Park Manor Nursing Home

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 763 (N.L.R.B. 1993)

763
312 NLRB No. 122
PARK MANOR NURSING HOME
1 The principal docket entries are as follows:
Charge filed by Hospital Employees Local 1273, Laborers’ District
Council of Baltimore and Vicinity (the Union) against the Respond-
ent on March 9, 1992, and amended on March 31, 1992; complaint
issued by the Regional Director, Region 5, against the Respondent
on April 23, 1992, and amended on September 25, 1992; hearing
held in Baltimore, Maryland, on March 2, 3, and 4, 1993; briefs
filed with me by the General Counsel, the Charging Party, and the
Respondent on or before April 12, 1993.
2 The Respondent admits and I find that it is a Maryland corpora-
tion which maintains an office and place of business in Baltimore,
Maryland, where it is engaged in the operation of a nursing home.
In the course and conduct of this business, the Respondent has annu-
ally purchased and received goods and services valued in excess of
$50,000 directly from points and places located outside the State of
Maryland. Accordingly, the Respondent is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
The Respondent is a labor organization within the meaning of Sec.
2(5) of the Act.
3 Actually, the old contract was extended, by oral agreement of the
parties, for a period of 2 weeks while negotiations were in progress
but, at the expiration of the extension, no further extensions were
made.
Park Manor Nursing Home, Inc. and Hospital Em-
ployees Local 1273, Laborers District Council
of Baltimore and Vicinity. Case 5–CA–22595
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 5, 1993, Administrative Law Judge Walter
H. Maloney issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Park Manor Nursing
Home, Inc., Baltimore, Maryland, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Mark F. Wilson, Esq., for the General Counsel.
Edward D. McGuire, Jr., Esq., of Annandale, Virginia, for
the Respondent.
John Singleton, Esq., of Baltimore, Maryland, for the Charg-
ing Party.
DECISION
A. Statement of the Case
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me upon an amended unfair
labor practice complaint,1 issued by the Regional Director of
the Board’s Region 5, which alleges that Respondent Park
Manor Nursing Home, Inc.2 violated Section 8(a)(1), (3), and
(5) of the Act. More particularly, the amended complaint al-
leges that the Respondent informed its employees that they
had been fired because of their union activities and that
union representatives had jeopardized their jobs by calling a
strike. The amended complaint further alleges that the Re-
spondent discriminatorily discharged Mary L. Brown because
of her union affiliations and that it has refused to recall 22
named strikers because of their union activities. It also al-
leges that the Respondent bargained to impasse over a non-
mandatory subject of bargaining, namely the enlargement of
the collective-bargaining unit which had been in place at the
Respondent’s facility for many years by insisting that super-
visors and other nonunit personnel be allowed to perform
unit work. The Respondent denies the commission of any
independent violations of Section 8(a)(1) of the Act and as-
serts that it recalled all strikers and that its slowness in doing
so was a matter of inadvertence or lack of job openings. It
further asserts that it never bargained to impasse over the
question of nonunit employees performing unit work. Upon
these contentions the issues here were joined.
B. The Unfair Labor Practices Alleged
The Respondent is a corporation, wholly owned by Henry
R. Goldbaum, which operates a nursing home for about 50
elderly patients in downtown Baltimore. The home itself has
been in operation for many years under different ownership
but, for the past 9 years or so, Goldbaum has been not only
its proprietor but the administrator of the facility as well. For
the past decade, the Respondent has been party to a series
of collective-bargaining agreements with the Union covering
a unit of geriatric nursing assistants (GNAs), dietary, and
housekeeping employees. Their most recent contract expired
on October 31, 1991, and no new contract has been con-
cluded between the parties since that time.3 The Respondent
was found guilty of an unfair labor practice in an earlier
Board case which was decided in 1985. Park Manor Nursing
Home, 277 NLRB 197 (Park Manor I).
On August 12, 1991, the Union sent the Respondent a
conventional 60–90 day letter notifying it of a desire to ne-
gotiate a new contract upon the expiration of the existing
one. There is nothing in the record to suggest that the Re-
spondent replied to this letter until the Union sent a second
letter, dated October 21, 1991, notifying the Respondent
under the terms of Section 8(g) of the Act (the health care
amendments) that it was going to strike the facility at the ex-
piration of the current contract, i.e., at 12:01 a.m. on October
31. The following day Stephan J. Boardman, the Respond-
ent’s long-time labor counsel, wrote Kenneth G. Raposa,
president and business manager of the Laborers’ District
Council, agreeing to meet on October 25. In his letter,
Boardman asked Raposa to forward any union proposals in
advance of the meeting so that they could be reviewed by
company officials before negotiations began.
At the October 25 meeting, the Union asked for a 5-per-
cent increase for all employees, most of whom were then
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Some of the Respondent’s employees had been employed by the
home for 15 to 20 years.
5 Excluded from the contract unit description were office clerical
employees, all other clerks, physicians, dentists, registered nurses, li-
censed practical nurses, activities directors, technical and profes-
sional employees, guards, confidential employees, and supervisors as
defined in the Act.
6 During this meeting, Boardman proposed a tradeoff, offering to
permit union security if the Union would agree to eliminate any
retrictions on supervisors performing unit work. The Union refused
but said it would give the Company a contract language similar to
language found in other nursing home agreements, which would per-
mit supervisors to perform unit work in the case of emergencies up
to 5 percent of the supervisor’s time. It was rejected by Boardman,
who said that the Company wanted no restrictions of any kind.
7 In a sidebar conversation during this session, Boardman told Sin-
gleton that the Company was not taking back any strikers because
they had all been replaced.
earning the minimum wage of $4.25 an hour.4 Boardman re-
fused, saying that the Company was in dire financial straits
and could offer no wage improvement at all. He offered to
let the Union audit the Company’s books if it disputed his
assertion. Throughout negotiations, the Union reminded the
Respondent that Maryland state medicaid allowances, from
which the Respondent derives the bulk of its revenue, were
scheduled to be increased and that the Union would be will-
ing to agree to an increase which was contingent upon any
increases in medicaid payments. The Company wanted to
eliminate the checkoff and union-secuity provisions which
existed in the expired contract. It also wanted to eliminate
any contractual restrictions which would prohibit supervisors
and others from performing unit work. This issue, sometimes
referred to in the record as the supervisory or bargaining unit
issue, and the elimination of checkoffs, were items which
had a bargaining history that had been a source of conflict
between the parties in the preceding year. About the only
thing the parties agreed upon during this meeting was a 2-
week extension of the existing contract.
Over a period of time, the Respondent had been negligent
in forwarding to the Union the dues payments which it had
deducted from the wages of its employees and had been re-
taining the money for its own uses. Apparently, this practice
had become commonplace in the nursing home industry in
Baltimore, an industry in which this Union has several con-
tracts. When other means of collection had failed, officials
of the Charging Party met with the State’s Attorney for Bal-
timore City and lodged a complaint, not only against this Re-
spondent but against other nursing homes as well, for viola-
tion of a Maryland statute which makes it a misdemeanor to
retain checked-off dues for more than 30 days without remit-
ting them to the union to which they are owed. A warning
letter had been sent to the Respondent by the State’s attorney
regarding its failure to make prompt payments of such dues.
The so-called supervisory issue arose out of a grievance
filed by the Union in the summer of 1991 relating to unit
worked performed by Supervisor Selina Jones. Jones was a
supervisory GNA on the first shift and was hired as a full-
time employee during GNA bargaining unit work on the sec-
ond shift. The Union claimed that either she should be pre-
vented from doing unit work on the second shift or, if she
were assigned to such work to supplement her income, she
should be required to pay union dues. The matter was settled
short of arbitration by an agreement, concluded in the sum-
mer of 1991, whereby Jones would be obligated to pay dues
if she worked a second shift as a unit employee and the
Company was required to pay the Union the equivalent of
the dues which Jones owed from the time she began her sec-
ond-shift work. The net effect of the Company’s proposal in
October was to bargain its way out from under this agree-
ment by deleting from the contract any prohibition restricting
supervisors from doing unit work on a regular basis.
Boardman wrote a letter to Singleton, dated October 26, in
which he summed up the Company’s position on various dis-
puted matters. In that letter, he requested an extension of the
right to perform unit work to all nonunit personnel, not just
supervisors.5
The parties met again on November 13 and 22 and De-
cember 12. The last meeting was held under the auspices of
a mediator. Throughout this period of time, written strike no-
tices had repeatedly been served on the Respondent by the
Union, the last one setting a strike for 12:01 a.m. on Decem-
ber 13. At the December 12 meeting, Boardman made an
offer of a 1-percent across-the-board increase, amounting to
about 4 cents an hour, during the first year of the contract
and a 2-percent increase during the second year. The com-
pany proposal also called for a rate of $4.40 after completion
of a 90-day probationary period. The Union agreed to lower
its 5-percent increase request to 4 percent. However, there
was no movement on the Company’s insistence on the super-
visory or bargaining unit proposal or upon its proposal to
eliminate checkoff, although the Company did remove its ob-
jection to a union-security clause.6 Boardman told union ne-
gotiators that the offer presented was not the Company’s
final offer, whereupon Clarence Logan, the Union’s Inter-
national representative for Maryland, told Boardman that he
had better present the final offer because the employees were
not going to accept the one that was on the table.
On the afternoon of December 12, union members held a
meeting and voted to strike. The strike began at midnight.
Every employee in the bargaining unit went on strike, except
for Mary L. Brown, a GNA who had worked for the Re-
spondent for 12 years. Brown had previously received per-
mission to go on vacation and was absent on leave through-
out the entire strike.
On Friday, January 3, the parties met again but only brief-
ly. John F. Singleton, the Union’s attorney, attended this
meeting along with other union negotiators. The Union again
offered a 4-percent increase in wages, contingent upon legis-
lative approval of improvements in medicaid benefits. It was
rejected. Singleton then reiterated the union offer on super-
visory personnel doing unit work, saying that the Union
would give the Company the standard language found in
other nursing home contracts. This offer also was rejected,
whereupon the meeting concluded.7
About 6:30 p.m., Singleton received a phone call from
Logan informing him that the strikers had held a meeting and
had agreed to accept the Company’s economic proposal.
Logan asked Singleton to call Boardman and then get back
to him because the employees wanted to return to work at
midnight when the shifts changed. I credit Singleton’s testi-
mony that he phoned Boardman at the latter’s home and in-
765PARK MANOR NURSING HOME
8 Williams supervises three or four employees on the 3 to 11 shift.
She is a licensed practical nurse (LPN) who is empowered to assign
work to GNAs and who exercises discretion in doing so. She is also
empowered to issue reprimands and can authorize overtime. I con-
clude that she is a supervisor within the meaning of the Act. How-
ever, she also routinely takes phone calls during the afternoon shift
and relays written messages to the recipients of those calls. As such,
she is an agent for this purpose, quite apart from her supervisory sta-
tus. On the occasion in question, she admitted receiving Logan’s call
and leaving a message for Goldbaum, as requested.
9 Goldbaum prepared a letter to Boardman, dated January 9, which
is in evidence, containing the names of 32 individuals who had been
hired by the Respondent between December 13, 1991 and January
3, 1992. All of these employees received a starting wage of $4.25
an hour.
10 Art. I, C3 of the expired contract provided:
The Employer agrees to assign only bargaining unit employees
unit work except in emergencies and extreme circumstances.
11 Itijazi signed her name on one letter which is in evidence as
Battool Zaky. In its answer to the amended complaint, the Respond-
ent denied that she was a supervisor within the meaning of the Act.
Goldbaum insisted that he retained final authority to hire all employ-
ees. However, he admitted that several strike replacements were
interviewed only by Itijazi and that they were hired upon her rec-
ommendation. I conclude that Battool Itijazi was and is a supervisor
within the meaning Sec. 2(11) of the Act since she could effectively
recommend the hiring of employees.
12 New hires who were placed on the Respondent’s payroll in the
first months of 1992 are as follows: Lisa Bushrod, laundry, hired
1/29/92; Patricia Simms, dietary, hired 2/4/92; Alice Paul, dietary,
hired 2/9/92; May Brooks, dietary, hired 2/9/92; Kendall Pitts, GNA,
hired 2/17/92; Ricky Anderson, housekeeping, hired 2/23/92; Mi-
chael Simpson, housekeeping, hired 2/21/92; Sharon Edwards, die-
tary, hired 2/27/92; Ingrid Rudolph, dietary, hired 3/4/92; Constance
Gilliam, GNA, hired 3/11/92; Toni Stanley, SNA, hired 3/12/92;
Veila Jones, GNA, hired 3/12/92; Lorella Joe, GNA, hired 3/12/92;
Carmaletta Bowe, dietary, hired 3/13/92; Brenda Jordan, GNA, hired
3/17/92; Melford Coke, GNA, hired 3/17/92; Denise Haywood,
GNA, hired 3/18/92; Phyllis Palmer, GNA, hired 5/14/92; Shirley
Wright, housekeeping, hired 5/15/92; Linda Harold, dietary, hired
5/15/92; Tracy Royster, dietary, hired 5/20/92; Betty Cooper, dietary,
hired 5/26/92; Dorothea Atterbury, dietary, hired 6/1/92.
formed Boardman that the strikers had accepted the wage
proposal and wanted to return to work. He also told
Boardman that the Union had not agreed to abandon its re-
quest for checkoff and was not going to give the Company
an unrestricted right to assign unit work to nonunit employ-
ees. Boardman replied that he could not reach Goldbaum at
that time but would be in touch with Singleton the following
Monday morning.
Singleton then reported the contents of this conversation to
Logan and suggested that Logan try to reach Goldbaum di-
rectly and make an effort to get the strikers back to work.
Logan called the home and spoke with Beatrice Williams, a
GNA supervisor who normally takes incoming calls at the
home during the late afternoon shift. He told Williams that
the employees were ready to return to work unconditionally
and asked her to get this message to Goldbaum or to Ed-
wards, the supervisor of nursing. Williams said that she
would do so. Logan also asked her for Goldbaum’s phone
number but she declined to furnish it.8
On Monday, January 6, Singleton faxed to Boardman the
following letter:
This letter serves to confirm that the striking employees
of Park Manor Nursing Home have made an uncondi-
tional offer to return to work. Please notify me of the
name of any alleged permanent replacements, date of
hire, and rates of pay. Also notify me of the names of
strikers who will be returned to work and date of re-
turn.9
Boardman acknowledged, in a letter dated January 7, that the
Union had made an unconditional offer to return all strikers
as of January 6 and reiterated to him that the home had hired
previous permanent replacements so there were no vacancies.
He assured Singleton that, as vacancies arose, strikers would
be recalled to work and proposed that employees be returned
on the basis of the home’s determination of their prior work
record ‘‘those . . . with the best records will be returned
first.’’ With respect to the outstanding supervisory or unit
work issue, Boardman proposed, as follows, in his letter:
As discussed previously in bargaining, the Home pro-
poses to remove any and all restrictions upon non-unit
personnel from performing bargaining-unit work. Thus,
for example, the restrictions in Article I, Section C3
would be deleted.10 We also propose to add a simple
clause to the new contract, as follows: ‘‘Notwithstand-
ing any other part of this Agreement, there shall be no
restrictions or limitations of any kind or nature regard-
ing non-unit personnel who perform any bargaining-unit
work.
This proposal was never accepted by the Union nor has the
Union ever agreed to abandon its insistence on checkoff. The
parties have never agreed to a contract so the Respondent,
insisting upon a written contract before implementing its
wage offer, has never begun to pay its employees the in-
creases in wages it offered at the bargaining session which
took place immediately before the strike.
At the outset of the strike, the Respondent began to hire
replacements. Goldbaum interviewed most of them but, in
some five to seven instances, the interviews were conducted
by the Respondent’s personnel director, Battool Itijazi.11 A
few replacements, estimated by Goldbaum at between 6 and
10, quit a few days after they were hired. He admits learning
of the request of the strikers to return to work in a phone
call on January 6 but continued to hire replacements after
that time. He attributed this action first to ‘‘inadvertence’’
and later to desire to have ‘‘back-up’’ employees on the pay-
roll in case regular employees did not show up for work. In
the next 5 months the Respondent hired a total of 23 new
employees in bargaining unit positions.12 Normally, they
began their employment the day after they were interviewed.
Respondent did not begin calling strikers back to work until
the end of February.
On or about January 8, the Respondent called a meeting
of the first-shift strike replacements and gave the following
letter to them:
I am writing this memorandum to all new employees to
inform all about the negotiations with the Union for a
new agreement. Agreement has been reached on all
economic issues, such as wage rates and fringe benefit
levels. One of the few remaining issues concerns your
continued employment. As you know, we hired you as
permanent replacements (that is, as regular, not tem-
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Goldbaum denies making this statement. I discredit Goldbaum,
who was a thoroughly unreliable witness. He had a selective mem-
ory, made inconsistent statements, and gave testimony which was in-
herently unbelievable. I am not the first administrative law judge to
discredit Goldbaum. See Park Manor I.
14 Goldbaum admitted on the stand that her request for a vacation
had been approved prior to the strike.
15 They were Mary Brown, Mary Garris, Lenora Powell, Thelma
Averette, and Bernetta Parker.
16 Hall is the union steward whose discriminatory discharge was
the subject of the Board case in Park Manor I.
porary, employees) for those employees who went on
strike.
On Monday, the Union made an unconditional offer for
the striking employees to return to work. In essence, the
Union wants us to take these employees back now,
which would mean that those employees hired as re-
placements would have to be laid off, as there are not
enough jobs for both groups to work at the same time.
We have informed the Union that it is the Home’s posi-
tion that the permanent replacements will keep the jobs
at this time, and that the employees formerly on strike
will be returned to work as vacancies for which they
are qualified become available.
The General Counsel presented witness Catherine Cannon
who testified credibly and without contradiction that she was
interviewed for a job during the strike and was told by Itijazi
that the job opening in question was temporary but could be-
come permanent. When strike replacement Huey
Healthington was interviewed, he asked Goldbaum what his
chances were of becoming permanent. Goldbaum told him
that, after 90 days, he would let Healthington know. During
the strike, Goldbaum told him that he was a good worker
and that his chances of being a permanent one were fine. On
March 18, Goldbaum terminated Healthington. I credit
Healthington’s statement that, at the meeting held in early
January for strike replacements, Goldbaum stated that the
strikers did not work for him any longer and that the replace-
ments were his permanent workers.
I credit the testimony of GNA Anita Frazier, who went on
strike on December 13 and who needed a written statement
concerning her status to be presented to her landlord. She
spoke to Itijazi in the personnel office and the latter agreed
to give her a letter indicating that she had been laid off at
the beginning of January. While she was in the office,
Goldbaum came in and asked her how the Union was treat-
ing her. In the course of the conversation, he told Frazier that
Emily Hall, the Union’s shop steward, had caused all the
home’s employees to lose their jobs by going out on strike.13
As noted previously, Mary Brown was a GNA who had
worked years for the Respondent. She was on an approved
vacation while the strike was in progress.14 She returned
from her vacation on January 13, about a week or so after
the strike had ended, and phoned the home to see about get-
ting back to work. She was surprised to learn that a strike
had taken place during her absence and told Supervisor
Dorothy Norris that she was scheduled to return to work the
following day. At this point in the conversation, Norris re-
ferred her to Goldbaum, who told her over the phone, ‘‘I
have fired all the Union employees and have replaced
them.’’ Brown said that there must be a mistake, reminding
him that she had been on vacation throughout the strike.
Goldbaum simply said that he ‘‘couldn’t help it.’’ She told
Goldbaum that she was owed a couple of checks, so he in-
structed her to speak to his bookkeeper.
Brown was offered a job in late February and returned to
the home for 2 days. She informed them that she had to have
a leg operation and needed some time off for that purpose.
Her request was approved and she was assured of a job once
she received a medical clearance to return. As yet, that clear-
ance has not been forthcoming.
On February 25, 1992, Goldbaum wrote certified letters to
five15 former strikers and offered them positions. All accept-
ed. On March 9, the first charge in this case was filed. On
March 20, 12 more employees, including Shop Steward
Emily Hall, were offered reinstatement. On May 28 and June
3, the balance of the striking employees were offered rein-
statement.
This case was originally scheduled to be heard by an ad-
ministrative law judge on or about August 31. No conven-
tional collective-bargaining sessions took place from the time
the strike ended until that date (or thereafter). However, ex-
tensive settlement discussions of the pending unfair labor
practice case took place in August, stimulated by conference
calls from the administrative law judge assigned to the case.
In the course of those discussions, the Respondent modified
its position on the subject of unit work and proposed the fol-
lowing language:
The parties agree that certain occasions may arise when
supervisors can perform bargaining unit on a temporary
basis. Such events shall include duties involved in train-
ing bargaining unit personnel, demonstrations, and
emergency fill-in of/or assisting bargaining unit em-
ployees. Such work shall not comprise more than 10%
of supervisory duties and shall be performed only when
patient needs require such work.
Notwithstanding agreement on this point, the case itself was
not settled nor have the parties concluded a final contract.
C. Analysis and Conclusions
1. Independent violations of Section 8(a)(1) of the Act
(a) When, on or about January 14, Goldbaum informed
Mary L. Brown that he had fired all the union employees,
the Respondent engaged in interference with protected, con-
certed activities in violation of Section 8(a)(1) of the Act.
(2) When, in early January, Goldbaum told Anita Frazier
that Shop Steward Emily Hall16 had caused all the home’s
employees to lose their jobs by going on strike, the Respond-
ent was once again engaging in interference with protected
concerted activities in violation of Section 8(a)(1) of the Act.
2. The discharge of Mary L. Brown
Mary L. Brown was notified of her discharge when she re-
turned from an authorized absence which coincided with a
strike of the Respondent’s facility. Brown did not participate
in the strike, although, as a longtime employee of the home,
she was a union member. Since she was absent from work
767PARK MANOR NURSING HOME
17 The alternative justifications advanced by Goldbaum as business
justifications for failing to recall strikers to vacancies which arose
in the work force were preposterous. To say that he hired 23 em-
ployees, over a period of 5 months, who should not have been hired
because of ‘‘inadvertence’’ strains credulity to the breaking point.
His other contention, namely that he needed a backlog of employees
to be on call in the event that his other employees failed to report
to work, ignores the fact that he did not put the post-January 3
placements merely on call but on the payroll. It was a tacit admis-
sion that he wanted to be rid of the employees who struck the home
and was taking punitive action against them.
18 In its brief, the Respondent admits that it improperly hired new
employees after strikers offered to return to work.
with the Respondent’s permission, she was not unilaterally
withholding her labor and hence could not be deemed a strik-
er. Toledo (5) Auto/Truck Plaza, 300 NLRB 676 (1990). The
Respondent never gave Brown any rational explanation for
her discharge, other than the fact that all union employees
had been eliminated from its payroll. The Respondent has yet
to explain why she was not placed back on the work sched-
ule in mid-January when she returned from vacation. Hiring
a strike replacement for someone who has been away on a
company-authorized absence defies logic and lends credence
to Brown’s account of her conversation with Goldbaum
when he told her that all former employees had been dis-
charged.
I have credited Brown’s account of this conversation, testi-
mony which was never contradicted in the record. Discharg-
ing an employee for going on strike is a patent and indis-
putable violation of Section 8(a)(1) and (3) of the Act, and
such a violation includes the discharge of someone who was
not actually on strike but was included within the group of
discharged strikers to fulfill an employer’s desire to purge its
payroll permanently of anyone who had anything to do with
the Union. Accordingly, by discharging Mary L. Brown be-
cause of her membership in and sympathies with the Union,
the Respondent violated Section 8(a)(1) and (3) of the Act.
3. The discharge of the strikers
The General Counsel has prosecuted a portion of the
amended complaint on alternative theories. On the one hand,
he alleges that the Respondent in fact discharged all of its
strikers, although it did not notify them of their discharges
until after the strike was over. Accordingly, any replacements
which were hired in their stead during the strike could never
be considered in law as anything more than temporary re-
placements who would have to be discharged when the
discriminatees asked to come back to work. Backpay would
start to run from that point in time until a discharged striker
was offered full reinstatement to his or her former position
or to an equivalent one. The General Counsel’s alternative
theory is that the strikers were entitled to reinstatement,
under the doctrine established in NLRB v. Fleetwood Trail-
ers, 389 U.S. 375 (1967), to any vacancies which existed at
the time their reinstatement request was made and to any va-
cancies which might arise thereafter. When the Respondent
continued to hire additional replacements while returning
strikers were waiting in the wings, it violated Section 8(a)(1)
and (3) of the Act and backpay awards in that event would
have to involve determinations of when each vacancy arose
following the offer to return.17
While the latter theory is indisputably supported by the
record,18 the former theory has a solid basis in fact and I
adopt it. In determining whether these strikers had in fact
been discharged, not merely replaced before they offered to
return to work, the events in question must be viewed
‘‘through the strikers eyes.’’ Trident Recycling Corp., 282
NLRB 1255 at 1260 (1987), citing Pennypower Shopping
News, 253 NLRB 85 (1980). No special words must be spo-
ken in order to effectuate a discharge. Indeed, no words need
be used at all. Jewell Smokeless Coal Corp., 175 NLRB 57
(1969). It is enough that the Respondent’s words or deeds
reasonably lead a prudent person to believe that he has been
discharged. Ridgeway Trucking Co., 243 NLRB 1048 (1979).
Goldbaum not only said that he had discharged the strikers.
He acted as if he had done so as well. At an employee meet-
ing on or about January 8, he told strikers, as reported by
Healthington, that the strikers did not work for him any
longer. He also told striker Frazier that the Union had caused
all of the strikers to lose their jobs, and the term he used to
Brown—that the union employees had been ‘‘fired’’—sug-
gests strongly that this is exactly what did become of them.
Any quibble over shades of meaning in Goldbaum’s choice
or words or inartful way of expressing himself can be re-
solved by what, in fact, Goldbaum did. After strikers had ad-
mittedly offered to return unconditionally, Goldbaum contin-
ued to hire 23 others in their places in clear violation of the
Fleetwood doctrine. Such action is consistent with, if not
compelling evidence of, the fact that strikers were regarded
by Goldbaum not as employees with continuing rights to re-
turn but as former employees who had totally severed any
connection with the Respondent and lost any legal standing
to regain a position on its payroll. Accordingly, I conclude
that the Respondent discharged the employees who were
named in the amended complaint as discriminatees because
they went on strike and, having done so, and in so doing,
violated Section 8(a)(1) and (3) of the Act.
4. Bargaining to impasse over expansion of the
bargaining unit
The Board has long held that the issue of whether super-
visors may perform bargaining unit work is a mandatory sub-
ject of bargaining and it has never retreated from this posi-
tion. Crown Coach Corp., 155 NLRB 625 (1965); Operating
Engineers Local 12, 234 NLRB 1256 at 1258 (1978); Main-
tenance Service Corp., 275 NLRB 1422 at 1426 (1985). The
reason for this holding was set forth by Trial Examiner Her-
man Marx in the Crown Coach decision:
The obvious purpose of the clause in question is to pre-
serve nonsupervisory production and maintenance work
for employees in the unit, and, plainly, contrary to [the
employer’s] position, the mere fact that the proposed
terms would affect supervisors does not relieve the
Company of an obligation to bargain with respect there-
to. On the contrary, the clause is a mandatory subject
of bargaining, as its provisions, dealing as they do with
employment opportunities for employees in the unit,
pertain to their ‘‘wages, hours, and other terms and
conditions of employment,’’ within the meaning of Sec-
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 F. W. Woolworth Co., 90 NLRB 289 (1950).
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
tion 8(d) of the Act, which defines the bargaining obli-
gations of employers and labor organizations. [Supra at
628.]
More recently, the Board had before it the other side of the
same coin, a management proposal which would expressly
allow supervisors to do unit work. With regard to that provi-
sion, Administrative Law Judge Jay R. Pollack wrote, with
Board approval:
Under the 1984–85 Agreement, the pressroom man-
ager could only do bargaining unit work if he was a
member of the Union. Respondent’s proposal deleted
that restriction and provided that ‘‘The publisher or his
designated representatives may do unit work.’’ [Empha-
sis added.]
[Respondent’s negotiator] Cowell testified that the
purpose of the proposal was to allow the pressroom
manager to participate in training, emergencies, trouble
shooting, and production situations. Cowell explained
that because the pressroom managers are the most
skilled and knowledgeable persons regarding the expen-
sive presses, Respondent wanted them to be able to do
unit work. General Counsel concedes that this is a man-
datory subject of bargaining. See e.g., Crown Coach
Corp., 155 NLRB 625 (1965). McClatchy Newspapers,
Inc., 307 NLRB No. 22, slip opinion, page 6.
In the present case, the Respondent did not propose to
alter the bargaining unit description nor did it seek to include
in the unit any of the many categories of employees who
were expressly excluded from coverage in the previous con-
tract. What it wanted was to allow supervisors—and presum-
ably a host of other excluded employees—to be able to per-
form unit work without restriction. The Union wanted some
restrictions. Understandably, the Union objected to the Re-
spondent’s proposal, arguing that such a provision would re-
sult in a serious erosion of bargaining unit work. Precisely
because its contention was a serious one affecting availability
of unit work, one, it necessarily follows that the provision in
question affected ‘‘wages, hours, and terms and conditions’’
of unit employees and was a mandatory subject of bargain-
ing. In many respects, the work preservation clause at issue
here is similar to a no-subcontracting proposal, a matter
which is clearly a mandatory subject of bargaining. Storer
Communications, 295 NLRB 72 at 78 (1985). Just as the
Union pressed its own version of such a clause, the Respond-
ent was entitled to insist to impasse on its version of a super-
visory or unit work provision, and this is exactly what it did.
Accordingly, so much of the amended complaint which al-
leges that the Respondent here violated Section 8(a)(1) and
(5) of the Act by doing so must be dismissed.
On the foregoing findings of fact and conclusions of law,
and upon the entire record here considered as a whole, I
make the following
CONCLUSIONS OF LAW
1. Park Manor Nursing Home, Inc. is now and at all times
material here has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Hospital Employees Local 1273, Laborers’ District
Council of Baltimore and Vicinity, AFL–CIO is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By discharging Mary L. Brown and the other employees
named in the amended complaint because of their union
membership and sympathies and because they had gone on
strike, the Respondent has violated Section 8(a)(3) of the
Act.
4. By the acts and conduct set forth above in Conclusion
of Law 3; by telling employees that it had fired other em-
ployees because they had gone on strike; and by telling em-
ployees that the union steward had caused them to lose their
jobs by going on strike, the Respondent has violated Section
8(a)(1) of the Act.
5. The aforesaid acts and conduct have a close, intimate,
and substantial effect on the free flow of commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend to the Board that it
be required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. Since the violations of the Act found are
repeated and pervasive and evidence on the part of this Re-
spondent an attitude of disregard for its statutory obligations,
I will recommend to the Board a so-called broad 8(a)(1) rem-
edy designed to suppress any and all violations of that sec-
tion of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
The recommended Order will also recommend that the Re-
spondent be required to offer to Mary L. Brown and to all
the discriminatees named in the amended complaint full and
immediate reinstatement to their former or substantially
equivalent employment and to make them whole for any loss
of earnings which they may have sustained by reason of the
discriminations practiced against them, in accordance with
the Woolworth formula,19 with interest thereon at the rate
prescribed by the Tax Reform Act of 1986 for the overpay-
ment and underpayment of income tax. New Horizons for the
Retarded, 283 NLRB 1173 (1987). Since the discriminatees
herein are discharged strikers, the Respondent was under a
duty to offer them immediate reinstatement upon their offer
to return to work. So backpay computations should begin as
of midnight, January 3, 1992. I will also recommend that the
Respondent be required to post the usual notice advising its
employees of their rights and of the results in this case.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Park Manor Nursing Home, Inc., Balti-
more, Maryland, its officers, agents, supervisors, attorneys,
successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that it had fired other employees be-
cause they went on strike or telling employees that union of-
ficials had caused them to lose their jobs by going on strike.
769PARK MANOR NURSING HOME
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Discouraging membership in or activities on behalf of
Hospital Employees Local 1273, Laborers’ District Council
of Baltimore and Vicinity, AFL–CIO, or any other labor or-
ganization, by discharging employees or by otherwise dis-
criminating against them in their hire or tenure.
(c) By any other means or in any other manner interfering
with, restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Mary L. Brown and to every other employee
named in the amended complaint full and immediate rein-
statement to their former or substantially equivalent employ-
ment, without prejudice to their seniority or to other rights
previously enjoyed, and make them whole for any loss of
pay or benefits suffered by them by reason of the discrimina-
tions found, in the manner described above in the remedy
section.
(b) Preserve and, on 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 the
amount of backpay due under the terms of this Order.
(c) Post at its Baltimore, Maryland facility copies of the
attached notice marked ‘‘Appendix.’’21 Copies of the notice,
on forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that, insofar as the amended com-
plaint herein alleges matters which have not been found to
be violations of the Act, the amended complaint is hereby
dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Park Manor Nursing Home, Inc. is posting this notice to
comply with an order of the National Labor Relations Board
which was issued after a hearing in this case in which we
were found to have violated certain provisions of the Na-
tional Labor Relations Act.
WE WILL NOT tell employees that we have fired other em-
ployees because they have gone on strike, and WE WILL NOT
tell employees that union officials have caused them to lose
their jobs by going on strike.
WE WILL NOT discourage membership in or activities on
behalf of Hospital Employees Local 1273, Laborers’ District
Council of Baltimore and Vicinity, AFL–CIO, or any other
labor organization, by discharging employees or by otherwise
discriminating against them in their hire or tenure.
WE WILL NOT by any other means or in any other manner
interfere with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the Act.
WE WILL offer to Mary L. Brown, Patrice Anderson, Thel-
ma Averett, Sandra Beard, Shirley Campbell, Martha Dixon,
Barbara Duckett, Larry Ebb, Barbara Epps, Anita Frazier,
Mary Garris, Emily Hall, Elizabeth Jackson, Janice McLeod,
Helen Burley Minter, Cosmos Nwagbara, Beretta Parker,
Lenora Powell, Linda Smith, Kimberly Thomas, Mary White,
and Anita Williams full and immediate reinstatement to their
former or substantially equivalent employment, without prej-
udice to their seniority or to other rights previously enjoyed,
and make them whole for any loss of pay or benefits suf-
fered by them by reason of the discriminations found in this
case, with interest.
PARK MANOR NURSING HOME, INC.