Alachua Nursing Center

National Labor Relations Board - Board Decisions

Sep 8, 1995

318 N.L.R.B. 1020 (N.L.R.B. 1995)

1020
318 NLRB No. 106
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by denigrating the Union and thereby
undermining employee support for the Union, we note that the Re-
spondent in its exceptions states that its December 17, 1993 memo-
randum was directed to ‘‘All Alachua employees’’ and was posted
only at the Alachua facility. Although the record is unclear regarding
the scope of the posting of this December 17 memorandum, we con-
clude that given all the other reasons relied on by the judge in find-
ing this violation, the possibility that the December 17 memorandum
was not posted at the Oakview facility does not affect our finding
of this violation with respect to the entire unit, i.e., both the Alachua
and Oakview facilities.
2 The General Counsel has excepted to the judge’s failure to in-
clude in his recommended Order a provision requiring the Respond-
ent to notify the Union in writing that it has rescinded its withdrawal
of recognition from the Union at the Alachua and Oakview facilities,
and that it recognizes the Union as the exclusive collective-bargain-
ing representative of the unit employees at Alachua and Oakview.
We find merit in this exception, and we shall modify the judge’s
recommended Order and notice to employees accordingly.
The General Counsel has also excepted to the judge’s failure to
include in his recommended Order a provision extending the Union’s
certification year at the Oakview facility for a 1-year period. While
we agree with the General Counsel that the nature and scope of the
Respondent’s unfair labor practices undermined the bargaining proc-
ess and created disaffection among the employees, we also note that
the parties had engaged in several months of apparently productive
bargaining prior to the onset of the Respondent’s unlawful conduct.
In these circumstances, we believe that extending the certification
year by 9 months, running from the date that the Respondent begins
to bargain in good faith, will more closely restore the status quo
ante. Suzy Curtains, 309 NLRB 1287 fn. 2 (1992); Industrial
Chrome Co., 306 NLRB 79 fn. 2 (1992); Colfor, Inc., 282 NLRB
1173, 1174–1175 (1987), enfd. 838 F.2d 164 (6th Cir. 1988). We
shall modify the judge’s recommended Order and notice to employ-
ees accordingly.
National Medical Associates, Inc. d/b/a Alachua
Nursing Center and Oakview Regional Care
Center and United Food and Commercial
Workers Union, Local 1625, AFL–CIO. Cases
12–CA–15743–1, 12–CA–15743–2, 12–CA–
16124, and 12–CA–16125
September 8, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On December 8, 1994, Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent and the General Counsel each filed excep-
tions and a supporting brief, and the General Counsel
filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Na-
tional Medical Associates, Inc. d/b/a Alachua Nursing
Center and Oakview Regional Care Center, Gainesville
and Williston, Florida, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Insert the following as paragraph 2(a) and reletter
the subsequent paragraphs.
‘‘(a) Notify, in writing, United Food and Commer-
cial Workers Union, Local 1625, AFL–CIO, that it re-
scinds the March 9, 1994 unlawful withdrawal of rec-
ognition from the Union and that it recognizes the
Union as the exclusive bargaining representative of the
employees in the Alachua and Oakview bargaining
units.’’
2. Substitute the following for the newly relettered
paragraph 2(b) and reletter the subsequent paragraphs.
‘‘(b) Recognize and, on request, bargain with United
Food and Commercial Workers Union, Local 1625,
AFL–CIO, regarding wages, hours, and working condi-
tions of employees in the following appropriate bar-
gaining unit at Alachua Nursing Center:
Employees that perform work as certified nurse
aids, non-certified nurse aids, dietary aids, cooks,
housekeepers and laundry persons, but excluding
all other employees;
and, if an understanding is reached, embody the under-
standing in a signed agreement.
‘‘(c) Recognize and, on request, bargain with United
Food and Commercial Workers Union, Local 1625,
AFL–CIO, regarding wages, hours, and working condi-
tions of employees in the following appropriate bar-
gaining unit at Oakview Regional Care Center:
All full time and regular part-time certified nurse
aids, non-certified nurse aids, dietary aids, cooks,
housekeepers and laundry aids; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act;
and, if an understanding is reached, embody the under-
standing in a signed agreement. The Union’s certifi-
cation year shall extend 9 months from the date that
good-faith bargaining begins.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
1021ALACHUA NURSING CENTER
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT implement unilateral wage cuts with-
out first providing the Union with requested financial
information which we rely on to draw a conclusion
that such a cut is a business necessity.
WE WILL NOT implement wage cuts unilaterally
which are substantially different from that proposed to
the Union.
WE WILL NOT solicit employees to revoke the
Union.
WE WILL NOT engage in a course of action designed
to undermine the Union as bargaining representative of
our employees, including unilaterally restoring wage
cuts to employees without giving the Union advance
notice and offering to bargain over such matters; offer-
ing the Union wage increases on short notice and in
a take-it-or-leave-it manner; bypassing the Union and
dealing directly with employees; and/or engaging in a
campaign to denigrate the Union in the eyes of bar-
gaining unit employees.
WE WILL NOT unlawfully withdraw recognition from
United Food and Commercial Workers Union, Local
1625, AFL–CIO, the appropriate bargaining representa-
tive of our employees.
WE WILL NOT unilaterally grant employees improve-
ments in wages and benefits after unlawfully with-
drawing recognition from the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL notify the Union in writing that we now
rescind our March 9, 1994 withdrawal of recognition
from the Union, and that we now recognize the Union
as the exclusive bargaining representative of our em-
ployees in the Alachua and Oakview units described
below.
WE WILL rescind our March 9, 1994 withdrawal of
recognition from the Union.
WE WILL recognize and, on request, bargain with
United Food and Commercial Workers Union, Local
1625, AFL–CIO, regarding wages, hours, and working
conditions of our employees in the following appro-
priate bargaining unit at Alachua Nursing Center:
Employees that perform work as certified nurse
aids, non-certified nurse aids, dietary aids, cooks,
housekeepers and laundry persons, but excluding
all other employees;
and, if an understanding is reached, embody the under-
standing in a signed agreement.
WE WILL recognize and, on request, bargain with
United Food and Commercial Workers Union, Local
1625, AFL–CIO, regarding wages, hours, and working
conditions of our employees in the following appro-
priate bargaining unit at Oakview Regional Care Cen-
ter:
All full time and regular part-time certified nurse
aids, non-certified nurse aids, dietary aids, cooks,
housekeepers and laundry aids; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act;
and, if an understanding is reached, embody the under-
standing in a signed agreement. The Union’s certifi-
cation year shall extend 9 months from the date that
good-faith bargaining begins.
WE WILL make whole all employees for any loss of
earnings or any other benefits they may have suffered
by reason of the unlawful unilateral reduction in wages
by paying them a sum of money equal to the amount
they normally would have earned but for such changes.
NATIONAL MEDICAL ASSOCIATES, INC.
D/B/A ALACHUA NURSING CENTER AND
OAKVIEW REGIONAL CARE CENTER
David M. Anhorn, Esq., for the General Counsel.
Robert W. Rasch, Esq., of Orlando, Florida, for the Respond-
ent.
Edward K. Chambers Jr., of Lakeland, Florida, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Gainesville, Florida, on various dates between June
6 and 15, 1994. The charges in Case 12–CA–15743 were
filed on August 12, 1993, and thereafter amended. The
charges in Cases 12–CA–16124 and 12–CA–16125 were
filed on March 15, 1994, and were also thereafter amended.
Complaints and amended complaints issued on October 22,
1993, and May 5, 1994. In the amended complaint on May
5, all of the above-captioned cases were consolidated for
hearing. As consolidated, the complaint alleges, inter alia,
that National Medical Associates, Inc. d/b/a Alachua Nursing
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Center and Oakview Regional Care Center (Respondent) vio-
lated Section 8(a)(1) and (5) of the National Labor Relations
Act, by failing to provide the Union with requested, relevant
information; bypassing the Union and dealing directly with
employees; implementing a unilateral wage decrease; engag-
ing in a campaign to denigrate the Union in the eyes of bar-
gaining unit employees; participating in soliciting petitions
from employees to disaffect the Union; and unlawfully with-
drawing recognition from the Union.
In its answer to the consolidated complaint, Respondent
admitted certain allegations, including the filing and serving
of the charges; its status as an employer within the meaning
of the Act; the status of United Food and Commercial Work-
ers Union, Local 1625, AFL–CIO as a labor organization
within the meaning of the Act; and the status of certain indi-
viduals as supervisors and agents of Respondent within the
meaning of Section 2(11) of the Act. Respondent denied hav-
ing engaged in any conduct that would constitute an unfair
labor practice within the meaning of the Act.
At the trial, all parties were represented and afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. Following the close of the
trial, counsel for the General Counsel and Respondent both
filed timely briefs that have been duly considered. In addi-
tion, counsel for Respondent filed a motion to strike portions
of counsel for the General Counsel’s brief as misquoting,
misstating, and mischaracterizing various portions of the
record. Counsel for the General Counsel filed a response
thereto. The motion to strike is denied.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
National Medical Associates, Inc. d/b/a Alachua Nursing
Center and Oakview Regional Care Center is a Florida cor-
poration operating nursing home facilities in Gainesville and
Williston, Florida. Corporate headquarters are located at
Marietta, Georgia. In the course and conduct of its business,
Respondent annually derives gross revenues in excess of
$100,000 at each of the facilities, and purchases and receives
at each of the facilities various goods and services directly
from sources located outside the State of Florida.
Respondent is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
United Food and Commercial Workers Union, Local 1625,
AFL–CIO is, and has been at all times material, a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In 1984, the Union was certified as the exclusive collec-
tive-bargaining representative of employees at Alachua Nurs-
ing Center (Alachua). From that time on, the Union enjoyed
a contractual relationship with three successive owners of
that facility, including Respondent. The bargaining unit de-
scription evolved from that specified in the original certifi-
cation issued by the Board to the unit specified in the most
recent collective-bargaining agreement between Respondent
and the Union, which is described as ‘‘employees that per-
form work as certified nurse aid, non-certified nurse aids, di-
etary aids, cooks, housekeepers and laundry persons, but ex-
cluding all other employees.’’
In 1989, National Medical Associates, Inc. was created as
a nonprofit corporation, and the Alachua and Oakview facili-
ties were purchased by Respondent. At that time, Respondent
adopted the existing collective-bargaining agreement between
the Union and Respondent’s predecessor at Alachua. That
collective-bargaining agreement expired February 14, 1993,
but, as more fully discussed below, was extended by the par-
ties a number of times through June 30, 1993.
At Oakview, the Union successfully organized employees
in early 1993. The Union was certified by the Board as the
exclusive collective-bargaining representative of those em-
ployees on March 4, 1993. Contract negotiations for both fa-
cilities proceeded from February 1993 until Respondent for-
mally withdrew recognition of the Union at both facilities in
March 1994.
B. Negotiations
Employees at the Alachua facility were covered by the
terms of a collective-bargaining agreement between Respond-
ent and the Union effective by its terms from February 15,
1990, to February 14, 1993. Respondent agreed to various
extensions of that contract on February 5 and 25, March 30,
April 28, and May 26, 1993. When the parties were not able
to reach agreement on the terms of a new contract, the last
extension expired on June 30, 1993.
The first negotiation session regarding a new contract at
Alachua was held on February 25, 1993. At that meeting, the
Union submitted a written contract proposal. James D.
Crowe, an attorney employed to represent Respondent in
these negotiations, was called as a witness both by counsel
for the General Counsel and Respondent. At the time of the
trial, Crowe was no longer representing Respondent in any
capacity. In this meeting on February 25, the parties first dis-
cussed the Union’s contract proposal as it related to non-
economic items. After a few hours discussing such items, the
parties then came to economic issues. Crowe testified with-
out contradiction he then informed the Union that Respond-
ent’s nursing homes were losing money. Later in that same
session, the parties again returned to economic issues, and
Crowe explained to the Union Respondent’s various sources
of revenue. Crowe told the Union that Respondent would not
be able to agree to any improvements in economic items.
Crowe specifically rejected the Union’s economic proposals
on holidays and wages because the Alachua facility was los-
ing money. It is undisputed that thereafter Crowe rejected all
economic proposals advanced by the Union due to the eco-
nomic conditions at both Alachua and Oakview. Neverthe-
less, on February 25, Respondent agreed to extend the terms
of the existing collective-bargaining agreement through the
end of March 1993.
On March 4, the Board certified the Union as the rep-
resentative of employees at Oakview. On March 30 and
again on April 28, Respondent agreed to extend the terms of
the collective-bargaining agreement covering employees at
Alachua.
1023ALACHUA NURSING CENTER
On May 25 and 26, the parties again met in contract nego-
tiations. Prior to those negotiations, however, Respondent
learned during March and April 1993 of its ever worsening
economic condition. In March, Ralph Hildebrand, a manager
of the audit division for the Arthur Andersen accounting
firm, began an audit of Respondent’s books and records. In
April 1993, Hildebrand met with Respondent’s C.E.O., David
Morrel, to warn Morrel that the audit showed Respondent in
violation of its debt covenant in the bond agreement with its
lender.
During early 1993, Alachua and Oakview were both filled
approximately 90 percent by Medicaid patients, and Re-
spondent was thus effectively dependent on Medicaid reim-
bursements from the State of Florida. In a meeting during
March 1993, the president of Volunteer Hospital Authority
(VHA), which had been hired to manage the two facilities,
notified Respondent that in their opinion everything had been
done that could be done to improve and cut costs in the two
facilities, and that Respondent would probably have to file
Chapter 11 bankruptcy reorganization proceedings. The man-
agement firm notified Respondent that in their opinion, if
Respondent filed Chapter 11 reorganization, it thought
Morrel could buy outstanding bond debt back at 50 cents on
each $1 of outstanding debt. Instead, Morrel terminated Vol-
unteer Hospital Authority and took over management of the
two facilities himself. On behalf of Respondent, Morrel hired
two individuals previously employed by VHA to work di-
rectly for Respondent as an administrator and as Respond-
ent’s chief financial officer. Together, the three began to
focus on ways to cut costs at both Alachua and Oakview.
Last, but certainly not least, in early May 1993, the State
of Florida issued a retroactive Medicaid rate adjustment at
Oakview in excess of $4 per patient day. This retroactive
rate adjustment meant a potential cost to Respondent of ap-
proximately a million dollars. Hildebrand, the Arthur Ander-
sen audit representative, informed Respondent that this liabil-
ity would have to be accrued immediately as a current liabil-
ity on the balance sheet, thereby adversely affecting the cur-
rent ratio of assets to liabilities that was already a significant
problem. Further, this retroactive rate adjustment meant an
immediate cash flow crisis to Respondent.
At both facilities, Respondent looked for every possible
way to cut costs, including the renegotiation of lease arrange-
ments, cancellation of contracts for rehabilitation services,
changes in food suppliers, and even the renegotiation of lawn
maintenance contracts. Respondent’s chief financial officer,
Marvin Shams, also recommended that Respondent reduce
costs by making a 5-percent cut in the wages of all employ-
ees at all levels. Shams estimated that over a 6-month period,
the wage cut would create a saving of approximately $80,000
to $100,000.
As Respondent’s chief executive officer, Morrel authorized
Shams to initiate all of these cost saving measures and di-
rected J. D. Crowe to begin bargaining with the Union about
the possible wage reduction.
C. The Reduction in Wages
On May 25 and 26, Respondent and the Union met and
negotiated concerning Alachua and Oakview, respectively.
On May 25, the Union modified a number of its economic
proposals, including vacations and premium pay. On behalf
of Respondent, Crowe advised the Union of Respondent’s se-
rious economic difficulties, and again stated that as a result,
Respondent could not make or agree to any proposals for in-
creased costs. Discussions continued on the morning of May
25 without anything specific being proposed by Respondent
regarding wages.
On the afternoon of May 25, the Union pointed out that
it had not received a wage proposal from Respondent, and
stated that it needed one. Exactly how the notion of Re-
spondent making a ‘‘final offer’’ crept into the discussion on
May 25 is not altogether clear, but it is clear that somehow
that did occur. Richard Cutshaw, president of the Union, ad-
mitted that during the discussion on May 25, Union Inter-
national Representative Edward Chambers told Respondent
that if it was not going to agree to a raise, ‘‘then just give
us your final offer.’’ Attorney J. D. Crowe, representing Re-
spondent testified, however, he told the Union that if Re-
spondent was forced to put a proposal on the table regarding
wages, Crowe would be forced to make a ‘‘final offer.’’ Ac-
cording to Crowe, the Union responded, ‘‘Then let’s have
it.’’ In either case, after lunch on May 25, Crowe made an
offer on behalf of Respondent that both parties characterized
as a final offer. This proposal incorporated a 5-percent cut
in wages to a low of $4.25 per hour. This cut was not in-
tended to last the entire life of the collective-bargaining
agreement, but was for an indeterminate time until Respond-
ent’s economic situation improved.
Union International Representative Chambers immediately
responded to Respondent’s proposal stating, ‘‘This won’t
happen.’’ Chambers then went on to state, ‘‘There was more
than money that was a problem here, but if the owner thinks
we are looking at cuts it won’t happen.’’ During Chambers’
testimony, he did not deny telling Respondent that the Union
would never accept a wage cut. Rather, when asked if he
said that, Chambers impliedly admitted saying that by re-
sponding that it was ‘‘not a part of the process.’’ I find that
Chambers did reply to Respondent’s proposal by stating that
the Union would never agree to a wage cut. The Union then
asked if Respondent was going to give a similar proposal re-
garding Oakview the next day. On behalf of Respondent,
Crowe told the Union that if it was going to force a final
offer on Oakview as well, that Respondent would have to do
the same thing and put a final offer on the table regarding
Oakview similar to the one for Alachua. On May 26, Re-
spondent did in fact make the same proposal for Oakview as
it had for Alachua.
It is uncontraverted that in the meetings on both May 25
and 26, the Union asked Respondent to provide it with the
financial information that led Respondent to make its wage
cut proposal. Respondent agreed to supply the Union with
this information.
By letter dated June 16, Morrel sent the Union a copy of
a memo ‘‘that will be posted . . . on Monday, June 21, con-
cerning a wage roll back of 5% for all employee.’’ The
Union was advised that the wage cut would take effect July
1, and the letter stated, ‘‘We expect this wage roll back to
last only six months.’’
On June 22, Respondent posted notices to employees at
both Alachua and Oakview notifying them of the impending
wage reduction effective July 1. The notices advised employ-
ees that wages were being cut 5 percent, that no employee
receiving $4.75 per hour or less would receive a cut in pay,
and that the pay cut would last approximately 6 months. On
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 One of counsel for the General Counsel’s witnesses, Kasinal Lee,
called as a rebuttal witness, testified that in this meeting on June 22,
Respondent told employees that the Union had agreed to the wage
cut. I do not credit this testimony. Rather I find that Respondent
simply notified employees of the intended wage cut effect July 1 as
provided for in the written notices to employees posted on that same
date.
this same day, Respondent met with employees and advised
them of the same information.1
On June 29 and 30, Respondent and the Union again met.
No one disputed the testimony of Lyle Wilcox, Respondent’s
director of operations and administrator at Oakview, that the
June 29 meeting began by Union International Representative
Chambers ‘‘reading the riot act.’’ Wilcox testified credibly
that during these remarks, Chambers specifically stated the
Union was not there to go backward—that it was only there
to go forward. After Chambers’ remarks, Respondent’s rep-
resentative J. D. Crowe discussed the poor financial condi-
tion of both facilities. Crowe informed the Union about many
of the conditions that led to Respondent’s proposal to tempo-
rarily cut wages, but provided the Union with none of the
documents that had been requested by the Union. Union
President Cutshaw responded, ‘‘Maybe we didn’t do a very
good job of convincing the owner to meet us half way.’’
Chambers added that the Union had been holding off doing
anything to try to make Morrel more receptive, but perhaps
the Union should caucus and decide what they have to do.
International Union Representative Chambers then com-
mented, ‘‘If Morrel thinks we are going to walk away, we
are not. If he wants a contract we have made him an offer;
if he doesn’t, if the Union dies, the facility dies.’’ It is undis-
puted that at these meetings on June 29 and 30, the Union
again requested Respondent to provide it with documentary
financial data to support Respondent’s claim of financial dis-
tress. Respondent agreed to supply this documentary evi-
dence.
On July 1, Respondent implemented the wage cut as de-
scribed in its June 22 notices to employees.
On July 9, Respondent provided the Union with some of
the requested financial documentation. On August 4, addi-
tional information was given to the Union.
On August 4, Respondent and the Union again met in ne-
gotiations. It is undisputed that at this meeting the Union
made a counterproposal to Respondent’s wage cut. The
Union proposed that instead, Respondent freeze wages and
reduce vacation benefits. Respondent rejected these proposals
because they would not represent any actual, immediate help
to Respondent. In response, the Union again said they were
not going to accept a wage cut ‘‘period.’’ At the end of this
meeting, the parties scheduled another bargaining session for
late August. Before that meeting took place, however, the
Union canceled the meeting.
On August 16, 1993, the Union sent letters to Alachua and
Oakview employees reiterating that they did not organize a
Union to go backwards. Union President Cutshaw also stat-
ed: ‘‘We will not agree to the pay cut not will we agree with
any benefit cuts.’’ These letters are completely consistent
with Respondent’s other credible testimony that from the
very outset, as soon as Respondent proposed a wage cut, the
Union responded that it would never agree to any pay or
benefit cut.
D. Restoring the Wage Cut
In the latter part of August 1993, Respondent was able to
convince the State of Florida to reverse its position on the
retroactive Medicaid rate change. In conjunction with Re-
spondent’s other cost cutting measures, Respondent deter-
mined in early October that it would be able to restore the
wage rates previously cut. By memo dated October 7, Morrel
notified employees that the wage cut was being restored the
following day. It is undisputed that Respondent restored the
wage cut unilaterally, without giving the Union any prior no-
tice or offering to bargain over this. What Respondent did
do was, at the same time, on October 7, write to Union Inter-
national Representative Ed Chambers proposing a general
wage increase, including an increase in starting rates. After
describing the proposed increase, Respondent stated:
If you believe that we should not give such an in-
crease, please advise us immediately and we will not
implement the increase. However, unless we receive
your objection by October 20, 1993, we will implement
the proposed increase by October 22, 1993.
By letter dated October 19, Union International Represent-
ative Chambers wrote back to Morrel informing Respondent
it was ‘‘unable to accept’’ Respondent’s offer to increase
wage rates.
By letter dated November 2, 1993, Morrel responded in
part: ‘‘I am extremely disappointed that you would deny our
employees a wage increase.’’
In late October or early November, Morrel also met with
employees and told employees that the Union had denied the
Company’s proposal to grant a wage increase. At about that
same time, Respondent posted at each facility the letters in
which Respondent offered a wage increase, the Union’s re-
sponse, and Respondent’s answer.
E. Respondent’s Alleged Refusal to Meet with
the Union
On November 2, 1993, Local Union Secretary-Treasurer
Gary Parody telephoned Respondent’s attorney, Robert
Rasch, and left a message requesting a meeting with Re-
spondent. Rasch immediately responded by letter dated No-
vember 4 that Respondent was unavailable until after No-
vember 22. Rasch then went on to state: ‘‘Since my client’s
operating funds are very slim, we need to ensure that we can
expect some movement in the next meeting to cost justify
committing to additional expenses associated with such a
meeting.’’ Elsewhere the letter stated: ‘‘We see no sense in
meeting for meeting’s sake unless we can expect some real,
significant movement toward agreement on your part.’’ The
letter concluded:
We have a number of issues to discuss yet in these
negotiations. However, as the terms and conditions of
employment at Oakview and Alachua are not the same,
you are seeking the best of both worlds and have stead-
fastly refused to consider any reductions at Oakview to
bring the two units in line.
If you continue to steadfastly hold to these positions,
it seems a meeting is a waste of my client’s money that
would be better served paying creditors bills to ensure
1025ALACHUA NURSING CENTER
the future of the facility, and thereby better secure the
jobs of the people you are supposed to represent.
We are not hereby refusing to meet, but merely ask-
ing for some meaningful indication of a willingness to
compromise rather than continuing the current fruitless
banter.
Counsel for the General Counsel argues that Rasch’s letter
constitutes an unlawful condition precedent to further bar-
gaining by insisting that the Union concede on one or more
of its substantive positions before Respondent would agree to
meet. Neither counsel for the General Counsel nor the Union
dispute the substance of Rasch’s letter, however, that the
Union was holding steadfastly to certain demands and the
parties were far from agreement.
Parody waited an entire month before responding to
Rasch’s letter. On December 9, Parody telephoned Rasch’s
office and requested a meeting be scheduled for either De-
cember 21 or 22. Rasch returned Parody’s call immediately.
Rasch informed Parody that a meeting during Christmas
week was impossible, but specifically suggested a meeting in
early January. Rasch asked about the Union’s position on
several issues. Parody agreed to determine what its current
position was and to get back to Rasch after the first of the
year. During January, however, Parody never called Rasch
back, according to Parody because International Representa-
tive Chambers said he would do so. The record is devoid of
any evidence, however, that Chambers ever asked for another
meeting with Respondent, and none was held.
F. Respondent’s Alleged Solicitation of Employees to
Revoke the Union
Norine Lopez, the union stewardess at Alachua, testified
that in several CNA in-service meetings around Halloween
and Thanksgiving 1993, Mary Edwards made statements to
employees that without the Union, employees would be get-
ting better wages and more raises. Lopez testified that Direc-
tor of Nurses Sharon Mayes and Assistant Director of Nurses
Angela Hack were both present and both nodded their heads
in agreement with Edwards.
The complaint alleges that Edwards is a supervisor and/or
agent of Respondent within the meaning of the Act. At the
close of his case-in-chief, however, counsel for the General
Counsel conceded the evidence does not support a finding
that Edwards is a supervisor, a concession with which I am
in complete agreement. Counsel for the General Counsel now
relies on the allegation that Director of Nurses Mayes and
Assistant Director of Nurses Hack were both present and
nodded their agreement with Edwards, thereby adopting Ed-
wards’ remarks and making Edwards their agent.
Lopez was the only witness called by counsel for the Gen-
eral Counsel in its case-in-chief to testify concerning Ed-
wards’ alleged comments. As counsel for the General Coun-
sel concedes in its posttrial brief, ‘‘Lopez was visibly nerv-
ous and unquestionably had some difficulties with testify-
ing.’’ After Respondent called Edwards, Mayes, and several
employee witnesses, all of whom credibly denied Lopez’ tes-
timony, counsel for the General Counsel called Kasinal Lee
as a rebuttal witness to try to buttress Lopez’ testimony. Al-
though Lee was an assertive and self-assured witness, I do
not find her testimony particularly reliable. It was Lee, for
example, who testified that Respondent told employees in
group meetings the Union had agreed with Respondent’s 5-
percent wage cut. Although this was supposedly said in
group meetings, no other witness proffered such testimony.
Although I have no doubt Lee was trying her best to be com-
pletely truthful, I find details of her testimony unreliable.
The same may be said of Lopez. In her affidavit given to
a Board agent shortly before the hearing, Lopez claimed that
in several in-service training sessions that occurred during
the fall of 1993, Edwards told employees ‘‘they should kick
the Union out.’’ In her affidavit, Lopez did not claim that
either Director of Nursing Mayes or Assistant Director of
Nursing Hack were even present. Lopez’ affidavit claims
only that in a January 1994 meeting were Mays and Hack
present and nodding their heads in agreement with Edwards.
Lopez also testified that in this January 1994 meeting, Ed-
wards told employees that it was too bad certified nursing as-
sistants could not earn better wages, and they would be bet-
ter off without the Union so that they could get raises. Lopez
alleged that Director of Nursing Mayes and Assistant Direc-
tor of Nurses Hack were sitting next to Edwards during the
meeting, and nodded their heads in agreement with Edwards.
Other facts, however, cast considerable doubt on this portion
of Lopez’ testimony. The record reflects that employees reg-
ularly signed in when they attended CNA in-service meet-
ings. Indeed, Lopez claimed that she signed attendance
sheets for each meeting she attended. Her signature, how-
ever, does not appear on the November 1993 CNA meeting
notes. Director of Nursing Mayes is noted as attending the
November meeting, but neither Director of Nursing Mayes
nor Assistant Director of Nursing Hack are listed as attend-
ing the January 1994 meeting.
Director of Nurses Sharon Mayes had resigned and no
longer worked for Respondent at the time of the trial here.
Mayes denied that Edwards ever said anything during in-
service meetings about the Union. Mayes testified that Ed-
wards did not say employees would be better off without a
Union, did not say that employees would get more raises
without a union, and did not say employees should get rid
of the Union. Mayes, who testified that she had not even
talked with Respondent’s counsel before testifying, was very
much at ease and very credible. Edwards and Hack were also
both very credible, and both denied the remarks attributed to
Edwards by Lopez. I credit that testimony, and find that Ed-
wards did not make the remarks attributed to her by Lopez.
Further, I find that neither Mayes nor Hack said or did any-
thing to adopt any such remarks by Edwards, and I shall dis-
miss those allegations in the complaint.
The complaint alleges and counsel for the General Counsel
contends that during October, November, and December
1993 at Respondent’s Oakview facility, Administrator Lyle
Wilcox and Activities Director Robert Crooms solicited em-
ployees to revoke the Union. The only witness proffered by
counsel for the General Counsel to support these allegations
was Annie Monroe. Monroe worked for Respondent from
March 1992 until she was discharged in January 1994. There
is no allegation that Monroe’s discharge violated the Act.
Monroe testified that although she could not remember
when the meetings occurred, Oakview Administrator Wilcox
told employees during group meetings that ‘‘he could not
give them a raise on account of the Union was carrying into
the [F]ederal court for something and the Union was suing
them, so he told the employees that they can’t get nothing
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
until after court.’’ Not only is Monroe the only employee out
of all those who work at Oakview to testify that Wilcox
made such a statement, Respondent called three employee
witnesses who disputed Monroe’s testimony. Employee Carol
Mitchell testified credibly she observed that, in fact, any time
an employee approached Wilcox in any of the staff meetings
concerning any subject dealing with the Union, Wilcox told
them that he was not at liberty to discuss it.
Monroe testified that Activities Director Crooms met with
her privately three or four times to ask Monroe to circulate
a petition among employees to get rid of the Union. Monroe
testified that there were approximately 3 or 4 days between
each of these meetings, and that the last meeting occurred
shortly before Christmas 1993. According to Monroe, in the
first meeting Crooms telephoned the Board and asked what
needed to be done to get rid of the Union. According to
Monroe, Crooms then received a letter from the Board that
he gave to Monroe which stated that a majority of certified
nurse assistants needed to sign a petition saying they wanted
to get rid of the Union. In the third meeting, according to
Monroe, Crooms gave Monroe a brown envelope containing
the names of all employees. Crooms supposedly instructed
Monroe to have employees sign a petition saying they no
longer wanted the Union. Monroe testified that in the fourth
meeting, Crooms stated that whatever she did, she was not
to mention Crooms because it could jeopardize his job and
Wilcox’ job as well. I find it most interesting that Monroe
very carefully and deliberately placed the timing of these
conversations with Crooms in December 1993, because it
was approximately then that a petition was in fact circulated
among employees expressing disaffection with the Union.
Monroe’s timing of her conversations with Crooms is par-
ticularly helpful to counsel for the General Counsel and dam-
aging to Respondent because in this proceeding counsel for
the General Counsel is attacking the viability of this disaffec-
tion petition inasmuch as it was later relied on by Respond-
ent to withdraw recognition from the Union.
Monroe testified that after Crooms gave her petitions to
get signed by other employees, he later asked for them back.
According to Monroe, she told Crooms they were in the
trunk of her car, and she never gave them back. Monroe tes-
tified that she never solicited any employee signatures on the
forms. When Monroe testified that she had never given the
forms back to Crooms, I later pressed Monroe as to the
whereabouts of those petitions. Monroe told me that her car
had gotten lost, and that she had gotten in a wreck, and that
she did not ever get the petitions out of the trunk.
Monroe went on to testify that after her conversations with
Crooms, and her failure to circulate a disaffection petition,
Monroe was later told by employee Don Pendlebury that
Crooms had asked Pendlebury to circulate such a petition.
Counsel for the General Counsel fully understood the impor-
tance of Monroe’s testimony regarding Pendlebury to his
case. Indeed, in his posttrial brief, counsel for the General
Counsel states:
Monroe’s testimony was very damaging to Respondent.
. . . Most damaging was Monroe’s testimony regarding
Don Pendlebury, his circulation of a disaffection peti-
tion, what prompted Pendlebury to seek signatures, and
that Pendlebury was solicited to circulate the petition
by Robert Crooms . . . .
Crooms specifically denied ever soliciting Pendlebury to
circulate a petition among employees expressing dissatisfac-
tion with the Union.
The importance of Pendlebury as a possible witness was
very clear to counsel for the General Counsel, who rep-
resented to me and Respondent’s counsel that he had con-
ducted an exhaustive search for Pendlebury, and that
Pendlebury’s whereabouts were completely unknown. Near
the conclusion of counsel for the General Counsel’s case,
Respondent asked for a reasonable adjournment to try to lo-
cate Pendlebury and other potential witnesses who no longer
worked for Respondent. I discussed with counsel for the
General Counsel and counsel for Respondent the fact that I
was considering giving Respondent’s counsel what would
have been approximately a 10-day break from Thursday until
a week from the following Monday for this purpose. Counsel
for the General Counsel objected strenuously to giving Re-
spondent that much time to locate Pendlebury. He even
threatened to take a special appeal to the Board if that much
time was granted. Largely in order to appease counsel for the
General Counsel, I granted Respondent an adjournment only
from Thursday until the following Tuesday to locate
Pendlebury and these other additional witnesses who no
longer worked for Respondent. When we resumed on that
next Tuesday, I learned that not only had Respondent been
able to locate Pendlebury, but that in fact within 24 hours
of adjourning on the previous Thursday, counsel for the Gen-
eral Counsel had located Pendlebury and spoken to him by
telephone. Counsel for the General Counsel, however, made
no effort to call Pendlebury as a witness. Respondent simi-
larly decided not to call Pendlebury. Now, both counsel for
the General Counsel and Respondent argue that an adverse
inference should be drawn against the other for not calling
Pendlebury.
Considering all the facts, I agree with Respondent that it
is counsel for the General Counsel who should bear the con-
sequences of not calling Pendlebury as a witness. I note first
that Monroe’s testimony concerning Crooms allegedly solic-
iting Pendlebury to promote a disaffection petition was clear-
ly hearsay. As the trier of fact I could refuse to rely on it
for that reason even if it were undisputed, which clearly it
is not. Of particular concern to me as the trier of fact, how-
ever, is that by all appearances counsel for the General
Counsel tried to hide Pendlebury as a witness from Respond-
ent and from the court. He first claimed to have made an ex-
haustive and unsuccessful search for Pendlebury. Yet, when
I indicated some willingness to give Respondent a reasonable
period to locate Pendlebury, counsel for the General Counsel
objected strenuously. When a much briefer period was given,
it turned out that not only was Respondent able to locate
Pendlebury, but counsel for the General Counsel was able to
locate him and speak to him by telephone within 24 hours
of my adjourning this case. That Respondent would not have
wanted to call Pendlebury makes complete sense, since Re-
spondent had discharged Pendlebury in November 1993, and
no doubt felt it had reason to consider Pendlebury somewhat
biased against Respondent.
There is absolutely no logical reason, however, why coun-
sel for the General Counsel would not have sought to call
Pendlebury as a witness to support and substantiate firsthand
the hearsay testimony offered by Monroe, unless, of course,
Pendlebury could not and would not substantiate Monroe.
1027ALACHUA NURSING CENTER
Counsel for the General Counsel advanced no reason for not
calling Pendlebury. The only possible reason counsel may
advance for not calling Pendlebury is the undisputed fact that
Pendlebury did circulate a disaffection petition. This fact
standing alone, however, does not necessarily evidence bias
against the Union or an unwillingness to testify truthfully.
The significance of Monroe’s testimony as it relates to
Pendlebury is not that he circulated a disaffection petition,
but that he was solicited to do so by Respondent. If that
were the case, and Respondent then turned around and dis-
charged him, as it did on November 2, Pendlebury would
have every reason to want to testify on behalf of counsel for
the General Counsel. Considering all of the above, I there-
fore conclude that an adverse inference should be drawn
against counsel for the General Counsel for not calling
Pendlebury as a witness, and I conclude that if he had been
called, Pendlebury would not substantiate and corroborate
Monroe’s testimony.
In addition to Monroe’s testimony concerning remarks al-
legedly made by Administrator Wilcox during group meet-
ings of employees at Oakview, Monroe also testified that in
similar group meetings, Activities Director Crooms told em-
ployees that ‘‘They did not need the Union, they ain’t gonna
do us no good, and you know, we should vote them out and
if we vote them out we will get a raise.’’ Crooms credibly
denied that he made any such statement. I note that in
Monroe’s affidavit to the Board dated March 30, 1994, Mon-
roe claimed that these statements were made to her by
Crooms in her office during the private meetings in Decem-
ber 1993. Even though much of her testimony appeared well
rehearsed, I must agree with counsel for Respondent that
Monroe apparently had some difficulty keeping her stories
straight.
In short, Monroe’s credibility left much to be desired. On
the subjects covered by counsel for the General Counsel in
her direct testimony, Monroe appeared well rehearsed. On
other subjects, however, such as the circumstances surround-
ing her discharge, Monroe impressed me as simply trying too
hard to appear casual and objective. Monroe repeatedly
claimed that although she was discharged by Respondent, she
accepted that rather stoically and dispassionately. The testi-
mony of numerous witnesses proffered by Respondent shows
conclusively, however, that Monroe was extremely upset by
her discharge, eventually had to be asked to leave Respond-
ent’s premises, and vowed as she was leaving, ‘‘I will get
you all for this.’’ There is no doubt in my mind that Monroe
testified spitefully for revenge against Respondent. I am con-
vinced that Monroe altered, stretched, and where necessary
fabricated testimony to support counsel for the General
Counsel’s case. I am left with the perplexing difficulty of
wondering where there might be specific kernels of truth en-
cased within and overlaid by half-truth and outright fabrica-
tion. In the end, I find myself left with little of Monroe’s tes-
timony that can be relied on to support counsel for the Gen-
eral Counsel’s case.
Crooms on the other hand provided a very credible ac-
count of his conversations with Monroe. Crooms testified
very candidly and credibly that sometime around the end of
July 1993, Monroe approached him and said that she wanted
to talk about the Union. Monroe told Crooms that there was
a lot of talk and that employees wanted the Union out. Mon-
roe asked Crooms how employees could get rid of the
Union. Crooms admitted looking up in the telephone book
the state agency in Florida that he thought had jurisdiction
over such matters. Crooms also admits he then dialed the
telephone number for Monroe and handed her the telephone.
Monroe became so nervous she hung up. Crooms then dialed
the number again and again handed Monroe the telephone.
Crooms overheard Monroe give the person to whom she was
speaking Monroe’s home telephone number and address. Ap-
proximately 4 or 5 days later, Monroe brought Crooms an
envelope from the Florida Public Employees Relations Com-
mission addressed to Monroe at her home. Crooms still had
this envelope, which was postmarked August 5, 1993, and it
was introduced as an exhibit by Respondent. The envelope
contains a blank form entitled a ‘‘Petition to Revoke Certifi-
cation.’’ Crooms testified credibly that Monroe asked him to
interpret the form, which he did. Crooms testified that he
kept the document when Monroe did not ask for it back.
Crooms candidly admitted that he kept the letter because he
did not want it to get out that he had any part in Monroe
contacting the State of Florida. Crooms credibly testified that
this was the only help he gave to Monroe or anyone else
with regard to ousting the Union.
I found Crooms utterly candid and credible in describing
these conversations with Monroe. The evidence shows that
these conversations occurred much earlier than claimed by
Monroe, and long before the disaffection petition circulated
by other employees. I credit Crooms that it was Monroe who
approached him both in the initial conversation and after re-
ceiving the petition from the Florida Public Employees Rela-
tions Commission. I also credit Crooms regarding the sub-
stance of his conversations with Monroe.
G. Employee Petitions
On December 17, 1993, Respondent posted notices to em-
ployees that stated:
On October 7, 1993, National Medical Associated,
[sic] Inc. offered its most deserving bargaining unit em-
ployees a .15 cents to .20 cents an hour increase. This
wage increase was denied on October the 19th, 1993 by
the UFCW Local 1625. I apologize for their insensitiv-
ity.
This money had been set aside for pay raises so,
please accept this as notice that this money will be uti-
lized as a pay raise of .15 cents per hour for all other
. . . employees retroactive to December 15th, 1993.
We appreciate your loyalty and the quality of your per-
formance. Merry Christmas and a Happy New Year.
At about this same time, disaffection petitions began cir-
culating at Alachua and Oakview.
On or about January 18, 1994, Alachua Administrator Ed-
ward Coop received a petition with 48 signatures indicating
these persons no longer wanted to be represented by the
Union. The testimony is uncontroverted that Coop verified
the signatures against payroll records and determined that a
majority of the employees in the bargaining unit had signed
the petition.
On January 26, 1994, Oakview Administrator Lyle Wilcox
received a similar petition from employees. Wilcox testified
that when he analyzed the petition, he concluded that ap-
proximately 70 percent of bargaining unit employees had
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed. Although counsel for the General Counsel disputes
the exact percentage figures obtained by Respondent, counsel
for the General Counsel does not dispute the fact that a ma-
jority of employees at each of the two facilities signed these
disaffection petitions.
Counsel for the General Counsel spent considerable time
trying to prove that the employee or employees at Oakview
who circulated the disaffection petition were supervisors
within the meaning of the Act. That effort failed, and counsel
for the General Counsel eventually conceded the evidence
does not establish that any of these individuals are super-
visors within the meaning of the Act. Counsel for the Gen-
eral Counsel next tried to attack the Oakview petition as hav-
ing been generated by Respondent. The record reflects that
one employee, Tracey Roberts, who was involved in circulat-
ing the petition, went to a payroll clerk and asked this clerk
to make a list of names of the people who worked at the fa-
cility. Although the payroll clerk did so, there is no evidence
that the payroll clerk knew anything about how this list was
going to be used. Once the list was obtained, Roberts and
other employees used it to approach fellow employees and
seek their signatures on a disaffection petition. There is no
evidence whatever that either the payroll clerk or any super-
visors participated in circulating the disaffection petition
among employees. There is absolutely no indication that the
minimal assistance provided by the payroll clerk had any-
thing to do with Roberts’ decision to distribute the petition.
H. Withdrawal of Recognition and Wage Increases
The Union’s certification by the Board as representative of
employees at the Oakview facility had been issued on March
4, 1993. Respondent waited until after the expiration of the
certification year, and on March 9, 1994, Respondent faxed
a letter to the Union at 10:30 a.m. withdrawing recognition
at both Oakview and Alachua.
On March 9, at 2:30 p.m., Morrel met with employees at
the Alachua facility and advised them that he had withdrawn
recognition from the Union. The following day, Morrel an-
nounced the same thing to the Oakview employees. When
Respondent met with employees, after it had withdrawn rec-
ognition from the Union, Respondent also announced
changes in compensation, including a 15-cent-per-hour in-
crease and a bonus plan. This was the same increase that had
been offered by Respondent and turned down by the Union
in October 1993.
Analysis and Conclusions
Counsel for the General Counsel argues that the wage cut
instituted by Respondent on July 1, 1993, violated Section
8(a)(1) and (5) of the Act first because Respondent instituted
the cut without having reached a good-faith impasse in nego-
tiations with the Union. Second, counsel for the General
Counsel argues that Respondent implemented the wage cut
after failing and refusing to furnish the Union with informa-
tion requested by it dealing with Respondent’s alleged finan-
cial reasons for needing the cut. Third, counsel for the Gen-
eral Counsel argues that the wage cut, as implemented, was
unlawful because it was different from that proposed by Re-
spondent in negotiations with the Union. Respondent, of
course, disagrees with each of these propositions.
Although the complaint does not specifically allege that
Respondent proposed the wage cut in bad faith, this issue
necessarily relates to whether or not impasse was reached be-
tween the parties in negotiations. Further, this issue is inter-
twined with Respondent’s affirmative defense that the wage
cut was a matter of business or financial necessity. As a
counter to counsel for the General Counsel’s argument that
parties were not at impasse in negotiations, Respondent ar-
gues in its posttrial brief that the financial necessity of such
a cut can serve to advance a finding that the parties were in-
deed at impasse. Based on the record before me, I conclude
that Respondent advanced its proposal for a wage cut in
good faith.
This is not a case in which Respondent proposed a wage
cut in order to force an impasse, nor a case in which a wage
cut proposal was advanced or implemented as soon as the
collective-bargaining agreement between the parties had ex-
pired. In fact, the collective-bargaining agreement between
Respondent and the Union covering employees at the
Alachua facility expired on February 14, 1993. As the parties
were undertaking negotiations for a new agreement, Re-
spondent agreed to no less than five separate contract exten-
sions, the last of which expired on June 30, 1993. From the
very outset of negotiations, Respondent made it clear to the
Union that it would not agree to any economic improvements
because of its financial position.
Even after Respondent had taken that position in negotia-
tions, in early May 1993 the State of Florida issued a retro-
active Medicaid rate adjustment that carried a potential but
nevertheless real cost to Respondent of approximately a mil-
lion dollars. Respondent’s accountant informed it that this li-
ability would have to be accrued immediately as a current li-
ability on the balance sheet, thereby adversely effecting the
ratio of assets to liabilities that was already a problem and
creating an immediate cash flow crisis for Respondent. Re-
spondent then undertook numerous cost cutting measures at
both facilities and directed Respondent’s negotiator to initiate
discussions with the Union about a wage reduction.
Discussions about a possible wage cut began during nego-
tiation sessions that took place on May 25 and 26. How Re-
spondent’s proposal came to be characterized as a ‘‘final
offer’’ in those sessions is not at all clear from the record,
and I place no significance on that fact. What is significant
is the Union’s immediate and adamant response that under
no circumstances would it agree to a wage cut. As it relates
to the issue of a possible wage cut by Respondent, not a di-
minished wage increase or even a wage freeze but a wage
cut, the Union’s response was an unequivocal refusal to even
consider such a possibility. The Board, with court approval,
has long held that whether the parties are at impasse must
be determined on a case-by-case basis, and includes consid-
eration of ‘‘bargaining history, the good-faith of the parties
in negotiations, the length of the negotiations, the importance
of the issue or issues as to which there is disagreement, [and]
the contemporaneous understanding of the parties as to the
state of negotiations.’’ Taft Broadcasting Co., 163 NLRB
475 (1967). The Board has found impasse to have been
reached irrespective of the number of meetings held. See Bell
Transit Co., 271 NLRB 1272 (1984); Guardian Glass Co.,
172 NLRB 439 (1968). And in Community Television of
Southern California, 312 NLRB 15 (1993), the Board was
very careful to state, ‘‘We disavow the implication in the
1029ALACHUA NURSING CENTER
2 In view of this finding, the allegation that Respondent further
violated Sec. 8(a)(1) and (5) of the Act by communicating directly
with employees when it posted a notice implementing the wage in-
crease becomes purely academic. Lengthy consideration of this issue
would prolong this decision unnecessarily, and would not in any way
effect the remedy provided. Accordingly, I decline to consider that
issue.
Judge’s decision that an employer can never advance the date
of impasse or declare an impasse on the basis of business ne-
cessity.’’ It is clear to me, and I am quite sure it was the
‘‘contemporaneous understanding of the parties’’ that at least
as things stood in May and June 1993, the Union simply was
not willing to even consider a wage cut. Were it not for Re-
spondent’s failure to provide the Union with relevant avail-
able information as more fully discussed below, I would find
that as to that issue the parties were at impasse in negotia-
tions.
It is uncontroverted, however, that as soon as Respondent
advanced its wage cut proposal because of its financial crisis,
the Union immediately asked Respondent to provide it with
the financial information that led Respondent to make this
proposal. The complaint alleges that Respondent refused to
provide the Union with this information, but in fact the
record shows that Respondent agreed to supply the Union
with this information. Even though the information was im-
mediately available to Respondent, however, Respondent
made no effort to provide the Union with documentation of
its claim of financial distress until July 9, more than a full
week after Respondent had already implemented the wage
cut. Respondent argues that this alone should not make the
wage cut unlawful because in negotiations, Respondent orally
described and explained its financial position to the Union.
Respondent argues that in view of the Union’s adamant posi-
tion on the wage-cut issue, it should have not been required
to go through a fruitless act before being allowed to imple-
ment this cut. A wage cut, however, has a more direct, se-
vere, and negative impact on employees than perhaps any
other change in benefits. The Supreme Court specifically
stated in NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956):
Good faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims. . . . If an agreement is important enough to
present in the give-and-take of bargaining, it is impor-
tant enough to require some sort of proof of its accu-
racy. [Emphasis added.]
No one can say with any accuracy what the Union might
have proposed or might have agreed to if Respondent had
provided the Union here with documented proof of its finan-
cial crisis prior to implementing the wage reduction. Al-
though the Union continued to oppose and reject a wage re-
duction in mid-August as evidenced by its letter to employ-
ees, it is not insignificant to note, and one can not ignore the
fact, that by then the Union was faced with a fait accompli.
Respondent had already imposed the wage reduction unilater-
ally, so of course the Union continued to oppose it. Respond-
ent itself stresses the importance of a wage cut in view of
its financial position. A wage cut with that importance to Re-
spondent would have at least as much importance to employ-
ees and the Union that represents those employees. Proof of
Respondent’s financial position was something immediately
available to Respondent, for it was that very information that
caused Respondent to consider the wage cut in the first
place. Respondent has shown no reason whatever, and indeed
has not even advanced any reason, why it could not have
provided the Union with the same documentary proof of its
financial position as it itself relied on in making this all-im-
portant decision to reduce wages before actually implement-
ing that decision. I therefore find that in these circumstances,
‘‘the parties were precluded from reaching a lawful impasse
at that point by the Respondent’s [failure] adequately to re-
spond to the Union’s requests for financial information that
would make it possible for the Union to evaluate the neces-
sity for the Respondent’s demands,’’ and for Respondent to
implement the wage cut without first providing the Union
with the requested information violated Section 8(a)(1) and
(5) of the Act. Reece Corp., 294 NLRB 448, 453 (1989), and
cases cited therein.
In conjunction with the fact that Respondent implemented
the wage reduction before bothering to supply the Union
with requested financial information, I also find significant
the fact that Respondent implement a wage reduction sub-
stantially different from that proposed to the Union. Re-
spondent attempts to minimize the differences between the
wage reduction as implemented and that proposed to the
Union, calling them ‘‘a matter of semantics and a misunder-
standing’’ in its posttrial brief. Even a passing analysis, how-
ever, shows that the differences were anything but a matter
of semantics. As proposed to the Union, Respondent’s wage
reduction was to last indefinitely. As implemented, however,
the wage reduction had a finite expectancy of only 6 months.
Even more significant, however, was the actual difference in
the cut as proposed to the Union and as implemented by Re-
spondent. The record shows unequivocally that as originally
proposed to the Union, the wage cut would reduce the lowest
pay rate to $4.25 per hour. As implemented, however, Re-
spondent’s minimum wage rate was $4.75 per hour. The dif-
ference of 50-cent per hour is not insignificant, a matter of
semantics, or a misunderstanding. That difference of 50 cents
per hour represents more than 10 percent of the lowest wage
rate, or twice the amount of the proposed wage cut. To Re-
spondent’s counsel that 50 cents per hour may indeed be in-
significant, but to employees in the bargaining unit, and
therefore to the Union, that difference is significant indeed!
The Board has long held that when an employer implements
an offer following good-faith impasse reached with the
Union, the implemented changes must not be substantially
different or greater than that which the employer proposed
during negotiations with the Union. Atlas Tack Corp., 226
NLRB 222, 227 (1976), enfd. 559 F.2d 1201 (1st Cir. 1977).
It has long been held that an employer violates Section
8(a)(5) of the Act when it implements changes that are better
than those proposed to the Union, even if negotiations are at
impasse. NLRB v. Crompton-Highland Mills, 337 U.S. 217
(1949); Falcon Tank Corp., 194 NLRB 333 (1971). I there-
fore find that because that Respondent implement its wage
reduction without first supplying the Union with available
proof of its financial position, as requested, and by imple-
menting a wage reduction substantially different from that
proposed to the Union, Respondent violated Section 8(a)(1)
and (5) of the Act.2
The complaint alleges, and counsel for the General Coun-
sel argues, that since November 2, 1993, Respondent has
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed and refused to meet and bargain with the Union. More
specifically, the argument is advanced that by Respondent
counsel’s letter of November 4 to the Union, Respondent un-
lawfully ‘‘set a condition precedent to further bargaining.’’
Although I agree that Rasche’s [sic] letter comes close to set-
ting an unlawful condition precedent to further bargaining, I
find that the letter stops just short of doing so. Further, I can
not overlook the fact that later events do not support counsel
for the General Counsel’s position. The substantive portions
of the letter are quoted above, and will not be repeated here.
Neither counsel for the General Counsel nor the Union dis-
pute the substance of Rasch’s letter that the Union was hold-
ing steadfastly to certain demands and the parties were far
from agreement. There is no question that attempts to place
conditions on bargaining should be closely scrutinized to de-
termine whether a proposed condition indicates bad faith. See
Borg-Warner Corp., 356 U.S. 342 (1958); Lustrelon, Inc.,
289 NLRB 378 (1988). Counsel for the General Counsel,
however, tries to read too much into Rasch’s letter to find
that Respondent placed a condition on further bargaining.
Rather, I believe that a more fair reading of Rasch’s letter
shows that he was simply trying to put pressure on the Union
to make some meaningful concession. As the letter con-
cludes, ‘‘We are not hereby refusing to meet, but merely ask-
ing for some meaningful indication of a willingness to com-
promise rather than continuing the current fruitless banter.’’
The record shows that the Union waited an entire month
before even responding to Rasch’s letter. When the Union
did finally telephone Rasch on December 9 to ask for a
meeting on December 21 or 22, Rasch immediately returned
the Union’s call and informed it that although a meeting dur-
ing Christmas week was impossible, Respondent would sug-
gest a meeting in early January. When Rasch asked about the
Union’s position on several issues, Union Secretary-Treasurer
Gary Parody agreed to determine its current position and to
get back to Rasch. During the entire month of January, how-
ever, Parody never bothered to call Rasch back, according to
Parody because Union International Representative Chambers
said he would do so. The record is devoid of any evidence,
however, that Chambers ever asked for another meeting with
Respondent. The record simply does not support the allega-
tion that Respondent ever failed and refused to meet with the
Union, that is until such time as it withdrew recognition in
March 1994 as discussed below. Accordingly, I shall dismiss
that allegation from the complaint.
I also reject for credibility reasons already made clear
above counsel for the General Counsel’s argument that Re-
spondent through Mary Edwards, Director of Nurses Sharon
Mayes, Assistant Director of Nurses Angela Hack, Oakview
Administrator Lyle Wilcox, and/or Oakview Activities Direc-
tor Robert Crooms solicited employees to revoke the Union,
as claimed by Union Stewardess Norine Lopez and by Annie
Monroe. I do find, however, based on the credited testimony
of Crooms, that Crooms interfered with Monroe’s Section 7
rights in one respect. Crooms admits that when Monroe ap-
proached him in July 1993 and asked how employees could
get rid of the Union, Crooms not only looked up in the tele-
phone book the number of the state agency that he thought
had jurisdiction over such matters, he also dialed the tele-
phone number for Monroe and handed her the telephone.
This assistance, standing alone, may or may not have inter-
fered with Monroe’s Section 7 rights. Crooms further admits,
however, that Monroe hung up the telephone. Crooms then
took it upon himself to pick the phone back up, redial the
number, and hand the telephone back to Monroe. By these
actions, after Monroe had taken it upon herself to hang up
the telephone, Crooms quite clearly was soliciting Monroe to
pursue her disaffection with the Union. Accordingly, I find
that Crooms interfered with Monroe’s Section 7 rights in
violation of Section 8(a)(1) of the Act.
I also reject altogether for reasons already made clear
above Monroe’s testimony regarding employee Don Pendle-
bery being solicited by Respondent to circulate a disaffection
petition among employees. For the reasons fully expressed
above, I find it is counsel for the General Counsel who
should bear the consequences of not calling Pendlebery as a
witness in this proceeding. I conclude that if Pendlebery had
been called as a witness, he would not have substantiated
and corroborated Monroe’s testimony on this subject.
The complaint contains a number of separate allegations
that I view as very much related: that Respondent bypassed
the Union and dealt directly with employees, that Respondent
engaged in a campaign to denigrate the Union in the eyes
of bargaining unit employees, that Respondent participated in
soliciting petitions from employees to disaffect the Union,
and that Respondent unlawfully withdrew recognition form
the Union, and simultaneously granted various unilateral
wage increases and improvements in benefits. The complaint
did not specifically allege, but Respondent’s counsel was
very much aware as set forth in his posttrial brief that
‘‘throughout the hearing in this case, the General Counsel
pointed to the various letters that were posted by [Respond-
ent] on the bulletin boards at Oakview and Alachua as en-
couraging disaffection of the Union, thereby preventing the
company from developing a good-faith doubt as to the
Union’s majority status.’’ Respondent specifically addresses
this argument in its post-trial brief. I make specific note of
this because I am convinced based on the record before me
that beginning with Respondent restoring the wage cut and
continuing thereafter, Respondent engaged in a number of
actions designed to undermine the Union as bargaining rep-
resentative and to undermine support for the Union among
employees. As a part of this course of conduct, Respondent
engaged in a not too subtle campaign to bypass the Union
and deal directly with employees, went out of its way to
denigrate the Union in the eyes of employees, and thereby
precipitated the disaffection petitions that circulated among
employees and that Respondent later relied on to withdraw
recognition from the Union.
I note first the record establishes that Respondent unilater-
ally restored the wage cut without even so much as giving
the Union advance notice, much less offering to sit down and
bargain with the Union over this. Instead, by memo dated
October 7, Respondent simply notified employees that the
wage cut was being restored the following day. At the same
time, on October 7, Respondent also wrote to the Union pro-
posing a general wage increase, which it notified the Union
would become effectively automatically on October 22 ‘‘un-
less we receive your objection by October 20.’’ Respondent’s
letter did not even bother to tell the Union that the wage cut
was being or had been restored, and offered the Union this
general wage increase in such a take-it-or-leave-it manner
that it offered the Union no real opportunity to bargain on
this issue either. When the Union declined to agree to the
1031ALACHUA NURSING CENTER
take-it-or-leave-it offer, Respondent immediately wrote back
to the Union saying it was ‘‘disappointed’’ the Union would
‘‘deny our employees a wage increase,’’ and then imme-
diately went on to post all correspondence related thereto for
viewing by unit employees. Both the tenor of Respondent’s
correspondence and posting it for viewing by unit employees
were obviously designed to undermine support for the Union
among employees.
If there could ever have been any doubt about Respond-
ent’s all too transparent effort to undermine the Union, it is
completely eliminated by Respondent’s December 17 memo
to employees. In that memo, C.E.O. Morrel first reminded
his ‘‘most deserving employees’’ that he had offered them a
raise. Morrel then goes on to blame the Union, stating that
‘‘this wage increase was denied by the [Union].’’ Not to
miss this opportunity to belittle the Union, Morrel states: ‘‘I
apologize for their insensitivity.’’ As if this were not enough,
Morrel then goes on to tell these ‘‘most deserving employ-
ees’’ that thanks to the Union, Respondent will give the
money they might have gotten as a raise to ‘‘all other . . .
employees.’’ Morrel cleverly ends with a cheery ‘‘Merry
Christmas’’ to punctuate his slap in the face not only to the
Union, but the obvious stupidity of the employees themselves
for having this Union to represent them. I find it significant
indeed it was about this same time that disaffection petitions
began circulating in earnest at both Alachua and Oakview.
All of these acts considered as a whole, beginning with
Respondent unilaterally restoring the wage cut, simulta-
neously offering the Union a wage increase on very short no-
tice and in a take-it-or-leave-it manner, coupled with Re-
spondent denigrating the Union for ‘‘denying our employees
a wage increase,’’ and culminating with Respondent’s all too
transparent memo of December 17, Respondent undertook an
intentional, premeditated course of action designed to under-
mine the Union as bargaining representative and undermine
support for the Union among employees. As a part of this
course of action, Respondent went out of its way to denigrate
the Union, and engaged in a not too subtle campaign to by-
pass the Union and deal directly with employees, in violation
of Section 8(a)(1) and (5) of the Act. I find that this course
of action was designed to, and did in fact, precipitate the dis-
affection petitions that circulated among employees, and that
Respondent later relied on to withdraw recognition from the
Union. I find that Respondent’s bad-faith course of action
violated Section 8(a)(1) and (5) of the Act, including Re-
spondent’s withdrawal of recognition from the Union.
Counsel for the General Counsel also attacks the employee
disaffection petitions themselves on a number of grounds.
First, counsel for the General Counsel contends that the dis-
affection petitions were solicited by Respondent as evidenced
by the testimony of Norine Lopez and Annie Monroe. For
reasons explained above, I reject that argument. Counsel for
the General Counsel also spent considerable time trying to
prove that the employee or employees at Oakview who cir-
culated the disaffection petition that was signed in December
1993 were supervisors within the meaning of the Act. For
reasons already described above, that effort also fails. Coun-
sel for the General Counsel also attempts to attack the Oak-
view petition because one employee, who was involved in
circulating the petition went to a payroll clerk, asked for and
received a list of names of the people who worked at the
Oakview facility. There is simply no evidence, however, that
the payroll clerk knew anything about how this list was
going to be used. Nor is there any evidence that either the
payroll clerk or any supervisors participated in circulating the
disaffection petition among employees. I find that the mini-
mum assistance given by the payroll clerk in these cir-
cumstances does not violate Section 8(a)(1) of the Act.
Safeway Trails, Inc., 216 NLRB 951, 961 (1975).
In his posttrial brief, counsel for the General Counsel ad-
vances a number of additional arguments why the employee
disaffection petitions could not have been properly relied on
by Respondent to withdraw recognition, including an argu-
ment that since the petitions were circulated and signed in
December 1993, Respondent failed to show that in March
1994 when recognition was withdrawn that the Union did
not, in fact, enjoy majority status. Although I have consider-
able doubt about counsel for the General Counsel’s argument
as expressed in its posttrial brief, I find it unnecessary to
specifically consider each of the arguments advanced con-
cerning the employee petitions because I agree with counsel
for the General Counsel, for reasons already detailed above,
that Respondent was not free to rely on those petitions to
support a withdrawal of recognition of the Union. I find that
Respondent’s course of bad-faith conduct designed to under-
mine the Union and to undermine support for the Union
among employees in fact precipitated the disaffection peti-
tions. Accordingly, Respondent is not now able to point to
those same petitions as a basis for withdrawing recognition
from the Union.
The facts are uncontroverted that when Respondent with-
drew recognition from the Union in March 1994, it simulta-
neously announced unilateral changes in compensation and
benefits for employees at both Alachua and Oakview. Be-
cause I have found that Respondent precipitated the em-
ployee petitions through a course of bad-faith conduct de-
signed to undermine the Union, it follows that Respondent’s
unilateral changes in wages and benefits violated Section
8(a)(1) and (5) of the Act, and I so find.
CONCLUSIONS OF LAW
1. The Respondent, National Medical Associates, Inc.
d/b/a Alachua Nursing Center and Oakview Regional Care
Center is, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers Union, Local
1625, AFL–CIO is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent implemented a wage cut unilaterally with-
out first providing the Union with requested financial infor-
mation that Respondent relied on to draw its conclusion that
such a cut was a business necessity, and Respondent thereby
violated Section 8(a)(1) and (5) of the Act.
4. Respondent implemented a wage cut unilaterally that
was substantially different from that proposed to the Union,
and Respondent thereby violated Section 8(a)(1) and (5) of
the Act.
5. Respondent did not fail and refuse to meet with the
Union by unlawfully setting a condition precedent to further
bargaining as alleged in the complaint, and that allegation is
dismissed.
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.
4 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.’’
6. Respondent did not through Mary Edwards, Director of
Nurses Sharon Mayes, or Assistant Director of Nurses An-
gela Hack solicit employees to revoke the Union as alleged
in the complaint, and those allegations are dismissed.
7. Respondent did not through Oakview Administrator
Lyle Wilcox solicit employees to revoke the Union as al-
leged in the complaint, and that allegation is dismissed.
8. Respondent, acting through Oakview Activities Director
Robert Crooms solicited an employee to revoke the Union,
and Respondent thereby violated Section 8(a)(1) of the Act.
9. Respondent engaged in a course of action designed to
undermine the Union as bargaining representative of its em-
ployees, which included unilaterally restoring the wage cut to
employees without giving the Union any advance notice and
without offering to bargain over this matter; simultaneously
offering the Union a wage increase on short notice and in
a take-it-or-leave-it manner; bypassing the Union and dealing
directly with employees; and engaging in a campaign to
denigrate the Union in the eyes of bargaining unit employ-
ees; and thereby precipitated disaffection petitions among
employees, which Respondent later relied on to withdraw
recognition from the Union; and Respondent thereby violated
Section 8(a)(1) and (5) of the Act.
10. Respondent unilaterally granted employees improve-
ments in wages and benefits after unlawfully withdrawing
recognition from the Union, and Respondent thereby violated
Section 8(a)(1) and (5) of the Act.
11. The unfair labor practices that Respondent has been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (5) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, National Medical Associates, Inc. d/b/a
Alachua Nursing Center and Oakview Regional Care Center,
Gainesville and Williston, Florida, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Implementing unilateral wage cuts without first provid-
ing United Food and Commercial Workers Union, Local
1625, AFL–CIO with requested financial information that
Respondent relies on to draw a conclusion that such a cut
is a business necessity.
(b) Implementing wage cuts unilaterally that are substan-
tially different from that proposed to the Union.
(c) Soliciting employees to revoke the Union.
(d) Engaging in a course of action designed to undermine
the Union as bargaining representative of its employees, in-
cluding unilaterally restoring wage cuts to employees without
giving the Union advance notice and offering to bargain over
such matters; offering the Union wage increases on short no-
tice and in a take-it-or-leave-it manner; bypassing the Union
and dealing directly with employees; and/or engaging in a
campaign to denigrate the Union in the eyes of bargaining
unit employees.
(e) Unlawfully withdrawing recognition from United Food
and Commercial Workers Union, Local 1625, AFL–CIO, the
appropriate bargaining representative of its employees.
(f) Unilaterally granting employees improvements in
wages and benefits after unlawfully withdrawing recognition
from the Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with United Food
and Commercial Workers Union, Local 1625, AFL–CIO re-
garding wages, hours, and working conditions of our em-
ployees in the following appropriate bargaining units:
AT ALACHUA:
Employees that perform work as certified nurse aids,
non-certified nurse aids, dietary aids, cooks, house-
keepers and laundry persons, but excluding all other
employees.
AT OAKVIEW:
All full time and regular part-time certified nurse
aids, non-certified nurse aids, dietary aids, cooks,
house-keepers and laundry aids; excluding all other em-
ployees, office clerical employees, guards and super-
visors as defined in the Act.
(b) Make whole all employees for any loss of earnings or
any other benefits they may have suffered by reason of the
unlawful unilateral reduction in wages by paying them a sum
of money equal to the amount they normally would have
earned but for such changes, with backpay to be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus appropriate interest.
(c) 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 ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its Alachua and Oakview facilities copies of the
attached Notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 12,
1033ALACHUA NURSING CENTER
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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.