Liberty Pavilion Nursing Home

National Labor Relations Board - Board Decisions

Jan 27, 1982

259 N.L.R.B. 1249 (N.L.R.B. 1982)

LIBERTY PAVILION NURSING HOME 1249
Liberty Pavilion Nursing Home and Professional meaning of Section 2(14) of the Act. The Union is admit-
and Health Care Division, Local 1445, United tedly a labor organization within the meaning of Section
Food and Commercial Workers Union, AFL- 2(5) of the Act. On December 17, 1979, the Union was
CIO. Case l-CA-18108 certified as exclusive bargaining agent of the following
unit employees:
January 27, 1982
All full-time and regular part-time service and main-
DECISION AND ORDER tenance employees including dietary employees, di-
etary aides, housekeeping employees, ward clerks,
BY MEMBERS FANNING, JENKINS, AND nurses aides, orderlies, laundry employees, recep-
ZIMMERMAN tionists, bookkeeper and assistant bookkeeper em-
On October 21, 1981, Administrative Law Judge ployed by the Respondent at its Danvers, Massa-
Frank H. Itkin issued the attached Decision in this chusetts facility, but excluding all professional em-
proceeding. Thereafter, the General Counsel filed ployees, technical employees, RN's, LPN's, social
exceptions and a supporting brief. workers, occupational therapists, chef, head dieti-
ex nsan t to th e provisions of Section 3b) of te can, guards and supervisors as defined in the Act.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na- Union Representative Paul Dufault testified that com-
tional Labor Relations Board has delegated its au- mencing about February 1, 1980, the parties met at ap-
thority in this proceeding to a three-member panel. proximately 14 bargaining sessions and "reached an
The Board has considered the record and the at- agreement" on a collective-bargaining contract on
tached Decision in light of the exceptions and brief August 25, 1980. The "agreement" was "ratified by the
and has decided to affirm the rulings, findings, and Union's membership" on September 9, 1980. Later, on
conclusions of the Administrative Law Judge and October 29, 1980, the Union delivered to counsel for Re-
donuions eof tend Adm ra. L spondent "a contract in final form for signing" and sub-
to adopt his recommended Order ission to the Massachusetts Rate Setting Commission.'
ORDER The "contract" (G.C. Exh. 2) provides, inter alia:
Pursuant to Section 10(c) of the National Labor APPENDIX A-WAGES
Relations Act, as amended, the National Labor Re- The individual straight time hourly rate of pay of
lations Board adopts as its Order the recommended all employees shall be increased by the following
Order of the Administrative Law Judge and amounts on the following dates:
hereby orders that the complaint be, and it hereby eie , , nr n
is, dismissed in its entirety. Effective July I, 1980, a general increase of 25¢is, dismissed in its entirety. per hour;
DECISION Effective November 1, 1980, a general increase of
25¢ per hour;
STATEMENT OF THE CASE Effective July 1, 1981, a general increase of 50¢
FRANK H. ITKIN, Administrative Law Judge: An per our
unfair labor practice charge was filed in this case on De- New employees shall receive a starting rate of
cember 2, 1980. Amended charges were filed on Decem- 3.60 per hour and after (sixty (60)) days, 3.85 per
ber 11, 1980, and on January 5, 1981. A complaint issued hour, and shall receive the general wage increases
on January 15, 1981. A hearing was held in Boston, Mas- set forth above.
sachusetts, on August 13, 1981. The General Counsel al-
leges that Respondent Employer violated Section 8(a)(5)
and (I) of the National Labor Relations Act, as amend- T
ed, by refusing to execute a written contract with the T h e te rm s s e t orth in Appendix A-Wages-re-
Charging Party Union after having "reached full and the Uno sulemet reached betwee the Massacse
complete agreement with respect to the terms and condi- the io n s u b e c t to ion. Ay rroave Massachusetts
tions of employment" of Respondent's employees in an Rate Settig Commission. Any retroactive monies
appropriate bargaining unit. Respondent Employer to July 1, the effective date, shall also be subject to
denies that it has violated the Act as alleged. approval of said Commission. It is understood thatdenies that it has violated the Act as alleged. the Home shall make application for implementation
Upon the entire record, including my observation of the Home shall make application for implementation
the demeanor of the witnesses, and after due considera- of those as s fo r t h i Appendix A and that the
tion of the brief filed by the General Counsel, I make the Union will also apppear before the Commission
following: with the Home in order to secure the wage adjust-
ment agreed to in negotiations and no retroactive
FINDINGS OF FACT monies will be paid until approval of the Commis-
sion.
Respondent Home is admittedly an employer engaged __
in commerce within the meaning of Section 2(2), (6), and I The role of the Commission, insofar as pertinent here, is discussed
(7) of the Act, and a health care institution within the below
259 NLRB No. 177

, l l ,
t e
c h us e t t s fa c ili t y , b u t
il p lo y e e s , te c h n ic a l e l ees, R N 's, L P N's,
so c ia l
f. , ti l t i t , , i ti
exceptions and a supporting brief, cin gurd an supervisors as defined in the ct.

,

U n io ' s i t r 9, 1980. ater, on
l i t i i t ti
O c t ob e r 2 9, 19 80 t h e
to . adopt his recommendedOrd r. s t "a tr t i fi al f r f r si i " s -
to adopt his recommended r. mission
e c t r a c t "

ll

r r r t t t l i t , it ecti J , 1980, a ge irc2
i i ti E f fec tr v e J ul y i* 1980 , a ^""B" mc rease o f 25h
per hour;
t ;
t
p e r o u r
N e w ll r i t rti r t f
, l
3 6 0 h o u r an d a f te r ( i t ( )) , 3.85 r
r i i
ho u r , an d sh all r ec e iv e t h e r l i cr s s
s e t fo r t h
l s l al-
1) h t s f iA n A a r
, r f i t t ritt tr t it t l t r s s t r en i -t ages-Hr -
r i rt i ft r i "r f ll t h e inlsbjet roval of t Hu tts
c l t r t it r s ct t t t r s and c i- th e U nSo n s u bjec t to s . n r ae ss c s tts
ti f l t" f t' l i t ttin i i . r tr ti i
appropriate bargaining unit. Respondent Employer to July , the effective date, shall also be subject to
i t t it i l t t t s ll . approval of said Commission; It is understood that
t tir r r , i l i r ti f t ll li ti f r i l t ti
itne , i o f t h o s e als ^ tap i t
ti f t ri f fil t r l l, I t i ill l r f r t i i
ll i
w l t i j
ti ti cti
i i til l
i

i , r l t i i , i ti t , i

n es et forth n
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dufault further testified that he later "checked" with Q. Did the Commission take into consideration
the Massachusetts Rate Setting Commision in order to the wage increase contemplated by the collective
ascertain whether the Home had "presented" the "con- bargaining agreement in computing an interim rate
tract" and "application" for "approval." Dufault discov- increase based upon the petition, Respondent's Ex-
ered that "the owner of the Home, Gerald Martin, had hibit #1?
failed to sign the particular agreement" and, consequent- A. No.
ly, "the Rate Setting Commision had failed to rule on Q. Could you tell us why the Commission did
the application because of the failure of the Home to sign not take into consideration in determining an inter-
the agreement." Dufault explained: im rate increase pursuant to Respondent's Exhibit
# , that's the petition for an interim rate?We had to go into state court and get a motion to thats foran interi rate?
get the Home to furnish the necessary documenta- A. Yes The Commission does not take into ac-
tion to the Rate Setting Commission, so that they count raises contemplated, but relies on the fact that
could comply with what the Commission requested the provider [the Home] provide evidence that
in order to secure some rate adjustments, so that the costs have increased beyond the base year plus the
employees could get a pay raise. cost adjustment factor.
Q. So is it fair to say that the Rate Setting Com-
Following this court action: the Home "executed the mission or the rate structure in the Commonwealth
contract, and qualified it, on May 13, 1981, and submit- of Massachusetts is predicated on-or rate of reim-
ted it to the Rate Setting Commission." (See G.C. Exh. bursement is predicated on-an actual cost, an ex-
3.)2 penditure?
According to Dufault, the Commission thereafter A. Yes.
"granted" the Home what amounted to a .24 increase in Q. The Rate Setting Commission will not consid-
their daily room rate allowance. The notification from er costs that are anticipatory, i.e., for example in the
the Commission to the Home, dated July 20, 1981, states collective bargaining agreement.
(G.C. Exh. 4): A. Not in this section of the regulations.
This is to inform you that the [Commission], after Q. As it relates to wages?
consideration of your petition for an adjustment to A. Yes.
the fiscal year 1981 interim rate of payment, took Q. So is it fair to say that the parties to the col-
the following action: lective bargaining agreement can never obtain prior
A change in the rate from $36.08 to $36.32 effec- approval to any rate increase provided in a collec-
tive 3/1/81. tive bargaining agreement?
A. That's fair to say.
The Home, in its application to the Commission, had re-
quested "an increase in our interim rate of at least The director added: "The .24 increase [which the Com-
$1.90." See Resp. Exh. 1.3 mission allowed] was based on evidence supplied in June
James E. Sullivan, director of the bureau of longterm [198] that the June 13th payroll [of the Home] represent-
care in the Massachusetts Rate Setting Commission, ex- ed an amount that was in fact higher than the base year
plained that his Commission "sets rates of payment to 1979 plus [a cost adjustment factor of ] 12.94 percent."
providers of health care, such as hospitals, nursing homes The cost adjustment factor, the director noted, essential-
and ambulances," and these "rates will be paid for by the ly reflects the Consumer Price Index as adjusted to the
Department of Public Welfare." Director Sullivan, in industry involved here.
further explaining how the Commission determined in In addition, Director Sullivan also testified:
July 1981 to allow the Home a .24 increase in its rate
(see G.C. Exhs. 4 and 5), testified as follows: Q. Do I understand you to say that in Appendix
A of General Counsel's Exhibit #2 [if] the wages
Q. The petition [of the Home] seeks an interim reflected there were actually implemented, the
rate increase of $1.90 per patient per day. Is that Commission will allow reimbursement for those
correct? rates?
A. Yes. , .. ., , -A. I can't say that. The Commission certainly
Q. Does that figure in the petition, $1.90, accu- would consider them, and there would then be evi-
rately reflect the cost of a wage increase pursuant dence that they were being paid. Then that evi-
to the contracts, Exhibits #3 and 4, I believe? dence would be taken and measured against wheth-
A. I d~on~'t know.^ er or not the Commission was already reimbursing
those amounts.
2 The Employer, in signing the "agreement" (G.C. Exh. 3), noted, inter
alia, above his signature that it "is signed" pursuant to the court's order
subject to "whatever appellate remedies" are available.
I Dufault claimed that since the Home had received a percentage of
the "increase" requested, a "percentage of that should go back to the em- Q. On a number of occasions, both by my ques-
ployees as part of wage increase." Dufault, however, was unable to ex- tions and the court's you've indicated that if the
plain what portion of the 24-cent increase allowed by the Commission
should be allocated to employee wages and, consequently, how much wage increases as contemplated by this collective
employee wages should in fact be increased, if at all. bargaining agreement were implemented, that the

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A s i r e l a t e s t o
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t i i I iti , ir t r lli ls testifie :

. titi t i t i l t t t ll i l t , t
. ti t r . Is t at o ission ill allo rei burse ent for those
rates?
. e s . , . „ . .... ,, .. A. I 't t t. issi certai l
. t t fi r i t titi , . , - l i
r t i r fl t t t f i r r t t t t i i . t t i
t , li dnce i t
A. I don't know. i
'~~~~~~~~~~~~~~~those
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t "i r " r t , " r t f that should go back to the e - Q. n a nu ber of Occasions, both by my ques-
. . .1. ,, , . ,. . , , ."
t l o n s a n d t h e
court's you've indicated that if the
r l ti

LIBERTY PAVILION NURSING HOME 1251
Rate Setting Commission would act and would re- ther party is at fault. ... I accordingly conclude that
imburse. Is that correct? Respondent did not violate the Act by refusing to ex-
A. No, I haven't said that. ecute" the document.
Q. I guess I misunderstood you. The evidence of record here, summarized supra, is es-
A. I think I can just clarify that. sentially undisputed. The parties, after some 14 bargain-
Q. Okay, go ahead. ing sessions, arrived at what they believed to be a full
A. If these wages based on these contracts were and complete "agreement." However, with respect to
paid, and the provider submitted evidence of that that portion of the "agreement" pertaining to "wages,"
payment, that it would then be compared with the the parties expressly made this provision "subject to ap-
rate because it is conceivable that a nursing home proval of the Massachusetts Rate Setting Commission,"
could enter a contract, increase wages, pay them, including "any retroactive monies," stating further that
and already be reimbursed within the rate. In fact, itand already be reimbursed within the rate. In fact, it "no retroactive monies will be paid until approval of the
is almost inevitable that in some portion, that would ommission." Thus, commission approvalwas to be a
Commission." Thus, commission approval was to be aoccur.
JUDGE ITKIN: In other words, what you're saying condition precedent to the implementation of the wage
is that 24 cents increase already allowed may cover provision. And, as Director Sullivan credibly explained,
part of the total $1.90 if that base figure is correct. his Commission will not approve rate increases based on
THE WITNESS: That is correct. a "contemplated. . . collective bargaining agreement";
the Commission will only reimburse for an "actual cost
* * * * * or expenditure"; and, therefore, it is "fair to say that the
parties to the collective bargaining agreement can never
Q. Can you here today speak on behalf of the obtain prior approval to any rate increase provided in a
Commission with regard to whether or not an in- collective bargaining agreement." Accordingly, as a con-
crease would be granted to cover the increased sequence of this mistake or misunderstanding, an essen-
costs if the wage increases covered by the collec- tial portion of this "agreement" pertaining to wages
tive bargaining agreement were implemented? cannot be implemented.
A. I can speak on behalf of the Commission, but Neither party has been shown here to be at fault or to
I couldn't answer that in a yes or a no.' blame for this mistake or misunderstanding. There is
Discussion therefore no meeting of the minds as to an essential con-
tractual provision. Moreover, there is no demonstrated
It is settled law that "when an oral agreement is basis on which I can rely in correcting this mistake or
reached as to the terms of a collective-bargaining con- misunderstanding so as to reflect the agreement of the
tract, each party is obligated, at the request of the other, parties. Implementation of the wage provisions was ex-
to execute that contract when reduced to writing, and pressly made "subject to approval" by the Commission.
failure or refusal to do so constitutes an unfair labor To implement this contract so as to render it operative
practice." Oil Chemical and Atomic Workers International and meaningful, I would be required to rewrite the
Union and its Local 7-507 (Capitol Packing Company), agreement, changing the condition precedent to a condition
212 NLRB 98, 108 (1974). It is also settled law that, subsequent, directing payment of the wage increases, and
where there is "no meeting of the minds" as to essentialing f i ment o the er in e
terms of an agreement which may be traced to "ambigu- p ovidin for eimbsement to rant approvl commen
ity for which neither party is to blame," there is in effect eet the iin as to grt approv co es
rate with the wage increases. I perceive this to beno "contract" which the parties can be directed to ex- e e cee t t e
ecute. Capitol Packaging Company, supra, 212 NLRB at beyond my authority under the Act and certainly
107-108, quoting from Reinstatement Contracts, §501 beyond the boundaries of this complaint. Likewise, I
(1932). In sum, as the Restatement notes: cannot sever the wage provisions from the entire "agree-
ment" and require signing what remains. That too is con-
When, however, misunderstandings may be traced trary to the seeming agreement of the parties.
to ambiguity for which neither party is to blame, or In sum, the General Counsel has failed to sustain his
for which both parties are equally to blame, and the burden of proof here and the complaint is dismissed.
parties differ in their understanding, their seeming
agreement will create no contract. [Id. at 108.] CONCLUSIONS OF LAW
Also see B. F Goodrich Chemical Co., etc., 232 NLRB 1. Respondent is an employer engaged in commerce as
399, 401-401 (1977), where the Administrative Law alleged.
Judge, in dismissing a complaint, noted, with Board ap- 2. Charging Party Union is a labor organization as al-
proval, "What does emerge in my opinion is a mutual leged.
misunderstanding concerning inclusion of the qualifying 3. The General Counsel has failed to establish by a
language at issue here, for which misunderstanding nei- preponderance of the evidence that Respondent violated
Section 8(a)(5) and (1) of the Act as alleged.
Pelino Campea, associated with Regional Management Resources, 4. e complaint will therefore be dismissed in its en-
Inc., testified, on behalf of the Home, that the "wage costs" for the
Home between 1979 and 1980 "rose higher than the 12.94 wage adjust- tirety.
ment allowed by the Rate Setting Commission."

The a,
rif nti l . , i
,.ing i l
If t t tr t r l t " r t." v r, it respect to
i i i a e ,
l
r t it i i l t t i t tti
l t ti ti
l i r it i t r t . I f t, it .-n retroactive monies will be paid until approval of the
l co issi i l
occur. ~~~~~~~~~condition precede t to the i ple entation of the age
JUDGE ITKIN: In other words, what you're saying po visi A ar ec to Slv redibly exwage
l verProvisio , ir t r lli r i l l i ,
l i
h i s i i ill t r r t i cr s s based on
a l i i i t
lemented?"cannot
t
I l 't r t t i a s r a .' l f r t is ista e r is ersta i . ere is

, l n j t t r l t issi .
it

t t i ,
r t r i ti t i p ding or re mburse t Employ th
t r s f r t i t t i - v t Commission fails to grant ova su-
it f r i it r rt is t l ," t r is i ff t r w t w i I p
tr t i t rti ir t t - b e m ath t h e A and certainly
" r ""
501 t h e i f t is l i t. i e ise, I
c a n n o t se v e r t h e t ti
.
,
.
.

eli a pea, associated ith egional anage ent Resources. 4. The co plaint ill therefore be dis issed in its en-
^ t n
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 5
I recommend that the complaint herein be dismissed in
its entirety.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.