Pine Manor Nursing Home, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pine Manor Nursing Home, Inc. and Laborers' Local Union No. 246, a/w Laborers' International Union of North America, AFL-CIO. Case 15-CA-6101 June 20, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 23, 1977, Administrative Law Judge Julius Cohn issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 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 Administrative Law Judge and hereby orders that the Respondent, Pine Manor Nursing Home, Inc., Tuskegee, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Producrs, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Respondent has requested oral argument. The request is hereby denied as the record, the exceptions, and briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Tuskegee, Alabama, on September 20 and 21, 1976. Upon a charge filed and served May 17, 1976, and an amended charge filed and served on July 16, the Regional Director for Region 15 issued the complaint in this proceeding on July 28, 1976. The complaint alleges that Pine Manor Nursing Home, Inc., herein called Respondent or the Company, violated Section 8(aXi) and (5) of the Act by unilaterally and without notice to Laborers' .Local Union No. 246, a/w Laborers' International Untin of North America, AFL-CIO, herein called the Union, instituting and implementing a group hospitalization and life insurance program and further by failing and refusing to bargain with the Union in good faith. Respondent filed an answer denying the commission of unfair labor practices. IssuEs Whether since November 17, 1975, Respondent has refused to bargain in good faith with the Union as exclusive representative of its employees, without any intention of entering into a collective-bargaining agree- ment. Whether on or about April 1, 1976, Respondent unilaterally and without notice implemented a group hospitalization and life insurance program covering em- ployees in the bargaining unit. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs submitted by the General Counsel and Respondent have been carefully considered. Upon the entire record of the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent, an Alabama corporation, is engaged in nursing care at its nursing home facility in Tuskegee, Alabama. During the past year preceding the issuance of the complaint herein, Respondent received gross revenues in excess of $100,000. At the hearing Respondent admitted and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background An election was conducted among Respondent's em- ployees on February 11, 1975, in which the Union obtained a majority of the votes. The Company thereafter filed timely objections and, after consideration by the Regional Director and the Board, the Board certified the Union as 230 NLRB No. 40 320 PINE MANOR NURSING HOME the exclusive bargaining representative of the employees in the unit on June 2, 1975.' On April 24, 1975, during the pendency of the investiga- tion of objections, the Union wrote Respondent requesting a meeting for the purposes of contract negotiations and further requesting that Respondent submit certain infor- mation regarding employees' names, classifications, and other data relating to the employees. Respondent's counsel replied on May 13 stating that it would not bargain at that time since a certification has not as yet issued. The information requested was not then delivered, nor has the request ever been complied with in its entirety. B. Facts The first meeting for the purposes of bargaining was held at Respondent's premises on August 11 or 12, 1975.2 At the outset Respondent, who was represented by its executive director, Virginia Y. Cook and its attorney, Carl A. Morring, Jr., protested the presence of a former employee as a member of the Union's negotiating committee. However, Joseph D. Speller, international representative of the Union, who represented the Union throughout the course of negotiations, insisted that this person remain and he did. The Union then presented a package of 16 proposals and requested to see company proposals. Morring stated that he had been too busy with court matters and therefore had not the time to prepare proposals for Respondent. He suggested however that Speller read the Union's proposals and he would then ask questions and inquire about them. According to Speller, he read the Union's proposal as to jury duty and, although Cook stated that in her view there was no need for this proposal at all, Morring said that he would feel obliged to comply with state law. Speller stated that there was no further discussion of jury duty. Morring testified that after suggesting certain additions and deletions to the jury clause as originally proposed by the Union, language acceptable to both parties was agreed upon for inclusion in an agreement when one would finally be drafted. Speller also read a proposal as to civic responsibilities dealing mainly with the opportunity employees should have to vote in elections. It was Mrs. Cook's feeling that employees should vote on their own time, Speller said that the Company did not offer to rephrase the union proposal or make a counterproposal. Both Morring and Cook testified that a proposal called civic responsibilities was discussed along with the question of jury duty and that the parties had agreed on language which would be acceptable if a contract were signed. They were unable to give any details as to the so-called civic responsibility proposal or i The appropriate unit as certified by the Board is: All nurses aides, orderlies, dietary department employees, housekeep- ing department employees, and laundry employees; excluding regis- tered nurses, charge licensed practical nurses, executive secretaries, watchmen and/or guards and supervisors as defined in the Act. 2 The exact date is in doubt but it is of no moment. 3 1 find that in these matters as well as other subjects to be hereinafter discussed. I am unable to credit the testimony of Cook. When she took the stand, she apparently had no real recollection of what occurred at these various bargaining sessions. She first attempted to testify from notes admittedly made and prepared by her attorney. She herself had made no the language that was agreed upon nor are there any documents or evidence indicating what the final language would be.3 Speller then read a proposal for a bulletin board and explained the rationale for it when pressed by Cook and Morring. Cook stated that there was no need for such a board, but if there was going to be one the Union would have to procure and pay for it. Both Cook and Morring stated that agreement had been reached whereby Respon- dent would provide the space if the Union brought the bulletin board. Speller then read a proposal for two rest breaks and Cook replied that the employees were already receiving one and she was not about to agree to two breaks. In her testimony Cook maintained that she finally agreed to two rest breaks, but Morring did not include such agreement in his recital of what occurred at the August 12 meeting. Speller began to read a proposal for promotional opportunities but was interrupted by Cook who said there was no need since employees only worked in three classifications, laundry, housekeeping, and nursing and that she would not agree to any such proposal. The parties met again on August 18, 1975, according to Speller. Neither Cook nor Morring referred to a meeting on this date during the course of their testimony, both of them indicating that the next meeting occurred on November 20. While Speller agrees that there was a meeting on Novem- ber 20, he asserts they also met on August 18. As Speller testified in a direct, sincere, forceful, and well-organized manner, as contrasted with the testimony of Cook, I shall credit his testimony to the effect that there was a meeting on August 18. At the August 18 meeting attended by Speller, Morring, and Cook, the Union made no new or additional proposals nor did the Company present any counterproposals although requested to do so by Speller. Morring replied that he did not have the time to prepare anything because he had been too busy. Speller commenced by reading the Union's third proposal relating to medical services which included a provision for free physical examinations. Speller maintained that Respondent should give all new employees a physical examination. Cook would not agree, stating that if the employees needed physicals they could go to the county health department and moreover the Company could not afford these examinations. She did say that her husband, Dr. Cook, came over once a year for an annual examination of employees. Her reply was similar with regard to that portion of this proposal that Respondent make available immunization shots, maintaining that employees could receive them at the public health contemporaneous notes at the hearing. Cook thereafter left the stand and in the hearing room she appeared to be making notes while her attorney was testifying as well as utilizing the notes made by the attorney to refresh her own recollection. She resumed the stand and her testimony concerning the bargaining sessions was elicited after she consulted her notes made at the hearing or through flagrantly leading questions. In addition it appeared that her affidavit given to the Board agents during the course of the investigation of this matter was oftentimes at variance with her testimony. Thus, in connection with the matters of jury duty, civic responsibilities, and bulletin board proposals, her statement revealed that she could not recall them being discussed at this particular meeting and that the only thing she remembered being agreed upon was that Speller would submit proposals to the Company at their next meeting. 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department. Nor would Cook agree to emergency medical treatment for an employee who became ill on the job. Respondent's representatives made it clear at this meeting that it would not discuss any of the proposals in the Union's submission of August 11 which entailed any financial cost to Respondent because it would not discuss any matter dealing with economic questions. When Speller stated that the Union was attempting to negotiate in good faith, Morring said that he is only required to discuss but not to agree. There ensued some discussion concerning the Union's proposal as to disciplinary and adverse actions and, as no agreement was reached, Speller suggested that Respondent give the Union a counterproposal and Mor- ring said he would get back to him on it. At the end of this meeting, Speller specifically asked Morring when the Company would submit counterproposals and Morring replied that he could not give a specific date but it would be in due time. On October 17, in accordance with a commitment he made at the August 18 meeting, Speller transmitted on behalf of the Union a second package containing addition- al proposals including economic subjects. The parties did meet on November 20 and once more Speller asked Morring for company proposals, but Morring told him he had been too busy and did not have an opportunity to prepare them. In response to a comment by Speller that the Union was prepared to negotiate around the clock if necessary to obtain some improvements for the employees before the holidays, Cook stated that the Company could not afford to grant a pay raise or agree to improvements in fringe benefits because it was in the red. At this meeting the Union's holiday proposal which contained a provision for 7 paid holidays was discussed. Cook said that she would not agree to this under any circumstances and would only agree to continue the 5 holidays. Later in the meeting Speller told the Company that in order to show movement the Union would consider accepting 6 days of holiday pay, but Cook again said that she would not accept anything more than 5 days. Speller then tried to discuss the compensation and classification proposal of the Union and Cook again repeated that she could not afford any pay raises. Speller requested a counterproposal on this matter, but Cook made it clear to him that the Company was not going to give any proposal with regard to wages and indeed the Union never received one. Morring testified that this meeting on November 20 was a short one and nothing was really accomplished. He does recall Speller mentioning wages and indicates that there was some discussion concerning the Union's proposal as to a no-strike no- lockout clause. Morring also said that it was at this meeting that Respondent mentioned to the Union its own effort to implement an insurance program. On the other hand, Cook who at first was not sure whether the insurance matter was brought up at this meeting or a later one in December finally fixed on December 8 as the time that the Company itself mentioned insurance. Louise Hubbard, the nursing home administrator, stated that she attended all of the bargaining sessions and on direct examination stated that she was not sure that insurance was discussed at this November 20 meeting. On cross-examination, she said that insurance was discussed on November 20 in connection with a proposal made by Speller. The next meeting was on December 8 which began by Speller asking Morring why the Company had been slow in submitting proposals and Morring reiterated that he had been too busy. Speller again emphasized that the Union was anxious to reach an agreement before Christmas, but Cook repeated that the Company could not afford to give them anything and she was not going to give them anything. At this meeting, Speller attempted to discuss the Union's seniority proposal and Cook said it was not acceptable and there was no need to discuss it. However, Morring stated he would review the proposal and give a counterproposal on seniority. Holidays were again men- tioned but Cook once more said she was not going to change from 5 holidays. In the course of this meeting, Speller pointed out that as a result of the Company's tactics there might be a strike. Morring continued to state that he was not obligated to agree but only to sit down at the bargaining table. When Speller offered to modify the Union's position as to compensation, Cook and Morring said this would make no difference because the nursing home was being operated at a loss and they could not agree to any wage increase. According to Speller they then discussed the Union's proposed sick leave plan in conjunc- tion with the insurance program proposed by the Union. Cook replied that the Company could not afford that type of fringe benefit. Morring and Cook both stated that this was a short meeting because Cook was ill. Cook said that at this meeting she mentioned that Respondent was going through with its own insurance program. However, on cross-examination she stated as appeared in her affidavit that she had only talked about insurance in October or November and in February rather than in December. The next meeting occurred on January 20 at the Company's premises. A mediator from the Federal Media- tion and Conciliation Service, Reebals, was present at this meeting, the FMCS having previously been notified and requested to attend by the Union. Respondent submitted a proposal concerning seniority, which was not discussed as the Union required time to review it. Speller then asked Morring for the Company's counterproposal on economic issues. At this point Cook said that Respondent could not afford increases and no proposals on economic matters were ever going to be made by the Company to the Union. When Speller reminded them that they were there to negotiate in good faith and it appears that the Company was dragging its feet, Cook said that she just wished that the Union would go away. Speller then brought up his holiday proposal telling Cook he believed that Martin Luther King's birthday was sensitive in Alabama and the black people would like to celebrate it. Cook's position was that she would only agree to 5 holidays but that the people could take any 5 days they wanted. There was then some discussion of the Union's medical services proposal, with Cook and Morring adhering to their original position that employees wanting physicals or shots could get them at the county health department. Speller then brought up the Union's insurance and sick leave proposal discussing them interchangeably. However, Cook reiterated Respondent's position that it could not afford any such proposals and 322 PINE MANOR NURSING HOME would not accept them. After the discussion about insurance and sick leave, the mediator suggested that he speak separately with each of the parties. Following its caucus with the mediator, the Union came forth and withdrew a number of its proposals including a night bonus plan, shift differential, educational leave, retirement plan, and insurance plan. Upon this action, Cook commented that the Union had made the right decision because she was not about to respond to these proposals as the Company was broke. Actually, the Union never received any counterproposal from the Company dealing with economics. The testimony of Respondent's witnesses concerning the discussion of these matters related by Speller in connection with the meeting on January 20 is contained in their accounts of events allegedly occurring at the February 11 meeting. This is undoubtedly caused by the fact that Respondent's witnesses had no recollection of the meeting on August 18 which results in the parties having a different chronology. In any case Morring testified that the mediator was present at the February 11 meeting. Both Morring and Cook testified substantially that during this meeting Cook told Speller that she had been working on an insurance program for all eight of their homes for at least 2 years but had stopped it because of the pending matters before the National Labor Relations Board. She said that now negotiations with an insurance agent had reached the point where she would like to institute this program. According to Cook, she said that she had two very good plans and Speller replied "that was great," and "that was what he was there for," and she should go ahead and give these benefits to the employees. He said he would withdraw his plan, which he did. Morring and Cook stated that this was the end of the insurance proposal. They also said there was nothing in writing either from the Union or Respondent confirming it or any other documentation relating to insurance. Other witnesses, Hubbard, the administrator and Sasser, an administrator of one of the other of Cook's nursing homes, testified generally that the Union withdrew its insurance proposal at the meeting on February 11; and Wright, a witness on behalf of the Union, testified that insurance was not discussed at that particular meeting. In his testimony on rebuttal, Speller himself responded to questions on this subject by stating it was on February I that he withdrew his insurance program proposal along with other proposals following a caucus with the mediator. Prior thereto he had testified that this occurred on January 20. While the substance rather than the date is the important factor, I find upon all the evidence that the Union did in fact withdraw its insurance proposal on February II. However, I further find that, following a caucus with the mediator, it withdrew the insurance proposal along with other proposals in an apparent effort to encourage movement at the bargaining table, rather than because the Company was going to institute its own program as testified by Cook and other witnesses for Respondent. Apart from my general credibility resolution discussed above, this appears to me to be the most plausible occurrence. Noting the lack of any writing on this subject, it is hardly likely that the Union would have withdrawn its proposal in the manner suggested by Respondent without obtaining any knowledge as to the details of the Company's insurance plan, a fact which is confirmed by the testimony of Respondent's witnesses. Speller further testified that at the January 20 meeting there was a discussion of the Union's proposed no- strike/no-lockout clause. This proposal contained language to the effect that the Union would not cause a work stoppage in the event of a dispute and the Union would not sanction or encourage such a strike and indeed would encourage employees to return to work. Morring stated that in his opinion unions did not seem able to control the workers and he wanted a provision which would cancel the contract in the event employees went on strike and failed immediately to return. Morring finally said that he would try to get language on no-strike/no-lockout which he would send to Speller. Speller also attempted to have some discussion concerning uniforms, but Cook said that she would not undertake any additional expense in that area because the Company was already paying an additional 5 cents an hour for uniforms and she could not afford more, even though Speller maintained that the 5 cents currently being paid was insufficient for employees to purchase and maintain uniforms. Speller sought to discuss the annual leave or vacation proposal, but Cook said that she would not agree to the Union's proposal of 2 weeks after 2 years under any circumstances as the employees were already getting I week after I year and the Company could not afford anything more than that. Speller's attempt to discuss modifications in the Union's wage plan was met with a response from Cook that there would be absolutely no movement or counterproposals on this or other economic matters. There was no testimony by Respondent's witnesses concerning discussions, on January 20, on the subjects of leave of absence, uniforms, annual leave, and wages as related above by Speller. It is clear, however, that the positions of the parties regarding no-strike/no-lockout remained the same as reported by Speller regardless of the dates on which those positions were set forth. Similarly, as to the proposals on vacation, uniforms, and wages, the Company's position remained consistent that it would not move on any of these things as they involved economic matters. Both Cook and Morring did testify, however, that there was discussion on January 20 concerning the vacation proposal, maintaining that the language was agreeable except that the Union sought 6 holidays and the Company remained firm on its offer of 5. On January 26, 1976, the Union transmitted some modified proposals regarding paid sick leave, paid vaca- tion, and compensation and classification. Also on January 28, Respondent's counsel sent the Union counterproposals on the subjects of holidays, emergency leave, and leave of absence. Both parties agree that the mediator was present at the February II meeting, but, as set forth above, they disagree as to what subjects were discussed at the meeting. Speller testified that Morring read the Company's holiday proposal offering only 5 holidays. Speller attempted to get the Company to agree to a sixth holiday on Martin Luther King's birthday, but Cook reiterated that she would not agree to more than 5 holidays. There was some discussion as to union representation, Speller requesting that the 323 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stewards be given time to represent employees. Although Cook said that they would have to do this on their time, Morring suggested that perhaps something could be worked out. It was at this meeting, according to Speller, that, after a caucus with the mediator, the Union told Morring that it was time for management to demonstrate that it was willing to negotiate in good faith that the Union has exhibited this by withdrawing some proposals, and the Company should try to reach an agreement. Speller stated that if there were no movement, the Union would invoke section 8(g) of the Act. Morring told Speller to do what he had to do, but all that he, Morring, was obliged to do was to sit and meet, and the law did not require him to agree to anything. Speller then attempted to discuss a sick leave proposal pointing out that employees would have no income if they became ill. Cook said she was not about to agree to this because she had to call in a part-time employee to substitute for an absent employee. When he brought up the matter of vacations, Cook repeated that she would only agree to whatever the employees were presently receiving. In addition, Cook said that she could not afford to grant any wage increases. Speller stated that at the meeting there was some talk of the insurance package but that he was not informed by either Cook or Morring that the Company was formulating its own program and did not agree to withdraw his proposal so that the Company could implement its plan. Thereafter, Speller received by mail, dated February 19, Respondent's counterproposals on the subjects of union representation, no-strike/no-lockout, and annual leave. The parties then met at Morring's suggestion on March 4. At this meeting, Morring handed Speller seven written proposals from the Company on the subjects of statement of purpose, definition of employees included and excluded, absolute management prerogative, equitable distribution of work in employees' absence, union organizational activi- ties, collection of dues, and cancellation of contract after 10 days of an unauthorized strike. The collection of dues article provided that there would be no solicitation of employees for union membership or dues on Company time, and the Union was to agree that Respondent may take disciplinary action for a violation of that provision. Speller told Morring that such a clause was just an outright denial and not negotiation. He also stated that the Union could not agree to the cancellation of the contract in the event of an unauthorized strike. Speller then pointed out that the absolute management prerogative clause was one that the Union would have to study and get back to him on it. Respondent's proposal regarding union organizational activities was also discussed, Speller remarking that the Union could probably work something out with this proposal if they could get some response on the economic package.4 Also at this meeting Cook, who had been maintaining throughout the negotiations that the Company did not 4 It may be pointed out that, were the Company to promulgate a rule such as contained in its proposal regarding the distribution of union literature, such action would be unlawful. I Cook recollected the occasion when the state auditors were present at the nursing home and puts it at March 30. She says that she asked Speller to talk to the auditors that day and that they told him "we will be glad to show have any money, told Speller that the state auditors were working on her books across the hall and she was sure that they would tell him that the Company was operating in the red. She then introduced Cook to the auditors as a representative of the Union who was trying to get her to improve the wages and that they should tell him she was broke. According to Speller, the auditors just smiled and made no comment. There was no further discussion as to this.5 According to Cook, there was a meeting on March 4, in which Morring had commented that they were jumping from one proposal to another without getting organized. Cook said Morring then presented Speller with 15 written counterproposals on a variety of subjects already dis- cussed. Morring stated that these represented clauses he had redrafted and upon which there was agreement to be incorporated into a contract. However, no document evidencing these 15 proposals has been submitted. The only documents presented are the three written proposals transmitted to the Union by Morring's letter of February 19, and the seven written proposals of Respondent, which were dated March 3 and were handed to Speller at the meeting of March 4. Although Cook stated that these 15 proposals had been agreed upon and would be made part of a contract if and when a contract was signed, she had also stated in an affidavit that she never said during negotiations that she would or would not agree to any proposal going into a contract. Subsequently, by letter dated April 6, 1976, to the Federal Mediation and Conciliation Service, the Union requested that Section 8(g) of the Act be invoked and that a board of inquiry be appointed. In a letter dated April 19, to this board, Morring noted a number of proposals as being still open, which would have been included among the 15 alleged by Cook to have been agreed to be included in a contract. The board of inquiry set up by the FMCS met on April 21, and, during the course of the hearing, it was established that Respondent has implemented its group insurance and hospitalization program for the employees. The Company, in support of its statement that it was financially unable to meet the Union's economic demands, submitted certain financial statements to the chairman which at the latter's insistence became available to the Union. This was the first time that the Union had an opportunity to see any records of Respondent. Moreover, after this meeting employees called Speller's attention to the fact that early in April the administrator of the nursing home passed around a paper detailing certain benefits employees would receive under the insurance plan. Up to that point, Speller said he had no notice of the implementation of the plan. On April 29, the board of inquiry issued its report of investigation and recommendations for settlement of the issues in dispute. Among other things, the board found that Respondent had made a small profit in the fiscal year 1974-75 and therefore recommended an increase in wages you that she is operating at a loss." With regard to this matter, I would credit the version of Speller to the effect that the auditors just smiled and said nothing. It is not likely, in my view, that independent state auditors would comment on their work or make the statement attributed to them by Cook to a stranger. 324 PINE MANOR NURSING HOME of 5 cents per hour, as well as some other economic benefits.6 Speller testified that he wired the chairman of the board of inquiry, advising that the Union would accept his findings and so notified Morring. The parties then met on June 9, during which meeting Morring advised Speller that the Company was not going to accept the Board's findings. He also informed Speller that it would serve no purpose for the Union and Company to negotiate further because of the unfair labor practice charges filed by the Union. This was confirmed by Morring, in writing, dated June 10. There have been no other meetings. Robert Silone testified for Respondent that he was an insurance agent who had been working for some time in 1975 on an insurance plan for Respondent's nursing homes. He stated that he completed his work sometime around Christmas and then obtained proposals from insurance companies in January. He received the go-ahead from Respondent early in 1976 and the plan was sent for approval by the state medicaid authorities which was granted in March and the plan became effective April 1. Silone stated that he recalls visiting Respondent's nursing home and explaining the details of the insurance plan at a meeting of employees. C. Discussion and Analysis I. The alleged unlawful unilateral change It is uncontroverted that effective April 1, 1976, Respon- dent instituted its hospitalization and health insurance program. Respondent asserts that in the course of negotia- tions it had mentioned to the Union that it had been working on an insurance program for the past 2 years. This was reasserted, according to Respondent's witnesses, at a meeting on February II 1, and the Union withdrew its own insurance proposal following Cook's statement that she would like to implement her own program. As noted above, I have discredited Respondent's version of that meeting with regard to the insurance program and found that the Union withdrew its own insurance plan along with several other proposals following a caucus with the mediator in order to encourage movement at the bargaining table. I do not find it likely that the Union would have withdrawn its own proposal and assented to a program of Respondent without any knowledge of the details or benefits to be derived from such program. In this connection, there is no evidence or any allegation on the part of Respondent that it provided the Union with any information or summary of its own proposed program. In addition, there is the testimony of Respondent's witness, Silone, its insurance agent, who stated that he was working on such a program in 1975 and had completed his studies in December of that year. It is clear that Respondent had been preparing an insurance program to encompass not only the nursing home involved herein but others owned by Respondent's principals, without notifying the Union. The fact that the Union voluntarily withdrew its own proposal during the course of bargaining does not relieve Respondent of its obligation to notify the Union of its intention to institute 6 The report of the board of inquiry was received in evidence upon request of Respondent. an insurance program. Accordingly, I find that by implementing its insurance program on April I without notice to the Union Respondent unilaterally changed the working conditions of the employees in the unit and thereby violated Section 8(aX1) and (5) of the Act. N.LR.B. v. Katz, 369 U.S. 736 (1962). 2. The alleged failure to bargain in good faith The facts as set forth and found above are a distillation from the testimony of what I believe to have occurred during negotiations. There has been confusion, as pointed out, concerning the dates of the bargaining sessions with the result that what was discussed or occurred on a certain date, according to one party, happened on another date according to the other party. Nevertheless, for the most part the dates are not significant. The issue of course is whether on the basis of the entire record Respondent did or did not bargain in good faith. The standard laid down by Section 8(d) for the measure- ment of "good faith" is not rigid but, necessarily, is an elastic concept having meaning "only in its application to the particular facts of a particular case." N.LR.B. v. American National Insurance Company, 343 U.S. 395, 410 (1952). The problem "is essentially to determine from the record the intention or state of mind of [the Employer] in the matter of [his] negotiations with the Union. In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record." N.LRKB. v. National Shoes, Inc., 208 F.2d 688, 691 (C.A. 2, 1953). To determine whether a party's conduct demonstrates an unlawful failure to abide by the duty to bargain in good faith is an elusive inquiry. And, once the parties begin to meet and talk at the bargaining table, objective standards are not readily at hand. N.LRtB. v. Herman Sausage Co., 275 F.2d 229, 231 (C.A. 5, 1960). But merely meeting together or showing a willingness to talk does not discharge the duty to bargain. Tex Tan Welhausen Company v. N.LR.B., 419 F.2d 1265, 1268 (C.A. 5, 1969). To mechani- cally go through the forms of bargaining is not sufficient because parties are required not only to meet but to negotiate and bargain in good faith. The statute requires that they enter discussions with an "open and fair mind and a sincere purpose to find a basis of agreement." N.LRB. v. A. W. Thomspon, Inc., 449 F.2d 1333 1335 (C.A. 5, 1971). The Board itself has stated "collective bargaining is not simply a series of formal meetings between employer and union where each maintains a 'take it or leave it' attitude; it presupposes a desire to reach ultimate agreement. The mere willingness of one party in the negotiations to enter into a contract of his own composition also does not satisfy the good-faith bargaining obligation." Wal-Lite Division of the United States Gypsum Co., 200 NLRB 1098, 1101 (1972). Applying these princi- ples to the instant case, I find that Respondent has failed in its duty to bargain in good faith with the Union as the exclusive representative of its employees and thereby violated Section 8(aX5) and (1) of the Act. 325 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My finding is based on a number of factors which emerge from the record as a whole. Bargaining commenced in August 1975 by the submission of the Union's proposals, followed by additional union proposals including wage rates in October. From the outset, the meetings were marked by Respondent's steadfast refusal to discuss any matters relating to economics, and its rather desultory discussion of noneconomic union proposals. Also Respon- dent failed to submit any counterproposals despite requests by the Union, each time pleading that its counsel or negotiator was too busy to prepare any. Finally, after many months, Respondent brought forth on January 20, 1976, a single proposal dealing with the subject of seniority. It followed this by submitting proposals on three items by mail on January 28, and an additional three items on February 19. By letter dated March 3 Respondent submitted seven proposals for union consideration. Of course none of these proposals pertained to monetary considerations. During this period of time whenever pressed by the Union for a response to its economic proposals, or a request by the Union that Respondent submit counterproposals on these subjects, Respondent continued to state that it was losing money, and was unable to afford any wage increase or any other benefit that would involve the additional expenditure of money. There was a constant refrain to the effect that Respondent was not legally obligated to agree to anything but had merely to agree to listen. Needless to say, this statement is an incorrect statement of the law as Respondent had the obligation to meet and bargain in good faith, and this is also indicative of a frame of mind demonstrating intransi- gence and a refusal to discuss mandatory subjects of bargaining. Time after time, Cook refused to discuss any matters regarding wages, or fringe benefits requiring the payment of money. While it is clear that Respondent was not under any obligation to agree to a wage increase or economic fringe benefits, it certainly was under an obligation to discuss these matters. Several of Respondent's counterproposals similarly indicate a lack of good faith in its bargaining. Thus, a counterproposal entitled "Union Organization Activities" contains a provision prohibiting distribution of union literature on company premises, a rule which if promulgat- ed and enforced by Respondent would be clearly in violation of Section 8(aXl) of the Act. Another proposal in its March 3 package, entitled "Cancellation of Contract for Unauthorized Strike," would provide for the cancellation of the contract in the event employees struck for a period of 10 days. Respondent also proposed to prohibit solicita- tion of employees for union membership or dues on company time, again a provision which, if enacted, would be violative of the Act. These are proposals to which no self-respecting union could agree, and submitted as they were in March, almost 8 months after the commencement of bargaining, is another measure of the bad faith of Respondent and its apparent resolve not to reach any agreement. N.LR.B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 139 (C.A. 1, 1953). Nor is it sufficient that the parties may have agreed to language that was acceptable should an agreement. be reached, as was the case here in connection with the jury duty and bulletin board proposal of the Union. I have found that Respondent violated the Act by unilaterally and without notice instituting a health and insurance plan on April 1. This is of course an independent violation of the Act, but it also demonstrates the lack of good faith on the part of Respondent. Respondent had been pleading poverty since the beginning of these negotiations, and had refused to discuss any union proposal, including insurance, which would entail the increased expenditure of money. Nevertheless, it instituted its own insurance program effective April 1, 1976, an obvious incurring of financial expense on its part. More- over, Respondent, through its insurance agent, had been exploring the matter of insurance since sometime in 1975, another indication of its lack of candor when it refused to discuss the Union's proposal from the very outset. Finally, at the last meeting of the parties on June 9, Respondent took the position that it would no longer meet with the Union while unfair labor practice charges were pending before the Board. This position was reduced to writing by letter dated June 10 and is part of the record herein. The Board has stated in such situations that: "It is well settled that the pendency of unfair labor practice charges against an employer does not relieve it of its duty to bargain with the Union filing those charges and that a refusal to bargain because of pending charges constitutes bad-faith bargaining on its part." Rauland, Division of Zenith Radio Corporation, 187 NLRB 785 (1971). As this issue was fully litigated, although not alleged in the complaint as an independent violation, I find by such conduct Respondent refused to bargain within the meaning of Section 8(aX5) and (1) of the Act. In conclusion, I find that the totality of the bargaining contract establishes that Respondent's state of mind throughout the negotiations was one of unwillingness to reach agreement, and reveals that Respondent approached the bargaining table with a closed mind and intransigent position about numerous mandatory bargaining subjects, amounting to a take-it-or-leave-it attitude. I find, therefore, that Respondent has refused to bargain in good faith with the Union.7 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 Respondent described in section I, above, have 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 of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered 7 Wal-Lite, Division of United States Gypsum Company, supra. 326 PINE MANOR NURSING HOME to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. I have found that Respondent has failed to bargain in good faith with the Union and I shall therefore order it to cease and desist from its refusal to bargain collectively with the Union and, upon request, to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, and, if an understanding is reached, to embody such understanding in a signed contract. The Union having been certified on June 2, 1975, as the exclusive collective-bargaining representative of employees in the appropriate unit, and Respondent having immedi- ately thereafter engaged in bad-faith bargaining as de- scribed above, I shall recommend that the Union's certification be extended for a period of I year from the date of the commencement of actual bargaining. Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962). It has been also found that Respondent unilaterally changed the working conditions of its employees by implementing an insurance program. I shall, therefore, further recommend that Respondent be required to restore the status quo ante as existed prior to the implementation of the insurance program should the employees so desire.8 I shall also recommend that Respondent cease and desist from unilaterally changing conditions of employment. 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 nurses aides, orderlies, dietary department employees, housekeeping department employees, and laundry employees; excluding registered nurses, charge licensed practical nurses, executive secretaries, watchmen and/or guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. Since November 17, 1975, by failing and refusing to bargain in good faith with the Union, as collective- bargaining representative of Respondent's employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By unilaterally changing working conditions through the implementation of an insurance program effective April 1, 1976, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8 Atlas Tack Corporatrion 226 NLRB 222 (1976). 9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7. By the foregoing conduct and its refusal to bargain with the Union, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER9 The Respondent, Pine Manor Nursing Home, Inc., Tuskegee, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Laborers' Local Union No. 246, a/w Laborers' International Union of North America, AFL-CIO, as the exclusive representative of its employees in the above-described collective-bargain- ing unit. (b) Unilaterally instituting and implementing an insur- ance program; provided, however, that nothing herein shall be construed as requiring Respondent to vary or abandon any economic benefit or any condition of employment which it has heretofore established. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Laborers' Local Union No. 246, a/w Laborers' International Union of North America, AFL-CIO, as the exclusive collective-bargaining represen- tative of all the employees in the appropriate unit described above, and, if an agreement is reached, embody it in a signed contract. (b) Restore the status quo ante with respect to the insurance program should the employees through their Union so desire. (c) Post at its nursing home in Tuskegee, Alabama, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 'o 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 327 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unilaterally, and without consultation with Laborers' Local Union No. 246, a/w Laborers' International Union of North America, AFL-CIO, institute or implement insurance programs; provided, however, that nothing herein shall be construed as requiring us to vary or abandon any economic benefit or any term or condition of employment which has been established. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively con- cerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Laborers' Local Union No. 246, a/w Laborers' Interna- tional Union of North America, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described below and, if an agreement is reached, WE WILL embody it in a signed contract. The appropriate unit is: All nurses aides, orderlies, dietary department employees, housekeeping department employees, and laundry employees; excluding registered nurses, charge licensed practical nurses, executive secretaries, watchmen and/or guards and supervi- sors as defined in the Act. Wn WILL restore the status quo ante with respect to the insurance program should the employees through their Union so desire. PINE MANOR NURSING HOME, INC. 328