Cedarcrest Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1979

246 N.L.R.B. 870 (N.L.R.B. 1979)

DECISIONS OF NAIIONAL LABOR RI.AIIONS BOARD
Cedarcrest Inc. and its Agent, Mary Lou Linton and
National Union of Hospital & Health Care Employ-
ees, a Division of RWDSU, AFL-CIO, and its Sub-
division 1199 W. Case 30-CA-4601
December 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MI MBIERS PN II
AND TRUESDAI.I
On July 31, 1979, Administrative Law Judge Elbert
D. Gadsden issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order," as modified herein.
I In his Decision, the Administrative Law Judge ruled that Respondent's
refusal to grant the Union's request that Respondent's books be sent to New
York to be examined by union auditors raised a "significant question of its
IRespondent'sl good faith obligation to bargain," in view of its claim of
financial difficulties. While we agree with Respondent that the Administra-
tive Law Judge incorrectly set out the chronology of events concerning the
Union's request, stated above, we do not pass on the merits of this issue. The
allegation of Respondent's refusal to provide information was not raised in
the complaint, and in any event it is barred by the 6-month limitation period
of Sec. IO(b) of the Act. We therefore disavow any reliance on this discussion
in the Administrative Law Judge's Decision in adopting his ultimate conclu-
sions.
2 In its exceptions. Respondent argues that the Administrative l.aw Judge
improperly found that Respondent violated Sec. 8(aX5) of the Act on two
separate occasions by bargaining directly with the employees instead of with
their certified bargaining representative. Without reaching the merits 'f these
allegations, we hereby reverse these holdings of the Administrative l.aw
Judge in view of the fact that these actions occurred more than 6 months
prior to the filing of the Union's charges in this case and are therefore barred
by Sec. 10(b) of the Act.
Further, the Administrative Law Judge's Decision contains a number of
inadvertent errors, apparently typographical in nature. We hereby correct
those mistakes, which in no way affect his Decision or our adoption thereof.
In the first sentence of the fifth paragraph of sec. A, "May 16" should be
replaced by "May 6"; in the second sentence of the seventh paragraph of sec.
A, "May 16" should be replaced by "May 18" and the phrase "the same
day" should be deleted; and in the first sentence of the first paragraph under
the heading "Respondent Advised Employees they would Receive only 50
Percent of their Pay ... ""May 15" should he replaced by "May 16"
Respondent also excepted to certain credibility findings made by the Ad-
ministrative Law Judge. Although the Administrative Law Judge stalted in
his Decision that the "testimony of record reveals no significant conflict,"
there were some disputed facts which the Administrative Law Judge resolved
in favor of the General Counsel's witnesses. Our review of the record sup-
ports these findings. Further, it is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard DrO Wall Products,r. Inc, 91 NI.RB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull 3 examined
the record and find no basis for reversing his findings.
In the remedy section of his Decision, the Administrative l.aw Judge
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent,
Cedarcrest Inc. and its Agent, Mary Lou Linton Mil-
waukee, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Add the following as paragraph (d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."4
2. Add the following as the second sentence of
paragraph 2(c):
"Further. if the facility involved herein is no longer
in operation, copies of the above-mentioned notice
shall be mailed to all employees."
3. Substitute the attached notice for that of the
Administrative law Judge.
provided that Respondent shall cease and desist from "in any other manner"
interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed them In Sec. 7 of the Act. However, it is the Board's policy
that such an order is warranted only when a respondent is shown to have a
proclivity to violate the Act, or has engaged in such egregious or widespread
misconduct as to demonstrate a general disregard for the employees' funda-
mental statutory rights. icwkniiii fbo.ds, In, 242 NLRB 1357 (1979t. With
respect to, the instant dispute, we find that the hroad injunctive order recom-
mended hby the Administrative aw Judge is not warranted. as the discrimi-
natory conduct involved herein des nt reach the level required by the
above standard Theretkire. we will nmodif the Administrative l.aw Judge's
recomnmended Order nd notice accordingly
The Administrative as, Judge inadvertently failed to include in his rec-
ommended Order the broad order recommended in the remedy section of his
I)ecision In view of our determination that a broad order is inappropriate in
the Instant case, we have corrected this omission by adding the narrow order
pro sin ;abhe.
APPEN DIX
NoIn(I To EMPI.OYEtS
POS I'E) BY ORDER OF 111l
NAIIONAI. LABOR RII.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice.
W. wii.L NO] unilaterally withhold accrued
vacation pay from any of our union member em-
ployees, without giving the Union notice thereof
and an opportunity to bargain collectively
thereon.
WI: wVIII. NOI discriminatorily refuse to pay
accrued vacation pay to union member employ-
246 NLRB No. 131
870
('ID)AR('RESI IN('. AND IIS AENT7
ees because they engage in a protected concerted
activity strike.
WE Will. NO)I tell union member employees
they will not receive accrued vacation pay be-
cause they engaged in a protected concerted ac-
tivity strike.
WI: wILl. NOI in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National I.abor Relations Act,
except to the extent that such rights may be af-
fected by lawful agreements in accord with Sec-
tion 8(a)(3) of the Act.
Wt \Vwiil. pay Kathleen Faragher, Patricia No-
lan, Dave Kucej, Kathleen Preston, Sally Schleh-
lein. Timothy Lynch, Ivielin Gillette, Linda
Knors, Billy Flowers. Frankel Carr. Mary Spitz,
Patricia Odom, Randi Carstens. Jean Mitchell,
Catherine Murray, Jacqueline Nuedling, Nancy
Sinclair, Nancy Nelson, Cathleen Zeiler. Re-
becca Markulin, Elizabeth Boldt, Constance
McNew, Ida Fullenton, Kathleen Dean, Linda
Robinson, Carolyn Becker, and Peter Kacala,
and any other striking employee who is entitled
to vacation pay but is not herein named, accrued
vacation pay and make them whole for any loss
suffered by reason of the discrimination against
them, with interest.
WE Wll.L mail a copy of this notice to each of
the above-named employees.
All our employees are free to become, remain, or
refuse to become or remain, members of said Union.
or any other labor organization, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
CEDAR(RES IN( . AND) iTS AGENI, MARY
Lou LINION
DECISION
SIATFMENT OF tlit CASE
ELBERT D. GAI)SD)EN, Administrative Law Judge: Upon
a charge of unfair labor practices filed on March 19. 1978.
by Local 1199W, affiliated with the National Union of Hos-
pital & Health Care Employees, a Division of RWDSU,
AFL-CIO, herein called the Union or Charging Party,
against Cedarcrest Inc. and its Agent, Mary Lou l.inton.
herein called Respondent, a complaint was issued by the
Regional Director for Region 30. on behalf of the General
Counsel, on April 28, 1978.
In substance the complaint alleged that Respondent in-
terfered with, restrained, and coerced its employees in the
exercise of their guaranteed Section 7 rights by telling them
they would not receive their contractually required vaca-
tion pay because they had engaged in protected concerted
activity; that Respondent discriminated against its employ-
ees ith regard to terms and conditions of emplos men by
aitling and refusing to pay them their contractuall1 re-
quired accrued vacation pay because of their protected con-
certed activities: and Respondent has failed and refused to
bargain in good faith with the Union regarding terms and
conditions of employment by unilaterally withholding vaca-
tion pay from said employees, without giving the Union
notice thereof or an opportunity to bargain over said with-
holding.
Respondent timely filed an answer to the complaint, de-
nying that it has engaged in any unfair labor practices as
alleged in the complaint, and affirmatively alleging that all
the actions complained about in the charge and the com-
plaint herein occurred more than 6 months prior to the
filing of the charge and. therefore, the Board is without
jurisdiction to act thereon.
The hearing in the above matter was held before me in
Milwaukee, Wisconsin. on October 23 and 24, 1978. Briefs
have been received from counsel for the General Counsel
and counsel for Respondent, respectively. which have been
carefully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the following:
FINtDINGS oi FA( I
t. Jt'RISI)I('I tION
Respondent is now. and has been at all times material
herein, a Wisconsin corporation operating a residential and
nonresidential day treatment center for girls who come to
them through the courts or through a public agency. The
center helps them with the rehabilitated processes, with
group services and daily living, and improvement therapy
involving a full school program and recreation services.
The parties stipulated that. during 1974 77, Respondent
received revenues in excess of $500),000, and received goods
and services valued in excess of $15.000 for the same peri-
ods. from firms located outside the State of Wisconsin.
The parties further stipulated that since 1974 and as of
this date, October 23. 1978. Mary Lou l.inton has been and
is the sole stockholder in the Wisconsin corporation known
as Cedarcrest Inc.
Based upon the foregoing stipulations and undisputed
and credited testimony. I conclude and find that Respon-
dent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. utl I ABOR OR(iANIZAIO()N INVOI.EI)
The complaint alleges. Respondent does not deny. and I
find that National Union of Hospital & Health C'are Em-
ployees, a Division of RWDSU. AFL. CIO, and its Subdi-
vision 1199W, is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
tll. Tlte A l.t(;l) tUNFAIR ABOR iPRA('II( tS
The record shows that Mary ou l.inton was the sole
stockholder, and executive director and vice-president of
Cedarcrest Inc.. the corporate Respondent. from 1974 until
871
)('ISIONS Of NAI I()N \I I.Al()R RI. I IO ()NS A()R\I)
the date of' this proceeding, ()ctober 23. 1978: that Respon-
dent pr-ovided ser ices to giris who were referred o themn bh
the courts or other public agencies: that tihe services pro-
vidted included rehabillilated services, group serices, dail
improvement therap,, and a;1 ill school prograni including
recreation services. 'rograms t ('edarrcrest were residel-
tial herein the girls lited there on a 24-hour hasis, ad a;
day treatmlenlt irograni at ('restview. wvhere the irls v\\cre
there onlv during the da t fo r specialized services. Respoi1-
dent ('edarcrest as paid for its services hi the ref erring
agency and it ,is licensed hby the Iivision of 1 ail'. Ser-
vices o' the State l)epartment o'f llealth nd Social Ser-
vices.
('edarcrest had t union contract representing crtalill ol'
its employees. In tils regard the complaint alleges and Re-
spondent's answer does not deny that on March 15. 1974.
the Board in Case 30 R(' 2243 certified the nion as the
exclusive hargaining representative in the unit appropri;lte
for the purposes of collective hargaining, consisting of:
All prolessiona;l emlplo yees including child care
workers, social workers, registered nurses, rccreltional
employees; but excluding olffice clerical cenploees.
maintenance enlploxees. gua;rds and superisoirs s de-
fined in the Act ad all other employees.
'l'he complaint 'further alleges, and Respondent does not
den. that the Ulnion has been alnd continiues to be, the
exclusive collective-hargatining agent ior the erniploees in
the unit described above and, along with Respondent. has
entered into a series of collective-bargaining agreements,
the most recent of'which was in effect front October I, 1976,
to September 30() 1977.
Respondent denies that the above-described haurgaining
unit exists or was in existence during October or Novembher
1977. or at any time thereafter.
The parties herein also stipulated that the names of nmdi-
viduals circled in Joint xhibit I. attachment settlement
agreement. and other namnes not on that list. were paid ac-
crued vaca tion pay by Respondent in October 1977. I'he
italicized names in the fllo wing Joint Exhibit I were not
paid accrued vacatioln pas:
Katlileen Faragher
Patricia Nolan
Dave Kucej
Kathleen Preston
Sally Schlehlein
'Timothy Lynch
Br'nwi Buther
Ivielin Gillette
Linda Knors
Billy Flowers
Frankel Carr
Mary Spitz
Patricia Odom
Randi Carstens
Jean Mitchell
Catherine Murra
Jacqueline Nuedling
Nancy Sinclair
Nancy Nelson
Cathleen Zeiler
$227.97
215.8X()
282.94
137.59
759.96
282.98
433 ()
143.39
359.42
168.79
497.25
423.41
1,034.88
199.76
752.17
148.74
257.67
834.82
144.39
270.71
Rebcca Mllrku lln
li;zaheth Boldt
( 'ollstlilllcc \lcNcs
Ida I 'illtn I o n
11t1,, % ir itf
tIl(/1n11 r (oc t,
I11 ti lt ('It'r
)llc' i/liAI
353.24
? ?5.
23(181
5112.43
42().32
26,5. SI
135.24
1(62.41
521.88
3( 1.89
9S I'7
237>7
15. o2
29U.s'9
A. R viitid('It 1l ('tll'llC'(t 1,) i /:lillt'lill t h 'i o/l, Its
Im mtilc/l l:'opl/cet 'cs' I '/iOtlI Pt1', RVe t hio/t'l I'hrcat i/t 'r
( 't'rrietd omt its 1'hrt, ue/ R spoitlcf 'il i'ralh' l Paid
.%oit l:il)pl t ()' Outc-ll / 7z itr It 'a,gcs
.1 /llt tlci ilt''/i appeared nide sbpen ad testilied thrat
he sats enlploed h,, Respondell in arts ;id crafts ronil
cbhruaar 1971 to May 2(1. 1977; that the enilpl)5ees of' Re-
spolnderit were represented nder a contract eflectlive Sep-
temrnber 1977 lir I sear. le iurther stated that lie aits a
inenihber of the hbargailninlg COnillCttCe tr 3 ecars aind that
he and Mlargaret Marge) Beal acted it as spokesnmen fIr the
cniploees in negoti:iating terms and conditions of a con-
tract. le has served ais chief' steward and in that capacity
processed griecances with Mlar? I.ou I.inton.
Additilonal testimloni hb Neuvvirlh was essentiall cr-
rohoralied bI? ello eiployee Jean Mitchell Saggau andi
ellploler, Mlar} Iti u ! inti. ithl respect to the substacelll
oi' the \la', Ii meetillg. anid urthler corroborated h I Flossie
IPrince of' the State's equ;ll rights division, with respect to
clainls filed for earnied A ;les Mllid accrued vacation pay.
Since the tesrition' o tlhe abotve-named itnesses wits es-
sentiall' cousistenit and I did not ohbserve anthiig about
their einletanor hilch led ice to question their veracit, I
therefore credit their testimoiny. Mloreover a composite of
all the testinimtno of' record reveals no significant conflict
and I herebh credit such testirmonIl. 'hen all such testi-
niinlx is ci aluated with the credited docurnleitar} evidence
of' record. I find that the olloving laclts are established:
Tlhe undisputed and credited evidence of' record clearly
established that Respolident (lMary [.ou I.inton) met with
the certified collectil e-bargaiining representatives (the
Union) of its emploees on Ma5 2. 1977, 2 and advised them
that (edarcrest Inc. was ill finanlcial difticulties. Respon-
dent then requested the Linion to voluntarily cut hack tin
the contractual wage rate by I percent, retroactive to Janu-
ary I. 1977. The Uniton requested that Respondent's books
be sent to New York for uniton auditors to interpret them
fir the I cal. It further requested that anv cutback in the
wage rate he made applicable to a;dministrators and all
workers. should the lUnion consent to such cutback. he
ULnion also adv ised Respondent that its request that the
I he Ilclis rel torth ahc l re i ,Llpulel d lt d are not in cOiltict i the
record.
2 lereatlier. all date, hereil shll reter t the )ear 1977 unles lherwi se
specitied.
872
(II)DAR(R!S' INC. \ND1) IlS \(;INlI
;nion agree to a .age rate cutback was, in efftec. reopen-
ing the contract for harg;lning and. Ihleret'ore. the I'nion
wanted a contract prosision oi inilOl shop and lone on dutles
checkoff' Linton (Respondent) told the I:nion she ould
talk to her lawyer alid et hback to theml.
I.inton (Respondent and supervisor) met with the em-
ploy ees' bhargaining committee on Mi;,\ al a`ised thell
that the Ltnion's request tor a union sholp. for dues checkoff'.
and to have Respondent's books sent to New York or
union auditors to interpret or the lo.cal as denied. In-
stead. inton offered the LUnion an opportunit to examiine
Respondenlt's most recent audit. he I nion asked seelral
questions regarding the plausibili t of sulch a age rate cut
heing ahle to save Cedarcrest trom financial disaster hut
Respondent did not supply any addiltional answers. Ihe
Union then ad\ised Respondent it would conltact Respon-
dent after it met with the membhershlip on the matter.
()n May 16 Respondent distributed a mermo (Resp. xh.
2} to its employees in which it asked all emploees to con-
sider a cutback in salary of I percent. Respondent told the
employees it had submitted the same request to the L nion
and it (Linton) stated at the hearing that it believed it had a
right to approach the employees directly on said request.
'Ihe union membership met on Ma 9 and expressed a will-
ingness to consider Respondent's request but desired more
information and certain written assurances.
Respondent I.inton) called a meeting of its general stall'
on Ma> 16 and advised that ('edarcrest would close some-
time in June hecause of financial difficulties: that all em-
ployees would receise onl\ a fraction of' their wage rate on
the next payday (Max 23): ;nd that accrued vacation pay_
would not he given to allDone. In ai menlo Idaited Ma;t I1
(Resp. xh. 3). Respondent confirmed its oral notice gien
emplo.ees at the May 16 meeting. that it ;is terminlltiing
its residential program on June 10. alnd its da\ treatnient
program on June 15.
The hargaining colnmmittee (Respondenlt ndlll the I ioe)
met at the Union's request on the sanie day (May Itt) tdur-
ing which time the nion requcested Respondent ( intotl) to
give the enlploeces ;`ritte l ssurance that the\ wuold he
paid the relmiinder o s;lirs Ir their serlictes. including
accrued acation pay. cornpeCistory time. drisers mileage.
anld ainl other lnonletlal bargaining items. Respondent
(.inton) refused to gi\e such rittenl assuralnces ailI nmain-
tained that tile employees suoulid hase to trust her.
On pdaN. Ma! 23. the employees received only 50) per-
cent of their wage rate. The l'nion immedlitel ca;lled a
meeting with Respondent on Mia 24. during hich it re-
quested written assurance froi Respondent that the em-
plo,ees would receive the hbalance o' their salaries. accrued
vacation pai. conlpenllsitoly tiile. driver mil;age. and and
other nlonlaet;r hargainlil iteils. RespondeInt refused to
gii' \such ssurlTnces. ' hereupon. the ilnion called a meet-
ing of its membership th1it slnle da;\ IMa 24). ''he memn-
hership oted to consider thenlisels es constructiselk dis-
charged andt agreedl to tr in their ke!s ;aitl not report for
work on the next d\ 1is 25). 'I he eilploe es turnel in
thleir ke\s and did lot report forl ork on lMax 25. rlI te\
;also iled clalils ith the tiIlemplolnlcill COllltpensttlOIl ot'-
lice ili the equal rights ixl ionl ttol eirnilcd I ges). O()nl
three union ertploe., illtIliii NWiIth. IecCiled ',aca-
tiotl pa.
1B. Rcpli ml I.,l' -I /lcited I ,/ih li, I lilt', ( o//,'c llt'-
RBzi. ntl ( , a t ha a d It Reftoz! I, 111,/, lhe I ,,pio
I 1 t:'tmim,no' 1 I/,,,;
Neviisnrh further testliied that on I)cenlber 7. 1977. the
enliplo c s iled ;I gries.ince tlfr .a,:tionn dpay inil .Illeged
iol;tilns of sections 2.1 :il 1( .1 o tIle coiltract. hichl
insolved tle Inondliscrintinaltion clause ;itlt the tminl;lie-
mnlet-riglts cl;iuse, respectively. \euwirth filedl tile seconl
grieCance on Noemnber 3()0. 1977. le further testified thal,
oil [)ecelher 7 he receited a respolns Iretll Mar l.ou
I .ltilt indlicating that the secotlid-step grie.ance kils il-
tilCelN ;altI that sle ;ls ot g Utilg to cotiil nie tI the
procedure.
Ot l)ecernher 12, Neu.irth said hel telephoned L\ir
oll [intolm's otlice and lett a IleSsage t o herI a ing thl;it
hle ilntlendedl to ,ursue tle third step (,f' the grlxc\anc pIroce-
dure. ()n I)ecelbcer 13 Mais ou Iinton called lilt itd
inlormed him ih[lt she outlld speak x iti1 her1 I;u.l r- ;rild get
back to him. hich she did not do. O()n l)ecemnber 20. Neu-
wirth said he sent a registered letter to I intlon again Iadiis-
ing that he intended to file the third step of the grievance
procedure. On Deceimber 23. she responlded h mail. iidl-
eating that the griesancce w`as not tiled in the tinlme tfaslion.
a;nd she did not intend to pursue it.
Neuirth said the employees ho turned in their kes
and did not return to ork after Mlax 25 receiled poor
reference letters from their super\ isors at Respondent. aind
that the UInion file a grievance on their hehal'. In lMa.
l.inton told tile emplos ees that 5wages had a priorit! claim
under the lais hut that accrued vacation pa_ did not. (i('.
Eih. 7 is the arbitration .'ard o that gric\ilnce, citing ses.
2.1. 3.1. and 16.1 of the contract.)
Neultrth iadmitted tlhat hie sa,; Responlent's tinancial
statelenlt adilit Lilnd. to the best of' his understainding. coil-
ceded that Respondent ikas in poor inacii;ll condition. Iec
s;,id after l.iltoln lloaed the I nion t) examine its audit.
the nin did ilot request to xallline Respondent's hooks
loca Ill\ .
NeuL irth's testimon\ as corroborated hb 1 Ioit, 1)r't c
xr ho testified pursuant to supena that she w.as employl d
hb the equal rigilts di ision of' the [)epartment of Ind lustr
I.ahor and luman Relations for the State ol .'isconMsil.
She identified eneral Counsel's lExhibit 8, ia age claim
taken bh her office otn helhalf of Allen Neuwirth and others.
for earned wages not paid. for accrued vacation iot pid,
l'or unutilized accrued sick lease. for cornpensator tmiie.
and for mileage not paid. Ihe complaint was filed on Ma\
25, 1977. Prince said she conducted a lahor standards audlit
and that linton perilltted her to examine the necessitl-r
inlornlmtilon in (eneral ('ounsel's E-xhihit 9 (a gl Celn hel bh
Respondlent's bookkeeper. Mary l.ou Iintlton t;ltd site
wAould not paL accruled laction hecause the emplo,cees had
walked off the ioh in olation otl' the contract. (ieneral
('ouiinsei's :xhihit 9(h) is a letter receiIed h ' Prince lro-m
Mar' .oIo I.intoin conirming tlhat she (l.inton) %oulId ntot
pi Ciertiedl acatitl pa> tor her reilsols leretolore slat.ed.
()O August 5. 19')77 the equal rights dls Ision recxc id tlhe
checks toml Resp< ndlldet tor . ages o. ed It) elll plo ces \ lh
;Ialked oil' the job. IPrinice said shle losed the case inl June
lland notiic te tlio she x.' drlopplilng tile (laill tr i-
S73
DECI-SIONS OF: NATIONAI. I.ABOR REATIONS BOARI)
cation pay. She acknowledged that she received the letter
(Resp. Exh. I) dated May 26. 1977. on May 27, 1977. from
Cross.
ANAI YSIS AND (()N(I.:SI()NS
The testimony of the several witnesses with respect to the
substance of meetings with employees and Respondent of
the union membership itself during May 1977 is essentially
corroborated by employee witnesses and, in great measure,
partially corroborated by Mary Lou Linton for Respon-
dent. In other words, I find most of the testimony of record
to be virtually free of significant conflict and therefore cred-
ited.
Respondent's Refusal To Allow Union To Examine Its
Books
After Respondent informed the Union and its employees
that it was experiencing financial difficulties and therefore
wanted the Union to consider a rollback in the wage rate.
the Union requested to see Respondent's books. Respon-
dent denied the request and offered and permitted the
Union to examine its most recent audit for 1975 and 1976.
The Union then requested to have Respondent's books sent
to New York to be examined by union auditors. Respon-
dent denied the request without offering any further evi-
dence or explanations to support its claim of financial diffi-
culties. Since Respondent failed and refused to substantiate
its request for need to roll back the wage rate and its claim
of impending financial difficulties, its refusal to do so raises
a significant question of its good-faith obligation to bargain.
N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956): Stanlev
Building Specialties Co., 166 NLRB 984 (1967).
The Union's examination was confined to Respondent's
audit for 1976 and 1977, without any additional economic
objective evidence to justify that the audit afforded suffi-
cient current data on Respondent's financial situation,
which made production of' its books unnecessary. Me Lean-
Arkansas Lumber Company, Inc., 109 NL.RB 1022 (1954).
Under these circumstances, the Union did not have the nec-
essary kind of information for the union membership to
make an intelligent decision as to whether serious consider-
ation to a rollback of the wage rate was warranted by Re-
spondent's financial situation.
The evidence does not show that the Union even inti-
mated a waiver of its request to see Respondent's books and
other data relevant to its financial situation. Although the
Union did not request to see Respondent's books locally.
neither did Respondent offer the Union an opportunity to
examine its books locally. Respondent maintained that the
Union's examination of its audit was sufficient. ('onse-
quently, the Union's request to examine Respondent's
books remained outstanding and unsatisfied by Respon-
dent.
Nevertheless, Respondent issued a memorandum (.('.
Exh. 2) directly to all employees on May 6. in which it
requested the employees to consider a wage rate rollback.
even though the Union had not responded to the same re-
quest submitted to it only 3 days prior thereto. ('ounsel for
the General Counsel contends, and I so find, that Respon-
dent's request to employees tor a wage rate rollback on
May 5, which was formalized in its memorandum to the
employees on May 6. constituted bargaining directly with
the employees, in lieu of their sole statutory representative
(the nion) and, as such, was a violation of Section 8(a)(5)
of the Act. (oodear ,erospace (orporalion, 204 N LRB 831
(1973).
Respondent Advised Employees They Would Receive
Only Htall'heir Pay. and Respondent Paid Emploees
Only lalf Their Pay, on 'Their Next Payday (May 23)
On or about May 15, without having received any further
response from the Union. Respondent told its employees in
a meeting on May 15 that they would receive only 50 per-
cent of their salary on the next payday (May 23). In fact,
Respondent implemented the reduced salary payment on
May 23 without notifying or consulting with the Union on
the subject. Such conduct by Respondent constituted a uni-
lateral change in the wage rate agreed upon in the current
contract and, therefore, was a mandatory item for collective
bargaining. Subsequent to claims filed by the Union on be-
half of the employees with Wisconsin's equal rights divi-
sion, the employees have been paid the remaining 50 per-
cent of their salaries. However, they have not been paid
accrued vacation pay.
Respondent Withheld Employees' Vacation Pay
Under the current contract effective from October 1,
1976. through September 30, 1977, Respondent and the
Union were bound by the collective-bargaining agreement.
including section 9.5. which provides as follows:
If an employee terminates his/her employment for
an5 reason during the year. he/'she shall receive vaca-
tion pay at the rate one-twelfth ( I /12) of the total from
the anniversary date of his/her employment fbr each
month of service during that year. provided the enm-
ploee give.s ait a.t twAo (2'i eks written notice. [Em-
phasis supplied.
The credited evidence of record established, I thereupon
conclude and find that b unilaterally withholding vacation
pay of unionized employees, without giving the Union no-
tice thereof and an opportunity to bargain thereon. Respon-
dent violated Section 8(a)(5) of the Act. Although the evi-
dence shows that Respondent gave written notice to its
employees on May 18 that their vacation pay would "be
deferred" until Respondent obtained more specific informa-
tion on the financial situation of Cedarcrest, no such notice
was given to the Union (the certified collective-bargaining
representative of the employees). In giving such notice to
the employees. Respondent deprived the Union of the op-
portunitN to bargain on the matter, which matter under the
contract was an unequivocal subject of collective bargain-
ing.
While it is obsersed that Respondent subsequently re-
fused to give the employees or the Union written assurance
that accrued vacation pay would be paid in the future, this
position of Respondent was communicated to the Union
only after the fact of Respondent's initial notice to the em-
ploees that such pay would be withheld. Such secondary
874
CEDAR( REST INC. AND ITS AG(iNI
response by Respondent to the Union does not exonerate
Respondent from its initial obligation to bargain with the
Union. Moreover. the fact that the subject in dispute is
"vacation pay" does not separate it from wages or other
monetary and proper subjects of collective bargaining. See
Singer Manulfrturing Copa,!', 24 NLRB 444 (1940). enfd.
119 F.2d 131 (7th Cir. 1941). properly cited by counsel for
the General Counsel.
Respondent's May 18 written notice (Resp. Exh. 3) to the
employees, and to the exclusion of the Union, was unilat-
eral and therefore in derogation of its obligation under Sec-
tion 8(a)(5) of the Act to bargain collectively with the certi-
fied bargaining representative of unit employees (the
Union). The fact that Respondent may in fact have been
experiencing financial difficulty does not exempt if from its
violative conduct. Oak CliftfGolnan Baking ('Compai', 207
NLRB 1063 (1973). Moreover, the prudence of a rollback
in monetary items agreed upon under the contract is a deci-
sion to be made by the Union, rather than the Employer.
under such circumstances. See Fairfield Nursing Home, 228
NLRB 1208 (1977), also properly cited by counsel for the
General Counsel.
Respondent's Refusal To Pay Accrued Vacation Pay to
Certain Employees
At the hearing herein, Respondent contended that its de-
nial to pay employees their vacation pay was lawful be-
cause said employees were striking employees who termi-
nated their employment without giving the 2 weeks' written
notice required by section 9.5 of the contract, hereinabove
cited. Linton (Respondent) articulated the same reasons for
her denial to Flossie Prince. an agent of the State's equal
rights division. Linton also testified that "terminating em-
ployment" meant severing ties completely with the Em-
ployer. However. the evidence does not show, even under
Linton's definition of termination of employment, that the
employees herein had terminated their employment with
Respondent. As most, the evidence shows that the employ-
ees embarked upon a mutually concerted effort to force
Respondent to comply with the collective-bargaining agree-
ment (pay employees the wage rate agreed upon in the con-
tract).
It is clear from the record that the employees would have
returned to work if the Respondent had either paid them
the remainder of their salary or had given written assurance
that said wage deficit would be paid by Respondent. In any
event, Section 2(3) of the Act provides that except for cer-
tain situations, not applicable herein, employees remain
employees until their renunciation of employment is evi-
denced by their having obtained regular and substantiall)
equivalent employment. The record herein does not show
that any of the employees denied vacation pay had in fact
obtained regular and substantially equivalent employment.
The record does show, however. that no employee had ever
been refused vacation pay by Respondent because he failed
to give the 2 weeks' notice; and that although Respondent
attempted to deny knowledge of which employees were
union members. it (inton) acknowledged under cross-ex-
amination that out of its complement of a 60-member work
force, she had observed 80 percent of' them wearing union
buttons during the negotiation periods in 1974 and in Au-
gust and September 1976. I thereupon conclude and find
that Respondent knew its union member employees.
With respect to Respondent paying certain employees
vacation pas, the credited evidence further shows that, dur-
ing October 1977. Respondent paid vacation pay to several
union member employees who were either on vacation or
sick leave at the time the employees refused to return to
work on May 25. Joint Exhibit I shows the names of 27
union member employees who were not and have not been
paid such vacation pay. Since Respondent has ackno wl-
edged that the other union member employees were not
paid vacation pay because they were on strike, which strike
has been found to have been caused by Respondent's un-
lawful and unilateral actions, Respondent's payment of a-
cation pay to some union member employees constituted
discrimination against the union member employees Re-
spondent refused to pay. Additionally, Respondent gave
the striking union member employees unfasorable reference
letters for employment based on its unsubstantiated section
9.5 defense, that the employees did not give written notice
prior to terminating their employment. As previously
found, the employees did not terminate their employment
with Respondent and the unfavorable referral letters for
employment were a further demonstration of Respondent's
animus towards the union member employees engaging in
their protected concerted activits in not returning to work
on May 25. Supervisor Ellman's statements to employees
about Respondent relocating its operation. and not wanting
to hae a union therewith, was additional evidence of Re-
spondent's union animus. Such discriminators conduct bh
Respondent in the payment of ,acation pay was a violation
of Section 8(a)(1) and (3) of the Act. N.L.R.B. v. Great
Dane Trailers, Inc., 388 U.S. 26 (1967): and Flanhleail Plas-
ties Corporation, 167 NI.RB 735 (1967).
Respondent's Affirmative I)efense of L.ack of Jurisdiction
In its answer Respondent affirmatively alleges that, since
all the alleged actions of Respondent occurred more than 6
months prior to the filing of the charge herein (March 17.
1978). such allegations are thereby barred b Section 10(b)
of the Act, and the Board is without jurisdiction to act
thereon. }However. an examination of the credited evidence
shows that, as early as June 22. Respondent indicated in its
letter to the State's division of equal rights (G.C.'s Exh.
9(a)) that it was not going to pay the striking employees'
vacation pay pursuant to section 9.5 of the collective-bar-
gaining contract. 'Ihe record further shows b the uncon-
tested and credited testimony of employee. Jean Mitchell
Saggau, that on November 14. 1977. Iinton advised her
(Saggau) that she would not receive vacation pay: that the
Union had not filed a grievance for such pay: and that the
employees who did not leave (edarcrest in the right way
would not receive vacation pay.
The nion filed its claim for the balance of employees'
wages on May 25. On December 7. the employees filed a
grievance for accrued vacation pa?. alleging a violation of
sections 2.1 and 16.1 of the collectie-bargaining contract.
specifically, the nondiscrimination clause and the manage-
ment-rights clause. respectivel.
X75
D)1:( ISI()NS ()i N A1 ()I 1 AI I ABOR REI.l AIIONS BOARI)
Respondent notified the I nion on I)ecembelr 7 that the
second-step grievance Uas untimel tiled nd Respondent
'A,ould not proceed therewith. ()n [)ecember 23. Respon-
dent advised the nioni that its third-step grievance was
untimely tiled and Respondent did not intend to pursue it.
I he Union thereupon filed ai charge with the Board on
March 17. 1978. Under the foregoing circumstances, it is
clear that Respondent decided in June that it was not going
to p some of its striking employees accrued vacatilhon pa'
when it argued its right no, to do so in its letter to the
State's di\ision of equal rights. Respondent did not inple-
ment its decision until October when it paid vacation p,i to
some of its union member employees and refused to 'pa'
most of the employees who were involved in the strike. It
was this discriminatory payment-nonpayment action which
was taken against the striking employees by Respondent or
engaging in a protected concerted acti it'. strike. As counsel
for the (;eneral Counsel argues, Respondent's June decision
was analogoius to lighting the fuse of a bomb which did not
explode until October, when Respondent implemented its
discrimninatory decision. Cahlij;rnia Shool of Prol/'vsional
Psvchologv. 227 NLRB 1657 (1977).
Furthermore. Respondent (Lintonl told Jean Mitchell
Saggau on November 14 that she (Saggau) and other em-
ployees who did not leave Cedarcrest in the right way, (not
by striking) would not receive vacation pay. The latter
statement by Respondent not only constituted coercive
threatening and restraining conduct by the Respondent. but
also supplied the clear evidence of Respondent's discrimri-
natory motive for its October discriminatory vacation pay:-
ments. Hence. Respondent's discriminatory payments in
October constituted a violation of Section 8(a((3). and its
coercive and threatening statements to Saggau on Noem-
her 14 constituted a iolation of Section 8(a)( 1 ) of the Act.
The evidence is clear that the Union filed its charge on
March 17. 1978, and Respondent made its discriminator.
decision not to pay vacation pay to most striking employees
in June 1977. hut did not in fact discriminatoril' retiuse to
make said payments to striking employees until Octobher
1977. It is true, however. that Respondent's discriminator'
decision in June occurred more than 6 months prior to the
filing of the Utnion's charge on March 17. 1978. owuever.
inasmuch as Respondent delayed until Octoher the niple-
mentalion of its unlawful decision, its unlawful act was con-
tinuing, and therefore is not barred b) limitations otf Sec-
tion IO(hb) of the Act. Respondent's implementation of' its
discriminator\ decision in October clearly occurred before
the elapse of 6 months and the filing of the Ulnion's charge
on March 17. 1978.
With respect to the requirement of a Section 8(g) notice.
I am not satisfied that Respondent has established that
('edarcrest Inc. is the kind of institution (health care institli-
tion) to which Section 8(g) of' the Act ;1,as designed to ap-
ply. Iloue\,er. even if Section (g) is applicable to (edar-
crest as an institution, Respondent has been lound to ha e
imilierall forewarned its emploees that they uould not
recei e 50) percent of their wages on their next pa da. and
in flact. unililcrall. did not pay the employees 50 percent (It
their wages on May 23. while it concurrentl\ refused to
grant the emploNees' request for written assturan;ice tor full
pa ment.
I tnder tle above circumsta nces, It would appear that Re-
spondent induced or provoked the erimploes to strike.
Mloreover. Respondent thereafter uniiilaterall 5 and discrimi-
naItorilv refused to pa,, most of the striking employees ac-
crued vacation pa). I find it difficult to envision unfair la-
hor practices more "serious" or "flaurant''" than those
committed by Respondent herein. Consequently. I further
find that Respondent's unfair labor practices were of a
illagnlitude at least equal to. i not in excess of. those com-
llltted bh te employer in :IloIr, PlI i(C ( or). tid
lren/!- wltni-i(e t Rcctd'( .llla/lll irlng ( 'o. l \..
\ .. R.B., 350) :.S. 270 (1956). and. therefore the Union's
protest strike against Respondent is privileged. despite the
ahsence ot' X8(g notification to Respondent.
I\. 111 I I ( )O I III l -AIR I ABOtR PRA( I I s I P)',
( O()MIkR( I
Ihe acti ities of Respondent set forth in section III.
ahove. occurring in connection ith the operations of' Re-
spondent described in section 1. above, have a close. inti-
mate, and substantial relationship to trade. traffic, and com-
merce among the several States and tend to lead to lahor
disputes burdening and obstructing commerce and the free
flos of' comtllerce.
.. II R 1 1)Y
Hlaving found that Respondent has engaged in untair la-
bor practices warranting a remedial order. I shall recom-
mend that it cease and desist therefrom and that it take
certain afirmatie action to eftlfectuate the policies of' the
.Act.
It having been ouind that Respondent unilaterally with-
held accrued vacation tpay from its emplo ees without giv-
ing notice to or consulting with the Union. in iolation of'
Section 8(a)(115) of the Act. that b Respondent refilsing to
pay accrued vacation pa to most employees who had en-
gaged in protected concerted activit\ (strike). Respondent
violated Section 8(a)(3) of' the Act: and that bh telling em-
ployees they 'xould not receive accrued vacation pa\ he-
cause the) engaged in a protected concerted activit' strike,
Respondent interfered with, restrained. and coerced its em-
ployees in the exercise of Section 7 rights. in violation of
Section 8(a)t I ) of the Act, and the recommended Order swill
pros ide that Respondent pay accrued vacation pay to
Kathleen aragher. Patricia Nolan, Dae Kucej. Kathleen
Preston, Sally Schlehlein, I imoth,, I.nch Ivielin Gillette.
l.inida Knors. Bill IFloxwers, I"rankel C'arr Mary Spitz, Pa-
tricia Odom. Randi ('arstens, Jean Mitchell. ('atherine
Mlurra. .acqueline Nuedling Nancy Sinclair. Nancy Nel-
son. ('athleci Zeiler. Rebecca I\larkulin, Elizabeth Boldt,
('onstance McNe . Ida Fullenton, Kathleen Dean. Linda
Robinson. ('arol\n Becker. Peter Kacala. and and other
union member emploees who participated in the strike on
Ma\ 25 and are entitled to accrued acatioll pa. in accord
'Aith the Boarld's Decision in t . ,o/,worth ( 11tip1l 90
NI RB 289 (1950). and 'lo/ N da lt (Si '.c/rpnwraiioi, 231
NI R13 61 (1977). except as specificall? nmodilied h the
w ording of such recom mended Ord()r.
' Scc. gcncra.ll,.. t h. it : 1 IA / a ,, . 13s Ns RII 716 1962I)
876
('FI)R('RI I IN( .sN) I IS \(i N I
Bec;iuse of tle character ol the uttltlir labor- ractlces
herein lound, tilhe recomnlletded ()-rderl- ill proide that Re-
spondenl t ease nd desisl r'orn o ill 1 lltn riiher niltlne1
interfering , ith. restraining, of coercing clnploces in the
exercise of tIheir rights guaranteed hb Section 7 of' the Act.
N .I.R. B. Fitln ,w l tula Ilil ( 'om])poa . 2) i '.2d
532. 536 (4th ('ir. 1941).
I pon the bass of the above tindingS of tIlct a ird upon the
entire record in this case. I make the tllo, ing:
( In t I s iNs (O )II\
1. (edarcrest Inc. and its A.gent. lar- l.ou l inton. Re-
spondent, is an cnmploer engaged inll cominmrce ithin the
meaning of Section 2(6) and (7) of the A\ti.
2. National nion of hl)spital & lealth (are Emplo.-
ces, a )ivision of RWD)S , Al ('1(). and its Subdi,isio
1199W, is, and has been at all times material herein. a labor
organization within the meaniig of' Section 1(5) of the Act.
3. By unilaterall\ s\ithholding accrued 'aca;ioin pa
from most of its union member eliplosees. ihot l gilVlig
the Union notice and an opportunit to hargain thereover,
Respondent violated Section 8(a)(5) of the Act.
4 B discriminatorils refusing to pas accrued aCalio
pay to most of its uion memiber emplo ees ,kho enlgaged in
a protected concerted activit\ strike on and after Ma\ 25.
Respondent violated Section X8()(31) of the Act.
5. By telling employees thes v ould not receive accrued
vacation pay because the' engaged In a protected concerted
activity strike. Respondent interfered with, restrained. and
coerced employees in the exercise of' Section 7 rights In
violation of Section 8(a)( 1 ) of' the \ct.
6. The aforesaid unfair lahor practices atlect commrerce
within the meaning of Section 2(6) and (7) of' the ct. I
herehS issue the l lowing recoi m ended:
ORD[)R 4
'Ihe Respondent. (edarcrest Inc. aid its Agent. Mar!
I.ou l.inton. Milwaukee. Wisconsin. Its officers. agents. suc-
cessors and assigns, shall:
4 In the een n exctepilns are filed as prosided h Set 1112 46 ro the
Rules and Regulariions ) the Natilnal I.ahotr Reli tlens Board. the tindings,
c.nclusions. and recommended Order herein hall. as prro ded In Sec 102 48
of Ihe Rules and Regulations. he dopied hs the BoHlrd a;rd hcconli is
findings. conclusilns. and Order, and ll objectrins hereto shall he Ideenled
waised fr all purposes
1. ( case and desist from:
(a) I lilatelralls withholding accrtued sacation pa Iromn
1lie ,itloiinmed unionl imenber striking eploees,. lilhoutl
givlng the I mllon notice and an opportutlli to brgamin
thllt'(il
(h Rusilg to pa; accrued tacalio p t its tini
mcill ber tlltploCs who-ll engaged il It CirlctetCl ctcertedt
neti it strike.
(c) I elling ciplolees Ille! ,Noulld not recelse accrtied ;a-
caltion pas beca use thes en;lageld m I protected concerted
activit\ strike.
2. lake the ollo rilg atlirillatile action ecessars to e'-
uttlat e th policies of' the Act:
(a) I'Pa to Kathleen FIaragher. Patricia Nlan. D)a`e
Kucej. Kathlcen Preston. SalI Schleilein. ' inmolth I. nch.
Iielin (iillette. Linda Knors. BillN Flowers. rankel ('arr.
Mar, Spiti. Patricia Odom. Randi ('arstens. Jean Mitchell.
('atherine Murray. Jacqueline Nuedling . NancN Sinclair
Nanc` Nelson, (athleen Zeiler. Rebecca Markulin. liza-
beth 13ol0t. ('onstance McNew. Ida ullenton, Kathleen
l)ean. I .Inda Robinson. ('arolsyn Becker. Peter Kacala. and
anly othier striking employee not named therein who is enti-
tied to accrued vacatllln pay. ad make them whole fr an)
loss suffered h reasonl tl the discriliination against thern.
with interest. in the mannler described in the section of this
[)ecision entitled '"l'he Remeds.
(h) Preser e aid upon request. make availahble to the
Board or its agents. for examination and coping, all pay-
roll records. social security payment records. timecards.
personnel records and reports. and all other records neces-
sars to at ll;lIsze the a mount iof accrued s;acat ton p due
under the terms of this Order.
(c) Mail copies of the attached notice marked "Appen-
dix'." on Iorms prosided b the Regional l)irector f'or Re-
gioln 30. to each ,aboi c-inanled indiidual discriilinatee em-
plt!se. after belirg dul signed b Respondent's authorized
-relrselntatis, c.
(d) Notif the Regional I)irector 'Or Regiegion 30, in writ-
ing. kithil 20 daI S ron the date of' this Order, what steps
Respondent has taken to comply herewith.
It Is t RI tIR ()RI)RItl) that the complaint he dismissed
insofar as it alleges iolations of the Act not herein ftound.
In Ihe esenl thal this ()rder is enioried hb .I Judgnrnterl i(a I nilted Sales
urit of ppeais. he , ords i the riolce reading. "Postcd hy Order ,of the
Nat onal I .ahr Relahtiis Bo,ard" shall read PosIed Pursuant t,, a Judgmen
iI the nted Stites ( 'ourt f ,ppeal nforcing Order of the Natinal
luhor Relalsn, Board.''
877