Park Manor Nursing Home

National Labor Relations Board - Board Decisions

Sep 11, 1995

318 N.L.R.B. 1085 (N.L.R.B. 1995)

1085
318 NLRB No. 111
PARK MANOR NURSING HOME
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
We note that the Respondent does not except to the reimbursement
order.
Park Manor Nursing Home, Inc. and Hospital Em-
ployees Local 1273, Laborers’ District Council
of Baltimore & Vicinity, Laborers’ Inter-
national Union of North America, AFL–CIO.
Case 5–CA–24522
September 11, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On June 14, 1995, Administrative Law Judge Frank
H. Itkin issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral 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,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Park Manor Nursing
Home, Inc., Baltimore, Maryland, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Steven L. Sokolow, Esq., for the General Counsel.
Stephan J. Boardman, Esq., for the Employer.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An unfair
labor practice charge was filed in the above case on June 22
and a complaint issued on August 30, 1994. General Counsel
alleges in the complaint that Respondent Employer, despite
prior proceedings, persists in its failure and refusal to bargain
in good faith with the Union as the exclusive collective-bar-
gaining agent of an appropriate unit of its employees, in vio-
lation of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act). Respondent Employer denies violating
the Act as alleged. A hearing was held on the issues raised
in Baltimore, Maryland, on March 28, 1995, and upon the
entire record in this proceeding, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
A. Background and Prior Proceedings
Respondent Employer is engaged in commerce and Charg-
ing Party Union is a labor organization, as alleged. The
Union has been since about 1983 the exclusive collective-
bargaining agent of the following appropriate unit of the Em-
ployer’s employees:
All full time and part time service and maintenance em-
ployees employed by Respondent at its 1802 Eutaw
Place, Baltimore, Maryland facility who regularly work
15 or more hours per week, including food service em-
ployees, housekeeping employees and nursing service
employees, but excluding all office clerical employees
and all other clerks, physicians, dentists, registered
nurses, licensed practical nurses, activities directors,
technical and professional employees and supervisors as
defined in the Act.
On October 31, 1985, the National Labor Relations Board,
in agreement with its administrative law judge, found that the
Employer
discharged [Emily] Hall [on or about January 30, 1985]
because she cooperated in the investigation of the
Union’s [unfair labor practice] charge . . . and because
she demonstrated her renewed adherence to the Union
by becoming a member of its negotiating committee.
When [owner and administrator Henry] Goldbaum
learned that Hall had informed the Regional Office that
he was responsible for [a] revocation petition, thereby
thwarting his plan to withdraw recognition from the
Union, he resolved . . . to retaliate against Hall. . . .
Goldbaum discharged a longtime and valued employee
advancing a reason which under nondiscriminatory cir-
cumstances would probably have been disregarded or at
most the subject of a reprimand. The Company thereby
violated Section 8(a)(1), (3), and (4) of the Act. [277
NLRB 197, 205.]
The Board ordered the Employer to, inter alia, cease and de-
sist from engaging in the conduct found unlawful and in any
like or related manner interfering with, restraining, or coerc-
ing its employees in the exercise of their Section 7 rights.
See 277 NLRB 197.
Later, on September 30, 1993, the Board, in agreement
with its administrative law judge, found that the Employer
had again interfered with, restrained, and coerced its employ-
ees in the exercise of their Section 7 rights and had again
discriminatorily discharged employees in violation of Section
8(a)(1) and (3) of the Act. The Board found:
Respondent has been party to a series of collective-bar-
gaining agreements with the Union. . . . The most re-
cent contract expired on October 31, 1991 [see G.C.
Exh. 5], and no new contract has been concluded by the
parties since that time. [The Employer violated Section
8(a)(1) of the Act] . . . when on or about January 14,
[1992], Goldbaum informed Mary Brown that he had
fired all the union employees . . . [and] when in early
January Goldbaum told Anita Frazier that Shop Steward
Emily Hall had caused all the home’s employees to lose
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their jobs by going on strike. [The Employer violated
Section 8(a)(1) and (3) of the Act] by discharging Mary
Brown because of her membership in and sympathies
with the Union . . . [and by discharging the named em-
ployees] because they went on strike [on or about De-
cember 11, 1991]. [However,] so much of the amended
complaint which [also] alleges that Respondent here
violated Section 8(a)(1) and (5) of the Act . . . must
be dismissed.
The Board broadly ordered the Employer to, inter alia, cease
and desist from engaging in the conduct found unlawful and
‘‘by any other means or in any other manner’’ interfering
with, restraining, or coercing its employees in the exercise of
their Section 7 rights. See 312 NLRB 763. On August 19,
1994, the United States Court of Appeals for the Fourth Cir-
cuit issued its judgment enforcing the Board’s Order, noting
that that Respondent Employer had failed to file a timely an-
swer to the Board’s application for enforcement.
Meanwhile, on August 18, 1994, the Board, in granting
General Counsel’s Motion for Summary Judgment, found
that the Employer had this time failed and refused to bargain
in good faith with the Union as the exclusive collective-bar-
gaining representative of the above unit employees over a
successor collective-bargaining agreement and had unilater-
ally changed terms and conditions of employment by deny-
ing union representatives access to its premises, in violation
of Section 8(a)(5) and (1) of the Act. The Board found:
Since . . . 1983 the Union has been the designated ex-
clusive collective-bargaining representative of the unit,
and since then the Union has been recognized as the
representative by the Respondent. This recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which was effective
from November 1, 1988 through October 31, 1991 [see
G.C. Exh. 5]. By letters dated October 4 and 21, 1993,
respectively, the Union requested that Respondent meet
to negotiate a successor collective bargaining agree-
ment. Since about October 4, 1993, the Respondent has
failed and refused to bargain with the Union as the ex-
clusive representative of the unit. About October 12,
1993, the Respondent unilaterally changed the terms
and conditions of employment of the unit by denying
union representatives access to its premises . . . with-
out prior notice to the Union and without having af-
forded the Union an opportunity to negotiate and bar-
gain. [T]he Respondent has thereby violated Section
8(a)(1) and (5) of the Act.
The Board ordered the Employer to, inter alia, cease and de-
sist from engaging in the conduct found unlawful or in any
like or related manner interfering with, restraining, or coerc-
ing its employees in the exercise of their Section 7 rights;
on request bargain in good faith with the Union; and grant
union representatives ‘‘reasonable access to its facilities.’’
See 314 NLRB No. 127 (not reported in Board volumes).
B. The Current Unlawful Conduct
In the instant case, General Counsel alleges that on March
29 and June 16, 1994, the Employer and the Union again
met for purposes of negotiating a successor collective-bar-
gaining agreement; and that, notwithstanding the prior litiga-
tion, the Employer engaged in surface bargaining with re-
spect to the issue of wages, proposed to delete or modify
contractual language defining the Union’s right to access to
its premises, and by its overall conduct failed and refused to
bargain in good faith with the Union. The pertinent evidence
is summarized below:
John Singleton, an attorney for the Laborer’s District
Council, testified, by way of background, that the parties had
last met ‘‘for collective bargaining negotiations’’ over a suc-
cessor agreement during December 1991, and that a strike
then ensued resulting in the proceedings described above in
312 NLRB 763. He recalled that ‘‘when the negotiations
broke off in 1991’’ the open or unresolved ‘‘issues’’ in-
cluded ‘‘nonbargaining unit employees performing bargain-
ing unit work,’’ ‘‘dues checkoff’’ and ‘‘wages.’’ Further,
With respect to wages, the Employer took the position
[in 1991] that it could not afford to give anything sub-
stantial in terms of wage increases, and prior to going
out on strike the Employer’s last proposal had been a
2-year contract with the first year having no wage in-
crease and the second year being a 1-percent wage in-
crease.
Singleton testified that he next attended a collective-bar-
gaining meeting with the Employer’s representatives on
March 29, 1994. He noted that at the time the Employer had
not yet complied with the Board’s outstanding 1993 order in
312 NLRB 763. He also noted that an unfair labor practice
complaint had just issued in the 8(a)(5) and (1) proceedings
reported in 314 NLRB No. 127 (not reported in Board vol-
umes). Singleton testified that the Union proposed at this
March 29, 1994 meeting ‘‘a five percent’’ wage increase
‘‘each year in [a] two year agreement.’’ Further,
There were still outstanding issues [from 1991], that is,
the Union proposed maintaining dues checkoff . . .
whereas [the Employer] was proposing elimination of
dues checkoff provisions. The Union was proposing
that nonbargaining unit employees not perform bargain-
ing unit work. . . . [Stephan Boardman, attorney for
the Employer] . . . maintained [the Employer’s] posi-
tion [on supervisors performing bargaining unit work]
. . . since the Board had not found a violation [in the
earlier proceeding.] He maintained that the checkoff
provisions be eliminated . . . [and he] reiterated the po-
sition that Park Manor was not in good financial shape,
that he didn’t have the money and therefore they were
proposing . . . zero in the first year of the contract and
one percent in the second.
Singleton then requested ‘‘payroll information which
would indicate what if any employees had received wage in-
creases since the strike in December 1991.’’ Boardman, by
fax transmittals dated April 19 and 27, 1994, apprised Sin-
gleton that unit employees in fact had received wage in-
creases during September 1993 of up to 75 cents per hour.
(See G.C. Exhs. 2 and 3.) Singleton testified:
The Employer had been taking the position since 1991
and again in March 1994 that they could not afford
wage increases. The information which had been trans-
1087PARK MANOR NURSING HOME
mitted to me indicated that, not only had they provided
without negotiating [with] the Union wage increases,
but these wage increases were substantially more than
what the Union had requested in any bargaining ses-
sion.
The next meeting of the parties was on June 16, 1994.
Singleton, as he testified, had received a fax transmittal from
Boardman on June 16, stating in part, as follows (G.C. Exh.
4):
There is no change in Park Manor’s position with re-
spect to nonunit personnel performing work . . . or the
deletion of the checkoff clause. . . . It seems unrealis-
tic to expect the Home to change its position over these
two issues at this time.
The deletion of language of the contract giving the
Union access to the Home [is proposed]. The Home is
for patient care and discussions regarding grievances
and other Union matters should be held elsewhere so as
not to disrupt patient care.
The Home continues to suffer serious economic
hardship. As before, the Home encourages the Union to
examine its financial records. We do propose however
a one percent improvement in wages at the beginning
of the second year of the agreement.
Singleton noted that the Employer’s proposed deletion of the
union access provision ‘‘had not been proposed by the Com-
pany before.’’ Singleton further noted, as discussed above, an
unfair labor practice complaint had just issued alleging a vio-
lation of Section 8(a)(5) and (1) of the Act by denying union
representatives access to the Home.
Following receipt of the above transmittal on June 16, Sin-
gleton met with Boardman. There, as Singleton testified:
[Singleton] had told [Boardman] . . . the wage propos-
als [by the Employer] were ridiculous in view of the
faxes that I had gotten indicating that employees had
received wage increases that ran anywhere from 5 to 25
percent. They had given those gigantic wage increases
and for him to come in and say that they couldn’t af-
ford it, when that was exactly the position they had
taken before the strike . . . was ludicrous. . . . [With
respect to the Employer’s proposed denial of Union ac-
cess] I had felt that Park Manor was retaliating every
time the Union attempted to enforce a contract provi-
sion. [T]he other two proposals, specifically the check-
off provision and nonsupervisory employees performing
bargaining unit work [proposal], had arisen because of
previous grievances that we pressed.
The representatives of the parties met again later that same
day. There, as Singleton testified,
[Boardman] offered one percent in the first year and
three percent in the second year of the agreement.
I [Singleton] responded that the access issue was still
on the table. He was still proposing this . . . [I said]
let’s get that off the table immediately and start bar-
gaining.
They refused and the meeting didn’t last very long.
Singleton noted that Boardman had ‘‘indicated that what they
would be willing to do was, the Union could come to the
facility, but they could only meet next door at the adminis-
trative offices.’’ Singleton further noted that previously union
access ‘‘had never been a problem’’—‘‘we had never had a
problem with access.’’
Thereafter, on March 8, 1995, Union President and Busi-
ness Manager Kenneth Raposa wrote the Employer request-
ing a resumption of negotiations. (See G.C. Exh. 6.) Board-
man, responding to this request, stated to Singleton he
‘‘would be willing to do that but he suggested that it occur
after this . . . trial.’’
Ernst Schuster, a union field representative, testified that
he met with Union Steward Emily Hall ‘‘approximately once
a week’’ at the Employer’s Home commencing about Janu-
ary 1993 ‘‘until about eight months ago.’’ He described in
detail these visitations, and testified without contradiction
that ‘‘prior to October 12 , 1993’’—when he as found by the
Board had been unlawfully denied access to the facility—no
one from management ‘‘ever [said] anything to [him] about
the way in which [he] met with Ms. Hall at the Home.’’
Emily Hall similarly testified that ‘‘during the period be-
fore June of 1994,’’ no representative of management had
‘‘ever [said] anything to [her] about the fact that [she was]
meeting with Union agents at the Home.’’
Samuel Handwerger, a certified public accountant, was the
only witness called on behalf of Respondent Employer. He
generally asserted, without substantiating documentation, that
the Employer’s ‘‘financial records’’ showed that the Employ-
er’s ‘‘assets are far exceeded by their liabilities’’ and the
Employer’s ‘‘cash flow’’ was ‘‘tenuous.’’
I credit the testimony of John Singleton, Ernst Schuster,
and Emily Hall as detailed above. Their testimony is in part
mutually corroborative; they impressed me as trustworthy
and reliable witnesses; and their testimony is essentially
undenied. I do not credit or rely upon the general, vague, and
unsubstantiated assertions of Samuel Handwerger.
Discussion
Section 8(a)(5) of the National Labor Relations Act makes
it an unfair labor practice for an employer ‘‘to refuse to bar-
gain collectively with the representative of his employees.’’
Section 8(d) of the Act explains that ‘‘to bargain collectively
is the mutual obligation of the employer and the representa-
tive of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms
and conditions of employment.’’ In NLRB v. Insurance
Agents’ Union, 361 U.S. 477, 485, 486 (1960), the Supreme
Court recognized that ‘‘[c]ollective bargaining . . . is not
simply an occasion for purely formal meetings between man-
agement and labor while each maintains an attitude of take
it or leave it; it presupposes a desire to reach ultimate agree-
ment, to enter into a collective-bargaining contract’’; though
‘‘the parties need not contract on any specific terms . . .
they are bound to deal with each other with a serious attempt
to resolve differences and reach a common ground.’’ Simi-
larly, in NLRB v. Katz, 369 U.S. 736, 747 (1962), the Su-
preme Court held that the parties must refrain not only from
behavior ‘‘which reflects a cast of mind against reaching
agreement,’’ but from behavior ‘‘which is in effect a refusal
to negotiate or which directly obstructs or inhibits the actual
process of discussion.’’ For, as stated by the Court of Ap-
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
peals for the Second Circuit in NLRB v. General Electric,
481 F.2d 736, 762 (2d Cir. 1969), cert. denied 397 U.S. 965
(1970),
[T]he statute clearly contemplates that to the end of en-
couraging productive bargaining, the parties must make
‘‘a serious attempt to resolve differences and reach a
common ground’’ . . . an effort inconsistent with ‘‘a
predetermined resolve not to budge from an initial posi-
tion.’’ A pattern of conduct by which one party makes
it virtually impossible for him to respond to the other—
knowing that he is doing so deliberately—should be
condemned by the same rationale that prohibits ‘‘going
through the motions’’ ‘‘with a predetermined resolve
not to budge from an initial position’’ . . . [citations
omitted].
The Employer’s intense and adamant opposition to the
Union’s representation of its employees has been thoroughly
documented above. Thus, as the Board found, the Employer
discharged [Emily] Hall [on or about January 30, 1985]
because she cooperated in the investigation of the
Union’s [unfair labor practice] charge . . . and because
she demonstrated her renewed adherence to the Union
by becoming a member of its negotiating committee.
When [owner and administrator Henry] Goldbaum
learned that Hall had informed the Regional Office that
he was responsible for [a] revocation petition, thereby
thwarting his plan to withdraw recognition from the
Union, he resolved . . . to retaliate against Hall . . . .
[O]n or about January 14, [1992] Goldbaum in-
formed Mary Brown that he had fired all the Union em-
ployees . . . [and] in early January Goldbaum told
Anita Frazier that shop steward Emily Hall . . . had
caused all the Home’s employees to lose their jobs by
going on strike. [The Employer also discharged] Mary
Brown because of her membership in and sympathies
with the Union . . . [and discharged employees] be-
cause they went on strike [on or about December 11,
1991] . . . and
[S]ince about October 4, 1993 the [Employer] has
failed and refused to bargain with the Union as the ex-
clusive representative of the unit [, and] about October
12, 1993 the [Employer] unilaterally changed the terms
and conditions of employment of the unit by denying
union representatives access to its premises . . . with-
out prior notice to the Union and without having af-
forded the Union an opportunity to negotiate and bar-
gain.
Faced with a renewed attempt by the Union in 1994 to ne-
gotiate a successor collective-bargaining agreement, the Em-
ployer again attempted to frustrate and prevent its employees
from exercising their Section 7 rights. As Union Attorney
Singleton credibly testified, at the March 29, 1994 meeting
of the parties, Company Attorney Boardman
maintained [the Employer’s] position [on supervisors
performing bargaining unit work] . . . since the Board
had not found a violation [in the earlier proceeding.]
. . . He maintained that the checkoff provisions be
eliminated . . . [and he] reiterated the position that
Park Manor was not in good financial shape, that he
didn’t have the money and therefore they were propos-
ing . . . zero in the first year of the contract and one
percent in the second.
Singleton requested ‘‘payroll information which would indi-
cate what if any employees had received wage increases
since the strike in December 1991.’’ Boardman, by fax trans-
mittals dated April 19 and 27, 1994, apprised Singleton that
unit employees in fact had received wage increases during
September 1993 of up to 75 cents per hour. As Singleton ex-
plained,
The Employer had been taking the position since 1991
and again in March 1994 that they could not afford
wage increases. The information which had been trans-
mitted to me indicated that, not only had they provided
without negotiating [with] the Union wage increases,
but these wage increases were substantially more than
what the Union had requested in any bargaining ses-
sion.
In addition, Singleton thereafter received a fax transmittal
from Boardman on June 16, stating:
There is no change in Park Manor’s position with re-
spect to nonunit personnel performing work . . . or the
deletion of the checkoff clause. It seems unrealistic to
expect the Home to change its position over these two
issues at this time.
The deletion of language of the contract giving the
Union access to the Home [is proposed]. The Home is
for patient care and discussions regarding grievances
and other Union matters should be held elsewhere so as
not to disrupt patient care.
The Home continues to suffer serious economic
hardship. As before, the Home encourages the Union to
examine its financial records. We do propose however
a one percent improvement in wages at the beginning
of the second year of the agreement.
Singleton noted that the Employer’s proposed deletion of the
union access provision ‘‘had not been proposed by the Com-
pany before’’; and in the past union access ‘‘had never been
a problem‘‘—’’we had never had a problem with access.’’
Following receipt of the above transmittal on June 16, Sin-
gleton met with Boardman. There, as Singleton credibly tes-
tified:
I [Singleton] had told [Boardman] . . . the wage pro-
posals [by the Employer] were ridiculous in view of the
faxes that I had gotten indicating that employees had
received wage increases that ran anywhere from 5 to 25
percent. They had given those gigantic wage increases
and for him to come in and say that they couldn’t af-
ford it, when that was exactly the position they had
taken before the strike . . . was ludicrous. [With re-
spect to the Employer’s proposed denial of Union ac-
cess] I had felt that Park Manor was retaliating every
time the Union attempted to enforce a contract provi-
sion. [T]he other two proposals, specifically the check-
off provision and nonsupervisory employees performing
bargaining unit work [proposal], had arisen because of
previous grievances that we pressed.
1089PARK MANOR NURSING HOME
1 The Employer’s assertion that ‘‘portions of the complaint are
barred by Section 10(b) of the Act’’ is rejected. This record makes
it clear that the Employer’s earlier conduct was cited and relied upon
for background purposes only.
The representatives of the parties met again later that same
day, and the meeting ‘‘didn’t last very long.’’ Thereafter, on
March 8, 1995, the Union again requested a resumption of
negotiations, and Boardman responded he ‘‘would be willing
to do that but he suggested that it occur after this . . . trial.’’
I find and conclude here that Respondent Employer, by the
above and related conduct, was persisting in its failure and
refusal to bargain in good faith with the Union as the exclu-
sive collective-bargaining agent of an appropriate unit of its
employees. The Employer’s new June 16, 1994 proposal to
deny, and later to limit, union access was plainly advanced
in retaliation for the Union’s protest over the Employer’s
unilateral denial of this right resulting in the issuance of a
complaint. This record contains no justification for the Em-
ployer’s sudden advancement of this proposal. Indeed, the
credible and undisputed evidence of record shows that
‘‘Union access’’ had never previously been a problem. Like-
wise, the Employer’s renewed assertion on June 16 that the
Home continues to suffer serious economic hardship
[and we therefore] propose . . . a one percent improve-
ment in wages at the beginning of the second year of
the agreement . . . .
was, not only not justified by any credible or reliable evi-
dence, but was inconsistent with its prior granting of substan-
tial wage raises to the unit employees for amounts greater
than those requested by the Union. For, as Singleton credibly
observed,
[T]he wage proposals [by the Employer] were ridicu-
lous in view of the faxes that I had gotten indicating
that employees had received wage increases that ran
anywhere from 5 to 25 percent. They had given those
gigantic wage increases and for him to come in and say
that they couldn’t afford it, when that was exactly the
position they had taken before the strike . . . was ludi-
crous. . . . [With respect to the Employer’s proposed
denial of Union access] I had felt that Park Manor was
retaliating every time the Union attempted to enforce a
contract provision. [T]he other two proposals, specifi-
cally the checkoff provision and nonsupervisory em-
ployees performing bargaining unit work [proposal],
had arisen because of previous grievances that we
pressed.
On this record, Respondent Employer was not ‘‘making a
serious attempt to resolve differences and reach a common
ground,’’ for, clearly, it had no ‘‘desire to reach ultimate
agreement.’’ See cases cited supra. In short, the Employer
was stalling and continuing to give the Union the runaround
in an attempt to frustrate and prevent the Union from fulfill-
ing its statutory obligation. I therefore find and conclude that
the Employer violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain in good faith with the Union
as the exclusive collective-bargaining representative of an ap-
propriate unit of its employees by engaging in surface bar-
gaining with regard to the issue of wages, by proposing to
delete or modify contractual language defining the Union’s
right to access to its premises, and by its related overall bad-
faith conduct.1
CONCLUSIONS OF LAW
1. Respondent Employer is engaged in commerce as al-
leged.
2. Charging Party Union is a labor organization as alleged.
3. Respondent Employer violated Section 8(a)(5) and (1)
of the Act by failing and refusing to bargain in good faith
with the Union as the exclusive collective-bargaining rep-
resentative of an appropriate unit of its employees by engag-
ing in surface bargaining with regard to the issue of wages,
by proposing to delete or modify contractual language defin-
ing the Union’s right to access to its premises, and by its re-
lated overall bad faith conduct. The appropriate bargaining
unit is:
All full time and part time service and maintenance em-
ployees employed by Respondent at its 1802 Eutaw
Place, Baltimore, Maryland facility who regularly work
15 or more hours per week, including food service em-
ployees, housekeeping employees and nursing service
employees, but excluding all office clerical employees
and all other clerks, physicians, dentists, registered
nurses, licensed practical nurses, activities directors,
technical and professional employees and supervisors as
defined in the Act.
4. The unfair labor practices found above affect commerce
as alleged.
THE REMEDY
To remedy the unfair labor practices found above Re-
spondent Employer will be directed to cease and desist from
engaging in the above unlawful conduct and, because of its
continued proclivity to violate the proscriptions of the Act,
in any other manner interfering with, restraining, and coerc-
ing employees in the exercise of their Section 7 rights. Af-
firmatively, to effectuate the purposes and policies of the
Act, Respondent Employer will be directed to, on request,
bargain in good faith with the Union and embody any under-
standing reached in a signed agreement. Respondent Em-
ployer will also be directed to post the attached notice.
General Counsel also seeks an order requiring Respondent
Employer to reimburse the Board and the Union for all costs
and expenses incurred in the investigation, preparation, and
conduct of this case. As restated by the Board in Kings Ter-
race Nursing Home, 227 NLRB 251 (1976),
In Tiidee Products, 194 NLRB 1234 (1972), wherein
litigation expenses were assessed against a respondent,
the respondent had engaged in numerous violations of
the Act, reflecting a hostile attitude toward collective
bargaining. The Board emphasized that [such a] remedy
was justified because of the ‘‘patently frivolous’’ nature
of the defenses offered by respondent. Where the de-
fenses raised by respondent are ‘‘debatable,’’ rather
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
3 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.’’
than frivolous, the remedy has been found to be unwar-
ranted.
In the instant case, the Employer, despite prior Board and
court orders, has similarly engaged in numerous violations of
the Act reflecting its continuing hostile attitude toward col-
lective bargaining; it has offered no credible justification for
its continuing unlawful conduct; and its defenses, assessed in
the context of the prior Board and court adjudications, are
patently frivolous. In my view, neither the Board’s funds nor
those of the Charging Party should have to be repeatedly and
continuously expended in such circumstances. I therefore rec-
ommend to the Board the order thus requested by General
Counsel. Cf. EPE, Inc., 273 NLRB 1375, 1378–1379 (1985).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Park Manor Nursing Home, Inc., Balti-
more, Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the
Union, Hospital Employees Local 1273, Laborers’ District
Council of Baltimore & Vicinity, Laborers’ International
Union of North America, AFL–CIO as the exclusive collec-
tive-bargaining representative of an appropriate unit of its
employees by engaging in surface bargaining with regard to
the issue of wages, by proposing to delete or modify contrac-
tual language defining the Union’s right to access to its
premises, and by its related overall bad-faith conduct. The
appropriate bargaining unit is:
All full time and part time service and maintenance em-
ployees employed by Respondent at its 1802 Eutaw
Place, Baltimore, Maryland facility who regularly work
15 or more hours per week, including food service em-
ployees, housekeeping employees and nursing service
employees, but excluding all office clerical employees
and all other clerks, physicians, dentists, registered
nurses, licensed practical nurses, activities directors,
technical and professional employees and supervisors as
defined in the Act.
(b) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request bargain in good faith with the Union as the
exclusive collective-bargaining representative of the above
appropriate unit of its employees with respect to their wages,
hours and other terms and conditions of employment, and if
an understanding is reached embody that understanding in a
signed agreement.
(b) Reimburse the Board and the Union for all costs and
expenses incurred in the investigation, preparation, and con-
duct of this case.
(c) Post at its facility copies of the attached notice marked
‘‘Appendix.’’3 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt 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, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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, Park
Manor Nursing Home, Inc., violated the National Labor Re-
lations Act and has ordered us to post and abide by this no-
tice.
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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail and refuse to bargain in good faith with
the Union, Hospital Employees Local 1273, Laborers’ Dis-
trict Council of Baltimore & Vicinity, Laborers’ International
Union of North America, AFL–CIO as the exclusive collec-
tive-bargaining representative of an appropriate unit of our
employees by engaging in surface bargaining with regard to
the issue of wages, by proposing to delete or modify contrac-
tual language defining the Union’s right to access to our
premises, and by our related overall bad-faith conduct. The
appropriate bargaining unit is:
All full time and part time service and maintenance em-
ployees employed by Respondent at its 1802 Eutaw
Place, Baltimore, Maryland facility who regularly work
15 or more hours per week, including food service em-
ployees, housekeeping employees and nursing service
employees, but excluding all office clerical employees
and all other clerks, physicians, dentists, registered
nurses, licensed practical nurses, activities directors,
1091PARK MANOR NURSING HOME
technical and professional employees and supervisors as
defined in the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of the
above appropriate unit of our employees with respect to their
wages, hours, and other terms and conditions of employment,
and if an understanding is reached embody that understand-
ing in a signed agreement.
WE WILL reimburse the Board and the Union for all costs
and expenses incurred in the investigation, preparation, and
conduct of this case.
PARK MANOR NURSING HOME, INC.