Evergreen Convalescent Home, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1974

209 N.L.R.B. 990 (N.L.R.B. 1974)

990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evergreen Convalescent Home , Inc. and Service Em-
ployees International Union , Local 227, AFL-CIO.
Case 6-CA-6835
April 2, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On December 17, 1973, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions,
and General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of Respondent 's excep-
tions and General Counsel 's beef and has decided to
affirm the rulings,' findings ,2 and concluslons3 of the
Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Evergreen
Convalescent Home, Inc., Harmony, Pennsylvania,
its officers, agents , successors , and assigns, shall take
the action set forth in the said recommended Order.
i Respondent contends , among other things, that the Administrative
Law Judge erred in permitting General Counsel to introduce evidence
which went beyond the scope of the charge While it is true that the
charge alleged only a refusal to bargain "since on or about June 1, 1973,"
the complaint alleged the refusal to bargain from January 18, 1973. It is
well settled that once a charge is filed , the Board is not precluded from
"dealing adequately with unfair labor practices which are related to those
alleged in the charge and which grow out of them while the proceeding is
before the Board " National Licorice Co v N LR B, 309 U .S 350 at 369.
Since it is clear here that the earlier refusal -to-bargain date alleged in the
complaint directly relates to that alleged in the charge , we find no merit
in Respondent 's contention.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc. 91 NLRB 544, enfd 188 F 2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
3 Chairman Miller concurs in affirming the Administrative Law Judge's
conclusion that Respondent refused to bargain in good faith in violation of
Sec. 8 (aX5) and ( 1) of the Act . In so finding, however, he relies solely on the
Respondent 's refusal to execute the agreement reached at the May 16, 1973,
meeting
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: This case was
tried before me in Pittsburgh, Pennsylvania, on October 4,
5, 10, and 11, 1973. The charge in this case was filed by the
above-named Union on July 18 , 1973, and a complaint
based thereon issued on August 30, 1973, against the
above-named Company (herein called Respondent) which
alleges that the Respondent engaged in unfair labor
practices within the meaning of Sections 8(a)(5) and (1)
and 2(6) and (7) of the Act. The Respondent filed an
answer which denies the substantive allegations of the
complaint and the commission of unfair labor practices.
Upon the entire record,' and my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a Pennsylvania corporation which is
engaged in the operation of a proprietary nursing home in
Harmony, Pennsylvania. During the last 12 months
preceding the issuance of the complaint herein, the
Respondent's gross revenues were in excess of $100,000
and it received goods at its Harmony facility valued in
excess of $ 10,000 directly from places located outside the
Commonwealth of Pennsylvania.
Based on the foregoing admitted facts , I find that the
Respondent is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein , the Union has been and is a
labor organization within the meaning of Section 2(5) of
the Act.
i After the close of the hearing the General Counsel moved to correct
some of the errors in the transcript No opposition was interposed to the
motion , it hereby is granted , and the transcript has accordingly been
corrected
209 NLRB No. 161
EVERGREEN CONVALESCENT HOME 991
111. THE UNFAIR LABOR PRACTICES
A. The Issues Presented for Determination
As noted above, the complaint in this case alleges that
the Respondent failed and refused to bargain in good faith
with the Union, the certified collective-bargaining repre-
sentative of its employees. The specific means by which the
Respondent allegedly refused to bargain in good faith are
alleged in the complaint to be: (1) Engaging in dilatory
tactics with respect to scheduling negotiation meetings; (2)
failing and refusing to sign a written agreement previously
reached by it with the Union; (3) negotiating with no intent
to enter into a binding agreement; and (4) refusing since
July 6, 1973, to meet further with the Union for the
purpose of collective bargaining. The Respondent's de-
fense to these charges consists in general of a denial that it
was responsible for the delays in bargaining, a denial that
an agreement was ever reached on a contract, a denial that
it engaged in surface bargaining with no intent to reach
agreement, and a contention that it could not lawfully
further bargain with the Union after July 6, 1973, because
a petition to decertify the Union as the representative of its
employees had been filed with the Board. The issues thus
drawn present for determination the resolution of the
credibility of conflicting testimony, and whether the facts
as found constitute a failure and refusal to bargain within
the meaning of Section 8(a)(5) of the Act.
B. Background Information
The Respondent is a family corporation whose sole and
equal stockholders, officers, and directors are three
brothers. Richard M. Kearns is president, James Russell
Kearns is vice president, and John Kenneth Kearns is
secretary-treasurer. In the operations of its nursing home at
Harmony, the Respondent employs approximately 35
employees. On June 21, 1972, a majority of the Respon-
dent's employees in a secret-ballot election conducted by
the Board designated the Union as their representative for
the purposes of collective bargaining with the Respondent,
and on July 25, 1972, the Board certified the Union as the
exclusive representative of the Respondent's employees in
the following appropriate unit:
All licensed practical nurses, practical nurses, nurses
aides, orderlies, laundry employees, kitchen employees,
housekeeping employees and maintenance employees
of the Evergreen Convalescent Home, Inc., at its
Harmony, Pennsylvania, location; excluding registered
nurses, office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
Thereafter, at a union meeting held in August 1972, three
employees (Ethel Bingle, Carolyn Midcap, and Wynonia
English) were elected to be members of a negotiating
committee to advise Union Vice President Donald Pemble-
ton during contract negotiations with Respondent "as to
what the girls [employees] wanted." Ethel Bingle was
Y All dates hereafter refer to 1972 unless otherwise noted
3 G.C Exh 6
4 The findings above are based on the credited testimony of Pembleton
designated chairman of the employees' negotiating com-
mittee.
C. The History of the Bargaining between the
Respondent and the Union
1. The October 16, 1972 meeting
On September 6, 1972,2 Union Vice President Pemble-
ton, by letter, notified Respondent that the Union and its
committee were ready to begin negotiations and he
requested a reply within 5 days "to set a mutually
acceptable date and time to commence negotiations." On
September 11, the Respondent replied that it "would not
be able to start negotiations before October 16, due to prior
commitments," and it requested that the negotiations be
held at the office of its attorney, Howard V. Heck, in
Pittsburgh, Pennsylvania. By letter dated October 5,
Pembleton agreed to meet on October 16, the earliest date
suggested by Respondent, and he requested that the
negotiations begin at 10 a.m.
The parties met at Heck's office on the date thus
arranged. Union Vice President Pembleton was accompa-
nied to the meeting by the three employee members of the
negotiating committee. The Respondent was represented
by Heck, President Richard M. Kearns, and Secretary-
Treasurer John Kenneth Kearns. Pembleton and Heck
were the spokesmen for the respective parties. At the outset
of the meeting, Heck voiced surprise at the presence of the
three employees, and said that "it was not necessary to
have this many parties at the negotiations." Pembleton
replied "this was the way" by which the Union negotiated
contracts, and that the three employees had been chosen
for this purpose "by the membership." Thereafter, Heck
interposed no further objection to the presence of the
negotiating committee. Pembleton distributed copies of a
proposed union contract .3 Heck said he would need time to
review the document, and he then read it for about 20
minutes. At the conclusion of his perusal, Heck said that it
was "a boiler plate agreement," and that he was not
prepared to begin negotiations on any of the items therein
"until he had a chance to review them." Pembleton replied
that "every item in this contract was negotiable and that
the only way to resolve the issues was to begin the
negotiations." Pembleton also said that he and his
committee were prepared to continue to negotiate after
lunch, to work all day, and even into the evening, if
necessary. Heck repeated that "he was unprepared to begin
negotiations and that he would need some time," and he
further stated that he had an afternoon appointment and
couldn't continue that afternoon. Pembleton then agreed
to meet with Respondent for negotiations on October 25.
The first meeting ended after the lapse of about an hour
and 45 minutes .4
2. The scheduled October 25 meeting
On October 16 when the next meeting for October 25
was scheduled, Respondent assertedly already had a
whom I regard as a reliable witness, and on the corroborating credited
testimony of Ethel Bmgle , Carolyn Midcap. and Wynonia English.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conflicting engagement to appear on that date in the
Allegheny County Court for a condemnation of property
hearing unrelated to its nursing home. Notice of that
hearing admittedly had been given Respondent 30 to 45
days before its scheduled date. Nevertheless, according to
Heck (who did not represent Respondent in the condemna-
tion proceeding), he was not apprised of his client's
conflicting engagement until October 21 or 22. He then
wrote a letter to Pembleton on October 23, 1972 (G.C. Exh.
7), in which he requested without stating a reason therefor,
that the negotiating meeting be postponed to November 8.
Heck's letter was received by Pembleton on the afternoon
of October 24, and he promptly called Heck and asked
why he wanted the change in the meeting date. According
to Pembleton's credited testimony, Heck said "that he did
not know about this prior commitment until he had a
chance to check with his secretary, and therefore had no
knowledge of it at that time." Then, pursuant to prodding
by Pembleton that "these delays" were not "going to help
in the negotiations," Heck agreed to advance the date of
the next meeting to November 3.5
The employee members of the negotiating committee
were not apprised of the postponement of the October 25
meeting, and pursuant to prior arrangements, Ethel Bingle
and Wynonia English went on that date to the Kaufman
Hotel in Zehenople, Pennsylvania, to meet with Pembleton
and go with him to the meeting. They waited for him for an
hour, and then learned (after several telephone calls) that
the meeting had been postponed. Provoked by the
postponement, the employees held a meeting the following
night at the home of Ethel Bingle and voted not to work
the following day. The next day, "most" of "the girls"
called in to Respondent's nursing home and reported that
they were sick and could not work.
3. The meeting on November 3
The next negotiation meeting convened in Heck's office
on November 3. Heck and John Kenneth Kearns were
present for the Respondent. Pembleton, Bingle, and
English represented the Union. The meeting started with a
discussion of the sick-in in which the employees had
engaged after the cancellation of the October 25 meeting.
Pembleton denied prior knowledge of the sick-in, he
suggested that the repetition of such an occurrence could
be avoided if the parties met "more regularly" for
negotiations, and he promised to do everything in the
Union's power to prevent a recurrence. Pembleton also
The Respondent offered no testimony that all three Kearns brothers
were required to attend the condemnation hearing , and none to explain why
Heck, who was not involved with the condemnation proceeding, could not
have preceded with or without one or more of the Kearns brothers.
6 G C Exh. 8.
T According to the Respondent's proposals (G C. Exh 8), the Respon-
dent initially proposed recognition of the Union as the representative of
only those unit employees who were or later became members of the Union.
This, of course, was contrary to the Union's certification as the exclusive
representative of all employees in the unit.
a The findings in respect to the November 3 meeting are based on the
credited testimony of Pembleton, Bingle, and English whom I regard as
forthright witnesses whose testimony I deem to be reliable for the most part.
John Kenneth Kearns, who was present with Heck at this meeting, testified
that to his knowledge , no "bona fide agreements" were reached at this
meeting as to "any parts of the contract ." I place no credence in his
suggested that the Union was agreeable to meeting on
evenings and Saturdays, if necessary, to expedite the
negotiations. Heck, however, refused to negotiate either on
Saturdays or during other than the usual daytime work
hours.
A basic rule was adopted by the negotiators that no
agreements would be final until a contract was agreed
upon in its entirety. Heck then distributed copies of the
Company's proposal for some provisions of a collective
bargaining agreement with the Unions Pembleton exam-
ined the Respondent's proposals and the parties then
started to discuss, item by item, the clauses in both the
Company's and the Union's proposals. In this fashion, the
parties covered the first eight clauses in the two documents
up to but not including vacations. According to Pemble-
ton's testimony which I credit, agreement was reached on a
number of items contained in the Respondent's proposals,
including the recognition clause as modified,7 parts of the
management rights clause, the workweek and hours
regulation provisions, and parts of the seniority provisions.
In each case where the parties were in agreement,
Pembleton marked "OK" on his copy of the Respondent's
proposals, when they disagreed, he marked his copy
"Hold," and when changes in language were agreed on, he
inserted them in pencil or ink on his copy, or "scratched
out" in the case of deletions . There was substantial
disagreement by the parties on the Union's union-shop
proposal. The Union sought a provision requiring all new
employees to become members within 30 days of hire, and
for a monthly checkoff of dues from the pay of employees
who authorized it. Heck stated that the Company would
not be a party to forcing any employee to join the Union,
and there was "no way" that it "would ever accept a union
security clause." The Company's proposal on this subject
provided that new employees would not be eligible for
union membership during their probation period of 120
days, and after the expiration thereof, they would "have an
opportunity to become a union member."
The November 3 meeting consumed approximately 2
hours in the morning, it broke for a 1 1/2 hour lunch
period so that Heck could take care of an appointment,
and it terminated about 2:30 p.m., 1 hour after the lunch
break, because Heck had another appointment at 3 p.m.
Before the meeting ended, the parties scheduled additional
negotiation sessions for November 7, November 21, and
December 11 in Heck's offices
conclusionary testimony in the light of his admitted inability to state what
subjects were discussed at this meeting, how far the parties progressed
through the contract proposals , or even to recall with specificity whether the
subject of the union-security provision had been discussed.
Respondent's attorney, Heck, also testified that "no items [were I agreed
upon" at the November 3 meeting, notwithstanding that the parties
discussed the Union 's proposals "point by point." However, contrary to this
denial, Heck conceded on cross-examination that agreement was reached
on the workweek and hour regulations at this meeting. There were,
moreover, a number of additional inconsistencies and self -contradictions in
Heck's testimony For example, Heck testified that at the November 3
meeting, the parties "concentrated on the so-called money package," and
later testified that only "those items that didn ' t have direct monetary
connection" were "considered " In addition , Heck's testimony regarding his
lack of agreement at the November 3 meeting on the recognition clause, and
his reasons therefor, were, in my view, patently implausible and unpersua-
EVERGREEN CONVALESCENT HOME
4. The meetings on November 7, 21, and
December 11
Negotiation sessions between the Union and the Respon-
dent were held in Heck's office on the above three dates.
Heck and John Kenneth Kearns represented the Respon-
dent at these meetings. Pembleton, Bingle, and Midcap
(except for December 11) attended for the Umon.
At the November 7 meeting, Pembleton commented on
the absence of a grievance procedure in the Respondent's
proposals. Pembleton said that the Union regarded such a
procedure as "a must" in a collective-bargaining contract.
Heck said that the Company had a grievance procedure,
and that he did not believe it was necessary to include one
in the contract. This subject was discussed again at the two
subsequent meetings, and agreement was reached on the
Union's proposed grievance procedure at the December 11
meeting.9
At the November 7 meeting, Pembleton also commented
on the absence from article V of the Respondent's
proposals (Job Classifications and Wage Rates) of any
listing of the positions of activity director, kitchen
employees, and laundry employees. Heck stated that the
Respondent opposed the listing of kitchen and laundry
employees in the contract because it wanted to be able to
move employees in those jobs from one position to another
as needed. Heck also stated that the Respondent opposed
listing the activity director (Betty Dean) in the contract
because it regarded her as a professional employee. There
was no reasonable basis for the Respondent's position in
these respects. Kitchen and laundry employees were
specifically and separately enumerated in the unit for
which the Union was certified, and obviously, the listing of
these job classifications in the contract could not have
impeded their transfer from job to job as needed.
Moreover, at the representation hearing, Heck had
specifically stipulated that Betty Dean was properly a part
of the unit for which the Union sought representative
status. In any event, according to Pembleton's credited
testimony tentative agreement was reached at the Novem-
ber 7 meeting to include those job classifications in article
V.
There also was discussion at these three meetings on the
varying proposals of the Umon and the Respondent on the
subject of job stewards (article XI). The Respondent
employs a substantial number of regular part-time employ-
ees, some of whom have worked for it for many years.
Although Heck admittedly was aware of the Union's right
to designate job stewards without interference by the
Company, he nevertheless expressed the Respondent's
position that the job steward and alternate job steward
would have to be full- time and not part-time employees of
the Company. The Union maintained that it was "the right
sive. In the light of the foregoing, as well as Heck's evasive responses to
questions , especially those propounded on cross-examination , I regard his
testimony as generally unreliable , and I do not credit his denial of the
testimony of Pembleton , Bingle, and English regarding the agreements
reached at the November 3 meeting
9 The findings in the foregoing paragraph are based on the credited
testimony of Pembleton I note that a subsequent proposal of the
Respondent for a contract which was sent to the Union on February 23,
1973, contained a grievance procedure in language identical to that
originally proposed by the Union (see Resp. Exh. 4)
993
of .the individuals in the bargaining unit to determine who
was to be elected as job steward." No agreement was
reached on this subject at these three meetings.
At the November 7 meeting, Heck notified the union
representatives that the Respondent was not prepared to
negotiate on any monetary items until it received a report
from its auditor. That position of the Respondent was
repeated by Heck at the meeting of December 11. At each
of these three meetings, the subject of the Union's
proposed union-security clause was again discussed with
both sides adhering to their previous positions.
Each of the meetings on November 7, 21 and December
11 lasted for approximately 2 hours, and they ended
because Heck said he could not continue due to other
commitments. And, although Pembleton again suggested
on several occasions that meetings also be held on evenings
and on Saturdays, Heck refused, saying that he "worked
eight hours per day and he was not going to negotiate
evenings or on Saturdays." 10
5. The December 20 meeting at the office of
State Mediator Waldron
After the December 11 meeting, acting on his belief that
"the negotiation sessions were not accomplishing any-
thing," that the parties "should be talking about the money
items," and "longer" than "the two hour we were allowed
to negotiate based on the fact that Mr. Hecht (sic) had
other commitments," Pembleton contacted Pennsylvania
State Mediator Ed Waldron for assistance "to possibly get
the parties together," and Waldron arranged a meeting of
the parties at his office on December 20. When Heck
arrived at this meeting with John Kenneth Kearns, his first
statement was that he regarded the intervention of a third
party into the negotiations as unnecessary because "the
negotiations were moving along." The meeting nevertheless
proceeded, and Waldron asked both parties to list on a
piece of paper their areas of disagreement. The lists were
prepared and Waldron then brought up the subject of
union security. At this juncture, Heck stood up, gathered
his papers, closed his briefcase, and said that if that was all
that was going to be discussed, he was leaving.11 Heck
started to go out the door, and Waldron went out after him
and persuaded Heck to remain. Negotiations then com-
menced with the parties in separate rooms, and Waldron
acting as go-between. In this fashion, the parties discussed
union shop, with the Respondent stating that its opposition
thereto "was firm," and the Union stating that other forms
of ninon security such as agency shop and/or modified
maintenance of membership could be considered. No
agreement was reached on this subject. The parties
discussed holidays, but the Respondent was willing only to
continue its current practice of paying time and a half to
iu The findings above are based on the credited testimony of Pembleton,
Bingle, and Midcap . Heck testified that these meetings ended "because
there was nothing more that could be accomplished by further discussion on
those particular days." In the light of the number of provisions of the
Company and the Union proposals which had not yet been discussed,I
place no credence in this testimony of Heck, and I regard it as further
evidence of the unreliability of his testimony in this case.
ii Heck testified his reason for walking out was that Pembleton stated
that the purpose of the meeting was "to discuss the union shop and to get
that settled " I place no credence in Heck 's testimony in this regard
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who worked on holidays, and to give no holiday
pay to employees who did not work on the holidays. The
Union, on the other hand, wanted all employees to get
holiday pay, time and a half for those who worked and
straight time for those who did not. No agreement was
reached on this subject. The parties agreed tentatively on
the amounts of wage increases for all the employees in the
umt. The parties also discussed severance pay and
subcontracting, but no agreement was reached thereon.
As in the case of prior meetings, this one ended after 2
hours because Heck said he had other prior commitments.
No date was fixed for the next meeting, but Heck agreed to
call Pembleton and let him know when he could meet
again.
6. The meeting on January 10, 197312
Following the meeting of December 20, 1972, Pembleton
was notified by Pennsylvania State Mediator Waldron that
Heck preferred that the parties should work out their
differences without his presence, and that he had arranged
a meeting for Pembleton in Heck's office on January 10.
Pembleton agreed to meet with Heck without Waldron,
and he and Bingle went to Heck's office on that date and
met with Heck and John Kenneth Kearns.
At the ensuing meeting, which again lasted only about 2
hours because of Heck's other commitments, the parties
came to final agreement on wages, on a 3-year duration of
the contract, and on the effective date of the contract
(January 1, 1973).73 In addition, the parties agreed on the
number of days of paid sick leave to which the unit
employees would be entitled each year, but the matter of
payment for unused sick leave was deferred for the
submission of a proposal by Pembleton later. Other
proposed provisions, including union shop, bereavement
pay, vacations, severance pay, and subcontracting also
were discussed at this meeting but no agreement was
reached.
When the meeting ended, although requested by the
Umon, no arrangement was made for the next meeting
other than that Heck would contact Pembleton. Pembleton
suggested that since Heck was so busy, the Union had no
objection to meeting directly with the Respondent, but
Heck rejected that suggestion.14
7. Events after January 10 before the, next
meeting on March 9
Following the January 10 meeting, Heck failed to
contact Pembleton to fix a date for the next negotiating
meeting. Pembleton accordingly telephoned Heck's office
"many, many times" in an effort to reach him, but was told
that Heck "was unavailable." On each occasion, Pemble-
ton left messages with Heck's secretary to have Heck call
him, but Heck failed to return the calls. Finally on
February 3, Pembleton called Heck's home and left a
message with his daughter that the Respondent's employ-
12 All dates hereinafter refer to 1973 unless otherwise noted.
13 At the request of the Respondent, the parties agreed that the wage
increase be put into effect immediately without awaiting for final agreement
on a contract
14 The findings above are based on the credited testimony of Pembleton
ees were threatening to strike unless another negotiation
meeting was scheduled. Heck called Pembleton back a day
or two later and "was quite mad because I [Pembleton ] did
call him at his home." Pembleton apologized for doing so,
and he told Heck that he had done it only because the
employees were threatening to strike unless negotiations
"got going again." Heck responded that he would meet
Pembleton on March 9 at the Kaufman Hotel in
Zelienople. Pembleton asked for an earlier date but Heck
said that he could not meet before then because of other
business commitments. Pembleton accordingly asked Heck
to send him a letter confirming the meeting date of March
9, so that he could show it to the employees. The
confirming letter was not sent by Heck to Pembleton,
however, until February 28, 3 weeks later,15 and then only
after several additional telephone calls from Pembleton
requesting it.16
During this 2-month hiatus in the negotiations, the
Union sent Heck a second proposed contract on February
8,17 and Heck sent Pembleton a proposed contract on
February 23.18
8. The meeting on March 9
In accordance with their previous agreement, the parties
met on March 9 at the Kaufman Hotel in Zelienople. The
meeting was attended by Heck, John Kenneth Kearns, and
Richard M. Kearns for the Respondent, and by Pembleton
and the entire employee negotiating committee for the
Union. According to the credited testimony of Pembleton,
Bingle , Midcap, and English, agreement was reached at
this meeting on hospitalization, sick leave, holidays,
vacations, and bereavement pay. On hospitalization, the
Respondent agreed to pay 25 percent of the cost of
individual or family coverage (whichever was needed)
during the first year of the contract, 50 percent during the
second year, and 75 percent the third year. With respect to
sick leave, the parties agreed to 4 days of paid sick leave
the first year, 5 the second year, and 8 the third year, and
employees would be paid for unused sick leave on or about
December 15 at $5 per day. In respect to holidays, the
parties agreed on 4 during the first year of the contract
(Christmas, Easter, Thanksgiving Day, and Memorial
Day), 6 the second year (the previous 4 plus Labor Day
and July 4th), and 7 the third year of the contract (the
previous 6 plus New Year's Day). On vacations the parties
agreed that all employees would receive one week of paid
vacation after one year of service, and 2 weeks vacation
after 3 years of service, with part-time employees to be
paid pro-rata based on the percentage of the 40-hour week
which they worked. On bereavement paid, it was agreed
that employees would receive 3 days off with pay in the
case of death in the immediate family. According to
Pembleton's credited testimony, agreement also was
reached at the March 9 meeting on the language of the
management rights clause.
At the conclusion of this meeting, although discussed,
and Bingle.
15 See G.C. Exh 10.
1s The findings above are based on Pembleton 's credited testimony
17 This proposal was not offered in evidence by either of the parties.
IR Resp. Exh 4
EVERGREEN CONVALESCENT HOME
the only unresolved contract issues were union shop, dues
checkoff, subcontracting, severance pay, and a prohibition
on supervisors doing unit work. In respect to union
security, the Respondent no longer opposed a union shop
for new employees after a probation period of 90 days.
However, without telling the Union his reasons therefor,
Heck adamantly insisted on a preamble to the union shop
clause which read as follows: "Except as might otherwise
be provided by applicable law .... 19 Pembleton, on the
other hand, was agreeable to Heck's proposed union shop
clause, but distrusted and opposed the inclusion of Heck's
preamble thereto because he had never seen one in any
collective bargaining contract.
At the conclusion of this meeting, Heck stated that the
monetary package to which the Respondent had agreed
"were still too high for the employers," and that it was the
Respondent's final offer in that regard.20
The parties then agreed to hold another meeting on
March 14 at the Kaufman Hotel to negotiate further on the
remaining unresolved provisions of a contract 21
9. Events after March 9 before the next
negotiation meeting at the Holiday Inn
The meeting on March 14 did not occur because the
Kaufman Hotel was closed. When Pembleton learned that
the hotel was shut down, he promptly telephoned Heck
who then told Pembleton that inasmuch as the monetary
package had been agreed upon by the parties, and the
Respondent's position on the remaining contract clauses
had not changed, he would like Pembleton to submit the
contract to the unit employees for ratification. Pembleton
agreed to do so, but he told Heck that he would not
recommend acceptance of the contract because of the
items on which agreement had not been reached, to wit,
union shop, dues checkoff, severance pay, subcontracting,
and supervisors performing unit work.22
Pembleton conducted a meeting of the employees on
March 20 and presented the contract which had been
19 See Resp Exh. 4
At the hearing in this case, Heck at first refused to state the reasons for
his insistence on this preamble to the union-shop clause, but he eventually
testified that he had in mind "that the law might subsequently become that,
in this type of business, an open shop would be pennissible" Heck further
explained that he had in mind that Pennsylvania , which had no such
legislation and none pending, might adopt a right-to-work statute, or
prohibit union shops in nursing homes. I place no credence in Heck's
explanation for either his insistence on or the need for this preamble to the
union-shop provision , inter alia because under the savings clause proposed
by both parties (see article XX, section B of G.C. Exh. 6 and Resp. Exh. 4),
the passage of such legislation would have permitted renegotiation of the
union-shop provision
20 The quotes are from the credited testimony of English
21 Richard M Kearns first testified that he did not attend any
negotiation meeting at which the language of the management rights clause
was discussed. A short while later, he contradicted that testimony and
testified that at the March 9 meeting which he attended, the language of the
management rights clause was discussed, but he didn't "think anything was
ever agreed upon." According to Kearns, nothing was agreed on by the
parties at the March 9 meeting, but when asked to specify the nature of the
discussion about vacations, he answered . "I don 't remember, I can't say."
Richard Kearns also could not recall whether the subject of subcontracting
was discussed at this meeting Moreover, he testified that a later meeting
with Pembleton at the Holiday Inn took place in November 1972, whereas.
according to both Heck and Pembleton, it occurred in March 1973, after the
March; 9 meeting. In - the light of the contradictory vague, and conclusion-
995
reached to them. He also told the employees that in the
light of the items on which agreement by the Respondent
had not been obtained, he and the employees' negotiating
committee were recommending that the contract not be
accepted. A secret-ballot vote was taken, the proposed
contract was rejected, and the employees also voted to
strike if that became necessary to obtain the desired
contract provisions.23 Pembleton thereafter notified Heck
by telephone that the employees had rejected the proposed
contract, and had voted to authorize a strike, if necessary,
to achieve agreement to the Union's positions on the
remaining open items. Heck then told Pembleton that
"they would like to meet further to discuss the open items."
They agreed to meet at the Holiday Inn at Wexford,
Pennsylvania, "around the end of March." 24
10. The meeting around the end of March at the
Holiday Inn
On an unspecified date around the end of March,25
Pembleton, unaccompanied by any committee members,
met with Heck and Richard M. Kearns at the Holiday Inn
in Wexford, Pennsylvania. According to Pembleton's
credited testimony the parties at this meeting discussed the
union shop, supervisors performing unit work, subcon-
tracting, and severance pay provisions, the items on which
agreement had not yet been reached. As to union shop,
Pembleton suggested that the employees should be given
an opportunity to vote if they wanted the Union's
proposed union-shop provision, and if they accepted, the
Respondent should have no objection thereto. Pembleton
also said that if the employees rejected the union-shop
provision, he was willing to sit down and work out "some
other system" of union security with the Respondent.
Richard Kearns responded that "he saw no objection to
this procedure," and Heck said that if the Respondent
"could live with it, he could, too." The parties also
discussed the Union's proposal which prohibited supervi-
sors from doing unit work. It then was disclosed that
ary nature of Richard Kearns' testimony , as well as demeanor , i regard him as
an unreliable witness, and I do not credit him in these respects.
Heck testified that at this meeting, the parties failed to agree on the
language of the management rights clause and on holiday pay. He further
testified that notwithstanding that disagreement , Pembleton and the Union
committee stated that they would recommend to the employees acceptance
of the "wage package" offered by the Respondent . That package , according
to Heck , included the payment of holiday pay (time and one-half) only to
employees who worked on the holiday (the Respondent's then current
practice), and no pay to employees who were not scheduled to work that
day. But according to Heck , the Union did not agree with Respondent's
holiday pay proposal and wanted holiday pay for all unit employees. In the
light of its inconsistency, I deem Heck 's testimony that the union
representatives stated that they would recommend acceptance of Respon-
dent's wage package as implausible , and I credit his testimony about this
meeting only to the extent that it accords with that of Pembleton, Bingle,
Midcap, and English.
22 The findings above are based on Pembleton's credited testimony.
23 The findings above are based on the credited testimony of Pembleton,
Bingle, and Midcap.
24 The findings above are based on Pembleton's credited testimony. He
could not recall the date on which he and Heck agreed to meet.
25 Heck testified that this meeting took place on March 14 but he quite
obviously was in error in this regard inasmuch as before this meeting, Heck
knew that the employees had rejected Respondent's previous contract
proposal, and that rejection did not occur until March 20.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors actually did not perform unit work, and the
Respondent agreed to the inclusion of that provision in the
contract. Pembleton agreed to relinquish his request for a
clause prohibiting subcontracting of unit work, and in lieu
thereof the parties agreed to add layoffs due to subcon-
tracting to the list of items for which employees would be
entitled to severance pay in accordance with the schedule
in that provision. The meeting ended with the understand-
ing that Pembleton would send Heck a final written
contract embodying all of the agreements which had been
reached at this meeting, and that after review by Heck, if
there were "any corrections or alterations," Heck was to
advise Pembleton and the parties would meet to iron them
out.26
11. The May 16 meeting at the office of State
Mediator Waldron
Following the meeting at the Holiday Inn, Pembleton
prepared a complete contract embodying all the terms
upon which the parties had agreed and he forwarded it to
Heck in April about 8 to 10 days after the meeting.27
Thereafter, not having heard from Heck, Pembleton called
him "many times," but was unable to reach him.
Pembleton then contacted State Mediator Waldron. The
latter arranged a meeting with Heck for May 16 and
notified Pembleton of the meeting date. Subsequently,
prior to the scheduled meeting, Heck called Pembleton and
told him that the Respondent "could not live" with a
number of the items "that they [the Company] had agreed
upon," and in this category, Heck mentioned hospitaliza-
tion, vacations, holidays, and the union-shop provision.28
On May 16, Heck and John Kenneth Kearns represented
the Respondent at the meeting in Waldron's office, and
Pembleton, Bingle, and English attended for the Union.
Waldron asked the parties what their differences were.
Pembleton said that he "felt" there were no differences,
and "that the parties had agreed to an agreement." Heck
said that there were items which the employer felt he could
not live with, and that "we would have to negotiate them
again." Heck made a list of the items, and they included
those previously mentioned to Pembleton on the telephone,
and also "some language changes" on nonmonetary items.
Notwithstanding that he felt that the parties had arrived at
a contract at the Holiday Inn meeting, Pembleton, with the
consent of the employee committee, agreed to negotiate
26 As previously noted the findings above are based on Pembleton's
credited testimony In respect to this meeting, Heck first testified that he
and Pembleton "went through the contract [ Resp Exh 4] . and
discussed . all the language that the employer wanted and that the union
refused to agree to " Later he testified that "the principal dispute was in
respect to holidays" and that nothing else was discussed at this meeting. I
regard Heck's testimony regarding this meeting as self -contradictory and
evasive, and I do not credit it. Richard Kearns testified that at this meeting
the "whole" contract was discussed but no agreement was reached
However, like the other meetings he attended , Kearns adnutted that he had
no definite recollection of what was discussed I accordingly attach no
probative value to his conclusionary testimony regarding this meeting
27 See G . C Exh I I Heck objected to the introduction of this document
on the grounds only that it was self-servicing and that it contained markings
and language changes admittedly later made by Pembleton at a meeting on
May 16 . His objection was overruled . When Heck subsequently testified as
a witness for Respondent , he stated for the first time that he did not receive
any proposed contract from Pembleton in April. I do not credit Heck's
denial
further to get an agreement. The parties then "went
through the contract [G.C. Exh. 11 ] in its entirety," and "if
the employer said okay," Pembleton made a corresponding
notation at that time on his copy of the contract. Items
which the parties agreed to delete were marked "out," and
a line was drawn through them by Pembleton. And, when
language changes were agreed upon by the parties,
Pembleton made the changes at that time on his copy of
the contract. Working in this fashion, the Union agreed to
reduce the number of paid holidays previously agreed on
by the parties from 4 the first year, 6 the second year, and 7
the third year of the contract, to 3, 4, and 5 holidays,
respectively. It further agreed that the 2 weeks' vacation
after 3 years of service which previously had been agreed
to be applicable to both full- and part-time employees,
would apply to full-time employees only. The Respon-
dent's contribution to hospitalization was reduced to zero
the first year of the contract, and 50 percent thereafter. The
parties again agreed to the deletion of the Union's
proposed subcontracting provision (article XVIII), and to
add layoffs due to subcontracting to the list of reasons for
which employees would be entitled to severance pay.29
After concluding agreement on the entire contract except-
mg only union security and dues checkoff, the parties then
took up these provisions. Pembleton again suggested that
the inclusion of these clauses in the contract should be
submitted to a vote by the employees and retained if
approved by them. Kearns agreed that if the girls voted to
accept the union shop and dues checkoff, he would go
along with it.
At the conclusion of the meeting, Pembleton wrote
"Approved 5/16/73" on the copy of the contract he used
at this meeting (G.C. Exh. 11), and he told Heck that he
would hold a ratification meeting of the employees as soon
as possible and recommend acceptance of the contract 30
12. Events following the May 16 meeting
On May 17, Ethel Bingle, the chairlady of the employees'
negotiating committee, conducted a meeting which was
attended by 23 to 25 of the Respondent's 35 unit
employees, and they voted unanimously to ratify the
contract which had been agreed upon the previous day. On
May 18, Bingle notified Pembleton that the employees had
approved the contract, and Pembleton in turn telephoned
and notified Russell M. Kearns that the contract had been
28 The findings above are based on Pembleton 's credited testimony.
29 Although the parties agreed on the severance pay provisions,
Pembleton erroneously marked it "out."
30 The findings above are based on the credited testimony of Pembleton,
Bingle , and English
According to Heck and Kearns , no agreement was reached at this
meeting in respect to union shop , holidays, and management rights. In
respect to the preamble to the union shop clause , Heck was asked whether
he made "any attempt to explain to Mr. Pembleton why he had that clause
in there," and he answered , "To the best of my ability, yes." When then
asked what he said to explain the clause, Heck testified, "Well, I had a
lot-I don't suppose I really explained to him the reasons why I wanted that
in there " I regard Heck 's latter response as a contradiction of his first
answer and as further indication of the unreliability of his testimony
generally As previously noted, I also regard John Kenneth Kearns'
testimony as unreliable , and I therefore credit the testimony of Heck and
Kearns in respect to this meeting only to the extent that it accords with that
which I have credited above.
EVERGREEN CONVALESCENT HOME
accepted by the employees. Kearns told Pembleton to send
copies of the contract to Heck for review and signature. On
May 24, Pembleton sent Heck four copies of the contract
with a letter requesting that two copies be signed by the
employer and returned to hun in 10 days "if everything
appears satisfactory." 31 Ten days passed but no signed
contract was received by Pembleton. He thereupon
attempted to contact Heck by telephone but again was
unable to reach him. Thereafter on June 22, Pembleton
received a "proposed agreement" from Heck with a letter
requesting him to note some "minor" changes.32 Pemble-
ton immediately compared Heck's proposal with the
contract which he sent to Heck for signature by the
Respondent, and he noted a substantial number of
variances between the two which he did not regard to be
minor. He thereupon called State Mediator Waldron and
advised him of this new development, and that a strike was
possible because of the changes which Heck was suggesting
to the agreement which previously had been reached.
Waldron got in touch with Heck and arranged a meeting
for July 6 at 9 a.m. Pembleton also finally succeeded in
contacting Heck, and the latter assured hun that most of
the differences were merely in language and "could be
worked out."
13. The July 6 meeting in Waldron 's office
Pembleton arrived at Waldron's office for the July 6
meeting at 9 a.m., and he and Waldron waited for Heck.
The latter did not arrive until 11 a.m., and then only after a
10:15 a.m. telephone reminder by Waldron of their
appointment. Upon his arrival, Heck stated to Waldron
that he believed the parties could work out the language
changes which he desired. Pembleton said that if that was
all that was involved, he had no objection. Then, using a
copy of the contract which he had sent to Heck for
signature by the Respondent, Pembleton agreed to a
language change in subparagraph C of management rights,
and he noted the change on his copy of the contract in ink;
and he similar] y agreed to and marked changes on his
contract in the provisions relating to dues checkoff,
subparagraph B of job classification and wage rates, the
article on workweek and hours regulation, and section E of
the provision regarding seniority. The parties then reached
the holiday provisions of the contract, and Pembleton,
after an initial misconception of the nature of the change
proposed by Heck, learned that the Respondent was
returning to its original position and current practice of
paying premium pay only to employees who worked on the
agreed on holidays, with no pay for those who were not
scheduled to wo:k on holidays 33 At this point Pembleton
31 See G C Exhs. 13 and 14
32 See G.C. Exhs. 15 and 16.
33 The change proposed by Respondent was to pay those who did work
double time instead of the current time and a half.
34 The findings above are based on Pembleton's credited testimony.
Heck testified that at the July 6 meeting . Pembleton said that unless the
Respondent executed the contract which he had sent Heck on May 24, the
employees would strike Heck further testified that at this meeting, they
discussed only holiday pay and the union-shop provision, and that he
"almost positive[ly]" did not discuss either dues checkoff or management
rights In the light of Pembleton's appearance at this meeting for the express
purpose of negotiating reasonable language changes, and the changes to
997
said that he did not intend to agree to any further
reductions in the benefits previously agreed upon. Waldron
asked if he could be of assistance in resolving the issue.
Pembleton said he didn't know, and Heck said, he didn't
think so, that the "employer's position was firm." Pemble-
ton then told Heck that if the Respondent changed its
mind, he was available for further meetings.34
There have been no further negotiating meetings
between the Respondent and the Union since July 6.
14. Events following the July 6 meeting
Pembleton did not hear anything further from the
Respondent after the July 6 meeting, and on July 10 at
12:01 a.m., a number of the Respondent's employees began
a strike which has continued until the present date.
According to the uncontroverted and credited testimony of
Bingle , Midcap, and English, they went out on strike
because the Respondent failed and refused to sign the
contract to which it had agreed on May 16 and which the
employees ratified on May 17. Notwithstanding the strike,
the Respondent has managed to continue to operate its
nursing home with nonstriking employees. On July 13, the
Respondent obtained an ex parte preliminary injunction
from the Court of Common Pleas, Butler County,
Pennsylvania, which limited the number of pickets at the
Respondent's premises.35
On July 13, a petition to decertify the Union as the
representative of the Respondent's employees was filed
with Region 6 of the Board by Shirley J. Campbell,36 one
of the employees, and a letter advising Respondent of that
fact was sent by the Regional Office to Respondent on July
13.37 That petition was dismissed by the Regional Director
on July 24 as untimely because it was filed before the
expiration of the certification year. On July 26, a second
petition to decertify the Union was filed by Campbell,38
and this also was dismissed by the Regional Director on
August 29 because of his issuance of the complaint in this
case.39 Since its receipt of the Region's letter of July 13, the
Respondent admittedly has refused to recognize or bargain
further with the Union as the representative of its
employees in the certified unit.
D. Analysis and Concluding Findings
As previously noted, the complaint in this case alleges
that the Respondent negotiated with the Union in bad
faith with no intention of entering into a binding
agreement, and that it thereby violated Section 8(a)(5) of
the Act.
Although not always easy to apply, the legal principles
applicable to alleged violations of Section 8(a)(5) are by
which he agreed, I place no credence in Heck's testimony that at this
meeting Pembleton threatened to strike unless Respondent signed the
contract which he had sent to Heck on May 24 . Moreover, in the light of the
notations of the language changes made by Pembleton in G.C. Exb. 14 at
this meeting , I also place no credence in Heck 's testimony that management
rights and dues checkoff were not discussed.
35 The injunction was dissolved on July 17 "as improvidently granted."
36 Case 6-RD-441.
37 Resp Exh 1.
38 Case 6-RD-443.
39 An appeal has been taken to the Board from the latter dismissal, but
no decision thereon has issued as yet
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now well established. Section 8(d) and 8(a)(5) of the Act
require employers and representatives of employees "to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms and conditions of
employment . . ." with a view to the final negotiation and
execution of an agreement. This duty requires the parties
to "approach the bargaining table with an open mind and
purpose to reach an agreement consistent with the
respective rights of the parties." 40 No party is required by
the statute to make concessions, and no one need yield any
positions fairly maintained.41 But the right not to be
required to make concessions does not mean that in
assessing the conduct of the parties, one cannot examine
both the content of the proposals put forth, or the lack of
them, or the absence of justification for positions taken,
"for if the Board is not to be blinded by empty talk and by
mere surface bargaining it must take some cognizance of
the reasonableness of the position taken by the employer in
the course of bargaining negotiations."42 Moreover, "good
faith bargaining . . . does require that parties justify
positions taken by reasoned discussions and at least make
a good-faith effort to reach a solution of their differ-
ences."43 Although an employer is "free to reject the
Union's demands in the exercise of its business judgment
the failure to do little more than reject them [is] indicative
of a failure to comply with [the] statutory requirement to
bargain in good faith." 44
In short, the ultimate issue of whether the Respondent
"conducted its bargaining negotiations in good faith
involves a finding of motive or state of mind which can
only be inferred from circumstantial evidence."45 That
determination is made by "drawing inferences from the
conduct of the parties as a whole." 46 In addition, it is
settled law that when an employer and a union have orally
agreed upon the terms of a collective-bargaining agree-
ment, each is required, if requested, to sign a written
agreement embodying the terms and conditions orally
agreed to 47
In the light of the foregoing principles, analysis of the
Respondent's conduct of its negotiations with the Union
persuasively discloses that the Respondent engaged in
mere surface bargaining with no intention of reaching
agreement with the Union. I base this conclusion on the
following considerations:
1. The record clearly discloses that the Respondent had
no desire to expedite the negotiations with a view to
achieving an agreement. After Pembleton wrote the
Respondent on September 6, 1972, requesting that negotia-
tions commence, the Respondent asserted that it could not
start negotiations before October 16, 1972, "due to prior
commitments." At the hearing in this case, the Respondent
adduced no testimony regarding the nature of the
commitments which required this delay of over a month
for the commencement of negotiations. Thereafter, in the
40 Majure Transportation Company v. N L R.B , 198 F.2d 735, 739 (C A.
5).
41 N L R.B v American National Insurance Co, 343 U.S 395,410; H K
Porter v. N.LR.B., 397 U.S 99 (1970).
42 N.LR B v. Reed & Prince Manufacturing Co, 205 F.2d 131, 134 (C.A
1) cert denied 346 U.S 887.
43 Alba-Waldensian, Inc, 167 NLRB 695. 696.
44 N L R B v. Century Cement Mfg. Co. Inc., 208 F.2d 84, 86 (C.A. 2).
lu-month period following the Union's request to start
negotiations, the Respondent participated in only 11
meetings of about 2 hours' duration, cancelled one meeting
(October 25, 1972) without, in my view, a legitimate
reason,48 and it refused, despite repeated requests from the
Union, to hold longer negotiation sessions, or to meet on
evenings and Saturdays. Granting that this may have been
due to Heck's busy appointment schedule and his
preference for working only during the usual 40 hour
workweek, it was incumbent upon the Respondent to
provide a representative who could conduct negotiations
with the degree of diligence required by the statute.49 What
the Board said in "M" Systems, Inc., supra, applies equally
here, to wit:
The record here quite clearly supports a finding that
the Respondent, in arranging meetings with the
Union[,] failed to display the degree of diligence that
proper performance of its bargaining obligations
required. This is so whether or not the delays were
inspired by a deliberate scheme to engage in dilatory
tactics. One may sympathize with the problems of the
Respondent's negotiator in fitting the negotiating
meetings into the schedule of his busy law practice, but
this provides the Respondent with no legal excuse for
the consequent inordinately long delays tending to
impair employee statutory rights. Labor relations are
urgent matters too. If [the] other activities [of Respon-
dent attorney] made it impossible for him to devote
adequate time to reasonably prompt and continuous
negotiations, it was the Respondent's obligation to
furnish a representative who could. The duty to bargain
in good faith includes the duty to be available for
negotiations at reasonable times as the statute requires.
That duty is not discharged by turning over the
conduct of negotiations to one whose other activities
make him not so available.
The Respondent's dilatory tactics in respect to the holding
and duration of negotiation sessions clearly did not
comport with the requirement of Section 8(d) of the Act
that the parties meet "at reasonable times."
2. The Respondent took positions on a number of
proposed provisions of the contract for which it had no
reasonable basis. It initially objected to the inclusion in the
contract of any grievance procedure only because the
Company already had one. It objected to the listing in the
contract of the positions of kitchen employees and laundry
employees (for which the Union had expressly been
certified) on the asserted ground that it wanted to be able
to move its employees from one job to another as needed.
How the listing of these employees in the coverage of the
contract could possibly have prevented their transfers from
job to job is beyond my comprehension and was never
explained. The Respondent similarly objected to the listing
45 N.LR B. v. Reed & Prince Manufacturing Co, supra at 139-140.
46 N LR B. v. Insurance Agents ' Union [Prudential Ins Co .], 361 U.S.
477, 498 (1960)
47 H.J Heinz Company v N L.R.B, 311 U.S. 514,523-526.
48 See In . 5, supra
49 Insulating Fabricators Inc., Southern Division, 144 NLRB 1325,
1327-29, enfd. 338 F.2d 1002 (C.A. 4, 1964); "M" Systems, Inc., Mobile
Home Division Mud-States Corporation , 129 NLRB 527, 549.
EVERGREEN CONVALESCENT HOME
in the contract of the positions of recreation director on the
asserted ground that she was a professional employee,
notwithstanding that at the representation hearing, Heck
had expressly stipulated that she was properly in the unit
for which the Union sought certification. Although the
Respondent employs regular part-time employees who
have worked for it many years, and despite Heck's
admitted knowledge of the Union's right to designate job
stewards of its own choice, he nevertheless took the
position that the job steward and alternate job steward
must be limited to full-time employees of the Company.
The Respondent opposed inclusion of a checkoff provision
in the contract on the irrelevant ground that it was opposed
to compulsory union membership,50 the same ground on
which it initially opposed the Union's proposed union-shop
provision. Moreover, even after the Respondent withdrew
its objection to all forms of union security and agreed to
the Union's proposal to require new employees to join the
Union after 90 days, Heck adamantly insisted on a
preamble to the union-shop clause which read, "Except as
might otherwise be provided by applicable law," he
admittedly did not tell Pembleton, the Union's negotiator,
his reasons for this preamble, and his asserted reason
therefor, reluctantly stated at the hearing, clearly disclosed
that the insistence on preamble was unnecessary.51
Although the Respondent subsequently withdrew from
these baseless positions and objections, its conduct in
initially advancing them can hardly be regarded as
compatible with bargaining in good faith with a view to the
negotiation and execution of an agreement.
3. My conclusion that the Respondent engaged in mere
surface bargaining with no intention of effecting an
agreement with the Union is also bottomed on its
withdrawal of offers and its retraction from agreements
previously reached. As found above, the Respondent and
the Union agreed on March 9, 1973, on a monetary
package which included vacations, holidays, and hospitali-
zation. Heck admittedly requested Pembleton to take back
this "final offer" to the employees for ratification.
However, when, because of the absence of agreement on
union security, dues checkoff, subcontracting, severance
pay, and of a provision prohibiting supervisors from doing
unit work, the employees rejected the Respondent's
proposed contract containing this "wage package," the
Respondent, at the very next meeting on May 16, reduced
the benefits which it had offered and the Union had
previously accepted in respect to vacations, holidays, and
hospitalization. The Union nevertheless agreed to accept
the reduced benefits offered by the Respondent on May 16
because it desired to effectuate a contract, and as found
above, on that date the parties agreed upon all the terms
and conditions of a contract, subject only to a vote of the
employees on whether the Union's proposed union-shop
and dues checkoff provisions should be included in the
contract. However, although the employees on the next
day voted unanimously to accept the contract to which the
Union and the Company had agreed (which included the
union-shop and dues checkoff provisions), and the agree-
ment thus reached and ratified by the employees was sent
50 Cf. Flowers Baking Company, 161 NLRB 1429, 1439.
51 See fn. 19, supra
999
to the Respondent for signature, the latter again changed
its position and refused to sign the contract whose terms it
previously had accepted, assertedly because it sought to
obtain the Union's agreement to "minor" changes in
language. Once again the Union, in an effort to obtain a
signed contract, agreed on July 6, 1973, to accept language
changes proposed by the Respondent in respect to
management rights, dues checkoff, job descriptions,
workweek and hours regulation, and seniority, but it
refused to further reduce or change the holidays provision
or other benefits which previously had been agreed to by
the parties. I regard these tactics of the Respondent as
further evidence that it had no desire to effect an
agreement with the Union.
4. Finally, I am persuaded that the Respondent
bargained with no intention of entering into a binding
written agreement with the Union by the Respondent's
admitted and continued refusal after receipt of notification
of the filing of a decertification petition on July 13, 1973, to
negotiate or bargain with the Union as the representative
of its employees, and by its persistence in that refusal,
notwithstanding that the said decertification petition was
dismissed because it was filed before the expiration of the
certification year, and despite the fact that a second
decertification petition filed on July 26, 1973, also was
dismissed because of the issuance of the complaint in this
case.
All of the foregoing convincingly persuades me and I
find that while going through the sterile surface motions of
bargaining with the Union, the Respondent had no
intention of entering into an agreement with it, and that
thereby it failed and refused to bargain with the Union as
required by Sections 8(a)(5) and 8(d) of the Act.
As found above, a number of the Respondent's employ-
ees went out on strike on July 10, 1973, at 12:01 a.m.
because of the Respondent's failure and refusal to sign the
contract to which it had agreed on May 16 and which the
employees had ratified on May 17. By refusing to sign that
agreement, the Respondent violated Section 8(a)(5) of the
Act,52 and accordingly, the strikers are unfair labor
practice strikers entitled to reinstatement to their former
positions upon proper application therefor.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
52 H J Heinz Company v. N. L. R B, supra.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Affirmatively, I will recommend that, upon request, the
Respondent be ordered to forthwith sign the agreement to
which it agreed on May 16, 1973, as amended by the
language changes to which the Union agreed on July 6,
1973, before negotiations ended,53 and to give retroactive
effect to the terms and conditions of that contract. I will
further recommend that the Respondent make each of its
employees whole for any loss of employment benefits
which he may have suffered by reason of the Respondent's
failure to sign the said agreement.
Having found that the strike which employees of the
Respondent engaged in since July 10, 1973, is an unfair
labor practice strike, I will also recommend that upon
application the Respondent be ordered to reinstate the
strikers to their former or substantially equivalent positions
without prejudice to their seniority and other rights and
privileges previously enjoyed, dismissing, if necessary, any
persons hired as their replacements, and to make the said
strikers whole for any loss of earnings they may suffer by
reason of the Respondent's refusal, if any, to reinstate
them, by the payment to each of them a sum of money
equal to that which he would have earned from 5 days after
the date of his unconditional application for reinstatement
to the date of the Respondent's offer of reinstatement, less
his earnings during said period. Such backpay, if any, shall
be computed with interest at 6 percent per annum in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
To facilitate the computation of monies which may
become due under the terms of this order, I will also
recommend that the Respondent preserve and, upon
request, make available to the Board or its agents, for
examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary to analyze and
determine the said amounts.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Service Employees International Union , Local 227,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. Evergreen Convalescent Home , Inc., is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All licensed practical nurses, practical nurses, nurses
aides, orderlies , laundry employees , kitchen employees,
housekeeping employees and maintenance employees
of the Evergreen Convalescent Home , Inc., at its
Harmony , Pennsylvania , location ; excluding registered
nurses, office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
4. At all times material herein, Service Employees
International Union, Local 227, AFL-CIO, has been the
exclusive representative of the employees in the aforesaid
unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By engaging in sterile surface collective-bargaining
negotiations with the above-named Union with no inten-
tion or purpose of entering into a binding written
agreement with it, by refusing on and after May 24, 1973,
to execute the agreement containing the terms and
conditions of employment of the employees in the above-
described unit to which it had agreed, and by failing and
refusing on and after July 14, 1973, to meet with the said
Union to bargain further with it as the exclusive represent-
ative of its employees in the aforesaid appropriate unit,
concerning rates of pay, wages, hours of employment, or
other terms or conditions of employment, the Respondent
has engaged in, and is engaging in unfair labor practices
within the meaning of Section 8(d) and 8(a)(5) of the Act.
6. The strike of the Respondent's employees in the
aforesaid unit which commenced on July 10, 1973, was
caused and prolonged by the Respondent's unfair labor
practice as found above.
7. By the foregoing conduct, the Respondent also has
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER54
Respondent , Evergreen Convalescent Home , Inc., its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Upon request, failing and refusing to sign the
collective-bargaining agreement which was sent to it for
signature on May 24, 1973, as modified by the language
changes to which Service Employees International Union,
Local 227, AFL-CIO, agreed on July 6, 1973.
(b) Upon request , failing and refusing to bargain
collectively in good faith concerning rates of pay, wages,
hours of employment , or other terms and conditions of
employment , with Service Employees International Union,
Local 227, AFL-CIO, as the exclusive representative of the
employees in the following appropriate unit:
All licensed practical nurses, practical nurses , nurses
aides, orderlies , laundry employees , kitchen employees,
53 G.C Exh. 14 102 .48 of the Rules and Regulations, be adopted by the Board and become
34 In the event no exceptions are filed as provided by Sec 102 46 of the its findings , conclusions , and order, and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board, the findings , deemed waived for all purposes
conclusions and recommended Order herein shall, as provided in Sec
EVERGREEN CONVALESCENT HOME
housekeeping employees and maintenance employees
of the Evergreen Convalescent Home, Inc., at its
Harmony, Pennsylvania, location; excluding registered
nurses, office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist Service Employees International Union Local
227, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage it other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, sign the collective-bargaining agree-
ment with the above-named Union which was sent to it for
signature on May 24, 1973, as modified by the language
changes to which the above-named Union agreed on July
6, 1973, and give retroactive effect to its terms and
conditions.
(b) Make whole the employees in the aforesaid appropn-
ate bargaining unit for any loss of employment benefits
they may have suffered by reason of the failure to sign the
said agreement.
(c) Upon request, bargain collectively and in good faith
with Service Employees International Union, Local 227,
AFL-CIO, as the exclusive representative of all the
employees in the appropriate unit described above.
(d) Upon unconditional application, offer to all employ-
ees who went on strike on July 10, 1973, immediate and
full reinstatement to their former jobs, or if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any persons hired as their
replacements.
(e) Make whole the said strikers for any loss of earnings
they may suffer by reason of the refusal, if any, to
promptly reinstate them, in the manner set forth in the
section of this Decision entitled "The Remedy."
(f) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amounts, if any, due
under the terms of this Order.
(g) Post at its nursing home in Harmony, Pennsylvania,
copies of the notice marked "Appendix."55 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent, shall be
posted by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 6, in writing,
1001
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.
"i In the event that the Board 's Order is enforced by a Judgment of a
L rated 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, an Administrative Law Judge of the
National Labor Relations Board has found that we
violated the National Labor Relations Act, and has
ordered us to post this notice and we intend to carry out
the order of the Board.
The Act gives all employees these rights:
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a representa-
tive of their own choosing;
To act together for collective bargaining or
other mutual aid or protection; and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL, upon request, sign the collective-bargain-
ing agreement which was sent to us for signature on
May 24, 1973, by Service Employees International
Union, Local 227, AFL-CIO, as modified by the
language changes to which the said Union agreed on
July 6, 1973, and give retroactive effect to its terms and
conditions, and WE WILL make whole our employees
for any loss of benefits they may have suffered by
reason of our failure to sign the said agreement.
WE WILL, upon unconditional application, offer to
all our employees who went on strike on July 10, 1973,
immediate reinstatement to their former jobs without
prejudice to their seniority and other rights and
privileges , dismissing, if necessary, any persons hired as
their replacements.
WE WILL, upon request, bargain collectively in good
faith with Service Employees International Union,
Local 227, AFL-CIO, as the exclusive representative of
all employees in the bargaining unit described below,
concerning rates of pay, wages , hours of employment,
and other terms and conditions of employment. The
bargaining unit is:
All licensed practical nurses , practical nurses,
nurses aides, orderlies, laundry employees, kitch-
en employees, housekeeping employees and
maintenance employees employed by us at our
Harmony, Pennsylvania, location; excluding reg-
istered nurses , office clerical employees and
guards, professional employees and supervisors as
defined in the Act.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the excercise
of their right to self-organization , to form labor
organizations , to join or assist Service Employees
International Union, Local 227, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual and or protection,
and to refrain from any or all such activities , except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
EVERGREEN CONVALESCENT
HOME, INC.
(Employer)
(Representative) (Title)
Dated By
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644-2977.