Americana Healthcare Center

National Labor Relations Board - Board Decisions

Jan 31, 1985

273 N.L.R.B. 1728 (N.L.R.B. 1985)

1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Americana Healthcare Center and Laborers' Inter-
national Union of North America, Local 438.
Case 10-CA-19274
31 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 6 July 1984 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a reply brief.
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 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Americana
Healthcare Center, Decatur, Georgia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We agree with the judge that the parties by mutual mistake omitted the
agreed-upon sick leave provision and the Respondent violated the Act by
unilaterally terminating the agreed-upon sick leave program We find it
unnecessary to pass on the judge's discussion of the zipper clause and his
finding that the Respondent was motivated by antiunion considerations
We correct the judge's following inadvertent errors in the second sen-
tence of par 1 in sec III,C,1, the first use of "Union" should be "Re-
spondent", in the last sentence of par 5 and the first sentence of par 11
in sec III,G, the "September 29 proposal" was made between 29 Septem-
ber and 20 October 1981
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The original charge was filed on May 25, 1983, and an
amended charge on June 3 by Laborers' International
Union of North America, Local 438 (the Union or the
Charging Party). A complaint issued on November 2, al-
leging that Americana Healthcare Center (Respondent)
unilaterally discontinued the sick leave benefits of certain
of its employees on March 9, 1983, without notice to the
Union, in violation of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act).
A hearing was held before me in Atlanta, Georgia, on
February 13 and 14, 1984. On the entire record, includ-
ing briefs filed by the General Counsel, Respondent, and
the Charging Party, and on my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with an office
and place of business at Decatur, Georgia, where it is en-
gaged in operating a nursing home. During the calendar
year preceding issuance of the complaint, a representa-
tive period, Respondent received gross revenues in
excess of $100,000, and purchased and received at its De-
catur, Georgia facility goods valued in excess of $50,000
directly from suppliers located outside the State of Geor-
gia Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The pleadings, as amended at the hearing, establish
that, following a Board election, the Union was certified
in March 1979 as the exclusive collective-bargaining rep-
resentative of certain of Respondent's employees in an
appropriate unit.' Respondent filed objections to the
election which were overruled, and thereafter refused to
bargain. The Board's Order that it do so was enforced
by a United States Circuit Court of Appeals in April
1981
B. The Bargaining Prior to December 9, 1982
On May 8, 1981, Union Representative Donnie M.
Dennison wrote a letter to an Americana lawyer request-
ing bargaining and information about employee benefits.
The letter was answered on May 18, 1981, by James E
Dick, director of human resources. 2 He promised coop-
eration, and on June 1, 1981, wrote Dennison a letter de-
scribing various employee benefits including sick leave.
Dick's letter describes the latter as follows "Sick leave
commences after 600 hours of employment. Each addi-
tional 200 [hours] worked accrues for paid hours up to
' The appropriate unit is
All full time and regular part time service and maintenance em-
ployees employed by the employer at its Decatur, Georgia, facility,
including all nurses' aides, physical therapy aides, unit clerks, house-
keeping employees, maintenance employees, dietary employees, and
laundry employees, but excluding all office clerical employees, pro-
fessional employees, technical employees, licensed practical nurses,
and guards and supervisors as defined in the Act
2 During the contract negotiations in 1981, Americana Healthcare
Center was owned by a company named Cenco Incorporated, which em-
ployed Dick During the same time period, other negotiations were un-
derway whereby Cenco agreed to sell Americana to Manor Healthcare
Corporation The exact date of the sale is not clear from the record, but
Dick lost his job as a result of it, according to James F McCormick, an
official with Manor Healthcare Dick did not appear as a witness at the
hearing
273 NLRB No. 213
AMERICANA HEALTHCARE CENTER 1729
120 hours total. The benefit commences on the second
day of excused absence. In December upon application,
we will pay out to employees up to one half of remain-
ing sick leave due" (G C. Exh 6). Respondent's adminis-
trator Patricia Sheppard further explained the policy as
an accrual of 4 hours of sick leave for every 200 hours
worked (after 600) On July 24, Dick sent Dennison his
"basic contract," which says nothing about sick leave
(G.C. Exh 7).
The first bargaining session was held on August 25
and, at that time, Dennison gave Dick a proposed con-
tract which contained sick leave provisions more favor-
able to the employees than those outlined by Dick. The
provisions are numbered "Article XXXIV" and entitled
"Sick Leave" (R. Exh. 2, p. 22). The pail ies agreed on a
few articles during this session, and Dennison evidenced
his assent by writing "OK" and the date in the margin
opposite the relevant article on his copy of Dick's
"standard contract." There was no agreement on sick
leave at this session.
On September 11, 1981, Dick wrote Dennison a letter
with "enclosed updated copies of our pending labor
agreement. Please note that I hopefully have corrected
the errors discovered during our last meeting, as well as
incorporated much of the language you proposed." (G.C.
Exh. 8.)
A second meeting was held on September 29, but sick
leave was not discussed. However, just before the third
meeting, on October 20, the Company submitted to
Dennison its position on various subjects, including sick
leave. This position reads as follows.
SICK LEAVE
The Company rejects the proposed language con-
tained in Article XXXIV, Sick Leave but will agree
to a sick leave program providing that after 600
hours of active employment an employee shall
accrue 4 hours of credit for use as sick leave for
every 200 hours, and providing further that pay for
one-half of an employee's accrued, unused hours
may be requested at Christmas and will be paid in
the last payroll check before December 25 [G.0
Exh. 10-43
On November 11, 1981, Dick sent Dennison a letter
with "a lot of material" he had promised on October 20
In it was a repetition of the Co mpany's position on sick
leave, with a note that it was an "open item" (G.C. Exh
11). It was an "economic" item, and was marked "pass"
on a summary Dick sent to Dennison (G C. Exh 11-E).
The parties met again on November 17 and 18, and the
Union submitted"economic proposals" on items which
were still open. These included paid holidays, funeral
3 The Company's October 20 statements of position include the follow-
ing "The Company rejects the Union's proposed language contained in
Article VIII, Seniority, Section 40 Seniority Lists, but will agree in a side
letter that such lists will be made available when requested " (G C Exh
10-B) The Union accepted this resolution of the matter and withdrew its
proposal (G C Exh 11) Other company positions either accept, reject,
or request clarification of union proposals AccorcUng to Dennison, se-
niority was the only topic in which the parties agreed to a side letter
leave, vacation, sick leave, and wages. 4 The sick leave
proposal reads: "Accrue eight (8) hours credit for every
200 hours worked not to exceed 120 hours." (G.0 Exh.
12.) As noted above, the existing accrual rate was 4
hours of sick leave credit for every 200 hours. Accord-
ing to Dennison, Dick said that he would respond to the
Union's economic proposals at the next meeting. On De-
cember 1, Dick sent Dennison an updated copy of the
contract incorporating the changes agreed on during the
last session, together with a covering letter (G.C. Exhs.
13(a), (b)).
C. The December 9 Bargaining Session
1. Summary of the evidence
The last bargaining session took place on December 9.
The Union was represented by James E Dick and Mary
K. (Jennie) Watkins, while the Union was represented by
Dennison, Joyce Brown, Lucille Humphries, and Debo-
rah Allen.
Dennison testified that the Company submitted a writ-
ten response to the Union's economic proposals. Copies
of the response are in evidence, and present the Compa-
ny's position on the topics with the same numbering as
that given in the Union's economic proposals With some
exceptions, the Company agreed to the Union's proposals
on holidays, funeral leave, vacations, and wages.
Dick also brought with him a document entitled "Con-
tract Highlights" This document outlines topics on
which the Company had given employees increased ben-
efits, or topics on which Dick claimed that the Company
was giving its employees more than other companies in
the area. There is no reference to sick leave in this docu-
ment (G.C. Exh. 15).
The Company's documented position on sick leave at
the December 9 session reads as follows:
SECTION FOUR
Sick Leave
The Company will not change its computation
methods during the term of the agreement [G.C.
Exh. 14].
Dennison testified that the Union accepted the Compa-
ny's proposals, subject to ratification, although he could
recall little that was said about sick leave. On cross-ex-
amination, he said that the intended contract language
was that set forth in the Company's response.
Several copies of the Company's response were given
to the union negotiators, according to Dennison. On one
of them, the letters, and date "OK, 12/9/81" appear on
the sections covering funeral leave and vacations, while
the date "12-9-81" and letters "0 K." appear after the
section on sick leave (G.C. Exh 14). Dennison testified
that the latter notations were in his handwriting and
were made on December 9. Another copy of the Compa-
4 The Union's proposals were numbered as follows section one, paid
holidays, section two, funeral leave, section three, vacations, section four,
sick leave, section five, wages
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny's response has similar notations on all issues except
the first (paid holidays), as well as the one on sick leave,
which reads "O.K., 12-9-81" (R. Exh. 3) Dennison said
that he thought the writing on this exhibit was that of
Union Negotiator Joyce Brown, except for the approval
and date indicated for sick leave, which were his. He tes-
tified that Brown and he worked on the proposals to-
gether, and that evidently he had picked up her copy.
Respondent introduced notes of the bargaining sessions
which Dennison made on a yellow note pad. His notes
of the December 9 meeting include the following: "(4)
Sick Leave—same OK." "O.K.'s" also appear with refer-
ence to other of the Company's proposals (R. Exh. 1).
Another subject, not specifically contained in the
"economic proposals," was the Union's request that the
Company supply uniforms to its employees. Dennison
testified that Dick agreed to do so, but did not want to
"put it in writing." Dennison denied that Dick expressed
any such restriction on the subject of sick leave.
Lucille Humphries also testified about the subject. Al-
though she was a union representative at the time, the
parties stipulated that she was made a supervisor some
time in late June 1983, and that she gave an affidavit to a
Board agent on June 22, 1983.
Humphries testified that the Union agreed to the Com-
pany's position on sick leave on the "next to the last 2
days . . . in December." On cross-examination, she re-
ferred to a continuing dispute over the Union's request
for uniforms for employees, and the discussion of sick
leave. According to Humphries, Dick said to Dennison:
"Now, Donnie, we can go around and around with this
thing for 6 more months. Now I'm telling you just the
way it is. The Company is not going to back down on
sick time. They will not change. Now, we have this
matter about uniforms We will agree to give the bar-
gaining unit one uniform per year if you will accept the
sick time the way it is." The union representatives then
agreed, according to Humphries
Humphries said that she kept records of the negotia-
tions in a little book, which she considered to be her pri-
vate property. After she had "talked with the man from
the Labor Board," i.e., had given her affidavit, she
"thought that it was all over and that we wouldn't have
to be bothered with it any more." Accordingly, she de-
stroyed her notes.
On behalf of Respondent, Mary K. (Jennie) Watkins
testified that there was no discussion of sick leave during
the December 9 session. She further affirmed that she
took notes of the last meeting, and had destroyed them.
Before doing so, Watkins claimed, she reduced them to
typewritten form, and this document is in evidence. It is
dated December 9, 1981, and relates that Dick discussed
paid holidays, funeral leave, sick leave, wages and hours
of work, and overtime. Humphries asked that the sick
leave policy be explained, and Watkins responded. The
union representatives protested the absence of uniforms,
and Dick agreed that the Company would give every
employee a uniform in December, but would not put it
in writing (G.C. Exh. 20).
Watkins admitted that Respondent had a copy of
Dick's book of notes of the negotiations At first, she
said that she could not remember whether she had ever
looked in the book, but later admitted discussing its con-
tents with Administrator Sheppard, including the provi-
sions concerning sick pay.
2. Factual analysis
Respondent moved to strike Humphries' testimony be-
cause of her admission that she had burned her notes.
The General Counsel opposed the motion on the ground
that such destruction took place at a time when Hum-
phries was a company supervisor. As noted above, Hum-
phries testified that she destroyed her notes after giving a
Board affidavit, on June 22. Also, she was made a super-
visor in "late June." I denied Respondent's motion to
strike, a ruling which I reaffirm. The record is inconclu-
sive as to whether Humphries was a supervisor when she
destroyed her notes, but it would appear likely that she
was. In any event, I credit her testimony that the reason
she did so was her belief that it was "all over."
Humphries was in error about the date sick leave was
discussed, as there was only one negotiating day in De-
cember. However, it is clear from Watkins' typed notes
that sick leave was discussed on December 9. Aside from
this error as to date, Humphries was a believable witness,
and I credit her testimony that Dick told the Union he
would give uniforms to employees if the Union would
accept the Company's position on sick leave. This is par-
tially corroborated by Watkins' notes. Watkins' testimo-
ny that sick leave was not discussed is flatly contradicted
by her typewritten notes Further, unlike Humphries, she
gave no reason for destroying her original notes.
In essence, Humphries' testimony supports Dennison's
averment, corroborated by his notes of the negotiation,
and his "O.K.'s" on Respondent's proposals, that the
Union accepted them on December 9, including the one
on sick leave, subject to ratification. 6 I so find. I also
credit Dennison's testimony that Dick promised to give
uniforms to employees but said that he did not want to
put it in writing, and that he failed to make any such res-
ervation with respect to sick leave.
D. The Ratification and the Signing of the Contract
There was a ratification meeting of union members on
the same day as the last bargaining session, December 9,
1981. Dennison went over Dick's "Contract Highlights"
with the members. He also told them that sick leave ben-
efits would remain the same.
The contract was executed on January 5, 1982, during
a luncheon at a restaurant. It contains sections on four
out of the five "economic subjects" about which the par-
ties had bargained on November 17 and 18, and Decem-
ber 9, 6 but there is no section dealing with sick leave.
Article XVIII, dealing with on-the-job injuries," states in
part that "No charge will be made against accrued sick
leave for on-the-job injuries" in certain circumstances
5 I do not consider Dennison's admission that he approved of the sick
leave provision on another union representative's copy as damaging to
his credibility With a number of copies of the Company's proposal on
the bargaining table, this is not unlikely
6 The following articles deal with the indicated topics art XI, funeral
leave, art XIII, wage rates, Art XIV, holidays, and art XV, vacations
(Jt Exh 1)
AMERICANA HEALTHCARE CENTER 1731
The contract is signed on page 26 by Dick for the
Company, and by various ' union officials including
Dennison. Page 27 is an appendix containing wage rates,
while page 28 has additional provisions relating to super-
visory compensation, and the following sentence: "A
new uniform will be ordered for each employee in the
month of December of each year." This latter statement
is signed by Dick and a union official (Jt. Exh. 1).
Dennison skimmed through the contract at the lunch-
eon, but did hot read it word for word. His reason, he
said, was that he had had prior negotiations with Dick,
and that he had no reason to doubt that it represented
the agreement of the parties. Also, Dick told him that if
there were any errors, they could be worked out at a
later time.
Mary K. (Jennie) Watkins testified that Dick told the
union representatives to be sure and "look over" the
contracts before signing them, and that Dennison replied
that that would not be necessary. However, Lucille
Humphries, a company supervisor at the time of her tes-
timony, averred that Dick said it would not be necessary
to proofread the contract, because they could "get to-
gether" on any errors. I credit Humphries.
Humphries asserted that, despite Dick's statement, she
did look through the contract, and protested to Union
Representative Joyce Brown that it was not printed the
way it was negotiated. Brown replied that any problems
could be taken care of at a later time.
Administrator Sheppard contended that she had a con-
versation with Humphries in late 1982 in which the latter
said that she had called Dennison and had told him that
there were "five points" left out of the contract, and that
Dick had given them only 10 days to get back with cor-
rection of errors. Although Humphries testified about
concern over the management rights clause, she denied
ever discussing sick leave with Dennison. The reason,
Humphries asserted, is that she continued to receive sick
leave benefits, and was still getting them at the time of
the hearing. Administrator Sheppard confirmed that, al-
though sick leave was terminated for unit employees in
1983, it was not terminated for nonunit employees and
Humphries was a supervisor by June 1982. I credit Hum-
phries' denial that she ever discussed sick leave with
Dennison.
E. Respondent's Administration of the Contract and •
the Termination of Sick Leave Benefits
Dick did not instruct the staff to discontinue payment
of sick leave benefits, although he did conduct a training
session on the contract for his supervisors a few months
after its execution. According to Sheppard, Dick did not
discuss sick leave during this session. Sheppard herself
did not go through the contract carefully for some time,
and the Company routinely approved requests for sick
leave during 1982. No charges against accrued sick leave
were made for on-the-job injuries, in accordance with
the contract.
Some time in the fall of 1982, Sheppard had a conver-
sation with Manor Healthcare Official McCormick, since
Manor Care at that time owned Respondent. She said
that she could not find anything about sick leave in the
contract, and asked McCormick to look at the contract
provision concerning "oral understandings." 7 According
to Sheppard, McCormick called back and told her to pay
the employees their "buy-back" sick leave benefits for
Christmas 1982, but to terminate all sick leave benefits in
1983, "since it's not in the contract." Sheppard testified
that she did not inform Dennison of this decision.
McCormick agreed that he made the decision to termi-
nate sick leave benefits. There was no such provision in
the contract, and he had the right to do so under the
"zipper" clause (art. XXVIII) and other clauses. His
object was to reduce operating costs, McCormick stated.
He said that the Company would "prefer" to operate in
a nonunion environment, although he had told Respond-
ent's managers that he could work with the Union.
In December 1982, Respondent posted a notice that
the Company would be paying for unused sick leave ac-
cording to its policy, but that the Union had left sick
leave out of the contract. Dennison received a call from
a union steward that something was amiss about sick
leave, and called Sheppard. About a week later, she
called back and said that sick leave benefits would be
paid that year as they always had been. It was about
then that Dennison discovered that the sick leave provi-
sion was not in the contract. The payments for Christ-
mas 1982 were not received until the first week of Janu-
ary 1983.
In late January 1983, Dennison asked Company Attor-
ney Carl Becker why the Company was late in paying
sick leave benefits. Becker replied that he was new with
the Company, but would consult with McCormick first.
Becker told Dennison that he would be back to discuss
the matter with him prior to some pending arbitration
cases. "We'll also take care of the uniforms and the sick
benefits. There will be no problem," said Becker.
In the first week of February 1983, a union steward in-
formed Dennison that an employee was denied sick leave
benefits, and that Mary K. Watkins had said that such
benefits were left out of the contract. Dennison called
Sheppard, and she told him . to talk to Becker. Although
1 Art. XXVIII of the contract entitled "waiver of Further Bargaining"
reads as follows:
Section 1. The parties agree that this Agreement contains their full
and complete understanding and that any prior practices, benefits or
oral agreements are superseded by the terms of this Agreement The
parties further agree that no oral understandings, practices or bene-
fits will be recognized or regarded as binding unless committed to
writing and signed by the parties as a supplement to this Agreement
and that the Company may, in its discretion, discontinue or modify
the provision of any benefit or privileges not required under this
Agreement.
Section 2. Since this agreement expresses the understanding of the
parties in respect to all matters deemed by them to be applicable to
the Bargaining Unit, for the term of this Agreement, the Company
and the Union each voluntarily and unqualifiedly waives the right,
and each agrees that the other shall not be obligated, to bargain col-
lectively with respect to any subject or matter referred to or cov-
ered by this Agreement, or with respect to any subjects or matters
not specifically referred to or covered by this Agreement, and even
though such subjects. or matters may not have been within the
knowledge or contemplation of either or both of the parties at the
time they negotiated or signed this Agreement.
Section 3. The Company does not by this Agreement waive any
rights, legal or equitable, which It would otherwise have except as
specifically defined and provided in this Agreement, which sets forth
all understandings and agreements arrived at by the parties.
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheppard denied a "demand for bargaining," she did not
deny this call. Dennison called the following day, and
Becker replied that he had not yet had sufficient time to
go over everything, but would "come in here" in early
February and discuss sick leave benefits. However, no
such meeting ever took place. Dennison had an arbitra-
tion with Becker on February 23, but there was no dis-
cussion of sick leave. At another arbitration on March 2,
Becker failed to give Dennison a "direct answer."
F. The Termination of Sick Leave
Mardell Storey, an occupational therapist, testified that
Mary K. Watkins told her in February that sick leave
could not be honored for an employee in the hospital be-
cause it was not in the contract.
There was a meeting on March 9 between Assistant
Director of Nurses Donna Thompson 8 and nine nurses'
assistants. Nurses assistant Lizzie Bryant testified that
Thompson said that "when the Union negotiated the
contract, they left out sick leave," and that the Union
had been in arbitration two or three times. Shop Steward
Regina Hutchison added that Thompson said to blame
the Union, because it was not in the contract. Thompson
admitted saying that sick leave was not in the contract,
but denied the other statements attributed to her. I credit
Hutchison and Bryant.
About 30 minutes later, the nurses held a meeting with
Administrator Sheppard. Bryant testified that Sheppard
said "that it was left out of the contract, and that the
home office had told her that we no longer get it be-
cause of the contract." Shop Steward Hutchison averred
that Sheppard said that the bargaining unit employees
would no longer be getting sick leave, but that the li-
censed practical nurses and department heads would be
receiving it. Sheppard partially admitted the truth of this
testimony and I credit it. There is record evidence that
the salaries of the nonumt employees were higher on the
average than those of unit employees.
On March 29, Becker told Dennison that the Company
would not arbitrate the sick leave issue, and that the
Union could file an unfair labor practice charge.
G. Legal Analysis and Conclusions
"In determining whether an underlying oral agreement
has been reached, the Board is not strictly bound by the
technical rules of contract law but is free to use general
contract principles adapted to the collective bargaining
context. Thus, acceptance of a final offer of a complete
bargaining agreement manifests mutual assent, creating a
binding bargaining agreement, and therefore triggers the
duty to execute a written contract on request embodying
that agreement." NLRB v. Electra-Food Machinery, 621
F.2d 956, 958 (9th Cir. 1980)
It is clear that the parties bargained over sick leave as
one of the economic subjects. The bargaining history
shows that the Company rejected the Union's first sick
leave proposal, but then stated that it would agree to a
sick leave program which in essence was the existing
8 The parties stipulated that, at the time of the hearing, Thompson was
acting as a supervisor within the meaning of the Act
program, including accrual of 4 hours of sick leave
credit for every 200 hours worked up to a maximum
limit. The Union submitted a proposal that 8 instead of 4
hours be accrued, and the Company on December 9 re-
sponded that it would not change its computation meth-
ods, i.e., that it would continue to accrue only 4 hours.
Its existing computation methods began sick leave on the
second day of excused absence. The Union accepted.
The parties thus clearly reached agreement to continue
the existing sick leave program.
Did the parties intend this to be an oral agreement or a
side agreement? There is no evidence of either Intent.
Company Representative Dick sought to gain the
Union's assent to the Company's position on sick leave
by granting a concession on uniforms. The fact that Dick
said that he did not want to put the uniform agreement
in writing (although he did), but failed to make any such
reservation with respect to sick leave shows that inclu-
sion of the latter agreement in the written contract was
intended.
Nor is there any evidence that the parties intended a
side agreement on sick leave. When the parties intended
such an agreement, as on seniority lists, the bargaining
history shows it.
On the contrary, the parties met on December 9 to
consider five economic subjects, including sick leave.
The fact that the written contract contains provisions on
four out of five of the topics agreed on by the parties is
further persuasive evidence that similar treatment was in-
tended for the fifth subject, sick leave. The fact that the
Company's response was not in precise "contract lan-
guage" does not invalidate this conclusion—other topics
upon which the parties reached agreement on December
9 are, similarly, not expressed in precise contract lan-
guage. Yet the final agreements of the parties on these
topics do appear in the contract. Indeed, the Company's
September 29 proposal on sick leave, with some modifi-
cation (eliminating the Company's rejection of the
Union's proposal and adding that such leave accrues on
the second day of excused absences) indicates the con-
tractual language to which the Company was willing to
agree (G.C. Exh. 10-V).
The fact that the contract bars charges against "ac-
crued sick leave" in the case of certain on-the-job inju-
ries is further support for a conclusion that sick leave
benefits were intended to be included in the contract.
Respondent argues that the parties reached agreement on
on-the-job injuries prior to the agreement on sick leave,
and, therefore, that the former cannot serve as any indi-
cation of what the parties agreed to on the "still open
subject of sick leave benefits." On the contrary, the fact
that the parties reached such an agreement on on-the-job
injuries, to be incorporated in the contract, shows that
they intended similar treatment for the "still open" sub-
ject.
Such an agreement, barring charges for on-the-job in-
juries, would otherwise be meaningless, since it would
modify a provision not in the contract. This ambiguity
requires consideration of extrinsic circumstances in order
to determine the intent of the parties. Memphis Furniture
Mfg., 252 NLRB 303, 306 (1980).
AMERICANA HEALTHCARE CENTER 1733
The Company routinely granted sick leave benefits in
1982, and made no charges against such benefits in the
case of on-the-job injuries, pursuant to the contract. Re-
spondent's apparent argument, that it was either abiding
by an oral agreement or continuing a past practice (on
sick leave), but was 'modifying same with a specific con-
tractual provision, is too strained to be plausible.
Although the Company criticizes Dennison for failure
to read the contract, its own conduct was about the
same. Dick conducted a training session on the contract
a few months after its execution, but did not discuss sick
leave. Administrator Sheppard did not read the contract
for some time, and it was only in the fall of 1982 that she
discovered that it did not contain a sick leave provision,
and called McCormick. The fact that Sheppard told
McCormick that she could not find anything about sick
leave in the contract clearly indicates that she was look-
ing for it, and suggests that she theretofore believed that
there was such a provision. This inference is buttressed
by the Company's actual administration of the program.
Respondent relies on Mercedes-Benz of North America,
258 NLRB 803 (1981). In that case the parties stipulated
that they did not even discuss the topic which was in
issue, and the Board declined to make a finding that they
had reached agreement on it. There is no such stipulation
in this case. Respondent also cites E. L duPont & Co.,
238 NLRB 299 (1978). But in that case the company fre-
quently repeated its determination "to avoid enshrining
the terms of its new procedure in a formal provision of
the collective bargaining agreement" (238 NLRB at 303).
There are no such expressions herein of any determina-
tion to exclude sick leave from the formal contract.
I therefore conclude that the parties agreed to a provi-
sion on sick leave substantially in the language of the
Company's September 29 proposal with some modifica-
tion, and further agreed that this provision was to be in-
corporated into the written collective-bargaining agree-
ment. By mutual mistake it was not included in the
agreement.
Respondent presents additional arguments. Thus, it
contends that the "zipper clause" makes it unnecessary
to determine whether, in fact, there was any agreement
on sick leave. This argument, if accepted, would make it
impossible to correct any mistake in a written agreement,
and would bind the parties to a contract which did not
reflect their complete agreement. Such a conclusion
would also be contrary to the provision in Section 8(d)
of the Act requiring a party to reduce to writing any
agreement reached, and the Supreme Court's holding
that a party may be required to do so. H. J. Heinz Co. v.
NLRB, 311 U.S. 514, 523-526 (1941).
The Company also argues that the Union "acquiesced"
in the agreement, or is "estopped" from contesting its ac-
curacy, because Dennison did not read the contract. Re-
spondent cites a Federal labor arbitration and a Federal
district court case and, also, Alameda County Assn., 255
NLRB 603 (1981). The latter is inapposite. The Compa-
ny in effect argues that mistakes in collective-bargaining
agreements should be considered according to the theo-
ries of negligence in the law of torts.
In this connection, it should be noted that the credited
evidence shows that, at the signing ceremony, Company
Representative Dick told the union negotiators that it
would not be necessary to proofread the contract. Al-
though Union Representative Humphries said that the
agreement was not printed as it had been negotiated, she
did not bring up the issue of sick leave. Dennison admit-
tedly did not read the contract in full for almost a year,
but neither did the Company. Instead, it administered the
contract as if the sick leave benefits were a part of it, in-
ducing Humphries, at least, to believe there was no prob-
lem. These facts demonstrate the inadequacy of Re-
spondent's negligence theories.
The better view is that, where a written agreement is
hot in conformity with the actual intention of the parties,
a court of equity will reform the writing in accordance
with that intention. Williston, Contracts § 1547 (3d ed.).
It is clear that the courts will enforce Board orders re-
quiring a party to execute a contract reflecting the actual
agreement of the parties, 9 and this principle supports ref-
ormation of the written contract herein.
The General Counsel presents an alternative argument,
to wit, that even in the absence of such agreement, Re-
spondent's unilateral change of existing working condi-
tions violated the Act. Respondent argues that it had a
right to do so under the zipper clause.
In Pepsi-Cola Distributing Co., 241 NLRB 869 (1979),
enfd. 646 F.2ci 1173 (6th Cir. 1981), a predecessor em-
ployer had been making yearend bonus payments to em-
ployees. During contract negotiations, the predecessor's
president made a statement indicating that such payments
would continue. There was no such provision in the con-
tract, which contained a clause stating that each party
"voluntarily and unqualifiedly waives the right . . . to
bargain collectively with respect to any subject or
matter, whether or not referred to in this Agreement."
In addition, the contract stated that the agreement con-
stituted the "complete understanding of the parties with
respect to all issues between them and supersedes all
written memoranda, agreement or benefits heretofore
made or given by the parties." (241 NLRB at . 869 fn. 2.)
Nonetheless, the Board held that the employer and the
Union "fully expected the continuation of the bonus pay-
ments and there was no clear specific and unmistakable
waiver by the Union of this term and condition of em-
ployment" (241 NLRB 870). Moreover, the Board im-
posed the obligation to make bonus payments upon the
successor employer, despite the fact that it had no
knowledge of the practice at the time of purchase.
In GTE Automatic Electric Inc., 261 NLRB 1491
(1982), the Board allowed the employer to rely on a
zipper clause in its refusal to bargain over a new condi-
tion of employment, because it did not constitute a uni-
9 Retail Clerks v. NLRB, 373 F.2d 655 (D.0 Cir. 1967); NLRB v. Cen-
tral Machine & Tool Co., 429 F.2d 1127 (10th Cir. 1970); NLRB v. Raven
Industries, 508 F 2d 1289 (8th Cir 1975). In Raven, the court failed to
enforce that part of the Board's order requiring sick leave to be a part of
the contract, based on its disagreement with the Board's finding that the
parties had so agreed. The court's reasoning was grounded on the facts
that the principal union witness' testimony was contradicted by her affi-
davit, that the notes of the bargaining indicated that the employer did not
agree to sick leave, and that the testimony of other union witnesses was
unpersuasive, vague, or uncertain (508 F.2d at 1292-93). This is a far dif-
ferent record from the one in the case at bar.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lateral change of existing working conditions and be-
cause the bargaining history was completely silent on the
matter in issue. However, the Board added, its holding
did not disturb cases involving "an employer unilaterally
changing the employees' working conditions, then using
the zipper clause as a 'sword' to justify its refusal to dis-
cuss the unilateral changes made to the status quo [citing
Pepsi-Cola, supra]" or cases involving "deceptive con-
duct during negotiations, so that there is no conscious or
knowing waiver of rights" (261 NLRB at 1492 fn. 3).
Further, the Board has held, "in order to establish a
waiver of a statutory right, there must be a clear relin-
quishment of the right." McDonnell Douglas Corp., 224
NLRB 881, 887 (1976).
These principles negate Respondent's argument that it
is entitled to rely on the zipper clause in its defense.
Thus, whatever its nature, the parties did reach agree-
ment during negotiations to continue sick leave benefits.
It was an existing, not a new condition of employment,
the parties discussed it and expressed agreement that it
continue, and there was no clear relinquishment by the
Union of its right to bargain over the issue.
Respondent argues that the Union did not make a bar-
gaining demand after receipt of notice of termination of
sick leave benefits. The record shows, however, that
Dennison made repeated requests to discuss the matter
with Company Attorney Becker, to whom he had been
referred by Administrator Sheppard, and was met with
responses which can fairly be characterized as evasive.
I do not accept Respondent's argument that it was mo-
tivated by the high costs of sick leave, because it contin-
ued these benefits for nonunit employees, despite the fact
that their salaries were higher than those of the unit em-
ployees. This disparate treatment of sick leave, the Com-
pany's posted notice in December 1982 saying that the
Union had left sick leave out of the contract, and similar
statements from a nursing supervisor show that the Com-
pany's action was motivated by antiunion considerations.
It is established law that a unilateral change in work-
ing conditions is violative of the Act, and I find that Re-
spondent, by unilaterally discontinuing sick leave benefits
in January 1983, thereby violated Section 8(a)(5) and (1)
of the Act Turnbull Enterprises, 259 NLRB 934 (1982).
Such action was also unlawful because Respondent had
contractually agreed to continue such benefits, and had
agreed to incorporate them in a collective-bargaining
agreement. Although this issue was not alleged in the
complaint, it was thoroughly litigated.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Americana Healthcare Center is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Laborers' International Union of North America,
Local 438, is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all times material herein, the Union has been the
exclusive bargaining representative of Respondent's em-
ployees in the bargaining unit described below within the
meaning of Section 9(a) of the Act. The appropriate bar-
gaining unit is:
All full time and regular part time service and
maintenance employees employed by the employer
at its Decatur, Georgia facility including all nurses'
aides, physical therapy aides, unit clerks, housekeep-
ing employees, maintenance employees, dietary em-
ployees, and laundry employees, but excluding all
office clerical employees, professional employees,
technical employees, licensed practical nurses, and
guards and supervisors as defined in the Act.
4. On December 9, 1981, during collective-bargaining
negotiations, the parties agreed to include the following
provision in a collective-bargaining agreement which de-
scribed a sick leave program already in existence:
SICK LEAVE
The Company agrees to a sick leave program
providing that after 600 hours of active employment
an employee, on and after the second day of ex-
cused absence, shall accrue 4 hours of credit for use
as sick leave for every 200 hours worked, said ac-
crued credit not to exceed 120 hours, and providing
further that pay for one-half of an employee's ac-
crued, unused hours may be requested at Christmas
and will be paid in the last payroll check before De-
cember 25.
5. On January 5, 1982, the parties executed a written
collective-bargaining agreement which, by mutual mis-
take, omitted the agreed-upon sick leave provision.
6. Beginning in January 1983, Respondent unilaterally
terminated the existing sick leave program to which it
had agreed, and denied sick leave benefits to its employ-
ees.
7. Respondent's termination of said benefits constituted
an unfair labor practice within the meaning of Section
8(a)(5) and (1) of the Act
8. Respondent's unfair labor practice was an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Pursuant to the foregoing considerations, the collec-
tive-bargaining agreement should be reformed so as to
reflect the actual agreement of the parties on sick leave.
Selection of the appropriate place in the contract for
insertion of this article is not significant, since such
placement does not affect substantive rights. Although
the article might be placed next to the other articles on
leave, I consider it more appropriately placed immediate-
ly precedent to article XVIII, which refers to sick leave
Accordingly, the sick leave article would become article
XVIII, while the present article XVIII and those follow-
ing it would be renumbered accordingly.
In addition, those employees who would have been en-
titled to sick leave benefits should be made whole by
providing them with sick leave credit since the Compa-
ny's unlawful discontinuance of same in 1983. Further,
the employees should be compensated for their unused
AMERICANA HEALTHCARE CENTER 1735
sick leave at the end of 1983 in accordance with estab-
lished procedure. Although they may not have "request-
ed" same, such requests would have been futile in light
of Respondent's unlawful action in discontinuing sick
leave benefits Accordingly, such requests shall be pre-
sumed. Compensation shall be made in accordance with
Turnbull Enterprises, supra; Ogle Protection Service, 183
NLRB 682 (1970); and Isis Plumbing Go, 138 NLRB 716
(1962). In addition, employees should be notified of these
rights. Turnbull Enterprises, supra.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Americana Healthcare Center, Deca-
tur, Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Denying its employees existing sick leave benefits
to which it had agreed
(b) In any other like or related manner interfering
with, restraining, or coercing employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On written request by the Union, correct its collec-
tive-bargaining agreement with the Union executed on
January 5, 1982, so as to include therein, as article
XVIII, the article on sick leave described in the section
of this decision entitled "Conclusions of Law," subsec-
tion 4, renumber the current article XVIII as article XIX
and the following articles accordingly, and furnish the
Union with a duly signed copy thereof.
(b) Make its employees whole by granting them the
sick leave to which they were entitled beginning in Janu-
ary 1983, including compensation for unused sick leave
at the end of 1983, in the manner , described in the section
of this decision entitled "The Remedy"
(c) Notify in writing all persons employed in the bar-
gaining unit after January 5, 1982, of their entitlement to
sick leave including potential entitlement to compensa-
tion for unused sick leave in 1983.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
leave records, personnel records and reports, and all
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
other records relevant or necessary to facilitate the de-
termination of the amounts due to employees under the
terms of this Order.
(e) Post at its Decatur, Georgia facility copies of the
attached notice entitled "Appendix." ' Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable 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 Re-
spondent has taken to comply
" 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 Na-
tional Labor Relations Board" shall read ."Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 or-
dered us to post and abide by this notice.
WE WILL NOT terminate the sick leave program to
which we have agreed, and WE WILL NOT deny our em-
ployees the sick leave benefits to which they are entitled
WE WILL NOT in any other like or related manner
interfere with, restrain, or coerce you in the exercise of
the rights guaranteed you by in Section 7 of the Act
WE WILL, on written request, furnish the Union with a
copy of our collective-bargaining agreement, corrected
so as to include the sick leave program to which we
agreed.
WE WILL grant all employees the sick leave to which
they are entitled since January 1983, including, compen-
sation for unused sick leave at the end of 1983
WE WILL notify in writing all employees employed on
and after January 5, 1982, of their right to sick leave
benefits.
AMERICANA HEALTHCARE CENTER