First National Maintenance Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD First National Maintenance Corp. and District 1199, National Union of Hospital and Health Care Em- ployees, Retail, Wholesale and Department Store Union, AFL-CIO. Case 29-CA-5808 May 23, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On November 24, 1978, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified.' The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(5) and (I) of the Act when it refused to bargain about its decision to discontinue its operation at the Greenpark Care Center and the effects thereof on the unit em- ployees. To remedy these violations the Administra- tive Law Judge's recommended Order requires Re- spondent to bargain with the Union about the decision and its effects and to provide backpay for the terminated employees from the date of their termina- tion until one of the four stated conditions is met. The General Counsel urges that these provisions be adopted. However, he contends that certain addi- tional remedies should be provided to protect the rights of the employees under the Act. We find merit in certain of these contentions. The termination of this operation and the conse- quent loss of employment by its employees stemmed from Respondent's failure to bargain over that deci- sion and its effects at a time when a measure of union bargaining power existed. As meaningful bargaining can be assured here only if some economic strength is I The General Counsel excepts, inter alia, to the failure of the Administra- tive Law Judge to find additional violations of Sec. 8(a)( 1) and (5) based on the allegations in the complaint that Respondent failed to bargain with the Union prior to its termination of its operation at the Greenpark Care Center. The Administrative Law Judge made all the necessary factual findings with respect to these allegations but failed to set forth his conclusions. We adopt his factual findings, and based thereon conclude that Respondent. in viola- tion of Sec. 8(aX5) and (I), refused to bargain with the Union b) failing to respond to the Union's letter dated July 12. 1977, demanding such bargain- ing. restored to the Union, and a bargaining order alone cannot serve as an adequate remedy for the unfair labor practices Respondent has committed, we deem it necessary in order to effectuate the purposes of the Act to order the following remedy which provides re- dress with a view toward restoring the bargaining conditions, as nearly as possible, to those which would have existed but for Respondent's illegal con- duct. 1. We shall order Respondent to bargain, upon re- quest, with the Union as the exclusive bargaining rep- resentative of the employees in the appropriate unit with respect to the decision to terminate its operation at the Greenpark Care Center and the possible re- sumption of operation. If Respondent agrees to re- sume its Greenpark Care Center operation, it shall offer all those terminated employees in the appropri- ate unit reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, and shall embody any understanding reached in a signed agreement. 2. If Respondent fails to agree to resume its Green- park Care Center operation, Respondent shall be re- quired to bargain, upon request, with the Union with respect to the effects on the unit employees of the decision to terminate the Greenpark Care Center op- eration and shall establish a preferential hiring list of all employees in the appropriate unit following a non- discriminatory system such as seniority. Respondent shall offer the terminated employees who were em- ployed at the Greenpark Care Center operation rein- statement to positions at any of their other cleaning and maintenance operations which become available, by the discharging, if necessary, of any persons em- ployed since July 31, 1977. the date the Greenpark Care Center operation was terminated. Respondent and the Union shall reduce to writing any agreement reached as a result of such bargaining. 3. Further, we shall order Respondent to make whole the employees in the appropriate unit by pay- ment of backpay from July 31, 1977, the date of their termination, until the occurrence of the earliest of the following conditions: (1) the date Respondent bar- gains to agreement with the Union on the subjects pertaining to the decision to close its Greenpark Care Center operation and the effects of the closing upon the unit employees;2 (2) a bona fide impasse in bar- gaining occurs; (3) the failure of the Union to request bargaining within 5 days of this decision or to com- mence negotiations within 5 days of Respondent's no- tice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith. Backpay, less earnings during the applicable pe- 2 Mobil Oil Corporation, 219 NLRB 511 (1975); P. B Mutrie Motor Tranv- port, Inc, 226 NLRB 1325 (1976). 242 NLRB No. 72 462 FIRST NATIONAL MAINTENANCE CORP. riod, shall be computed on the basis set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, gener- ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We have found that Respondent refused to bargain following the certification. In order to insure that the employees will be accorded the services of their se- lected bargaining agent for the period provided by law, the initial year of certification will begin on the date that Respondent commences to bargain in good faith with the Union as the bargaining representative in the appropriate unit. See Mar-Jac Poultry Com- pany, Inc., 136 NLRB 785 (1962); Commerce Com- pany d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, First National Maintenance Corp., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively, upon request, with District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and De- partment Store Union, AFL-CIO, as the exclusive bargaining representative of their employees in the following appropriate unit: All housekeeping employees employed at Green- park Care Center, exclusive of all other employ- ees, technical and professional employees, guards and supervisors as defined in Section 2(11) of the Act. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive bargaining repre- sentative of all employees in the aforesaid appropri- ate unit, and further bargain with respect to its deci- sion to terminate its operation at the Greenpark Care Center and possible resumption of operations and, if an understanding is reached, embody such under- standing in a signed agreement and offer reinstate- ment to the terminated employees of this operation. If Respondent fails to resume its operation at Green- park Care Center, in accord with the section of this Decision entitled "The Remedy," Respondent shall bargain with the Union concerning the effects of the decision to terminate said operation, establish a pref- erential hiring list of all employees in the appropriate unit following a nondiscriminatory system, bargain about its mode of operation, and offer to its termi- nated employees in the appropriate unit reinstate- ment to positions for which they are qualified at any of its other cleaning and maintenance operations, dis- charging, if necessary, persons employed since July 31, 1977. Any understanding reached shall be embod- ied in a signed agreement. (b) Make whole those employees of Respondent who were discharged from that location on July 31, 1977, by payment of backpay in the manner and for the period set forth in this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facilities in New York, New York, copies of the attached notice marked "Appendix" 3 and mail copies thereof to all employees of Respon- dent who were employed at its Greenpark Care Cen- ter operation at the time of its termination. Copies of said notice, on forms provided by the Regional Direc- tor for Region 29, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I In the event that this Order is enforced by a Judgment of a United States court of appeals, the words in the notice reading "Posted b 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a hearing at which all parties had an op- portunity to present evidence and cross-examine wit- nesses, the National Labor Relations Board has 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that we violated the National Labor Relations Act, as amended, and has ordered us to post this no- tice. We intend to abide by the following: WE WILL NOT refuse to bargain, upon request, with District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining representative of our em- ployees in the following appropriate unit: All housekeeping employees employed at Greenpark Care Center, exclusive of all other employees, technical and professional employ- ees, guards and supervisors as defined in Sec- tion 2(11) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL, upon a request, bargain with the above-named labor organization as the exclusive bargaining representative of all employees in the above appropriate unit, and further bargain with respect to our decision to terminate our opera- tion at Greenpark Care Center and possible re- sumption of operations and, if an understanding is reached, embody such understanding in a signed agreement and offer reinstatement to the terminated employees. If we fail to resume our operation at Greenpark Care Center, in accord with the Board's Decision and Order, WE WILL bargain with the Union concerning the effects of the decision to terminate said operation, estab- lish a preferential hiring list of all employees in the appropriate unit following a nondiscrimina- tory system, bargain about its mode of operation, and offer to the terminated employees in the ap- propriate unit reinstatement to positions for which they are qualified at any of our other cleaning and maintenance operations, discharg- ing, if necessary, persons employed since July 31, 1977. Any understanding reached shall be em- bodied in a signed agreement. WE WILL make whole all those employees em- ployed by us at that location by payment of backpay with interest, from the date of their ter- mination on July 31, 1977, in the manner and for the period required by the Decision and Order of the National Labor Relations Board. FIRST NATIONAL MAINTENANCE CORP. DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge: A hearing in this proceeding was held before Administrative Law Judge Benjamin K. Blackburn on July 5, 1978, in Brooklyn, New York. The charge was filed on August 3, 1977, by District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, herein called the Union, against First National Maintenance Corporation, herein called Respon- dent or the Company, and the complaint issued on October 7, 1977. The issue presented is whether Respondent violated Section 8(a)(5) of the National Labor Relations Act, as amended, herein the Act, by refusing to bargain with the Union as required by law. A brief was filed by Respondent. Before issuing a Decision Judge Blackburn died. On No- vember 8, 1978, the Board's Chief Administrative Law Judge designated me to prepare and issue a Decision on the existing record. Upon the entire record I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a New York State corporation, with its prin- cipal office and place of business in New York City, New York, is engaged in providing and performing housekeep- ing, cleaning, and maintenance services and related services for various commercial customers. During the past year, a representative period, it purchased and caused to be trans- ported and delivered to its place of business cleaning prod- ucts and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of busi- ness directly from out-of-state sources. I find that Respon- dent is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES During the spring of 1977 Respondent, by contract and as a separate employer, was doing the maintenance work for the Greenpark Care Center, a nursing institution in Brooklyn, New York, herein called Greenpark. Its employ- ees at that location totaled about 35. Respondent hires an unspecified number of workmen to do like maintenance for other commercial enterprises under separate contract at other locations. Asked how many other nursing homes his Company services, Leonard Marsh, an officer of Respon- dent and one-third owner, answered 'I would venture to guess between two and four." It was an evasive answer, unless Respondent's overall operations are so extensive that the secretary-treasurer cannot keep in mind how many are of a particular type. On March 31, 1977, Respondent's employees at this one location voted in a Board-conducted election and chose the Union as bargaining agent; on May I I the Regional Direc- tor certified the Union as exclusive bargaining representa- tive. I will assume that Respondent was formally advised soon thereafter in writing by the Board, as is always the case in Board representation proceedings. By letter dated 464 FIRST NATIONAL MAINTENANCE CORP. July 12 the Union wrote to the Company, reminded it of the certification, and asked for a meeting to negotiate a contract. The Company never answered the letter. On July 28, 1978, Marsh told all of the employees work- ing for him at Greenpark that 3 days later, on July 31, all of them would be discharged. Not one of the employees had had any prior notice of the intended action. Informed that same day of what was about to happen, Edward Wecker, vice president of Local 1199, immediately communicated with Marsh and with Mr. Pelman, administrator of Green- park, in a panic attempt to delay matters with the hope of averting disaster to the employees. All Wecker got from Marsh on the telephone was that it was a matter of money, and that it was too late to do anything about it or even discuss the matter at all. The employees were fired on July 31, and Marsh never met with any representative of the Union. The essential allegation of the complaint is that this uni- lateral change in the conditions of employment of employ- ees represented by a certified exclusive bargaining agent, without a semblance of opportunity for the Union to speak on their behalf, was a direct violation of the statutory obli- gation to bargain and was therefore an unfair labor practice under Section 8(a)(5) and (1) of the Act. That Respondent knew-before uttering one word to the Union or to the employees of its intent-that the employees were regularly and lawfully represented by an exclusive agent cannot be questioned. In fact, Marsh had, for over 2 weeks, been holding and ignoring the Union's written request for bar- gaining. That the discharge of a man is a change in his conditions of employment hardly needs comment. In these obvious facts, the law is clear. When an employer's work complement is represented by a union and he wishes to alter the hiring arrangements, be his reason lack of money or a mere desire to become richer, the law is no less clear that he must first talk to the union about it. This Respon- dent did not. When Wecker tried to talk with the owner he was faced with mere restatement of afait accompli. He may have tried to stall matters, but Marsh was impervious, for economic reasons I am sure, but stone deaf nonetheless. This is a large Company. For all I know, the 35 men at this particular home were only a small part of its total business in the New York area. If Wecker had been given an oppor- tunity to talk, something might have been worked out to transfer these people to other parts of Respondent's busi- ness. The cases speak of an employer's duty, when he can- not avoid reducing his staff, to discuss its "effects" with their bargaining agent. Entirely apart from whether open discussion between the parties-with the Union speaking on behalf of the employees as was its right-might have persuaded Respondent to find a way of continuing this part of its operations, there was always the possibility that Marsh might have persuaded Greenpark to use these same employees to continue doing its maintenance work, either as direct employees or as later hires by a replacement con- tractor. Yet there never was any talking, meeting, or oppor- tunity for the Union to bargain with Respondent. On the face of the story, there appears a very clear unfair labor practice. What really remains for consideration are the defense arguments made by Respondent. Its principal defense is the contention that the parties did, in fact, negotiate this entire matter, and that therefore in no event can there be a finding of refusal to bargain. Called as an adverse witness by the General Counsel, owner Marsh had difficulty remembering anything, including statements of fact appearing in telegrams that he had written. Repeat- edly his answers were "It could be." "t is possible," "I can't recall," "Maybe," etc. These responses were about what must have been a significant experience for his Com- pany, what with the financial loss it suffered at this particu- lar job. These observations are made here because the testi- mony of Wecker, which stands uncontradicted (Marsh did not testify in defense about the now asserted bargaining at all), must be believed. All Marsh could recall about talking with Wecker was that the union agent spoke uwith him on the telephone, asked why he was quitting the job, asked if he would remain I month, and that Marsh's reply was that he was losing money and "couldn't afford" to remain. Marsh also admitted that his Company never responded to the Union's demand letter of July 12 and never offered to discuss the discharges of the employees with their Union. It is a fact that Respondent was losing money on this job. As far back as March 17, 1977, Greenpark gave it 30 days' notice of cancellation of their contract because of the main- tenance staffs lack of efficiency. Apparently they straight- ened things out, and the work continued. On June 30 they talked, and Respondent asked for a $500 weekly raise in "profits," meaning, I suppose, a raising of the fee paid for the services; and on July 6 Marsh informed Greenpark in writing that unless the increase were granted his Company would discontinue the work on August 1. By telegram dated July 25 he gave such final notice. As stated above, the employees were first informed on July 28 about the in- tended discharges to come 3 days later. Wecker testified that that same day, July 28, he spoke twice with Marsh on the phone: Wecker called Respondent. Wecker first asked Pelman. of Greenpark, could he keep the employees on, and Pelman said no because as he read the contract Greenpark was precluded from even considering hiring these employees for 90 days. Talking then to Marsh, Wecker asked what was going to happen to the employees, but the only answer he got was that Respondent was "pull- ing out" because it was not receiving enough money. Wecker then asked "could he [Marsh] hold on a little longer until we could sit down and discuss the matter and see how to keep the people working," and again Marsh said "no." this time on the ground that he would have to stay a full 30 days if he stayed even 1, according to the contract. Marsh told Wecker if he, Wecker, could persaude Pelman to waive the 30-day clause, "he might be able to swing it so we could be able to sit down and discuss it." Still on the phone, Wecker asked about possible employment at other loca- tions of Respondent, and he received a simple negative. Wecker's final statement as a witness was "I asked that we meet and try to discuss the matter. He said, 'We have noth- ing to discuss.'" Respondent calls this brief talk on the telephone that day full bargaining to impasse over both the decision to dis- charge and its effects upon all 35 employees. I disagree. What these facts show in totality is that Respondent, from the very start, had no intention of considering either the employees' or the Union's opinion or desire in this mass discharge. Marsh simply refused to meet with he Union or to discuss anything, although he was obligated to do so in 465 DECISIONS OF NATIONAL LABOR RELATIONS BOARD law. His indifference to the statutory obligation was first manifested by Respondent's failure to even respond to the demand for bargaining received on July 12. To say no more than "it is a money problem," or "we cannot afford not to discharge the people," is a far cry from exchanging views and thoughts as to how, if possible, the economic hurt could be avoided or at least reduced. I find that Respondent re- fused to talk with the Union about an absolutely manda- tory subject of collective bargaining. As to law, the defense argues that its decision to cancel out this particular one of many simultaneous operations was not a mandatory subject of collective bargaining. In support it cites an occasional case where the Board found exactly the opposite of Respondent's present view, but where a court of appeals disagreed. A hearing examiner in these proceedings is bound to apply Board law unless re- versed by the United States Supreme Court. See Ozark Trailers, Incorporated, et al., 161 NLRB 561, 566 (1966). If ever there was a business in which taking on, finishing, or discontinuing this or that particular job is no more than a regular and usual method of running its affairs, it is this Respondent's overall activity. There was no capital in- volved when it decided to terminate the Greenpark job. The closing of this one spot in no sense altered the nature of its business, nor did it substantially affect its total size. The Board's language in a recent decision is particularly appli- cable here "[W]here it has not been shown that Respon- dent's decision to close involved such a 'significant invest- ment or withdrawal of capital' as to 'affect the scope and ultimate direction of the enterprise,' we conclude that by refusing to bargain with the Union concerning the decision to close the . . . facility, Respondent has thereby violated Section 8(a)(5) and (1) of the Act." Brockway Motor Trucks, Division of Mack Trucks, Inc., 230 NLRB 1002, 1003 (1977). See also Fibreboard Paper Products Corp. v. N.LR.B., 379 U.S. 203 (1964). A substantial element in the legal argument by Respon- dent here is that there was no way of keeping these 35 employees on the job, that talk would have been futile be- cause the Greenpark location was a losing proposition. But the theory misconceives the law as established. The legal obligation to accord recognition to a statutory representa- tive of its employees, particularly to give it an opportunity to discuss alternatives where an employer wishes to dis- charge employees even for economic reasons, does not mean that the employer must make economic concessions or agree to any condition to its disadvantage. Of course, there have been attempts at collective bargaining which have failed to yield mutually desirable results. As has been said too many times to warrant repetition, the results of collective bargaining are not germane to the statutory re- quirements of the Act. From the Court language in Fibre- board Paper Products, supra: "[A]lthough it is not possible to say whether a satisfactory solution could be reached, national labor policy is founded upon the congressional de- termination that the chances are good enough to warrant subjecting such issues to the process of collective negotia- tion." 379 U.S. at 214. I find that by ignoring the certified exclusive bargaining agent of its employees in deciding to discharge all its em- ployees at the Greenpark Care Center location and by re- fusing to bargain with the Union on request Respondent has violated and is violating Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY In remedy, Respondent must be ordered to bargain in good faith with the Union now on the subject of its decision to terminate the Greenpark Care Center operation and its consequent discharge of the employees, as well as with re- spect to the effects of such action. To effectuate the pur- poses of the Act Respondent must be ordered to make whole all the employees thus fired for monetary losses suf- fered as a result of the violation, from the date of their discharges until the occurrence of the earliest of the follow- ing conditions: (1) the date Respondent bargains to agree- ment with the Union on these subjects, pertaining to the decision to close the Greenpark Care Center and the effects of the closing upon the unit employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to re- quest bargaining within 5 days of this Decision or to com- mence negotiations within 5 days of Respondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith. CONCLUSIONS OF LAW 1. First National Maintenance Corporation is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unilaterally closing its Greenpark Care Center op- eration and terminating its employees there without bar- gaining with the Union about the decision to discontinue the operation or about its effects upon the employees, Re- spondent has refused to bargain and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 4. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 466