Wedgewood Nursing Home

National Labor Relations Board - Board DecisionsJan 31, 1985

273 N.L.R.B. 1738 (N.L.R.B. 1985)

1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wedgewood Nursing Home and 115, Nursing Home and Hospital Employees Union, a Division of 1115 Joint Board. Case 29-CA-9996 31 January 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 26 August 1983 Administrative Law Judge Steven Davis issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed a statement in sup- port of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, brief, and state- ment, and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent con- sistent with this Decision and Order. As more fully set forth in the attached decision, unit employees formed the Employee Council at the Respondent's health care facility in the spring of 1980. Employee Council meetings were initially attended by employees only, but after the first three or four meetings, the members invited the Respondent's administrator to attend. The judge found that the Respondent at a 27 May 19822 meeting adjusted employee grievances without pro- viding an opportunity for the collective-bargaining representative to be present as required under Sec- tion 9(a) of the Act. 3 The judge found that the at- tendance of two union stewards at this meeting did not relieve the Respondent of its obligation under Section 9(a). The Respondent contends that it ad- justed no grievances through the Employee Coun- cil and denies that it refused the Union its statutory right to be present at meetings of the Employee Council. The pertinent proviso of Section 9(a) states that "any individual employee or a group of employees ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 All dates hereafter are 1982 3 The complaint alleges, and the judge found, that the Employee Council is a labor organization within the meaning of Sec 2(5) of the Act We note that the complaint does not allege that the Respondent vio- lated Sec 8(a)(2) of the Act in its dealings with the Employee Council Nor does the General Counsel seek disestablishment of the Employee Council Accordingly, the issue of whether the Employee Council is a labor organization is not material to the resolution of any of the issues presented in this case shall have the right at any time to present griev- ances to their employer and to have such griev- ances adjusted, without the intervention of the bar- gaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bar- gaining contract or agreement then in effect: Pro- vided further, That the bargaining representative has been given opportunity to be present at such adjustment." The Board has frequently invoked the proviso to require an employer to permit stewards to participate in the grievance process. See, e.g., Winter Garden Citrus Products Cooperative, 116 NLRB 738, 753 (1956); Square D. Co., 105 NLRB 253, 260 (1952).4 Union Shop Steward Elmina Kelly testified that she attended the 27 May meeting and had also at- tended other Employee Council meetings. Assistant Union Shop Steward Ronald Scott testified that over the course of his 2 years in office he had at- tended every Employee Council meeting prior to October 1982. Both stewards are responsible for in- vestigating and processing grievances. It is there- fore undisputed that the Union was not only al- lowed the opportunity to be present at the 27 May meeting, but it in fact had at least one representa- tive in attendance at every meeting of the Employ- ee Council since that organization's inception. Thus, whether or not the Respondent adjusted grievances at the council meetingsâ€”an issue we find unnecessary to reachâ€”it did not deny the Union its right under Section 9(a) to have an op- portunity to be present at such meetings.3 Accordingly, we find, contrary to the judge, that the Respondent did not violate Section 8(a)(5) and (1) of the Act by its participation in the Employee Council and shall dismiss the complaint. ORDER The complaint is dismissed. 4 We do not accept the judge's implication, in fn 18 of his decision, that the second proviso to Sec 9(a), quoted above, requires employers to notify particular union officials in addition to stewards or similar In-plant union representatives before holding meetings at which employees could air grievances 5 Having concluded that the Respondent did not unlawfully deny the Union an opportunity to be present at the 27 May Employee Council meeting, we also find it unnecessary to pass on the Respondent's argu- ment that the complaint is time barred under Sec 10(b) of the Act DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Pursuant to a charge filed on October 4, 1982, 1 by 1115, Nursing 1 All dates hereafter are in 1982 unless otherwise stated 273 NLRB No. 216 WEDGEWOOD NURSING HOME 1739 Home and Hospital Employees Union, a division of 1115 Joint Board (the Union) a complaint was issued by Region 29 of the National Labor Relations Board on No- vember 30 against Wedgewood Nursing Home (Re- spondent). The complaint alleges that Respondent established an "Employee Council," a labor organization, on June 25, 1980, which "exists for the purpose of dealing with Re- spondent concerning, inter alia, grievances, labor dis- putes, wages, rates of pay, hours of employment, and conditions of work relating to the employees" in certain collective-bargaining units represented by the Union. The complaint also alleges that on May 27, September 3, and other dates since April 4, in violation of Section 8(a)(1) and (5) of the Act, Respondent met with the Em- ployee Council "for the purpose of adjusting grievances including, inter aha, scheduling of employee vacations and assignment of employee locker facilities, and during said meetings, Respondent bargained with the Employee Council and adjusted said grievances." The case was heard on April 27 and 28, 1983, in Brooklyn, New York. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, owned jointly by Maxwell A. White, Isi- dore Segal, and Bruce Godt, copartners doing business as and operating under the name of Wedgewood Nursing Home, has maintained its principal office and place of business at 199 Community Drive, Great Neck, New York, where it is engaged in the operation of a residen- tial health care facility providing skilled nursing care and related services Dunng the past year, Respondent de- nved gross revenues in excess of $400,000 from its oper- ations, and during the same period purchased and re- ceived drugs and medical supplies valued in excess of $50,000 directly from suppliers located outside New York. Respondent admits, and I find, that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent is and has been a member of the Nassau County Health Facility Association, Inc. (the Associa- tion), an organization composed of employers engaged in the health care industry which bargains with the Union in behalf of Respondent. Since about April 1, 1977, the Union has represented separate units of nursing supervisors, registered nurses, li- censed practical nurses, and service and maintenance em- ployees employed by Respondent, and about March 13, 1981, the Association and the Union executed separate collective-bargaining agreements, which run from Janu- ary 1, 1981, to December 31, 1985, covering those unit employees. Patricia Bartley, an assistant social worker employed by Respondent, conceived the idea of an Employee Council and recommended to Administrator Frederick E. White that such a council be formed.2 On June 25, 1980, White issued a notice to "all staff," signed by him, which stated: It has been suggested that perhaps we can im- prove interpersonal relationships through Employee Council Meetings. By discussing some of our mutual concerns openly we can find new solutions to them and we can better understand each other. The ultimate long term goal of these meetings is to improve patient care through cooperation and unity of purpose The notice stated that Bartley would conduct the first meeting, which was scheduled for July 3, 1980, "so that everyone can feel free to discuss his/her ideas and thoughts." The notice requested that each department select representatives to attend the meeting.3 About 20 meetings were held from July 3, 1980, to September 3, 1982. Bartley conducted the meetings and sometime after the end of each meeting prepared and typed the minutes, which were then posted at Respond- ent's facility and a copy given to White. Bartley testified that the ultimate purpose of the Em- ployee Council was to improve patient care As a means toward that end, the Council was intended to improve interpersonal relationsâ€”to personalize the work environ- ment and to establish a better means of communication. As set forth in the minutes: The group felt the importance of the Council was to promote and maintain communication between employees and administration. It was felt that the Council was effective in diminishing tension be- tween workers. A member mentioned that it has helped his shift feel as though they are part of the Nursing Home. They are now given an opportunity to make suggestions, mention problems and venti- late their feelinsg.4 The Council felt . . that the meetings should continue despite the poor attendance, as they con- tinue to be an important means of communication between employees and administration.2 Meetings were held more frequently when the Council was first formed. Thus, in 1980 meetings were held about twice per month. Then in 1981 and early 1982 meetings were held once per month or once every 2 months and, finally, in late 1982 were held once every 3 months. Employees were selected by their departments to attend the meetings. Two union shop stewards, Elmina 2 Bartley is neither an official of Respondent nor a member of a bar- gaining unit represented by the Union 3 The nursing department was asked to send eight representatives The other five departments were asked to send 1 each 4 Minutes of the November 24, 1981 meeting 5 Minutes of the February 25, 1982 meeting 1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelly and Ronald Scott, were among the employees chosen to be members of the Employee Council The meetings, held in the activities room or in Bart- ley's or in White's office, all took place in the afternoon. Employees who were on duty and attended the meeting received their regular pay for the time they spent in at- tendance. Administrator White did not attend the first few meet- ings, and employees' questions and concerns brought up at the meetings were relayed to him by Bartley His an- swers and responses to the matters raised were then given by Bartley to the Council members at the next meeting. This delay in response time caused the Council to invite White to the meetings so that a prompt answer could be given to the questions posed. White accordingly began his attendance at the Council with the third or fourth meeting in late 1980 or early 1981. The director of nursing also occasionally attended the meetings. Inasmuch as the meeting of May 27, 1982, was the only meeting which actually took place within the 10(b) period, I have set forth in full the minutes of that meet- ing, at which White was present.Â° The Council agreed that the atmosphere within the Nursing Home has greatly improved since the initial Council meeting The difficulties expressed at the previous meeting were mentioned, where the employees found diffi- culty in planning their vacations and when disci- plined found difficulty working together. Both problems persist. The Council feels the Nursing Dept is too large to establish communication be- tween co-workers when planning vacations. The Council believes, however, that employees of different disciplines can and should work togeth- er on solving problems between departments A problem was mentioned concerning Employee lockers. A notice was posted (near the time clock) by maintenance, asking employees to sign their name by the locker number and that the locker will be shared by three persons, one on every shift. The Employees are not responsive to this notice and will force the facility to assign lockers to employees. It was mentioned that attempts are being made for employees to decide with whom they would like to share their lockers. The staff's unresponsiveness is forcing the facility to assign lockers to employees. It was also stressed that employees fill out repair requisitions as this will insure that each requisition will be looked into by the Maintenance Dept A staff member mentioned that the bulletin board is often cluttered with several notices, and an im- portant notice may be overlooked. Mr White in- formed that he will insure that the board is cleared periodically He will also hold these notices for a few weeks in the event that someone may want it returned to them. A problem was mentioned concerning linens, as there is a shortage during the evening hours. Mr. 6 The charge was filed on October 4 An unfair labor practice may not therefore be found based on any activity occurring prior to April 4 See fn 9 infra White is aware of the situation but stressed that em- ployees discuss this with their supervisors. Staff Appreciation day was mentioned as some staff were not aware of what occurred, i.e., who was given awards. It was mentioned that the Staff Appreciation program is extended to all staff/shifts. Recognition is given to department heads as repre- sentatives for that department. All staff members are invited to this event. The suggestion of an employee outing was dis- cussed. All Council members agreed that this would be beneficial to all staff getting to know one another outside the work environment. The Council be- lieved all staff should decide whether an employee picnic, or an outing to Atlantic City can be planned. Both options will be posted opposite from the time clock and representatives will be sought to present both options to the employees. This will possibly occur during late June or mid-July An Employee Council may need to be scheduled after staff have decided on the outing. The plans for a Christmas party have been can- celed due to lack of response and interest. The idea of introducing a dog to the facility as a pet was presented Reportedly another facility has two pet dogs who have provided therapeutic gains for that nursing home's patients. A staff member has offered to donate a cage for the animal, for training purposes Mr. White informed that a plan must be devised by the Recreation Dept. re. such a program before it can be introduced to the facility. A problem has occurred where staff have been careless with the patients' clothing and shoes. Often a patient's belongings will be found in another's closet, and will not be returned to him. It is asked that all staff work together to insure a patient is wearing his own clothes and that one's belongings are where they should be. Clothing is available to the patient who has a shortage of clothing through the Housekeeping Dept The Council commented on the notable improve- ment of the first floor patio after being repaired. New patio furniture will be purchased to replace the tables and chairs which cannot be used. The benches will be used as they are salvageable. It is important that staff be careful while using the patio, not to discard cigarettes on the repaired ground The specific discussion which took place with respect to the issues raised at the May 27 meeting are as follows: Vacations: Certain employees complained that they were required to give extensive notice of their requested summer vacation and that they were unable to deter- mine, far in advance, the date that they wished to take such leave. They also mentioned that due to seniority rules certain workers did not receive the days for vaca- tion that they requested. White told the employees at the Council meeting that because so many of the employees requested summer va- cations, it was necessary that requests be made by March WEDGEWOOD NURSING HOME 1741 so that he could hire temporary replacements in ad- vance. 7 Lockers . At a prior Council meeting, employees com- plained that there was an insufficient number of lockers to store their personal belongings. Some employees used the patients' closets for this purpose In order to provide locker space to employees it was apparently decided that three employees (1) for each of the shifts) would share one locker At the may 27 meeting, a Council member- employee from the maintenance department stated that a signup sheet had previously been posted requesting that employees note with whom they wanted to share a locker. Few employees responded to the signup sheet, and it was announced that assignments of lockers would therefore have to be made. Linens Employees complained that the supply of linens was insufficient and that therefore they were unable to provide patient care in that they were unable to change the patients. Bartley conceded that this condi- tion made it difficult for them to perform their Job. White responded, as set forth in the minutes, that he was aware of the problem and requested that the employees discuss the matter with their supervisors. Other issues: I cannot credit the testimony of employ- ees Elmina Kelly and Ronald Scott regarding matters that they believed were discussed at the May 27 meeting such as security, lateness, and calling in sick. 8 However, it is clear that such issues were discussed at prior Em- ployee Council meetings as follows:9 Security . Employees complained that their cards were being tampered with in Respondent's parking lot, and re- quested that its gate be locked White refused to do so because ambulances use that gate. Employee Scott stated that employees requested that a security guard be as- signed to the lot and that floodlights be installed there. White testified that this matter was raised at an Em- ployee Council meeting and that he considered the em- ployees' request for tighter secunty in light of certain other, unspecified information he had from sources other than the Council He accordingly arranged for the hire of an evening security guard in late 1980 or early 1981, and in early April 1983 installed floodlights in the lot 7 I do not credit Bartley's testimony that White invited the employees to speak to their supervisor if they had difficulty in submitting a vacation request and, if the supervisor could not resolve the problem, they should take it to the Union Her testimony was not reflected in the minutes or supported by the testimony of White or the two employees who testified 8 I cannot credit such testimony because the minutes of the meeting did not reflect that such matters were discussed I must regard the min- utes, which were made contemporaneously, as having greater reliability than the memories of the witnesses as to events which occurred 1 year before their testimony Moreover, the witnesses could not recall precisely when these issues were discussed, and Scott, who examined a copy of the minutes when they were issued, stated that they were accurate In this connection, I credit the testimony of Bartley and White, as will be set forth infra, that these issues were discussed only at sessions held prior to the May 27 meeting 9 Evidence of conduct occurring more than 6 months before October 4, the date the charge was filed, may be relied on as background evi- dence to shed light on the motive for allegedly unlavi ful conduct occur- ring during the 10(b) period Machinists Local 1424 v NLRB, 362 U S 411 (1960), Mechanics Laundry c% Supply, 240 NLRB 302, 303 (1979) Lateness: According to employee Scott, Respondent docked employees if they were 15 minutes or more late. Certain employees complained at a Council meeting that workers had been docked when late only 2 to 4 minutes in bad weather. Scott stated that White's response to the complaint was that if the employees expected snow in the morning, they should park their cars close to the curb and not in a driveway, so that they could more easily get onto the street and arrive at work on time. Calling in sick . Employee Scott and Kelly testified that workers complained that Respondent's rule requiring them to call in sick 3 hours before they were scheduled to report for work was oppressive because most employ- ees have not yet awakened and thus do not know 3 hours before their starting time that they are ill. Scott and Kelly stated that after the complaint was made, Re- spondent changed its policy to require that employees call in 2 hours before the time that they are due to report to work.1Â° Bartley and White denied that Respondent ever changed its policy or rules as a result of an Employee Council meeting Bartley stated that when the issue re- garding calling-in time was raised, White and representa- tives of the nursing department, at a later meeting, ex- plained and clarified Respondent's policy. White stated that Respondent's current policy of requiring 2 hours' notice of illness had been in effect on or before May 1980â€”prior to the inception of the Employee Councilâ€” and therefore no change in its call-in policy had been made as a result of the Employee Council meetings." White stated generally that when he was asked ques- tions at a Council meeting, he explained Respondent's policy and told the employees that if there was a person- al or individual problem, they should speak to their su- pervisor. The Meeting of September 3 On September 3, Alex De Laurentis, vice president of the Union, made a random visit to the Respondent with Martin Geier, the Union's area director. The purpose of the visit was to ask the unit employees whether they had any complaints and to determine whether any problems they had were being handled properly by the Union's business agents. While on the premises, De Laurentis heard an an- nouncement which called all members of the Employee Council to White's office. De Laurentis asked some of the employees who were walking toward White's office about the nature and duration of the meetings, and he was told that such sessions have been held for "a while." De Laurentis told the employees not to enter the room until he and Geier accompanied them. White asked De Laurentis what the problem was and De Laurentis re- plied that White was circumventing ths Union by having an Employee Council which violates the law. De Laur- entis and Geier then entered White's office. i Â° Scott testified specifically that White said that it would be sufficient if a call was made 2 hours before the reporting time " Inasmuch as this meeting occurred outside the 10(b) period, I need not decide whether a change in Respondent's policy was in fact made 1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White told them that all that was being discussed was a picnic De Laurentis replied that he had no objection if that was the only topic to be discussed. Bartley then vol- unteered that she had minutes of all the meetings, and handed a copy of the May 27 meeting to De Laurent's, who looked at it briefly and asked how "vacations" were related to a picnic. White then said: "[Thu ought to appreciate the fact that I'm doing you a favorâ€”that I take care of problems before it gets you." De Laurentis responded: "That is the problem, that you have no right to take care of the prob- lems without the Union present or without discussing it with the Union."" De Laurentis ended by saying that Respondent committed an unfair labor practice and that he would file a charge." De Laurentis testified that no representative of Re- spondent ever notified him that it planned to establish an Employee Council or requested to meet and bargain with him concerning such a Council. He first became aware of the Employee Council on September 3. He conceded that to his knowledge Respondent has never refused to arbitrate a grievance and has never refused to meet with him or with any union representative. White testified without contradiction that in April 1982 he met with a union representative and with certain shop stewards concerning Respondent's vacation policy. The Collective-Bargaining Contracts Relevant portions of the parties' collective-bargaining contracts covering the employees involved herein are as follows: Grievance and Arbitration Procedures A. All complaints, disputes or grievances whatso- ever of whatever kind or nature arising between the Union and the Employer concerning any provisions of the contract, or with respect to any other acts, conduct or relations or terms or conditions of em- ployment of whatsoever nature or otherwise, be- tween the parties, directly or indirectly, shall be submitted for arbitration . . . B. The procedure herein provided for settling all complaints, disputes or grievances shall be the sole and exclusive remedy of the Union, The Associa- tion, member Employer and employees covered by this Agreement, and shall be used to the exclusion of any other means available and such settlement procedure shall be (except to enforce, vacate or modify awards) in lieu of any which will or may be available to the Union, the Association, member Employer and employees. No individual employee may initiate any arbitration proceeding. It is agreed that the maintenance of a peaceful and constructive relationship between the Union, the Association, Member Employers and their em- "This is based on the credited testimony of De Laurent's White and Bartley did not contradict his testimony i3 Also discussed at the meeting was the issue of the discharge of em- ployee Joan Brennan, Respondent's requirement that employees produce a doctor's note if they were out sick for I day, and Its use of a form concerning an employee's being able to perform "heavy lifting" on re- turning from sick leave, which form was objected to by the Union ployees, requires the establishment of cooperative use of the grievance and arbitration machinery for the settlement of all grievances and disputes, and that it would detract from this relationship if Member Employers and individual employees or groups of employees would either as such individ- uals or groups seek to interpret or enforce this Agreement on their own initiative or responsibility. It is, therefore, agreed that this Agreement shall not vest or create in any employee or group of employ- ees covered thereby any rights or remedies which they or any of them may enforce either at law or in equity or otherwise. It is understood and agreed that all of the rights and privileges created by or implied from this Agreement shall be enforceable only by the Union, the Association and the Member Employers and only in the manner established by this Agreement Management Rights The management of the establishment and the di- rection and control of the property and work force shall remain with the Employer. The rights herein described shall include but not be limited to: the right to hire, lay-off, discharge for just cause, in case of emergencies to require that duties other than those normally assigned by [sic] performed, except that "emergencies" shall not exist for longer than two (2) days, to make reasonable working rules and regulations of procedure and conduct; and to deter- mine work shifts, provided, however, that the exer- cise of all these rights must be consistent with the terms and conditions of this Agreement and are not to be used so as to discriminate against any person by reason of Union membership. B. The Positions of the Parties The General Counsel alleges that the Employee Coun- cil, a labor organization, exists for the purpose of dealing with Respondent concerning grievances and terms and conditions of employment, and that Respondent met with it, bargained with it, and in fact adjusted certain grievances during the meeting Although the General Counsel concedes that, pursuant to Section 9(a) of the Act, employees have the right to present grievances to their employer and have them adjusted, she argues that the proviso to that section, that the Union must be given an opportunity to be present at the adjustment of the grievances, has not been met and that the effect of the Employee Council was therefore to undermine and bypass the Union. Respondent argues that the complaint must be dis- missed pursuant to Section 10(b) of the Act. It also con- tends that the purpose of the Employee Council was not to deal with Respondent concerning mandatory subjects of bargaining, but rather was to promote better commu- nication between employees. Respondent denies that any actual gnevances were discussed and further denies that it adjusted any grievances at or after any Council meet- ing. It contends that its officials merely restated and ex- WEDGEWOOD NURSING HOME 1743 plained the existing policy concerning issues raised by employees at the Council meetings. C. Analysis and Discussion 1. The 10(b) issue Respondent asserts that the complaint herein must be dismissed because it alleges that the Employee Council was established on June 25, 1980, more than 6 months prior to the filing of the instant charge on October 4, 1982. Although it is true that the Council was formed more than 2 years before the filing of the charge, it is clear and I find that the Employee Council was continuously maintained and Respondent dealt with it within the 10(b) period.' 4 2. The merits Section 9(a) of the Act provides as follows: Representative designated or selected for the pur- poses of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the em- ployees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining ,representative, as long as the ad- justment is not inconsistent with the terms of a col- lective-bargaining contract or agreement then in effect: Provided further, That the bargaining repre- sentative has been given opportunity to be present at such adjustment. The General Counsel argues essentially that the Em- ployee Council, a creature of Respondent, functioned as a means by which Respondent adjusted grievances with- out the participation of the Union, thereby refusing to bargain with the Union in violation of Section 8(a)(1) and (5) of the Act. It is apparent that the Employee Council was inno- cently begun by Bartley who, as a zealous social .worker assistant, honestly believed that the purpose of the Coun- cil would be to "improve interpersonal relations" be- tween employees, thereby benefiting patient care. It thus appears that the purpose of the Council, as initially con- ceived, was to act as a means by which employees could speak with each other (a) in order to reduce misunder- standing and improve communication between them and (b) to understand how each employee's function in the nursing home relates to the other employees. However innocently the Council may have been cre- ated, and for whatever theoretical purpose it may have been started, it is clear that it was quickly transformed into a vehicle for the solicitation and adjustment by Re- spondent of employee .grievances. Thus, the minutes of the November 24, 1981 meeting stated that the Council believed that its importance was to "promote and main- tain communication between employees and administra- tion." (Emphasis added.) The minutes further noted that the Council reduced tension between workers, and em- ployees "are now given an opportunity to make sugges- tions, mention problems and ventilate their feelings." There is no question that the problems, concerns, and issues raised by the employees at the Council meetings prior to May 27 and at the May meeting constituted grievances. Prior to May 27, such topics included the se- curity of Respondent's premises with respect to employ- ees' cars in its parking lot, complaints regarding being docked for lateness when the employee claimed he was not late, and opposition to Respondent's policy requiring that employees who call in sick do so by a certain number of hours prior to their scheduled arrival. Similarly, the subjects raised at the May 27 meeting concerned areas of concern to employees: complaints by employees that they were required to state a preference for a. vacation date too far in advance and, due to the seniority system, certain employees did not receive the time for vacation that they requested; complaints by workers that there was an insufficient number of lockers for them to store their personal belongings, and that they used patients' closets for that purpose. In this connection, a request was made that three employees volunteer to share each locker and that they designate who they wanted to share the locker with. The workers did not re- spond to that request and it was announced that assign- ments of lockers would be made. Employees also com- plained that the supply of linens was insufficient, causing them to be unable to provide optimum patient care. Bart- ley conceded that this situation made it difficult for the staff to perform its job. There can be no question that the matters raised by the Employees at the May 27 meeting and the prior meetings constituted grievances. Grievances are usually more than mere personal dissatisfactions or complaints of employees and their adjustment frequently involves the interpretation and application of the terms of a contract or other- wise affects the terms and conditions of employ- ment not covered by a contract. For this reason, these matters are unquestionably the concern of the bargaining representative.15 Respondent argues that, even assuming the issues raised by employees at the Council meetings were griev- ances, it did not adjust any such grievances as a result of such meeting, but rather simply stated Respondent's policy as to the matters brought up by the Council mem- bers. I cannot agree with Respondent. Although it is true that with respect to the vacation issue Respondent restat- ed the reasons for its policy, nevertheless that restate- ment was a denial of the grievance that employees were required to state their vacation preference too far in ad- vance, inasmuch as it does not appear that Respondent change its policy. The Board has held that the rejection ' 4 Child Day Care Center, 252 NLRB 1177 (1980). 15 Bethlehem Steel Co., 89 NLRB 341, 344 (1950). 1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or a denial of a grievance constitutes an "adjustment" of a grievance within the meaning of Section 9(a) of the Act." The Council members also complained that they did not have locker space. This grievance was adjusted at the May 27 meeting by the announcement that lockers would be assigned if employees did not designate whom they wanted to share a locker with Similarly, the griev- ance of employees that an insufficient supply of linens prevented them from performing their work was appar- ently adjusted when White told them to speak to their supervisors. Employee Scott testified that after he raised the issue at the Employee Council, "Mr White immedi- ately increased the amount" of linens It is clear that Respondent did more than merely re- state its policies. The Council members requested White's presence at the meetings so that they could receive prompt responses and answers to their questions and problems. If all that White was doing was restating com- pany policy, he need only have given his statement of employer rules to Bartley and she would have read it to the employees. In this regard I credit the testimony of De Laurentis that at the September 3 meeting he was told by White that "you ought to appreciate the fact that I'm doing you a favorâ€”that I take care of problems before it gets to you."17 It is thus apparent that Respondent adjusted griev- ances without providing an opportuniuty for the collec- tive-bargaining representative to be present at the adjust- ment. The Union first learned of the Employee Council 2 years after its creation, had not been advised of its for- mation, and was not present at the adjustment of any grievances through the Employee Council.'8 I accordingly find and conclude that Respondent vio- lated Section 8(a)(5) and (1) by adjusting grievances through the Employee Council without providing the Union an opportunitry to be present at the adjustment," Although not necessary to my decision herein, I note that the collective-bargaining agreement between the parties contains a broad grievance and arbitration clause 20 requiring all "complaints, disputes or griev- ances" to be submitted for arbitration, which shall be the sole and exclusive remedy of the Union, the Employer, and employees, and "shall be used to the exclusion of any other means available and such settlement procedure shall be . in lieu of any which will or may be avail- 16 Id at 348 " In attacking the credibility of De Laurent's, Respondent correctly argues that he could not remember other issues discussed at the meeting, including the discharge of an employee and Respondent's requirement of a doctor's note after returning from being out sick However, I credit De Laurent's' statement attributed to White because White and Bartley did not deny it, and Bartley's minutes of the meeting and the testimony of Bartley and White corroborated De Laurent's' account of his protest re- garding the Council 18 The fact that two shop stewards were members of the Employee Council and present at the meetings does not relieve Respondent of its responsibility to give the Union an opportunity to be present at the ad- justment of grievances The statutory right to be in attendance under Sec 9(a) runs to the Union, as the exclusive collective-bargaining representive of the employees 19 Steelworkers v NLRB, 536 F 2d 550 (3d Cm 1976), Dow Chemical Co, 227 NLRB 1005 (1977) 20 The clause is set out in full supra able to the Union, the Association, member Employer and employees" There is no provision for resolution between supervi- sor and employee of any grievance, and the clause states that it would detract from the peaceful and constructive relationship between the Employer and the Union if "employees and individual employees or groups of em- ployees would . . . seek to interpret or enforce this agreement of their own initiative or responsibility." The contract is thus a clear, firm statement of policy between Respondent and the Union that only they will adjust grievances Respondent's adjustment of grievances with employees through the Employee Council would appear therefore to be in violation of the contract. One final issue remains The complaint alleges that the Employee Council is a labor organization, but no charge alleging a violation of Section 8(a)(2) of the Act has been filed and the complaint does not contain such an allega- tion. Moreover, the General Counsel does not seek dises- tablishment of the Council, recognizing that Section 9(a) permits groups of employees to meet with employers to have their grievances adjusted Based on the evidence, particularly the fact that the Council discussed with management many grievable items, I find and conclude that the Employee Council is a labor organization in which employees participate and which exists for the purpose, in whole or in part, of meetings with the Employer concerning grievances, wages, hours, and conditions of work within the meaning of Section 2(5) of the Act.2' . CONCLUSIONS OF LAW 1. Respondent Wedgewood Nursing Home is, and at all times material herein has been, an employer engaged in commerce within the meaning of the Act. 2. 1115, Nursing Home and Hospital Employees Union, a Division of 1115 Joint Board and the Employee Council are labor organizations within the meaning of the Act. 3. By unilaterally maintaining the Employee Council through which it solicited and adjusted grievances with- out permitting the collective-bargaining representative of its employees to be present, Respondent violated Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices affecting commerce, I find it neces- sary to order Respondent to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. I shall not order the disestab- lishment of the Employee Council, but shall order that Respondent cease dealing with it as a labor organization in the solicitation and adjustment of grievances of the 21 NLRB v Cabot Carbon Co. 360 US 203 (1959), Money Oldsmobile Co, 201 NLRB 155, 167 (1973), North American Rockwell Corp, 191 NLRB 833, 837 (1971) WEDGEWOOD NURSING HOME 1745 employees of Respondent where the Union has not had [Recommended Order omitted from publication.] an opportunity to be present at the adjustment of griev- ances.