Luther Manor Nursing Home

LUTHER MANOR NURSING HOME Luther Manor Nursing Home and United Food and Commercial Workers Union, Local No. 304A, United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC. Case 18-CA-- 7973 31 October 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 28 March 1985 Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs, cross-exceptions, and briefs in support of their cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three-, member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions,2 as modified, but not to adopt the rec- ommended Order. 1. Administrative Law Judge William F. Jacobs, in a decision and recommended Order issued 28 September 1982, found the Respondent presented to the Union a wage offer during collective bar- gaining that the Union accepted. Because the Re- spondent in part unlawfully withdrew the offer after it was accepted, Judge Jacobs recommended the Respondent be ordered to cease and desist from "[w]ithdrawing wage proposals previously agreed upon." The Board adopted Judge Jacobs' decision and recommended Order in pertinent part.3 In their 28 October 1982 negotiating session, their first following Judge Jacobs' decision, the parties reached agreement on all other outstanding i The General Counsel excepts to the judge's failure to find that the Respondent presented an economic proposal on 27 December 1982, false- ly claiming to have presented it on 29 October 1982. The General Coun- sel contends that, if found, the Respondent's misrepresentation would in- dicate that it failed to bargain in good faith. The judge considered the General Counsel's allegation and found that the Respondent's having made the proposal after it agreed to a complete contract violated Sec 8(a)(5) and (1) of the Act, regardless of whether it made the proposal in October or December The judge found the Re- spondent, by making the proposal, demonstrated to the Union that it would neither bargain in good faith, nor execute the contract to which it agreed What the General Counsel requests we find is not materially different from what the judge found based on the same conduct Accordingly, we deny the General Counsel's exception. 2 Chairman Dotson agrees with his colleagues that the Respondent violated the Act as alleged in taking action inconsistent with the Board's order in Luther Manor Nursing Home, 270 NLRB 949 (1984), in which the Chairman adopted the judge's decision in the absence of the Re- spondent's exceptions Chairman Dotson also relies on his rationale set forth in that case for the issuance of a general bargaining order 3 Luther Manor Nursing Home, supra, 270 NLRB 949. 35 issues. The Respondent, however, withdrew its wage proposal entirely and contended there was no agreement on the contract's effective dates. Judge Nations, in the attached decision, found the Respondent's unilaterally withdrawing its wage offer violated Section 8(a)(5) and (1) of the Act. This finding was, of course, mandated by the Board's earlier Decision and Order. Judge Nations further found that the wage offer provided it would be effective 1 January 1981 through 31 De- cember 1983, and we conclude that the parties in practice used the wage offer's effective dates to de- termine the duration of the entire contract.4 Ac- cordingly, we agree with the judge that the parties on 28 October 1982 reached agreement on a com- plete collective-bargaining agreement, and that the Respondent unlawfully refused to execute a written contract embodying its terms. Judge Nations also found that the Respondent's obligation to provide the contract's wage increases commenced on the date the parties reached agree- ment, 28 October 1982. This finding, however, is inconsistent with the parties' agreement that their contract and its wage increases would commence 1 January 1981. We therefore do not adopt the judge's finding and shall amend the remedy to re- quire the Respondent to apply the contract accord- ing to its terms, including its 1 January 1981 com- mencement date.5 2. Judge Nations found that the Respondent vio- lated Section 8(a)(3) of the Act, as well as Section 8(a)(5) and (1), by refusing to execute a written contract. The General Counsel, however, did not allege that the Respondent violated Section 8(a)(3) by this conduct. We shall therefore amend Conclusion of Law 6 to delete its reference to Section 8(a)(3) of the Act, and we shall amend the recommended Order and notice accordingly. AMENDED CONCLUSION OF LAW Substitute the following for Conclusion of Law 6. "6. By refusing to execute a collective-bargaining agreement embodying the terms to which the Re- spondent and the Union finally agreed on 28 Octo- ber 1982, the Respondent violated Section 8(a)(5) and (1) of the Act." 4 Thus, the Respondent on either 29 October or 27 December 1982 proffered what it called a "Wage & Effective Date Offer." The only ef- fective date discussed in the offer is that for the proposed wage increases, although the offer was intended to supplant the duration provisions in the Union's previously proposed draft contract. 5 See Western Truck Services, 252 NLRB 688 (1980) 277 NLRB No. 7 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED REMEDY Having found that the Respondent engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. We shall order the Respondent to execute, on re- quest, a collective-bargaining agreement embody- ing the terms and conditions to which the Re- spondent and the Union agreed, and to apply those terms and conditions retroactively from 1 January 1981. We shall order the Respondent to make em- ployees whole for the loss of earnings and other benefits suffered as a result of the Respondent's' failure to execute and abide by that agreement. The Respondent shall reimburse the affected employees in a manner consistent with Board policy as stated in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962), enf. denied on other grounds 322 F.2d 913 (9th Cir. 1963). ORDER The National Labor Relations Board orders that the Respondent, Luther Manor Nursing Home, Sioux Falls, South Dakota, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to execute, on request, a collective- bargaining agreement embodying the terms to which the Respondent agreed with United Food and Commercial Workers Union, Local No. 304A, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC covering the employees in the unit set forth below in paragraph 2 (c). (b) Unilaterally withdrawing wage offers and contract duration offers to which the Respondent and the Union agreed. (c) Continuing to make wage offers and other proposals that vary from the terms and conditions to which the Respondent and the Union agreed. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Execute, on request, a collective-bargaining agreement (effective 1 January 1981 through 31 December 1983) embodying the terms and condi- tions to which the Respondent and the Union final- ly agreed on 28 October 1982. (b) Apply the terms and conditions of the collec- tive-bargaining agreement to which the Respond- ent and the Union agreed, retroactively from 1 Jan- uary 1981, and make employees whole in the manner set forth in the amended remedy for any loss of earnings and other benefits suffered as a result of its failure to execute and abide by that agreement. (c) On request, bargain with respect to wages, hours, and other terms and conditions of employ- ment with the Union as the exclusive bargaining representative of employees in the following unit: All full-time and regular part-time licensed practical nurses and service and maintenance employees employed by the Respondent at its Sioux Falls, South Dakota facility, but exclud- ing administrator, assistant administrator, regis- tered nurses, business office clericals, guards, and supervisors as defined in the Act. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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. (e) Post at its Sioux Falls, South Dakota facility copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Re- gional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. LUTHER MANOR NURSING HOME WE WILL NOT refuse to execute, on request, a collective-bargaining agreement embodying the terms to which we agreed with United Food and Commercial Workers Union, Local No. 304A, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC covering all of you in the unit set forth below. WE WILL NOT unilaterally withdraw wage offers and contract duration offers to which we and the Union agreed. WE WILL NOT continue to make wage offers 'and other proposals that vary from the terms and con- ditions to which we and the Union agreed. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL execute, on request, a collective-bar- gaining agreement (effective 1 January 1981 through 31 December 1983) embodying the terms and conditions to which we and the Union finally agreed on 28 October 1982. WE WILL apply the terms and conditions of the collective-bargaining agreement to which we and the Union agreed, retroactively from 1 January 1981, and WE WILL make you whole with interest for any loss of earnings and other benefits resulting from our failure to execute and abide by that agreement. WE WILL, on request, bargain with respect to wages, hours, and other terms and conditions of employment with the Union as the exclusive bar- gaining representative of all of you in the following unit: All full-time and regular part-time licensed practical nurses and service and maintenance employees employed by us at our Sioux ' Falls, South Dakota facility, but excluding adminis- trator, assistant administrator, registered nurses, business office clericals, guards, and su- pervisors as defined in the Act. LUTHER MANOR NURSING HOME Marlin O. Osthus, Esq., for the General Counsel. Michael Alden, Esq., of Lincoln, Nebraska, for the Re- spondent. J. Peter Dowd, Esq., of Chicago, Illinois, for the Charging Party. DECISION 37 STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. Pursuant to a charge filed December 3, 1982 ,1 and to subsequently filed amended charges by United Food and Commercial Workers Union, Local No. 304A, United Food and Commercial Workers International Union, AFL-CIO, CLC (the Union), the Regional Director for Region 18 issued a complaint and notice of hearing and amendment to complaint and notice of hearing , alleging setting forth certain unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, al- leged to have been committed by Luther Manor Nursing Home (Respondent). On October 4, 1984 , a hearing was held before me in Sioux Falls, South Dakota . Subse- quently, briefs were received from counsel for the Gen- eral Counsel, Respondent, and the Charging Party. 1. THE BUSINESS "OF RESPONDENT Respondent, a South Dakota corporation with an office and place of business in Sioux Falls , South Dakota, has been engaged in health care and operation of a nurs- ing home, providing in-patient, medical, and professional services for its residents . Respondent admits the jurisdic- tional allegations of the complaint , and I find that it is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), 'and (7) of the Act, and a health care insti- tution within the meaning of Section 2(14) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Facts and Issues Pursuant to a Board-conducted election, the Union was certified as the exclusive bargaining representative of the unit described in paragraph 6 of the complaint. The Union and Respondent thereafter met for the pur- pose of negotiating a collective -bargaining agreement on numerous occasions on January 25 and December 15, 1980. The parties could not reach an agreement and the Union filed charges with the Board alleging that Re- spondent had engaged in certain unfair labor practices. Thereafter, the Regional Director issued a complaint al- leging that Respondent had violated Section 8 (a)(1), (3), and (5) of the Act by its actions. After a trial before Ad- ministrative Law Judge William F. Jacobs, a decision issued on September 28. The Charging Party and the General Counsel filed exceptions to the decision, while Respondent filed no exceptions. On May 30, 1984, the Board issued a Decision and Order which affirmed the judge's rulings, findings , and conclusions but modified his recommended Order, making it more comprehensive. I All dates are in 1982 unless otherwise stated 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board's Order affirmed the administrative law judge's findings that Respondent unlawfully withdrew a wage proposal previously offered to all unit employees and later withdrew the offer to full-time employees; Re- spondent unlawfully withheld wage increase adjustments for employees; and Respondent unilaterally and unlaw- fully granted wage increases to employees, altered its sick leave and absenteeism policies, and reclassified li- censed practical nurse (LPN) employees to supervisory positions. After the issuance of the decision by Judge Jacobs, Respondent and the Union met for the purpose of nego- tiating a collective-bargaining agreement. No agreement being forthcoming from Respondent, the Union again filed charges with the Board alleging that Respondent had violated the Act. The issues presented in the instant proceeding are whether Respondent violated the Act by: 1. Withdrawing their previous offer regarding contractual wage rates for the duration of the con- tract in violation of Judge Jacobs Order. 2. Refusing to negotiate on proposed wages until its backpay liability Case 18-CA-7117 was deter- mined. 3. Presenting an economic proposal to the Union to reduce employees future contractual wage in- creases by an amount equal to the backpay they could or would receive as a result of unfair labor practices found in Case 18-CA-7117. 4. Proposing contractual wage rates for part-time employees which were less than its existing wage rate. 5. Presenting a proposal to the Union falsely claiming that said proposal had been previously pre- sented. 6. Failing and refusing to execute an agreement reached between it and the Union. B. The Alleged Withdrawal of a Previously Offered and Agreed- Upon Wage Proposal and Refusal to Execute an Agreed-Upon Collective-Bargaining Agreement The General Counsel alleges that on October 28, Re- spondent unilaterally withdrew an offer regarding con- tractual wage rates for the duration of the contract which it had made on December 15, 1980, and which ac- cording to Judge Jacobs and the Board , had been accept- ed by the Union; that the Union and Respondent had otherwise reached a full and complete agreement on a contract; that the Union had since requested Respondent to execute the contract; that Respondent refused and continues to refuse to execute such contract; and that this constitutes a failure and refusal to bargain with the Union in good faith in violation of Section 8(a)(1) and (5). Following the decision of Judge Jacobs, the Union and Employer representatives first met on October 28. Present for the Union were Attorney J. Peter Dowd, Union Business Agent Jack Smith, Doyle Lauer, and Mary Kerchove. Present for Respondent was John Tate. Dowd opened the meeting by explaining to Tate that the Union had requested negotiations to attempt to reach an agreement based on the decision of the administrative law judge in Case 18-CA-7117; that on the basis of that decision, the Union hoped to reach a decision that could be put into effect immediately; and that the Union was prepared to discuss specifics and issues resolved by the judge. Subsequently, the parties did discuss specific issues. The parties reviewed the issue of health insurance coverage in light of the judge's decision, and the Union ultimately accepted the finding of the judge with respect to health insurance. Similarly, in light of the judge's find- ing that Respondent unlawfully removed LPNs from the bargaining unit, the parties agreed on October 28 that present LPNs would be considered supervisors, that the number of LPN supervisors would not increase, and that if LPNs did not qualify as supervisors within 1 year or start as a supervisor, they would be returned to the bar- gaining unit. The parties also reached agreement with Respondent with respect to schedules and probationary periods. Tate admitted that as a result of negotiations on October 28, there were no outstanding issues barring a contract except wages and effective dates. During his testimony in this proceeding, Dowd ex- plained that on October 28; at the beginning of the meet- ing, the Union indicated its willingness to accept Judge Jacobs' resolution of the wage issue in order to get a contract. Dowd further indicated that on the same date, Respondent might want to make some changes in the offer found to have been made by Judge Jacobs because of subsequent unilateral actions by Respondent after De- cember 15, 1980. Dowd further stated, however, that if the Union and Respondent could not reach an agreement on those items, in any event the Union was prepared to agree to the undisputed aspects of the judge's decision in view of the fact that Respondent had not filed exceptions to it. Respondent admits that it withdrew its wage proposal of December 15, 1980, but denies that this wage proposal was previously agreed on. I find that Respondent's posi- tion is without merit. Both Judge Jacobs and the Board, in affirming his decision, found that the December 15, 1980 proposal had been agreed on. Both the judge's deci- sion, as well as the Board's order affirming it, required that Respondent not withdraw the previously agreed- upon wage proposal of December 15, 1980. Pursuant to the judge's Order as affirmed by the Board, Respondent was powerless to withdraw its offer, the Union was free to accept the offer and on October 28, 1982, did so. I find that by the Union's acceptance of the wage propos- al, the parties had an effective total agreement as of Oc- tober 28. I further find that it was unlawful for Respond- ent to attempt to withdraw the wage offer having been ordered by the judge and the Board not to do so. Pargraph 10 of the complaint alleges that since about November 29, the Union has requested Respondent to execute a written contract. Respondent admits this. The complaint further alleges that since about December 13, Respondent, by letter, failed and refused to execute the written contract submitted by Respondent. I have found that the Union and Respondent reached full agreement with respect to the terms and conditions of employment LUTHER MANOR NURSING HOME to be incorporated in the collective-bargaining agreement as of October 28. As noted by the General Counsel on brief, it is con- ceivable that there might be a question with respect to effective dates of the agreement . While the parties had agreed in December 1980 that the effective dates of the contract would be January 1, 1981 , to January 1, 1984, I find, as requested by the General Counsel, that the wage increases called for in the contract became effective on October 28, which is the date the parties reached con- tractual agreement. Respondent's obligations under the terms of the contract, I have found to have been agreed on, began on the date of the agreement , October 28, even though the contract's effective date is earlier. C. The Alleged Refusal to Negotiate or Make Proposals Concerning Wages The General Counsel alleges that on October 28, Re- spondent refused to negotiate or make an offer concern- ing wages until its backpay liability in Case 18-CA-7117 had been determined ; that on December 27, Respondent presented an economic proposal to the Union to reduce its employees' future contractual wage increase by an amount equal to the backpay the employees could or would receive as a result of its unfair labor practice found by Judge Jacobs in Case 18-CA-7117; that the former conduct violated Section 8 (a)(1) and (5) of the Act and that the latter conduct violated Section 8(a)(1) and (3) of the Act. Respondent admits that on October 28 it proposed de- laying negotiations on wages until July 1, 1983, but denied that this was for the purpose for delaying negotia- tions on wages until its backpay liability was determined and that it refused to negotiate wage rates and make wage proposals. Further, Respondent admits that on De- cember 27 it presented an economic proposal to the Union which would have offset future wage increases by any additional backpay liability , but denies it was at- tempting to offset wage increases by a liability from any unfair labor practices found by Judge Jacobs. The General Counsel has alleged as further violations of the Act Respondent's December 27 proposed contrac- tual wage rates for part-time employees which were less than Respondent's existing wage rates for part-time em- ployees. Respondent contends that it made the com- plained of wage proposal on October 29, a fact which is disputed by the Union which contends it never saw the proposal until December 27. I find that regardless of whether the proposal was presented on October 29, as alleged by Respondent or on December 27, as contended by the Union, Respondent's actions constitute a violation of the Act. I have found that by withdrawing its wage proposal found by Judge Jacobs to have been accepted by the Union on October 28, Respondent has violated the Act. I have further found that Respondent violated the Act by refusing to execute the contract reached on October 28, and' continues in violation of the Act by failing and re- fusing to execute such agreement. As I have found that Respondent 's action in withdraw- ing its wage proposal on October 28 , and thereafter re- fusing to execute its agreement with the Union, any pro- 39 posal it subsequently made to the Union with respect to matters contained in the agreement constitutes a viola- tion of the Act. Therefore, I consider the particulars of the proposal made by Respondent to be of no particular significance . The making of the proposal itself constitut- ed a continuation of its bad-faith bargaining with the Union and its intention to not execute a contract with the Union covering the bargaining unit. IV. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices, as found above, occurring in connection with its operations described in section I above, have a close, intimate, and substantial re- lationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes, burdening and obstructing the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order, I shall rec- ommend that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to ef- fectuate the policies of the Act. As I have found that Respondent violated the Act by refusing to execute the agreement reached on October 28, I shall also recommend that Respondent be ordered, on request, to sign such agreement, to comply retroac- tively to its effective date with its terms, and to make whole the employees for any losses which they may have suffered by Respondent's refusal to sign such agree- ment, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and Isis Plumbing Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in an industry affecting commerce within the mean- ing of Section 2(6) and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. 2. The Union, United Food and Commercial Workers Union, Local No. 304A, United Food and Commercial Workers International Union, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time LPN's and serv- ice and maintenance employees employed by Respondent at its Sioux Falls, South Dakota facility, excluding ad- ministrator, assistant administrator, registered nurses, business office clericals, guards, and supervisors as de- fined in the Act constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since January 2, 1980, the above-named labor orga- nization has been and is now the certified exclusive rep- resentative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing on October 28, the wage proposal previously offered for all unit employees and found by 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the administrative law judge and affirmed by the Board in Case 18-CA-7117 to have been accepted by the Union, Respondent violated Section 8(a)(1) and (5) of the Act. 6. By failing and refusing to execute the collective-bar- gaining contract on which Respondent and the Union had agreed to on October 28, Respondent has violated Section 8(a)(1), (3), and (5) of the Act. 7. By continuing to make proposals which varied the terms and conditions of the agreement reached between Respondent and the Union on October 28, Respondent has violated Section 8(a)(1) and (5) of the Act. [Recommended Order omitted from publication.]