid-March 1971 and to make the affected employees whole , as provided for in that portion of the Decision entitled "The Remedy," for any loss they may have suffered as a result of this change, and to reinstate the hot lunch program for employees as it existed prior to Respondent's unilateral action on or about March 7, 1971. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL offer immediate reinstatement (to the extent that we have not already done so) to Pamela Boyer, Vivian Ruhl, Bonnie McCracken, Jo Courson, Alma Marie Fields, and Lydia Hopping to their former jobs, and will pay them backpay, as provided in the Board's Decision and Order. WE WILL, upon request, bargain collectively in good faith with Laborers International Union of North America, Local 538, AFL-CIO, or its Designated Affiliate, as the exclusive bargaining representative of our employees in th& following appropriate unit: All full-time and regular part-time nurses aides, 'laundry employees, kitchen employ- ees, housekeeping employees, maintenance employees, licensed practical nurses, and recreational employees employed by Abing- don Nursing Center at its location on West Martin Street, Abingdon, Illinois, excluding all office clerical and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees. WE WILL, upon request, reinstate hours of kitchen employees as they existed prior to mid- March 1971, and make the kitchen employees whole for any loss they may have suffered as a 197 NLRB No. 123 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of this change, as provided in the Board's Decision and Order. WE WILL, upon request, reinstate the hot lunch program for employees as it existed prior to March 7, 1971. WE WILL NOT discourage membership in Laborers International Union of North America, Local 538, AFL-CIO, or its Designated Affiliate, or any labor organization, by refusing to reinstate employees who have gone on strike, or in any other manner discriminate against employees in regard to their hire or tenure of employment or any terms or conditions of employment. . WE WILL NOT change the hours of employees, or cease serving hot lunches, or cease giving hams at Christmas to employees without notifying the above Union and giving it an opportunity to bargain collectively about such matters. WE WILL NOT coercively question employees about union matters. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form and join unions, to engage in concerted activities for their mutual aid or protection, and to engage in collective bargain- ing through their representative chosen in accord- ance with the provisions of the National Labor Relations Act. ABINGDON NURSING CENTER (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9061, Extension 282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner : Upon an original charge filed by Laborers International Union of North America, Local 538 , AFL-CIO (herein the Union), on June 10, 1971, docketed as Case 38-CA-1199, and an amended charge dated August 4, 1971, the General Counsel for the National Labor Relations Board, through the Officer-in- Charge for Region 38 , issued a complaint and notice of hearing dated August 9, 1971. A subsequent charge was filed by the Union on October 28, 1971 (docketed as Case 38-CA-1308) upon which a complaint and notice of hearing was issued dated November 8, 1971. An order consolidating cases and notice of consolidated hearing was issued contemperaneously. A heanng on these charges was held before me in Peoria, Illinois, on November 30-December 2, 1971, with all parties present. The issues presented are whether Abingdon Nursing Center (herein Respondent or Company) refused to bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of its em- ployees in an appropriate unit , in violation of Section 8(a)(5) of the National Labor Relations Act, as amended; refused and failed to reinstate striking employees in violation of Section 8(a)(3) of the Act; and otherwise interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. At the close of the heanng, the parties waived oral argument, but helpful posthearing briefs were filed by representatives of all parties. Upon the entire record, including arguments of counsel and my observation of the demeanor of the witnesses,' I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is, and has been at all times material herein, an Illinois corporation with an office and place of business located in Abingdon, Illinois, as well as in several other locations in the State of Illinois. It is engaged in the business of providing nursing care for elderly persons. In the course and conduct of its business operations, Respondent, during the past 12 months, which period is representative of all times material , purchased and caused to be transferred and delivered to its Illinois facilities goods and materials valued in excess of $25 ,000, which were transported to said facilities directly from States other than the State of Illinois . During the same period of time, Respondent's gross volume of business exceeded $100,000. Based on the foregoing facts, I find, as Respondent concedes, that it is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I Cf Bishop and Malco, Inc, d/b/a Walkers , 159 NLRB 1159, 1161. ABINGDON NURSING CENTER 783 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Following an organizational campaign of the Union in the early summer of 1970, which was vigorously opposed by the Respondent,2 a Board-conducted election was held on August 4, 1970, at the Respondent's nursing home. Although the Union received a majority of the valid votes cast in the election, certification was withheld because the employer filed objections to conduct affecting the results of the election. The asserted basis of these objections was that the Board failed to provide for separate votes of five alleged professional employees, i.e., licensed practical nurses (LPN's). Such objections were overruled by the Regional Director on the ground that the employer, by his agreement with the unit, specifically agreed to include the classification of licensed practical nurses in the unit; accordingly, the objections were, in effect, merely a postelection challenge which is not, as the Regional Director ruled, a valid basis for objections. No exceptions to the Regional Director's report having been filed, the Board, on October 5, 1970, certified the Union as the collective-bargaining representative of the employees in an appropriate unit .3 B. The Bargaining Sessions On October 14, 1970, Henry Gauwitz, secretary-treasurer of the Union, dispatched a letter to the Respondent requesting a meeting, as a result of which the first bargaining session was held at the Friendly Cafe in Abingdon, on October 28, 1970. Present for the Union were its representatives Gauwitz, Bybee, Evans, and Neil Thursby. The latter is a representative of the International Union who assists local unions and district councils in negotiations, and acted as the chief spokesman for the Union in the negotiations with the Respondent .4 The sole representative of the Respondent at this meeting was its administrator, Mrs. Theresa Nerl. At the meeting, the Union presented its bargaining proposals, contained in an 11-page document, which provided the basis for discussion. Although Mrs. Nerl indicated that she had no authority on behalf of the Respondent to make any commitments, she was willing to discuss the proposal with the union representatives, and this was done. Commencing with article I of the proposal, the recognition clause, Nerl exhibited a negative attitude toward practically every one of the Union's proposals. Thus, as respects that clause, i Y The Board found in an earlier proceeding that the Respondent committed substantial unfair labor practices in violation of Section 8(a)(l) and (3) in the course of its opposition to the Union See Abingdon Nursing Censer, 189 NLRB No 122 At the time of the hearing herein, this case was pending before the United States Court of Appeals for the Seventh Circuit on a petition for enforcement of the Board's Order 3 The appropriate unit is All full-time and regular part-time nurses' aides, laundry employees, kitchen employees, housekeeping employees, maintenance employees, licensed practical nurses, and recreation employees employed by the Respondent at its location on West Morton Street, Nerl opposed having the LPN's and the maintenance man covered by the agreement. Thursby, of course, responded that the Union has been certified by the Board to bargain for the LPN's and the maintenance man. However, as above indicated, there was no agreement reached on any of the items of the proposal since Nerl made it abundantly clear that she had no authority to enter into any such agreement. The second bargaining session was held with substantial- ly the same people (except Evans) at the same place on November 10, 1970. When Nerl again indicated that she had no authority to enter into any kind of agreement because all such authority was in the hands' of the Respondent's board of directors, Thursby requested the names of such persons and their addresses. She indicated that she would be glad to give him the information and did so following the meeting. However, although the Union's proposal was again discussed, no progress was made respecting agreement on any of the proposals. On November 16, 1970, Gauwitz dispatched a letter to Reverend J. H. Cusic, one of the three members of the board of directors of Respondent, at his office in Alton, Illinois.5 In that letter, Gauwitz advised Cusic that the Union was the certified bargaining representative of the employees in Abingdon, that two negotiation meetings had been held with Mrs. Nerl, but that she had advised the Union at both meetings that "she could not agree to anything" and, therefore, the Union was requesting Cusic to meet with them for the purpose of negotiation. As a consequence of this letter, a third negotiation session was held at a private club in Peoria, Illinois, on December 8, 1970. Respondent was represented by Cusic and Attorney Melvin Moehle; the union representatives were the same. At that meeting, Moehle, who was Respondent's chief representative, requested that the Union review its proposal. This was done, and Moehle advised that he would prepare a counterproposal and send it to the union representative prior to the next meeting. This was done, and such counterproposal (G.C. Exh. 12) was received by the Union on January 11. It constituted the basis for discussion at the next meeting of the parties on January 13, 1971.6 At that meeting, and at the following meeting on January 27, the parties discussed the Respon- dent's proposal and, at the latter meeting, Thursby indicated the union's position on each article. Thus the Union indicated agreement as to article I, the purpose of the agreement, but objected to the recognition clause because, as initially proposed, it excluded the LPN's and the maintenance men. However, later at the meeting, Moehle stated that the employer would recognize the Union on the basis of the NLRB certification. As respects union security, the Union had proposed the standard agreement requiring union membership as a Abingdon, Illinois, but excluding office clerical and professional employees, guards, and supervisors as defined in the Act, and all other employees 4 Findings as to the occurrences at the bargaining sessions are based primarily upon Thursby's testimony which is essentially unopposed. To the extent that there is contradiction, his recollection of the events is credited 5 other two members of the Board are Reverend Marshall and Reverend Mercer 6 All dates hereinafter refer to the calendar year 1971, unless otherwise indicated 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment following 31 days, plus a checkoff provision. The company proposal contained none of this and was rejected by the Union. The Union rejected the management rights clause proposed by the Company primarily on the basis that it allowed the Company to subcontract work and/or to close the facility or a portion thereof without any prior notification to the Union. The Union was generally agreeable to the company proposal as to the seniority clause except that the Union was proposing unitwide seniority while the Company proposed depart- mental seniority. As respects hours of work and overtime, the Company proposed overtime after 48 hours per week; the Union sought overtime for employees after 8 hours in I day or over 40 in 1 week. As respects holidays, the Company agreed to recognize certain holidays but pro- posed no holiday pay. As respects article IX, vacations, the evidence disclosed that, prior to the advent of the Union, the company policy with respect to granting paid vacations was that, in order for an employee to qualify for a vacation with pay on the anniversary date of his employment, he must have completed 1 year of continuous service ; he qualified for 2 weeks' vacation with pay on the completion of 5 years' continuous service. An exact continuation of this benefit was contained in the Company's counterproposal; the Union sought 2 weeks after 2 years' service and 3 weeks after 5 years. The Union had no objections to the next two articles in the Company's counterproposal, i.e., leaves of absence and military service. However, the company proposal as respects the grievance procedure provided that following step 5 thereof, the employees had the right to "go out on strike" without violating the no-strike clause of the agreement. The Union was very opposed to this, particu- larly in view of the fact that Respondent was a nursing home, and suggested that the grievance procedure should terminate in arbitration. However, no agreement was had on this article. The Union was agreeable to the Company's proposal respecting the no-strike clause and most of the "miscellane- ous provisions" except that the Union reserved the right to negotiate for the cost of a uniform in the event an employee was required to wear a uniform. As respects the term of the agreement, the Company's proposal called for a 3-year contract; Thursby advised that the Union preferred to negotiate a 2-year contract, especially in view of the fact that this was a first agreement. The Company made no proposals as respects so-called economic items, and Thursby suggested that a list be made of same. This was done, and the list included "wages, holidays, vacations, jury pay, uniforms, sick leave and health insurance." Further discussion on these matters was held for future meetings. At the sixth bargaining session which was held on February 18 in Peoria, the company attorney made a report to the Union respecting the position of the board of directors on the negotiations. He stated that the Company 7 The Company's proposal read: ARTICLE III UNION SECURITY Employees are entitled to be members of the Union or to refrain from such membership, to be active on behalf of the Union or to would recognize the Union on the basis of the Board's certification; that the only agreement possible as related to union security was that contained in the Company's proposal,7 and that there could be no checkoff of union dues; as respects management rights, the Company would recede from its position in that respect to the extent that it would notify the Union in the event they intended to close down any part of the facility but they would not recede from their position as respects their right not to notify the Union concerning subcontracting of work. The Company would not recede from its position respecting payment of overtime on a 48-hour basis but agreed to alter the language respecting distribution of overtime. Moehle stated that the Respondent would not grant any paid holidays or pay for employees' uniforms or any laundering of the uniforms. The Company also stood on its proposal respecting the grievance procedure, i.e., that it opposed arbitration. The only concession the Company made with respect to the grievance procedure was that it would allow the business manager of the Local rather than the international representative to come onto the premises to discuss grievances. The Company remained adamant as respects the requirement of a 3-year contract. Following a caucus of the union committeemen, the Union receded from its position as respecting notification prior to the subcontracting of work, and as respects payment of overtime over 8 hours was concerned, if the Company would pay overtime over 40 hours. However, this was rejected by the Company, which took the position that it was complying with the wage and hour law in that regard. The Union then reluctantly receded from its position respecting the grievance-arbitration article. Thurs- by then advised Moehle that other than union security, checkoff, and overtime, they were down to the economic issues, to which the latter agreed. Reverend Cusic, at that point, stated that there was absolutely no money for wage increases. Moehle suggested that the Union prepare and submit a complete counterproposal on all economic issues, to which Thursby was agreeable. On February 22, the Union submitted its alternate proposal on union security, dues checkoff, and economics to the Company, which document consisted of two pages and generally provided as follows: A maintenance of membership clause and dues checkoff authorization; a provision for overtime limited to the requirement that "No employee will be required to work more than 40 hours per week;" a provision for sick pay, jury pay, and slight improvement in vacation pay; a provision for six paid holidays; hospitalization insurance and uniforms to be furnished by the Company; and a wage progression scale which provided, in essence, for a 25-cent-per-hour increase in wages over the period of a year, with the agreement expiring in 2 years. The seventh bargaining session occurred on March 30 at which some general discussion was had concerning the Union's February 22 proposal, but nothing further was accomplished. The same may be said of the eighth refrain from such activity Neither the Company nor the Union will interfere with such rights of the employees Neither the Union nor its members shall solicit Union membership or conduct Union activities on Company time. ABINGDON NURSING CENTER bargaining session which was held on April 20. However, at that meeting, the company attorney advised the Union that he had prepared a complete counterproposal on all items and would send it to the union representatives within 14 days, and that it would be a final proposal. Near the close of the session, the Union additionally brought to the Company's attention the fact that it had been advised by the employees that the Company had taken away, without notification to the Union, the employees' privilege of buying hot lunches. The company representatives appeared not to know anything about it, and the union representa- tives indicated that they wanted the program reinstated because the Union considered it a benefit to the employ- ees. Thursby also indicated to Moehle that the hours of work of some of the kitchen employees had been reduced without notification to the Union, to which Moehle replied that he would check into the matter and report back. Finally, Gauwitz asked why the employees were denied their ham or turkey at the past Christmas, to which the Reverand Cusic indicated that the Company was not required to give them such a gift. Thursby stated that was not the question, but that it should have been discussed with the Union, and the Union would like an answer. On or about May 4, the Company submitted its final written proposal, consisting of 18 pages, which was received by the Union on or about May 5 (G. C. Exh. 17). Thursby testified that after he reviewed the proposal he called a meeting of employees on or about May 6, read it to them, and discussed it. He recommended to the employees that they vote the company proposal down because it offered no improvement in their working conditions. The employees present voted unanimously to reject the contract. Thursby then called Moehle and advised him of the employees' rejection. He further advised Moehle that he considered one of the more detrimental aspects of the company proposal to be the 3-year term thereof at minimum wages, and if the Company would consider shortening the term to 1 year, he would recom- mend to the employees that they accept it. Moehle said that he would check with his client and call him back, but he never did. Accordingly, Thursby talked to Moehle around May 16 by telephone. Moehle said that his client had rejected Thursby's proposal and stood on the Company's May 4 proposal. Whereupon, Thursby made another suggestion; to wit, that he would recommend to the employees that they accept the contract as written for 3 years if the Company would give a dues checkoff and a wage reopener at the end of 1 year. Moehle said that he would talk to this client about that proposal and would get back to Thursby. However, Thursby said that since he was difficult to reach by telephone he would call Moehle, and he did so on or about June 6. On that occasion, Moehle advised Thursby that his client had rejected Thursby's proposal and stood on the proposal that the Company submitted. Thursby then advised Moehle that he thought it was "a shame" that something could not be worked out to, resolve the matter-that he did not want to see the people go on strike-and advised Moehle that he (Thursby) was going to file charges with the NLRB.8 A further negotiation meeting was arranged between the 785 parties and held on July 14 in Springfield, Illinois. At that meeting Thursby attempted to break down for the company representatives the cost per hour of the Union's proposals and suggested that the cost of the fringe benefits sought by the Union would be in the neighborhood of 11 cents an hour. He attempted to persuade the company representatives to offer something in those areas. However, the company representatives remained adamant, and stated that they stood on their May 4 proposal. Whereupon Thursby stated: "In other words, 3 years with absolutely not even I penny an hour wage increase; is that correct?" Moehle responded that he saw no need to take additional time and adjourned the meeting. C. The Strike, and Subsequent Events A decision to strike was made at a union meeting on September 8. At the meeting, which was attended by only approximately 10 current employees, Thursby made a speech in which he advised those present of the course of negotiations; that the Company had offered absolutely nothing; that it had acted unlawfully in cutting the employees' hours and taking away their Christmas bonus and hot lunches without notifying the Union; and that charges had been filed with the NLRB. He stated, however, that it appeared that they had reached the point where the people were going to be forced to strike if they wanted to achieve anything, and he wanted them to know that, if they did, they would be unfair labor practice strikers and would have a right to their jobs back whether they won or lost. He further advised them that it would take time, and mentioned the prior Labor Board proceed- ings involving Dave Brock. The employees voted unani- mously to strike. However, Thursby stated that he wanted one further opportunity to avoid the strike, and that Gauwitz would send the Company a telegram that the employees would go on strike Friday, September 10, so as to give the Company an extra day in which to set up a meeting. Accordingly, on September 9, Gauwitz sent the following telegram to the Company: This telegram will advise you that because of the unfair labor practices committed by Abingdon Nursing Home and because Abingdon Nursing Home has and is continuing to refuse to bargain in good faith, the employees represented by Local 538 will go on an "unfair labor practice" strike beginning at 6 a.m., September 10, 1971, Representatives of Local 538 are requesting a meeting for the purpose of continued negotiations. Please contact my office to arrange for such a negotiation meeting. No response having been received by the Union, the employees commenced the strike on the morning of September 10; it continued until on or about October 11. Meanwhile, however, the final negotiation meeting was held on October 8. At that meeting, the Company remained adamant on its May 4 proposal and acknowl- edged that it had not offered the Union any improvement in economic items. The company attorney also acknowl- edged that he had rejected the Union's proposal for a 1- year agreement based on the Company's May 4 proposal. 8 The original charge in the instant proceedings was filed June 10. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As previously indicated, on October 11 the striking employees 9 voted unanimously to abandon the strike and authorize the Union to so notify the Company. According- ly, on October 13, Thursby sent the following letter to Attorney Moehle: This letter will advise you that the employees of Abingdon Nursing Center who are represented by Local Union 538 are willing to terminate the Unfair Labor Practice strike against Abingdon Nursing Center and such employees are unconditionally available to return to work immediately at their regular hours and job classifications. Kindly notify me by return mail as to the date that you will accept the return to work of these Unfair Labor Practice strikers. Having received no response to that letter, Thursby again, on October 19, dispatched the following letter to Attorney Moehle: As of this date, I have not received an answer from you regarding my letter to you dated October 13, 1971. The Union is again making an unconditional offer to return the unfair Labor Practice strikers to work at their regular hours and job classifications. The names of the unfair Labor Practice strikers are: Pam Boyer, Vivian Ruhl, Bonnie McCracken, Joe Courson, Marie Fields, Lydia Hoppings. Awaiting your reply, I am. Very truly yours, Neil E. Thursby International Representative By letter dated October 28, Moehle responded that the employer considered the strike illegal, and that each of the striking employees had been replaced. Mrs. Nerl confirmed that position to several of the striking employees who personally interviewed her respecting employment in the latter part of October. As of the time of the hearing herein, neither of the striking employees had been reinstated or reemployed by the employer. However, by telegram dated February 23, 1972, Attorney Moehle advised me that the six striking employees, above-named, "were given a written offer of reemployment effective March 17, 1972.10 Hop- ping and Courson returned to work. Ruhl reported she had other employment. Boyer, McCracken, and Fields failed to respond or report for work. Petition to dismiss will follow." Based on the foregoing, Respondent thereafter filed a petition to dismiss Case 38-CA-1308 to which counsel for the General Counsel thereafter filed a "Response to Respondent's Petition to Dismiss Case No. 38-CA-1308," urging that "the reinstatement issue is merely a matter for 9 Pamela Boyer, Vivian Ruhl, Bonnie McCracken , Jo Courson, Mane Fields, and Lydia Hopping. to This was apparently an error and should have been February 17, 1972 11 Counsel for the General Counsel offered as background evidence the testimony of Pamela Boyer as respects a conversation she had with Administrator Nerl following the hearing in the earlier case, in September 1970. It appears that Nerl had assertedly been receiving complaints from some of the employees that union militants had been bothering and harassing them; accordingly, knowing that Boyer was one of the more compliance in the event that the Trial Examiner finds the refusal to reinstate violative of Section 8(a)(1) and (3) of the Act." I agree with the contention of counsel for the General Counsel and will make an appropriate provision to that effect in the Order herein. D. Alleged Independent Violations of Section 8(a)(1) The complaint in Case 38-CA-1308 alleges that around the end of June, Company Administrator Nerl interrogated employees concerning their own and other employees' union membership, activities, and desires. In support of this allegation, Marie Fields testified that she was hired by the Respondent in the middle of June as a nursing aide, and that about 2 weeks later Mrs. Nerl came into a room on the east wing of the nursing home and asked her how she liked her job. During the course of the conversation, Nerl asked her whether anyone had approached her respecting the Union. Fields said no, that she had merely heard some of the girls talking about it. Nerl then asked if they were going out on strike and, if so, whether Fields would cross the picket line. The latter responded that she hadn't thought about it and really didn't know. Whereup- on Nerl responded that "They really aren't going to get anywhere . . . and that if there was a picket line and Fields was afraid to come across it because of "a big mouth in the kitchen" or some "radical aide," she could call for someone and they would take her to work. Nerl denied having such a conversation with Fields and contended that, in any event, as early as June there had been no talk of strikes as far as she knew. However, Fields impressed me as an honest and candid witness and I have no reason to believe that she would fabricate such a conversation. Moreover, it is certainly reasonable to infer that following more than 6 months of protracted, frustrat- ing, and unsuccessful negotiations with the Company, the union members would be considering a strike as an alternative to achieving their ultimate goal. Indeed, in one of Thursby's telephone conversations with Moehle near the end of May or the first of June, he told Moehle that he did not want to see the people go on strike. Accordingly, I credit Fields and find that the conversation occurred substantially as she testified and that the contents thereof constituted coercive interrogation concerning her union membership and activities, in violation of Section 8(a)(1) of the Act." IV. ANALYSIS AND CONCLUDING FINDINGS A. The Refusal to Bargain Section 8(a)(5) of the Act makes it an unfair labor practice for an employer to refuse to bargain collectively with the representative of his employees. The term active union adherents in the plant, Nerl called her into her office and asked her to stop it or otherwise resign According to Boyer, when she asked Nerl what would happen if she did not resign, Nerl said that Boyer would probably be laid off. However, Nerl denied threatening to fire her. I do not deem it necessary to resolve this particular credibility issue since, at best, it deals with evidence that can only be used as background and I find substantial evidence elsewhere in the record to support my findings on the ultimate issue ABINGDON NURSING CENTER 787 "bargain collectively" is defined in Section 8(d) of the Act as requiring 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 . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession." The question of whether an employer or union (Section 8(b)(3) of the Act makes it an unfair labor practice for a union to refuse to bargain collectively with an employer) meets with the other party with a sincere willingness to enter into negotiations looking towards the consummation of an agreement, or merely engages in so-called "surface bar- gaining" with no such desire but merely to give the appearance of complying with the statutory obligation, is ofttimes a conundrum which has plagued the Board and Courts in the past.12 In the last cited case , it was stated, in attempting to assess the limits of the term "good faith," that: Good faith, or the want of it, is concerned essentially with a state of mind. There is no shortcut to a determination of whether an employer has bargained with the requisite good faith the statute commands. That determination must be based upon reasonable inference drawn from the totality of conduct evidenc- ing the state of mind with which the employer entered into and participated in the bargaining process. The employer's state of mind is to be gleaned not only from his conduct at the bargaining table , but also from his conduct away from it-for example, conduct reflecting a rejection of the principle of collective bargaining or an underlying purpose to bypass or undermine the Union manifests the absence of a genuine desire to compose differences and to reach agreement in the manner the Act commands. All aspects of the Respon- dent's bargaining and related conduct must be consid- ered in unity, not as separate fragments each to be assessed in isolation.13 Applying the foregoing principles to the case at bar, I find, in agreement with the General Counsel and the Charging Party, that substantial evidence on the record considered as a whole sustains the complaint on the central issue in this case, to wit: that the Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5). In reaching such finding and conclusions, I have considered not only the positions taken by the Respondent in the course of the negotiations, but "on the totality of the Respondent's conduct both at and away from the bargaining table, taken particularly into account the cumulative force of the considerations to be discussed below." 14 First: 15 It is apparent from a reading of the record in the instant case, in light of the decision of the Trial Examiner and Board in the prior case involving this Respondent (189 NLRB No. 122), that the Respondent viewed the advent of 12 See e g , N L R B v Insurance Agents' International Union, AFL-CIO, 361 U S 477, N LR B v Reed and Prince Manufacturing Company, 205 F 2d 131 (C A 1), cert denied 346 U S 887, N L.R B v Herman Sausage Company, Inc, 275 F 2d 229 (C A 5), "M" Systems, Inc, 129 NLRB 527. 13 129 NLRB, at p 547 14 Ibid, at pp 547-548 11 It should not be necessary to state that the listing of the considerations the Union at its Abingdon facility with alarm and hostility. This state of mind, although legal in itself, was exemplified by conduct constituting unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, including the discharge of one of the most active union adherents. I also note that after the Union achieved a majority of the valid votes cast in the election in August 1970 , certification of the Union and the commencement of negotiations was delayed for several months merely by the filing by Respondent of objections to the election which amounted to no more than a postelection challenge of ballots. This position of Respondent-questioning the appropriateness of the unit to which it had agreed and which the Board had certified-was carried into the initial stages of the negotiations where the Respondent sought to require the Union to cease negotiating for and on behalf of the LPN's and the maintenance personnel. While I, of course, did not use this kind of labor relations history of Respondent as determinative of the ultimate issue, it is settled that I am not precluded from ignoring it since "the ultimate issue whether the Company conducted its bargaining negotiation in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence." 16 Second: It is undisputed that for the first two collective- bargaining sessions, Respondent was represented solely by its administrator, Theresa Nerl, who concededly had no authority on behalf of the Respondent to make any concession or reach any agreement on any of the items discussed. While it appears well settled that Section 8(a)(5) does not require the designation of a representative having plenary authority, "The degree of authority possessed by the negotiator is a circumstance which may be considered in determining whether there was bargaining in good faith." 17 Third: Unilateral action. The complaint alleges, and the evidence discloses, that during the course of negotiations with the Union Respondent took the following actions which to some degree affected the working conditions of its employees ; that such actions were taken unilaterally and without notice to the Union as the employees' collective- bargaining representative, and without bargaining about such conduct after the Union discovered it and requested bargaining. (a) Unilateral change in hours of the kitchen employees. The undisputed evidence on this aspect of this case is that sometime in February the board of directors informed Administrator Nerl that the number of hours worked by the kitchen employees had to be reduced in an effort to cut costs. As a result, she had a meeting with the affected employees and allowed them to decide whether each of them would take a small reduction in the number of hours worked or whether one employee would be laid off. The employees decided on the former course. When this was later reported to the union representatives, and subse- is not necessarily in order of their importance 16 N L R B v Reed and Prince Manufacturing Company, 205 F 2d 131, 139-140 17 Lloyd A Fry Roofing Company v NLRB 216 F.2d 273, 275 (C A 9); Accord Great Southern Trucking Company v N L.R B , 127 F 2d 180, 185 (C A 4), N LR B v Fitzgerald Mills Corporation, 313 F 2d 260,267 (C.A. 2). 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quently raised in a collective-bargaining session, the Company apparently took the position then as it did in the hearing herein that the decision to cut hours was not done "unilaterally" but only after consultation with the employ- ees involved, who actually made the decision. Of course this contention misses the point for, as the Trial Examiner phrased it in General Electric Company,18 (adopted by the Board) "the employer's statutory obligation is to deal with the employees through the Union, and not with the Union through the employees." Accordingly, I find that the Respondent's unilateral action in establishing a new system of hours for kitchen employees without consulting the Union violated Section 8(a)(1) and (5) of the Act.19 (b) Unilateral elimination of the hot lunches. The evidence discloses that, from the opening of the Nursing Center in 1965 until about February 1970, Respondent furnished its employees a free meal from the kitchen. At the latter date, the Respondent decided to change this policy and gave the employees a choice as to whether they would continue receiving hot lunches from the kitchen, but paying $1 therefor, or bringing their lunches to the home. The employees, by vote, opted for the latter; accordingly, thereafter, the free lunch program ceased. However, there is substantial evidence on the record that during the next ensuing year, it became a practice for those employees so desiring to partake of food usually left over from the patients' trays, such as salads or desserts, and, on the honor system, pay for such food by depositing a nominal amount of change in a glass jar which was placed in the kitchen primarily to receive donations from guests of the patients who ate a meal while visiting. Some employee witnesses testified that there was a fixed amount established for those participating in this practice, i.e., 50 cents for a complete lunch and 25 cents for a partial lunch. Supervisor of the kitchen Wagy denied that there were any particular prices set for those who wanted to purchase leftovers. She testified that she told the employees that whatever they wanted to donate for the food was up to them. In any event, it appears that, at least in Respondent's eyes, the employees were, by March, 1971, commencing to abuse the practice by starting to eat before the patients and/or persuading the night cook, Vivian Ruhl, to prepare more food than was necessary to feed the patients (for the obvious purpose of making sure that the employees on the evening shift would have a hot meal). Accordingly, on or about March 7, Administrator Nerl posted a notice addressed to all employees, as follows: Everyone will bring their own food for meals & coffee brakes. [sic) Coffee only will be furnished. /s/ Theresa Nerl In its brief, Respondent argues that there was no 18 150 NLRB 192,195 19 See American National Insurance Company 89 NLRB 185, affirmed on this point 187 F.2d 307 (C A. 5), cert denied on this point 343 U.S 395; Lloyd A Fry Roofing Company v N L R B, 216 F.2d 273 (C.A 9), Great Southern Trucking Company v N LR B, 127 F 2d 180, 186 (C A 4) 20 Resp brief, p 9. 21 Cf Weyerhauser Timber Company, 87 NLRB 672; Westinghouse Electric Corporation, 156 NLRB 1080, reversed 387 F 2d 542 (C A. 4), program respecting meals at the Respondent 's nursing home after the employees voted to bring their own meals rather than paying $1 for lunch. "The system that developed after that decision was initiated by a few. When it was abused it was discontinued." 20 It seems abundantly clear from the evidence that from the very beginning, the question of what type of food was to be made available to the employees for their lunch while at work was an important consideration in their employ- ment. It is true, of course, that the employer, in 1970, sought to rid itself of its voluntarily incurred obligation. Had it rigidly enforced the employees' decision to bring their own lunches, and not allowed them to purchase at least partial meals at a varying stipend, it might reasonably be argued that the question of employees' on-site eating could not properly be encompassed by the term "condition of employment." 21 The evidence is clear, however, as above indicated, that a considerable number of employees continued to partake of company food on the Respondent's premises and pay for it. It may thus be reasonably inferred that they depended on this practice or policy as a condition of their employment within the meaning of that term as discussed in the above-cited cases, and I so find.22 Accordingly I find that Respondent's unilateral action and subsequent refusal to bargain about this subject upon request of the Union constituted a violation of Section 8(a)(5) of the Act.23 (c) Unilateral discontinuance of Christmas hams. As previously noted, it had been the practice of Respondent in the calendar years 1968 and 1969 to give each employee of the Company a ham for Christmas.24 In 1970, this was discontinued, according to the testimony of Cusic, pur- suant to a decision of the board of directors of Respondent made in January 1970, prior to the advent of the Union. The decision was assertedly bottomed on economic considerations. When the Union raised the issue the following April in the negotiations, the reply of Cusic was that it was a management prerogative as to whether to give the employees a gift and that the board of directors made the decision not to give any hams in any of the four nursing facilities run by the management operating the Abingdon facility. In its brief, Respondent takes the position that since the decision was made to discontinue the hams prior to the Union's coming on the scene, there is no basis for the charge. It seems well established that where the payment of a Christmas bonus is an integral part of a compensatory structure and has been in existence for a period long enough that the employees have the right to expect and rely on the continuation of such bonuses as a part of their wages, the payment of such bonuses comes within the statutory coverage of "wages, hours and other terms and McCall Corporation, 172 NLRB No 55, Wald Mfg. Co. v. N LR.B, 426 F.2d 1328 (C A 6), Southland Faper Mills, Inc, 161 NLRB 1077. 22 The contention of Respondent that only "a few" employees participated is negated not only by the testimony of the employee witnesses called by the General Counsel, but by the fact that, in an attempt to stop the practice, a notice to "all employees" was required to be posted by Nerl 23 N LR B v. Katz, 369 U.S 736 24 In 1967 a box of candy was, given ; prior to that, nothing. ABINGDON NURSING CENTER conditions of employment," and therefore a mandatory subject of collective bargaimng.25 Although the record in the instant case was not well developed as to the basis on which the hams were distributed, i.e., whether or not there was a length of service or other type of requirement as a prerequisite to receipt, it would seem that the presentation of some form of gift to apparently all employees for a period of these years is a sufficient length of time to warrant a finding that the employees had come to expect some form of bonus. The Respondent's defense-that the discontinuance was a business judgment which it was intitled to make-was raised and rejected in Zelrich, supra.26 However, in the instant case, the uncontradicted evidence is that the decision was made prior to the advent of the Union, and the General Counsel here has not alleged that the failure to pay the 1970 bonus constituted discrimination against the employees. Accordingly, under all circumstances, I find that there was no obligation on the part of Respondent to bargain about the decision to discontinue the hams. However, I do find that the donations of the hams was a mandatory subject of collective bargaining within the meaning of the term "wages, hours and other terms and conditions of employment," and therefore it was a violation of Section 8(a)(5) for Respondent to refuse to bargain with the Union, on its subsequent request, concerning the effects of such discontinuance.27 Fourth: Respondent's course of conduct at the bargain- ing negotiations, when considered in the light of its other actions and conduct respecting the organizational efforts of its employees as set forth hereinabove (and in prior litigation), reflects, in my view, an attitude of an employer unreconciled to the principles of collective bargaining contemplated by the language and spirit of the Act. Thus the record here, as in "M" Systems, Inc., supra, depicts an employer ". . . who is determined not to surrender in material respects the full freedom he previously enjoyed to regulate unilaterally his labor relations, and who has no serious desire to reach agreement, except perhaps on a basis which would subvert the Union's bargaining sta- tus." 28 At the outset, the employer sent to the bargaining table a representative who concededly had no authority on its behalf to negotiate with the Union. At the very least, it seems to me, this was an attempt by the Respondent to belittle the Union in the eyes of the employees and to show the contempt which Respondent has for the concept of collective bargaining in general. After Respondent determined to send a representative to the bargaining table with sufficient authority to negotiate with the Union, the result was no more fruitful, but was, as the record discloses, a series of unsuccessful and frustrating meetings stretching over a period of some 9 or 10 months. 25 See eg, Gravenslund Operating Company, 168 NLRB 513; Zelrich Company, 144 NLRB 1381, 1391, enfd 344 F.2d 1011 (CA. 5); Coppus Engineering Corporation, 195 NLRB No. 113. 26 144 NLRB, at 1391 27 K-D Manufacturing Company, 169 NLRB 57, enfd 419 F.2d 467 (C A 5) 28 129 NLRB, at 549. 789 During that period of time, "the Respondent yielded nothing to the Union on `cost' items, agreeing only to maintain in effect the individual wage rates and fringe benefits which it had itself established prior to the advent of the Union."29 On noncost items, it offered very little that the law did not require. Thus, other than complying with the Union's request respecting departmental rather than overall seniority, and the equitable distribution of overtime, the employer appears to not have conceded anything even on those items . On the other hand, the Union constantly receded one by one from positions previously taken until, in May, it finally agreed to accept the employer's proposal-barren as it was of any signifi- cant, additional benefits to the employees-with only the caveat that the term be 1 year instead of 3. This would seem clearly not to be an unreasonable position in a time of rising wage rates, but the employer was adamant in maintaining its position. It similarly refused to budge in the face of the Union's alternate proposal that the Union would accept the contract as written if the Company would grant a checkoff and wage reopener at the end of 1 year. Even while offering the Union nothing of substantial value, a perusal of the employer's proposal indicates that it was demanding from the Union several substantial concessions of rights secured to the Union by law. Thus, for example, in its management rights proposal, Respon- dent insisted on the right to subcontract work without notice to the Union, although a right to such notice has been accorded to Unions by the Supreme Court under certain circumstances 30 In the grievance-arbitration area, Respondent insisted on a grievance procedure which would not terminate in arbitration, while at the same time insisting upon a no-strike clause. Yet, as the Supreme Court stated in Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455; "Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike." Here, as in "M" Systems, Inc., supra, "The Respondent's no-strike, no-arbitration position, particular- ly when viewed in the light of other record facts , suggests that the Respondent was more concerned with emasculat- ing the Union's effectiveness as an employee representative than with achieving contract stability. . . . the terms on which the Respondent conditioned agreement was such as to leave the Union better off without a contract than with one." 31 In the area of union security, another indicia of Respondent's bad faith is indicated. Thus, the Union originally proposed what may be termed a standard union- security clause making union membership a condition of employment following 31 days. The employer objected to this on the grounds that it would not be a party to any agreement requiring an employee to join the Union. Yet, when the Union counterproposed a standard maintenance of membership clause,32 and such was explained to the 2s Ibid 3° See e.g, Fibreboard Paper Products Corporation v. N LR.B, 379 U S. 203. 31 129 NLRB, at 550-551 32 Under a standard maintenance-of-membership clause all of the employees who are members of a union at the time of signing the contract and all other employees who thereafter become members, are required, as a (Continued) 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's representative, it still maintained an ada- mant position on this issue. In sum, I find under all circumstances here that the terms of Respondent's final proposal of May 4 was such . . that the Union could not accept them without violating its trust to the employees it represented. The Respondent must have known, and therefore inferentially have intended, that its proposals were such as not to have the slightest chance of acceptance by any self-respecting union. This provides added support for an inference that the Respondent was not negotiating with a genuine purpose to find common grounds for agreement. (Citing N.L.R.B. v. Reed and Prince Manufacturing Company, supra, at ' 139; L. L. Majure Transport Company, 95 NLRB 311,313.)33 I find and conclude, based upon a consideration of the record as a whole, that the Respondent failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act. B. The Refusal to Reinstate Strikers As previously noted, the employees attending the union meeting on September 8 heard Thursby relate the facts and circumstances of Respondent's conduct during the course on negotiations. He stated that he considered that the employer had refused to bargain in good faith in violation of the Act, and he had filed charges with the NLRB to that effect; he pointed out to the membership that if they went on strike they would be considered unfair labor practice strikers and entitled to the rights inuring to strikers in such circumstances. On the basis of his report, the employees voted unanimously to go out on strike, and did so on September 10. Since I have found that the employer had, in fact, refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act, it follows that, and I find, the strike was in consequence and protest of Respondent's unfair labor practices and was therefore an unfair labor practice strike. Under these circumstances, the law is well settled that "unfair labor practice strikers" must be reinstated upon their unconditional application even if that necessitates firing their replacements 34 Accordingly, Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing, following the receipt of Thursby's letter of October 13, to reinstate the strikers, and I will recommend an appropriate remedy.35 In its brief, Respondent urges, in essence, that the strike of September 10 was an illegal one because only a minority of the employees in the unit attended the union meeting at which strike authorization was voted, and only a small minority of the employees actually participated in the strike, citing N.L.R.B. v. Draper Corporation, 145 F.2d 199 (C.A. 4). In Draper, a minority of employees accused the Company of "stalling" in negotiations and called a "wildcat" strike which the court held was not protected by the Act. condition of employment, to maintain their union membership for the duration of the contract CCH Union Contract Clauses, 1954 Ed, Section 51079 02 Since employees who do not voluntarily join the Union are not required to join as a condition of retaining their employment, compulsory unionism is not a feature of maintenance-of-membership clauses (See Advanced Business Forms Corp, 194 NLRB No 52 (TXD at fn 12) 33 "M" Systems, Inc, 129 NLRB 527, 551 34 N L R B v Plasnhte, 375 F 2d 344,348 (C A 8) However, that case is clearly distinguishable from the instant proceeding because there, as the court found: "The Union, which the employees had chosen as bargaining representative, did not call or authorize the strike or sanction it in any way."36 The court further went on to hold that the strike in that case "was called and carried on by an irresponsible minority in defiance of the bargaining union."37 Such was not the case here. Accordingly, I find and conclude, contrary to Respondent's contention, that the strike herein was at all times a lawful one. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused in good faith to bargain collectively with the Union as the exclusive representative of the employees in the appropri- ate unit described herein. It will therefore be recommended that the Respondent bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, it shall be construed that the initial year of certification begins on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. -350 F.2d 57 (C.A. 10); Amax Aluminum Extrusion Products, Inc., 174 NLRB No. 163. It having been found that Respondent unlawfully discriminated against its employees by refusing to reinstate them, it must be ordered to reinstate them (to the extent it has not already done so), and make them whole for any loss of earnings they may have suffered as a consequence of the unlawful discrimination in the manner prescribed by 35 In view of this finding, I do not reach the issue of whether Respondent lawfully replaced and thereafter refused to reinstate the strikers Nor, as above indicated, do I rule upon the adequacy of its offers as contained in its postheanng petition to dismiss Case 38-CA-1308 Rather, that issue should be left to the compliance stage of this proceeding 36 145 F 2d, at 201 37 145 F 2d, at 205 S' ABINGDON NURSING CENTER the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Company, 138 NLRB 716. Respondent's unfair labor practices indicate a general attitude of opposition to the purposes of the Act; accordingly, a broad cease-and-desist order is necessary and appropriate to effectuate the policies of the Act. The Charging Party, in its Brief, urges that the customary Board remedy is not adequate as applied to the facts in this case, and urges that some kind of "make-whole" remedy be ordered (citing Electrical Workers, IUE v. N. L. R. B. (Tudee Products, Inc.), 426 F.2d 1243 (C.A.D.C., 1970). However, in Ex-Cell-O Corporation, 185 NLRB No. 20, the Board decided that it lacked statutory authority to grant the compensatory remedy requested by the Union in that case. In the latest Tiidee case, 38 the Board adhered to the views expressed in Ex-Cell-O, as respects "make-whole" reme- dies, but promulgated some alternative remedies which it believed were appropriate to the circumstances of that case .39 Because the unit here is relatively small so as to facilitate the flow of information between members and officers, and since there has been little litigation expense to the Union, I find the remedies prescribed in Tudee inappropriate to the situation here. Under all circum- stances, I therefore deny the request of the Charging Party. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part- time nurses' aides, laundry employees, kitchen employees, housekeeping employees, maintenance employees, licensed practical nurses, and recreational employees employed by Respon- dent at its location on West Martin Street, Abingdon, Illinois, but excluding office clerical and professional employees, guards, and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was on October 5, 1970, and has been at all times thereafter, the exclusive collective-bargaining representative of the Respondent's employees in the aforesaid appropriate unit. 5. By refusing, on or about December 10, 1970,40 and thereafter, to bargain in good faith with the Union as the collective-bargaining representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By refusing to reinstate, on and after October 13, 1971, the following named striking employees to their 38 Tndee Products, Inc, 194 NLRB No 198 39 These were (1) mailing of the "Notice to Employees" to employees' homes, (2) union access to Respondent's bulletin boards, (3) requiring Respondent to furnish Union with list of employees and keep list current for I year; and (4) payment to the Union of certain litigation costs and expenses 40 The original charge in this matter having been filed on June 10, 1971, 791 employment on their unconditional application therefor, the Respondent engaged in conduct to discourage mem- bership in the Union, in violation of Section 8(a)(3) and (1) of the Act: Pamela Boyer, Vivian Ruhl, Bonnie McCrack- en, Jo Courson, Alma Marie Fields, and Lydia Hopping. 7. By the foregoing conduct, and by coercively interro- gating employees concerning their union membership and activity, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and therefore has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 41 ORDER Abingdon Nursing Center, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Laborers International Union of North America, Local 538, AFL-CIO, as the exclusive representative of its employees in the aforesaid appropriate unit. (b) Refusing to reinstate striking employees in order to discourage union membership and activities. (c) Coercively interrogating employees concerning their union membership and activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. (d) Unilaterally changing hours of work, serving hot lunches, eliminating Christmas bonuses, or other terms and conditions of employment without notice to or consulta- tion with the Union. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Laborers' International Union of North America, Local 538, AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such understanding in a signed agreement. (b) Offer immediate, full, and unconditional reinstate- ment (to the extent that it has not already done so) to the employees named below to their former or substantially equivalent position, without prejudice to their seniority or the Section 10(b) date is December 10, 1970. 41 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Section 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 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other rights and privileges, and make them whole for any loss of pay which they may have suffered as a result of the discrimination against them in the manner set forth in that portion of this Decision entitled "The Remedy:" Pamela Boyer Jo Courson Vivian Ruhl Alma Marie Fields Bonnie McCracken Lydia Hopping (c) Notify the above-named employees if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, 42 In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " personnel records and reports, and all other records relevant and necessary to analyze and compute the amount of backpay due under the terms of this Order. (e) Post at its premises in Abingdon, Illinois, copies of the attached notice marked "Appendix." 42 Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38 after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- mg all places where notices to employees are customarily posted. Reasonable steps shall be taken by the, Respondent to insure that said notices are not altered, defaced, or covered by any other material. - (f) Notify said Officer-in-Charge, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 43 43 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 38, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith."