Beverly Health & Rehabilitation

National Labor Relations Board - Board Decisions

Jun 12, 1998

325 N.L.R.B. 897 (N.L.R.B. 1998)

897
325 NLRB No. 166
NEW MADRID NURSING CENTER
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 All dates are in 1996 unless otherwise indicated.
2 Respondent’s answer denied the single-employer allegations, and
it does not admit the gross revenue derived at the New Madrid facil-
ity. To avoid any confusion, the parties stipulated to the foregoing
jurisdictional facts which establish that Respondent, at its New Ma-
drid facility, is engaged in commerce as defined in the Act. Univer-
sity Nursing Home, 168 NLRB 263 (1967).
3 Beverly Enterprises, 310 NLRB 222 (1993), enfd. as modified
sub nom. Torrington Extend-A-Care Employee Assn. v. NLRB, 17
F.3d 580 (2d Cir. 1994). The Court of Appeals denied the
corporatewide remedy ordered by the Board. Respondent admitted
that it was a single employer in that case.
4 The single-employer issue was fully litigated in Beverly II, and
the administrative law judge in Beverly III took notice of the record
in that case and received additional evidence. Those cases, in which
both judges found Beverly to be a single employer, are pending be-
fore the Board and are not yet Board precedent.
Beverly Health and Rehabilitation Services, Inc., Its
Operating Regional Offices, Wholly-Owned
Subsidiaries and Individual Facilities and Each
of Them and/or Its Wholly-Owned Subsidiary
Beverly Enterprises-Missouri, Inc., d/b/a New
Madrid Nursing Center and Manufacturing,
Production and Service Workers Union, Local
24, AFL–CIO. Cases 14–CA–24168–1 and 14–
CA–24168–3
June 12, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
On April 9, 1997, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions, a supporting brief, and an answering
brief. The General Counsel filed limited exceptions, a
supporting brief, and an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Beverly Health and Reha-
bilitation Services, Inc., Its Operating Regional Of-
fices, Wholly-Owned Subsidiaries and Individual Fa-
cilities and Each of Them and/or Its Wholly-Owned
Subsidiary Beverly Enterprises-Missouri, Inc., d/b/a
New Madrid Nursing Center, New Madrid, Missouri,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Lucinda L. Flynn, Esq., for the General Counsel.
Keith R. Jewell, Esq., for the Respondent.
Jeff Keating, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in St. Louis, Missouri, on December 9 and 10,
1996. The charge in Case 14–CA–24168–1 was filed on July
17, 1996, and amended on October 3, 1996.1 The charge in
Case 14–CA–24168–3 was filed on July 29 and amended on
October 3. The consolidated complaint was issued on Octo-
ber 8 and amended on November 15. The complaint, as
amended, alleges that Respondent Beverly, a single em-
ployer, at the New Madrid Nursing Center, violated Section
8(a)(1) of the National Labor Relations Act by informing its
employees that they were no longer represented by the
Union, and Section 8(a)(5) of the Act by withdrawing pro-
posals from the bargaining table, by withdrawing recognition
from the Union, and by removing the union bulletin board.
Respondent’s timely answer denies all violations of the Act
and affirmatively pleads that the Union did not represent a
majority of the employees in the appropriate unit and that
Respondent had a good-faith doubt of the Union’s majority
status.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is a health care institution
engaged in the operation of nursing homes at various loca-
tions including its facility in New Madrid, Missouri, where
it annually derives gross revenue in excess of $100,000 and
purchases and receives goods valued in excess of $5000 di-
rectly from points located outside the State of Missouri.2 I
find and conclude that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. The answer admits and I find and conclude that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. SINGLE EMPLOYER
The complaint alleges, and the answer denies, that Beverly
Health and Rehabilitation Services, Inc., its operating re-
gional offices, wholly owned subsidiaries, and individual fa-
cilities are a single employer. The General Counsel requested
that I take judicial notice of the Board decision in Beverly
I,3 and the administrative law judge decisions in Beverly II
and III. Respondent objected and I overruled that objection,
stating that I would take notice of decided Board precedent.4
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898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Findeiss is now director of labor relations and Maniaci is now
group manager of human resources, area 18.
6 Findeiss acknowledged canceling a meeting due to physical prob-
lems, but he did not recall when. I find it was the October meeting
as there is no other meeting that Respondent acknowledges cancel-
ing.
7 There was no meeting on November 21, 1995. It is immaterial
whether the meeting was canceled by mutual consent, as Respondent
contends, or because Findeiss was ill.
8 Findeiss disputed Spano’s testimony that the various ancillary
documents, to which the memorandum refers by saying ‘‘see at-
tached,’’ were physically attached to the memorandum at the time
he signed it. This dispute is immaterial because, whether attached or
not, there is no claim or evidence that the documents identified by
Spano were other than the documents to which the memorandum re-
ferred. Maniaci did not deny that they were attached.
9 The final item on the list of 14 demands dealt with paying em-
ployee members of the negotiating committee for lost time. This
never occurred. The Union, as reflected by the memorandum, accept-
ed the Company’s existing benefit plans. A wage increase of 59
cents per hour in the nursing department and 10 cents per hour in
the ambulatory department was agreed on and implemented.
10 Spano states that, with this memorandum, all the Union’s de-
mands had been addressed. No further negotiations were scheduled
because, as far as Spano was concerned, ‘‘We had a contract.’’
Respondent admitted that it was a single employer in Beverly
I. I find it unnecessary to address the single-employer issue
in view of Respondent’s stipulation to the facts on which I
have based my finding that Respondent is an employer en-
gaged in commerce and my determination that the remedy is
appropriately limited to the facility involved in this proceed-
ing, the New Madrid Nursing Center.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union was certified as the exclusive collective-bar-
gaining representative of Respondent’s nonprofessional em-
ployees at its New Madrid, Missouri facility on July 10,
1995. The Respondent contacted the Union and initial bar-
gaining sessions were set for September 20 and 21, 1995.
Thereafter the parties met and bargained on November 20,
1995, January 25, and June 5. All bargaining sessions, except
the June 5 session, were held at a motel in Cape Girardeau,
Missouri, a town near New Madrid. With the agreement of
the parties, various agreed changes were made in employee
wages and working conditions. In negotiations, the chief
spokesmen for Respondent were Regional Director of Asso-
ciate Relations Robert Findeiss and Associate Relations Rep-
resentative Joe Maniaci.5 The Union was represented at the
New Madrid facility by Business Representative Mark Jack-
son. The chief negotiators were Business Agents Jeff Keating
and Mark Spano.
At the initial bargaining session on September 20, 1995,
the Company was represented by Findeiss and Maniaci and
the Union by Keating, Jackson, and two employee union
members. The Union presented the Company with a list of
14 demands, including major economic items such as wages,
health and life insurance, and a 401(k) plan. The Union also
presented model language for a total contract. The Company
presented three proposals dealing with holidays, sick pay,
and vacations. Agreement was reached on sick pay, which
was among the items on the Union’s list of 14 demands.
On September 21, 1995, the same representatives were
present. The parties entered into a letter of understanding re-
garding an overtime policy that, inter alia, provided for pro-
gressive discipline for employees who failed or refused to
work assigned overtime. It was agreed that the next bargain-
ing session would be in late October, but Findeiss was phys-
ically unable to attend that meeting and it was rescheduled
for November.6
On November 20, 1995, the same representatives were
present. The Company presented its model language for a
total contract. The overtime policy previously agreed on had
been typed. This typed document, designated as a letter of
understanding, was signed and dated November 20, 1995.
The parties also signed a letter of understanding regarding an
addendum to the attendance policy. The parties verbally
agreed on reporting pay and uniforms, two of the Union’s
initial 14 demands.7
On January 25, Keating was absent. He was replaced by
Mark Spano. The parties met and agreed on a wage increase,
insurance, and a 401(k) plan. The verbal agreement of No-
vember 20 for 2 hours’ reporting pay was formalized using
the language from the Union’s model contract, and the verbal
agreement in which the Company was to provide two uni-
forms was written onto a document titled memorandum of
agreement. The letter of understanding regarding overtime
was included in the memorandum of agreement.8 All the
Union’s initial 14 demands had been addressed and either
agreed upon, agreed upon as modified, or withdrawn.9
Findeiss stated that he would put the draft of a contract to-
gether and forward it to Keating for his review.10
In early April, Keating received the Company’s draft con-
tract. He reviewed it, noted some inaccuracies and omissions,
redrafted the contract, and sent it back to the Company at the
end of April. Findeiss responded with a letter dated May 3,
stating the Company’s willingness to meet to discuss unre-
solved issues relating to the collective-bargaining agreement.
A meeting was arranged for June 5 in Chicago since
Maniaci, Keating, and Spano were all in the Chicago area.
On June 5, Findeiss and Maniaci met with Keating and
Spano at a Chicago motel near Midway Airport. Maniaci had
highlighted various items in the draft contract that Keating
had sent to the Company. In a meeting lasting about an hour,
the parties went through the draft and addressed the areas
highlighted by Maniaci. It is undisputed that the parties were
working from this document. The first highlighted item, ad-
ditional language in the recognition paragraph, was explained
by the Union. No disagreement was expressed after the ex-
planation, and there was no request to change the language.
In the course of the meeting, the Union agreed to strike lan-
guage that would have made part-time employees eligible for
holiday pay. The parties agreed to allow 4 days off for stew-
ard training and education. Keating acknowledged that he
had inadvertently omitted a previously agreed-upon para-
graph in the vacancies provision in the draft and agreed that
it be reinserted. The Company had highlighted the provision
in the grievance procedure that permitted 5 days in which a
grievance had to be submitted. After discussion, there was no
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899NEW MADRID NURSING CENTER
11 Maniaci did not take contemporaneous notes of the meeting. He
testified that he prepared a summary the following day. That sum-
mary states that the grievance procedure language on the document
from which the parties were negotiating was different from the com-
pany proposal. There was no discussion or disagreement regarding
the overall language of the grievance procedure. The Company re-
quested, and the Union agreed, to substitute the word supervisor for
the word foreman. The only substantive discussion related to the
number of days allowed for presentation of a grievance, and the par-
ties initialed the provision as drafted, permitting 5 days. Maniaci ac-
knowledged that, in a pretrial affidavit, he had sworn that the parties
had agreed on the grievance procedure.
12 Although Findeiss indicated that splitting the difference would
appear to be acceptable, he did not actually agree to accept 60 days.
The Union, although proposing to split the difference, did not do so
as to union security. As discussed infra, the Union offered 60 days
with regard to the probationary period and holiday pay, but main-
tained its position of 30 days regarding the union-dues obligation.
13 An employee must, of course, voluntarily agree to dues check-
off. Thus, it appears this issue related to any limitation on an em-
ployee’s right to discontinue dues checkoff. This would account for
Keating’s testimony that he told the Company that he needed to re-
view the Union’s checkoff agreement. It does not appear that he un-
derstood that the Company wanted specific contractual language. Al-
though there may have been a misunderstanding regarding whether
there needed to be contractual language, the Union did not disagree
with the concept of voluntary dues deduction, the Company did not
object to any of the Union’s proposed contractual language on June
5, and the Company did not propose any additional language.
14 Maniaci testified that the Union argued that Missouri law re-
quired that accrued vacation be paid on termination. His notes,
which he prepared the day following negotiations, state that the
Union had omitted the forfeiture language. Reliance by the Union
on Missouri law is not mentioned. The document from which the
parties were working reflects that the Company added this language.
I credit Keating that he questioned the reason for this addition and
received the ‘‘Missouri law’’ response.
15 Keating acknowledged that Maniaci asserted that the Company
‘‘had discussed this [overtime] with Mark Jackson.’’ Dianne Ivy, ad-
ministrator of the facility, and Kim Ivie, director of nursing, met
with Mack Jackson, but not Keating or Spano, on February 21 re-
garding altering the rotation system by which overtime was assigned.
Ivy testified that, after discussing and agreeing on a new system for
assignment of overtime, it was also agreed that an employee failing
or refusing to work overtime would be considered a voluntary quit.
Ivie recalled the discussion regarding rotation and indicated the
change was for a trial period. Although she did not specifically re-
call anything being said about discipline, her testimony suggests that
at least one employee was discharged for failing to work overtime.
There is no written agreement reflecting the parties’ mutual under-
standings regarding this meeting. The General Counsel did not recall
Jackson to rebut Ivy’s testimony, and the complaint does not allege
a unilateral change regarding abandonment of the letter of under-
standing. It certainly appears that the policy may have been altered,
although Keating was not aware of the alteration.
16 Keating and Spano both credibly testified that a meeting for
June 12 was set. Although both Findeiss and Maniaci denied that a
meeting was set, Maniaci acknowledged that Spano said that he
would be at New Madrid the following week. Most significantly,
Findeiss did not deny having a telephone conversation with Spano
on June 25 in which he apologized for missing the meeting.
change in this provision.11 It was also agreed that the no
strike or lockout clause would be waived as to wages and
health insurance at the times the contract provided that these
items could be reopened.
When the meeting concluded, all parties understood that
they had not reached agreement regarding the permitted
length of employment before an employee incurred the obli-
gation to pay proportionate union dues under the union-secu-
rity article, the length of the probationary period for new em-
ployees, and the length of employment before full-time em-
ployees became eligible for holiday pay. In all three in-
stances, the Union sought 30 days and the Company sought
90 days. The difference between 30 and 90 days was first
discussed in connection with the union-security article. The
Union offered to split the difference and specify 60 days.
Findeiss stated, ‘‘Sounds like a winner, put it in writing and
we’ll see what it looks like.’’ The Union proposed the same
splitting the difference regarding the probationary period and
eligibility for holiday pay.12 The parties also were aware that
they disagreed concerning successorship. The Union sought
a provision in which the Company would have any successor
‘‘retain’’ current employees. The Company would require
only that any successor be ‘‘requested to retain’’ current em-
ployees. Thus, there were four items about which the parties
acknowledged disagreement.
Additionally, there were three items that the record estab-
lishes were unresolved. Regarding checkoff, the Company
wanted to assure the voluntary deduction of union dues. No
change in the proposed contractual language was requested,
rather, the Company wanted additional language proposed.
The Union interposed no objection to voluntary deduction.13
Regarding vacations, the Company had added language pro-
viding for forfeiture of any accrued vacation to terminated
employees. It sought to justify this change by arguing that
Missouri law required this. The Union stated that it would
agree to this language if, in fact, that was what the law pro-
vided. The Company agreed to drop the language if the law
did not so provide.14 Regarding overtime, the Company
sought to have any employee who failed or refused to work
overtime to be considered a voluntary quit, contending that
this was the policy being followed. The Union proposed pro-
gressive discipline as provided the letter of understanding en-
tered into by the parties on November 20, 1995, and incor-
porated in the memorandum of agreement signed on January
25.15
At the close of this meeting it was agreed that Keating,
by June 10, would forward to Findeiss, by facsimile trans-
mission, the changes to which the Union agreed. It was fur-
ther agreed that Spano would fly to the New Madrid facility
on June 12 and meet with Findeiss to finalize the collective-
bargaining agreement.16
Keating forwarded the changes to which the Union agreed.
The Union agreed to a 60-day probationary period and em-
ployment for 60 days before becoming eligible for holiday
pay. It did not alter its position requiring a dues obligation
after 30 days. Nor did it agree that any successor only be
requested to retain current employees. There was no contrac-
tual proposal regarding voluntary dues deduction. Consistent
with its understanding that the Company would drop its de-
mand for forfeiture of accrued vacation unless this was re-
quired by Missouri law, the Union did not agree to the for-
feiture language. Consistent with its position on June 5, the
Union retained progressive discipline in the overtime policy.
Spano went to the New Madrid facility on June 12.
Findeiss was not there. A call was placed to Findeiss who
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900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Ivy confirms that Spano was present but denied that anything
was said concerning a meeting with Findeiss or Maniaci. Spano
never testified that he spoke directly with Ivy. Rather, when Findeiss
did not show up, he went to Ivy’s office and ‘‘they called his
[Findeiss’s] office.’’
18 Ivy testified that she only worked half a day, the morning of
June 25.
19 Findeiss was quite evasive when counsel for the General Coun-
sel sought to determine the date that he learned that Ivy had been
handed a petition. He ultimately admitted that he heard rumors of
a petition being passed around in June. In view of his testimony that
his source of information was Maniaci, and in view of counsel for
Respondent’s avoidance of this area when he examined Findeiss, I
find that Maniaci reported Ivy’s telephone call to Findeiss shortly
after he received it. Findeiss was Maniaci’s immediate superior at
that time.
20 There is no evidence of any contact between Findeiss and Spano
after this telephone call. An agreement relating to settlement of sev-
eral grievances was sent by facsimile on June 27 from Spano to
Findeiss, but there is no evidence of actual contact.
21 Findeiss acknowledged that nothing had been said to the Union
regarding withdrawal of proposals. At the hearing Findeiss testified
that the proposals were withdrawn because
[W]e had been going over [them] for months and months and
months and we were getting no where. . . . Mr. Keating and
Mr. Spano, each time we got together, might change substantive,
small bits of language, but in no way, shape or form were [we]
coming to agreement on those proposals. It was my feeling that
if we took those off the table we could start, start anew, if you
will. Rearrange and come up with some proposals that we would
have some amicable language between the Union and the Com-
pany.
22 Maniaci acknowledged that he did not know what specific pro-
posals were being withdrawn. Findeiss had no independent recollec-
tion of which proposals were or were not open. Various assertions
he made, such as the hours of work article being open, were dem-
onstrated to be in error. The record clearly establishes, and I find,
that neither Maniaci nor Findeiss were aware of what specific pro-
posals were being withdrawn.
23 Maniaci acknowledged that, to his knowledge, no new proposals
were being considered. Findeiss, after seeking to avoid directly an-
swering counsel for the General Counsel, acknowledged that he
never drafted any further proposals. Respondent did not present any
evidence that it was considering any new proposals.
24 Ivy, at first, stated that she and Director of Nursing Ivie jointly
made the decision to withdraw recognition from the Union. When
examined regarding her initial receipt of the petition on June 25 and
questioned why she had not withdrawn recognition at that time, she
acknowledged that ‘‘to be quite honest, I was waiting on advice
from my attorney.’’
advised, presumably through a secretary, that he was tied
up.17
On the morning of June 25,18 at the New Madrid facility,
an employee presented Administrator Dianne Ivy with a copy
of a petition bearing the signatures of 22 employees, fol-
lowed by the date. The earliest date was June 21, the latest
was June 25. The petition stated that the employees no
longer wished to be represented by the Union. Ivy imme-
diately called Maniaci because she did not know whether to
accept the petition. Thereafter, still on June 25, Ivy prepared
a list of all unit employees. The copy of the petition and list
of employees was sent to Respondent’s attorney on June 26.
Thereafter, also on June 25, Findeiss called Spano.19
Findeiss stated that he was sorry he couldn’t make the meet-
ing on June 12; he was tied up. He stated, since the Fourth
of July holiday was coming up, ‘‘that he would call me right
after the holiday, we’d get together and sign this contract and
be done with it.’’20
On July 1, Maniaci wrote Spano the following letter:
To date, New Madrid’s complete contract offers put on
the table have not been accepted by the Union. Obvi-
ously, new proposals will be required. Be advised, that
all Articles or provisions previously proposed by the
Employer, but not agreed to by the Union, are hereby
withdrawn and are no longer on the table inviting ac-
ceptance. New proposals are being considered.
Findeiss had directed Maniaci to send the letter.21 No other
effort was made to contact the Union. Respondent did not
know what specific proposals it was withdrawing.22 No new
proposals were being considered.23
On July 8, Spano returned to his office and, for the first
time, saw the letter of July 1. He immediately called Findeiss
who was not in. He left a message stating, ‘‘You were sup-
posed to call me after the Fourth. Very Important.’’ Findeiss
did not respond. Spano called again on July 10. Again there
was no response.
On July 11, Director of Nursing Kim Ivie, in Adminis-
trator Ivy’s absence, was given another copy of the petition.
It contained four more names than the original petition, 25
of whom were current employees. The unit consisted of 45
employees. Ivie, with assistance from counsel, wrote Mark
Jackson a letter which states that the Company had received
a petition from a majority of the unit employees that stated
they no longer wished to be represented by the Union;
‘‘Therefore, recognition of the Union as the collective bar-
gaining representative of our employees is hereby with-
drawn.’’24
On July 17, Maniaci went to the New Madrid facility. He
removed union items from the bulletin board to which the
Union had been granted access under the terms of the memo-
randum of agreement in January. He told employees that Re-
spondent had withdrawn recognition and that they were no
longer represented by the Union.
B. Analysis and Concluding Findings
The complaint alleges that Respondent violated Section
8(a)(5) of the Act by withdrawing proposals in an effort to
impede the parties from reaching a collective-bargaining
agreement. Respondent, in its brief, argues that the with-
drawal did not occur in the face of actual or imminent ac-
ceptance and, even if it did withdraw the proposals because
of knowledge of the decertification efforts, it was privileged
to do so because of a shift in economic strength.
I find that the withdrawal of the proposals was, as alleged
in the complaint, an effort by Respondent to impede reaching
an agreement. Contrary to the testimony of Findeiss, suggest-
ing ‘‘months and months’’ of bargaining but ‘‘getting no
where,’’ the parties had achieved significant agreement, in-
cluding the economic package, in only five bargaining ses-
sions, September 20 and 21 and November 20, 1995, January
25, and June 5. Contrary to Findeiss, Keating and Spano had
not been changing ‘‘small bits of language.’’ The disagree-
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901NEW MADRID NURSING CENTER
25 Keating stated that he had instructed Spano not to let the ‘‘re-
quest retention’’ language get in the way of an agreement.
26 As discussed above, I have credited Keating in this regard. If
Respondent were to retreat from its previous agreement and propose
some other basis for insistence on the forfeiture language, this issue
would be on the table; however, on the basis of my findings regard-
ing the contemporaneous understanding of the parties on June 5, this
was not an issue.
27 Similarly, in Atlas Metal Parts Co. v. NLRB, 660 F.2d 304 (7th
Cir. 1981), the Court of Appeals found, contrary to the Board, that
the respondent was privileged to insist ‘‘on [its] original proposals.’’
Auciello Iron Works, 317 NLRB 364 (1995), also cited by Respond-
ent, is inapposite. In that case the respondent refused to bargain due
to an alleged good-faith doubt of the union’s continuing majority
status. Respondent, on July 1, was not privileged to assert doubt as
to the Union’s majority status.
ments, at the close of the June 5 meeting, had nothing to do
with the wording of the proposals. The disagreements, as dis-
cussed above, were the substantive issues of whether em-
ployment should be 30, 60, or 90 days regarding union secu-
rity, probationary period, and eligibility for holiday pay;
whether a successor would ‘‘retain’’ or be ‘‘requested to re-
tain’’ all current employees; whether Missouri law provided
for forfeiture of vacation upon termination, and what dis-
cipline was to be imposed on employees who refused over-
time. Respondent wanted to assure voluntary dues deduction,
and the Union did not disagree, although no language was
proposed. Contrary to Findeiss, there was no need to ‘‘come
up with some amicable language’’; there was only a need to
resolve the foregoing substantive issues.
Counsel for the General Counsel questioned Findeiss re-
garding the limited issues that were open. Respondent’s un-
lawful motivation is demonstrated by the following exchange
in which Findeiss would not even let counsel finish her ques-
tion:
COUNSEL: So you’re saying then that you were going
to withdraw the entire article.
. . . .
FINDEISS: Absolutely.
COUNSEL: On seniority because you did not agree to
the length of the probationary period in section 4?
FINDEISS: Absolutely.
On June 5, the Union agreed to various minor changes in
wording requested by Respondent, such as substitution of the
word supervisor for foreman. Respondent did not inform the
Union of a need for any additional changes in wording, and
certainly did not suggest the need for such extensive changes
that entire articles would have to be withdrawn. Findeiss,
after receiving the fax on June 10, did not contact the Union
regarding any need for different language. On the morning
of June 25, Ivy informed Maniaci of the petition. Thereafter,
on June 25, Findeiss called Spano. He apologized for miss-
ing the meeting on June 12 and put off bargaining until after
July 4. Nothing was mentioned about a need to withdraw any
proposals. I find that this telephone call was intended to buy
as much time as possible in order for Respondent to deter-
mine its strategy. Respondent decided on a strategy that
would preclude any possibility of a contract. On July 1, Re-
spondent withdrew ‘‘all Articles or provisions previously
proposed by the Employer, but not agreed to by the Union.’’
Neither Findeiss nor Maniaci knew what was being with-
drawn. No new proposals were made, thus a contract was an
impossibility. Respondent’s precipitous withdrawal of pro-
posals 10 days before the end of the certification year was
intended to assure that there would be no collective-bargain-
ing agreement.
The record establishes, and I find, that the parties were on
the threshold of concluding a collective-bargaining agree-
ment. The Union, on the basis of Findeiss’ statement that it
‘‘sounds like a winner,’’ agreed to split the difference be-
tween 30 and 90 days and proposed 60 days regarding the
probationary period and eligibility for holiday pay. The
Union’s continued proposal of 30 days with regard to union
security and continued proposal, in the successorship provi-
sion, of the word ‘‘retain,’’ instead of ‘‘requested to retain,’’
would not have proved to be a stumbling block to reaching
an agreement.25 The Union never expressed any opposition
to voluntary dues deduction. Although it is unclear whether
appropriate language in the checkoff agreement would have
satisfied Respondent’s concern, there is certainly no evidence
that agreement on this issue was a problem. The Union was
told that Respondent’s position on forfeiture of vacation was
based on Missouri law, and Respondent had agreed that, if
the law did not so provide, the language Respondent had
added to that provision would be dropped. Keating had
checked and discovered there was no such law, thus this was
not an issue.26 The Union, consistent with the letter of under-
standing and memorandum of agreement, continued to pro-
pose progressive discipline for employees who failed or re-
fused to work overtime. Respondent proposed that those em-
ployees be considered to have voluntary quit, pursuant to an
alleged agreement made with Jackson and of which Keating
was unaware. Thus, it appears that each party proposed what
it understood to be the status quo. This issue would not have
been a problem or precluded agreement once the actual status
quo was established. Transit Service Corp., 312 NLRB 477,
483 fn. 7 (1993).
In finding that the parties were on the threshold of con-
cluding an agreement, I note that both the Respondent and
the Union were satisfied that the collective-bargaining agree-
ment could be concluded quickly. Keating had faxed to
Findeiss the changes to which the Union agreed on June 10.
Spano intended to conclude the agreement on June 12. When
Findeiss sought to buy time, by delaying bargaining until
after July 4, he stated to Spano, ‘‘[W]e’d get together and
sign this contract and be done with it.’’ Thus, contrary to Re-
spondent’s argument, I find that that the withdrawal of the
proposals came in the face of imminent acceptance by the
Union.
Respondent’s argument that it was privileged, after learn-
ing of the employee decertification efforts, to withdraw its
proposals due to a shift in economic strength finds no sup-
port in the Act or Board precedent. The Act requires that the
parties meet and ‘‘confer in good faith.’’ In Challenge-Cook
Bros., 288 NLRB 387 (1988), cited by Respondent, the re-
spondent there eliminated the retroactive application of its
wage and pension proposals in the face of a strike. There
was no wholesale withdrawal of proposals. The Board con-
cluded, in the circumstances of that case, that the respondent
took ‘‘a reasonable bargaining stance under all the cir-
cumstances.’’ Id. at 389.27 In the instant case, Respondent
took no stance. It was not insisting on particular proposals.
Rather, it withdrew all proposals in order to preclude con-
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902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 The petition, as of June 25, had 22 names. There were 41 unit
employees on that date.
29 In Den-Tal-EZ, the Board adopted the decision which discussed
the possibility of acceptance of a contractual offer within 5 days. Id.
at 970.
30 In view of this finding, I need not address the General Coun-
sel’s request that the Board adopt a rule repudiating the ‘‘good-faith
doubt’’ standard and requiring a decertification election in cases
where a union’s continuing majority is questioned.
31 As in Whisper Soft Mills, the purpose is to restore the status
quo. Respondent’s unlawful acts occurred within the certification
year, a period in which the Union did not have to defend its majority
status. Respondent cannot, after unlawfully depriving the Union of
the opportunity to enter into a contract in the certification year, with-
draw recognition on the day the certification year ends. The status
quo is entitlement to one full year of good-faith bargaining.
32 The record establishes that the Union was actually deprived of
almost 1 month of bargaining, first by Findeiss’s failure to meet on
June 12, then by his forestalling bargaining until after July 4 when
he called Spano on June 25, and finally by the withdrawal of pro-
posals on July 1. Only the action of July 1 is alleged as an unfair
labor practice; however, I will consider all the surrounding cir-
cumstances regarding an appropriate remedy.
summation of an agreement. As discussed above, Respondent
did not even know what proposals it was withdrawing. Con-
trary to the representation made in Maniaci’s letter, there
were no ‘‘new proposals’’ under consideration. No new pro-
posals were ever offered. Respondent was not lawfully main-
taining a reasonable bargaining stance; it was precluding bar-
gaining to avoid agreement.
Despite the June 25 presentation of the petition, signed by
a majority of Respondent’s employees who stated that they
no longer wished to be represented by the Union,28 Respond-
ent was not privileged to entertain a good-faith doubt regard-
ing the Union’s majority status until the conclusion of the
certification year. Brooks v. NLRB, 348 U.S. 96 (1954). In
this case, as in Den-Tal-EZ, Inc., 303 NLRB 968 (1991), Re-
spondent ‘‘seized on the . . . legally meaningless employee
petition as a mechanism for escape from its statutory duty to
bargain.’’ Id. at 970. Although there were only 10 days left
in the certification year when Respondent wrote its letter,
Respondent had postponed bargaining on June 25, when
Findeiss called Keating. Those 15 days provided ample time
in which the parties could have reached agreement on a con-
tract.29 Obviously Respondent was concerned that a contract
and the corresponding obligation not to question the Union’s
majority status during the term of the contract would result
from any meeting. Thus, on June 25, Respondent forestalled
any meeting until after July 4. On July 1, Respondent as-
sured that there would be no contract by withdrawing all pro-
posals upon which there had not been agreement. No new
proposals were substituted. A respondent violates the Act
when it withdraws proposals in order to preclude consumma-
tion of a collective-bargaining agreement prior to the end of
the certification year. Glomac Plastics, Inc., 234 NLRB
1309, 1319 (1978); Industrial Chrome Co., 306 NLRB 79,
84 (1992). I find that this Respondent did so, and in so doing
violated Section 8(a)(5) of the Act.
The complaint alleges that Respondent’s withdrawal of
recognition on July 11 violated Section 8(a)(5) of the Act.
Respondent, citing Lee Lumber & Bldg. Material Corp., 322
NLRB 175 (1996), in which the Board notes that not every
unfair labor practice will taint evidence of a subsequent loss
of majority status, argues that even if the withdrawal of pro-
posals on July 1 be found to violate the Act there is no caus-
al relationship between the withdrawal of proposals on July
1 and withdrawal of recognition on July 11. That case has
no impact on my decision here. My decision is predicated
upon the Respondent’s unlawful actions after it learned of
the petition. Regarding the withdrawal of recognition, I find
that Respondent’s withdrawal of recognition, after unlawfully
precluding bargaining in the certification year, constituted ‘‘a
prima facia violation of the Act.’’ Whisper Soft Mills, 267
NLRB 813, 816 (1983), revd. on other grounds 754 F.2d
1381 (9th Cir. 1984).30 The Union was entitled to 1 year of
good-faith bargaining from the date of certification. Respond-
ent’s actions precluded not only a full year of bargaining, its
withdrawal of proposals precluded the possibility of an
agreement. In such cases, the proper remedy is extension of
the certification year.31 At the least, the Union was deprived
of 10 days’ bargaining by Respondent’s unlawful conduct on
July 1. Thus, at an absolute minimum, an extension of the
certification year by at least 10 days, to July 20, would be
warranted. Consequently, Respondent’s withdrawal of rec-
ognition on July 11, during the extended certification year,
constituted ‘‘a prima facia violation of the Act.’’ Id.32
The complaint alleges that Respondent’s unilateral removal
of the union bulletin board violated Section 8(a)(5) of the
Act. Respondent contends that its action did not violate the
Act because the Union no longer represented the employees.
As I have found, the withdrawal of recognition was unlawful.
The Union did represent the employees. I find that Respond-
ent’s unilateral removal of union postings from the bulletin
board designated for the Union’s use constituted a change in
working conditions and violated Section 8(a)(5) of the Act.
Arizona Portland Cement Co., 302 NLRB 36 (1991).
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when Maniaci informed employees that
Respondent had withdrawn recognition from the Union and
that they were no longer represented by the Union. Insofar
as the withdrawal of recognition was unlawful, the Union
continued as the employees’ collective-bargaining representa-
tive. The erroneous representation restrained and coerced em-
ployees in that it falsely advised them that they could no
longer rely on the Union to represent them. In making this
statement, I find that Respondent violated Section 8(a)(1) of
the Act.
CONCLUSIONS OF LAW
1. By informing its employees that it had withdrawn rec-
ognition and that the Union was no longer the exclusive col-
lective-bargaining representative of its employees, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
2. By withdrawing bargaining proposals in an effort to im-
pede the parties from entering into a collective-bargaining
agreement, withdrawing recognition from the Union, and uni-
laterally changing employee working conditions, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (5) and
Section 2(6) and (7) of the Act.
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903NEW MADRID NURSING CENTER
33 The General Counsel has requested several extraordinary rem-
edies, including a corporatewide broad cease-and-desist order and
posting. The predicate for this request includes Respondent’s contin-
ued violations of the Act as found by the administrative law judges
in Beverly II and III. The decisions in those two cases were issued
on June 29, 1994, and June 12, 1995, respectively; however, the
Board has not yet found the violations alleged. I also note that those
cases, in which extraordinary remedies were recommended, were
pending before the Board in September, when the Board issued its
decision in Beverly Enterprises, 322 NLRB 334 (1996), and in Janu-
ary, when the Board issued its decision in Beverly Manor-San Fran-
cisco, 322 NLRB 968 (1997). Those cases, like this one, involved
discrete violations at individual facilities. There was no discussion
of extraordinary remedies and traditional remedies were ordered in
both cases. Any order I might craft in this case would duplicate the
recommended orders in Beverly II and III and would assure appeal
of, rather than compliance with, my decision. In these circumstances,
I deny the request for extraordinary remedies and urge swift compli-
ance with the traditional remedies I have recommended.
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
35 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
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.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent shall be ordered to reinstate the bargaining
proposals that it unlawfully removed on July 1. In order to
provide a reasonable time for the parties to resume negotia-
tions and bargain for a contract, I shall order a 6-month ex-
tension of the certification year. Industrial Chrome Co., 306
NLRB 79 fn. 2 (1992). As in Colfor, Inc., 282 NLRB 1173
(1987), I find that it would be unreasonable to assume that
the parties can resume bargaining at the same point they left
off on June 5, 1996, some 10 months prior to the date of
this decision. See Den-Tal-EZ, supra at 971. Respondent
shall also be ordered to restore the union bulletin board and
post an appropriate notice.33
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended34
ORDER
The Respondent, Beverly Health and Rehabilitation Serv-
ices, Inc., its Operating Regional Offices, Wholly-Owned
Subsidiaries, and Individual Facilities and Each of Them
and/or Its Wholly-Owned Subsidiary Beverly Enterprises-
Missouri, Inc., d/b/a New Madrid Nursing Center, New Ma-
drid, Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Informing employees that they are no longer rep-
resented by Manufacturing, Production and Service Workers
Union, Local 24, AFL–CIO.
(b) Unilaterally changing employee working conditions.
(c) Withdrawing bargaining proposals in order to impede
reaching a collective-bargaining agreement with the Union.
(d) Withdrawing recognition from the Union as the exclu-
sive collective-bargaining representative of employees in the
appropriate unit.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize the Union upon resumption of bargaining in
good faith and for 6 months thereafter as if the initial year
of Board certification has not expired.
(b) Reinstate the proposals that it unlawfully withdrew on
July 1, 1996.
(c) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative of all the
employees in the following appropriate unit with respect to
rates of pay, wages, hours, and other terms and conditions
of employment and, if an understanding is reached, embody
such understanding in a signed written agreement:
All full-time and regular part-time certified nursing as-
sistants, nursing assistants, certified medicine techni-
cians, restorative aides, cooks, medical records/central
supply clerk, dietary, housekeeping and laundry em-
ployees; excluding office clerical, professional and con-
fidential employees, guards, and supervisors as defined
in the Act.
(d) Restore the union bulletin board at its New Madrid,
Missouri facility.
(e) Within 14 days after service by the Region, post at its
facility in New Madrid, Missouri, copies of the attached no-
tice marked ‘‘Appendix.’’35 Copies of the notice, on forms
provided by the Regional Director for Region 14, 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 in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out
of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since July 17, 1996.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
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904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT withdraw recognition from the Union and
inform you that you are no longer represented by Manufac-
turing, Production and Service Workers Union, Local 24,
AFL–CIO.
WE WILL NOT unlawfully withdraw bargaining proposals
from the bargaining table.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reinstate the bargaining proposals that we unlaw-
fully withdrew.
WE WILL recognize the Union upon resumption of bargain-
ing in good faith and for 6 months thereafter as if the initial
year of Board certification has not expired.
WE WILL, on request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of all the
employees in the following appropriate unit with respect to
rates of pay, wages, hours, and other terms and conditions
of employment and, if an understanding is reached, embody
such understanding in a signed written agreement:
All full-time and regular part-time certified nursing as-
sistants, nursing assistants, certified medicine techni-
cians, restorative aides, cooks, medical records/central
supply clerk, dietary, housekeeping and laundry em-
ployees; excluding office clerical, professional and con-
fidential employees, guards, and supervisors as defined
in the Act.
WE WILL restore the union bulletin board.
BEVERLY HEALTH AND REHABILITATION
SERVICES, INC., ITS OPERATING REGIONAL
OFFICES, WHOLLY-OWNED SUBSIDIARIES, AND
INDIVIDUAL FACILITIES AND EACH OF THEM
AND/OR ITS WHOLLY-OWNED SUBSIDIARY
BEVERLY ENTERPRISES-MISSOURI, INC., D/B/A
NEW MADRID NURSING CENTER
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