Sann, Harry, Jr., and Winton R. Wagner, Partners d/b/a Briarcliff Pavilion for Specialized Care

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1374 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry Sann, Jr. and Winton R. Wagner, Partners
d/b/a Briarcliff Pavilion for Specialized Care
and Service Personnel and Employees of the
Dairy Industry, Teamsters Local Union No. 205
of Pittsburgh, Pennsylvania, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 6-
CA-14161
March 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN IDE WATER AND
MEMBERS FANNING AND JENKINS
On September 9, 1981, Administrative Law
Judge Benjamin Schlesinger issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Harry Sann, Jr.
and Winton R. Wagner, Partners, d/b/a Briarcliff
Pavilion for Specialized Care, North Huntingdon,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' Although we agree with the Administrative Law Judge's findings
that Respondent violated Sec. 8(a)(5) and (I) of the Act, we do not adopt
his finding that Respondent in its brief does not contest that the issue of
union fees and dues is a nonmandatory subject of bargaining, and that it
does not contest the General Counsel's argument that a proposal for an
agreement of approximately 3-1/2 months' duration is evidence of bad-
faith bargaining.
260 NLRB No. 184
DECISION
FINDINGS 01 FACr AND CONCLUSIONS OF LAW
BE.NJAMIN SCHI.ESINGFR, Administrative Law Judge:
This proceeding was heard by me in Pittsburgh, Pennsyl-
vania, on June 16-19, 1981, based on an unfair labor
practice charge filed on January 7, 1981, by Service Per-
sonnel and Employees of the Dairy Industry, Teamsters
Local Union No. 205 of Pittsburgh, Pennsylvania, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union). The
complaint thereon, issued on March 26, 1981, as amend-
ed at the hearing, alleges that Respondent Harry Sann,
Jr. and Winton R. Wagner, Partners, d/b/a Briarcliff Pa-
vilion for Specialized Care, has failed and refused to bar-
gain in good faith with the Union in violation of Section
8(a)(l) and (5) of the Act by unilaterally increasing the
wages of its employees on May 8, 1980, and by other-
wise bargaining in bad faith by the totality of its con-
duct, and by particular acts in September 1980. Respond-
ent denied that it violated the Act in any manner and al-
leged, in particular, an affirmative defense that the alle-
gation of a unilateral increase of wages is time-barred
under Section 10(b) of the Act. I have considered the
entire record herein,' including my impressions of the
demeanor of the witnesses, and the briefs submitted by
the General Counsel and Respondent in making this De-
cision.
Respondent is a partnership with an office and place of
business located in North Huntingdon, Pennsylvania,
where it engages as a health care institution in the oper-
ation of a nursing home providing medical and profes-
sional care services for the elderly. During the 12-month
period ending January 31, 1981, Respondent, in the
course and conduct of its operations described above, de-
rived gross revenues in excess of $250,000 and purchased
and received at its facility products, goods, and materials
valued in excess of $5,000 directly from points outside
the Commonwealth of Pennsylvania. I conclude, as Re-
spondent admits, that it is now and has been at all times
material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and a health care institution within the meaning of
Section 2(15) of the Act. I further conclude, as Respond-
ent admits, that the Union is now and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
On January 8, 1980,2 the Union was certified as the ex-
clusive collective-bargaining representative of the follow-
ing employees in an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time housekeeping
employees, laundry employees, dietary employees,
nurses' assistants and physical therapy aides, em-
The General Counsel moved to delete Resp. Exh. 30 for identifica-
tion from the record because it was neither offered nor received in evi-
dence There being no opposition, the motion is granted.
2 All dates set forth hereinafter refer to the year 1980, unless otherwise
stated
1 374
BRIARCLIFF PAVILION
ployed by the Employer at its North Huntingdon,
Pennsylvania, facility; excluding office clerical em-
ployees, maintenancemen, licensed practical nurses,
registered nurses, students and guards, other profes-
sional employees and supervisors as defined in the
Act.
At all times since then, the Union has been and is the ex-
clusive representative of the employees in the above-
quoted unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
The initial stages of negotiations after the Union's cer-
tification were marked by both the usual and the unusu-
al. As is characteristic, the Union submitted a typed pro-
posal to Respondent and Respondent reviewed the same
at negotiations held on February 4, submitted counter-
proposals on certain items, and agreed to a number of
proposals. The unusual occurred at the next two negoti-
ating sessions of February 12 and February 18, when
Union President William Lickert engaged in physical al-
tercations, first with Respondent's attorney Timothy G.
Hewitt, and later with Thomas L. Hewitt (Hewitt), Re-
spondent's principal negotiator and Timothy's father. As
a result, Respondent thereafter refused to meet and nego-
tiate with Lickert and meetings held thereafter, in the
presence of mediators a from the Federal Mediation and
Conciliation Service (FMCS) on March 12, April 4, and
April 30, were conducted with the parties placed in sepa-
rate rooms, with the mediator shuttling from one room
to another.
In the meantime, the Union struck Respondent on
April 7, and it was not until May 8 that some of the
strikers returned to work, at which time Respondent in-
creased their wages. It is that increase which the General
Counsel alleges violated Section 8(a)(5) of the Act on the
ground that the parties were not at impasse at the time.
The supporting proof by the parties is sharply at odds.
The General Counsel's case rests fundamentally upon the
following facts: that the parties had agreed to resolve
noneconomic issues before negotiating economic items;
that there were no negotiations regarding wages at the
meetings of February 4, 12, and 18, and March 12; that
Respondent first submitted its wage proposal on April
25; that the Union rejected that proposal as an insult to
its intelligence; and that there was no further bargaining
prior to the implementation of the increase, which Re-
spondent never made known to the Union. Only during
the course of investigation of the Union's unfair labor
practice charges in 1981 was it revealed that wages had
been increased-until then, the Union had no knowledge
of such an increase.
Respondent, on the other hand, contends that the
Union, immediately after the altercation of February 18,
gave notice to Respondent that it would commence a
strike, but without giving the notice required by Section
8(g) of the Act. Upon advice by Respondent that proper
notice had not been given, the Union canceled the strike.
The Union then gave notice that a strike would com-
mence on April 7, and Respondent, in order to avoid
' At various negotiations sessions, one, two, or three mediators were
present. They shall be collectively referred to as "mediator "
that confrontation, submitted at a negotiating session
held on April 4 a complete contract proposal containing
the wage increase which was subsequently granted and
which was rejected by the Union as "an insult to our in-
telligence," as was almost all of Respondent's package. It
was on April 30 that, having made no progress in negoti-
ations, Hewitt explained to the mediator that Respondent
was going to hire new employees as replacements for the
strikers and that it was going to implement the wage
offer presented in its April 4 proposal. Respondent
argues, therefore, that by May 8, there was an impasse in
negotiations and that the Union's unfair labor practice
charge of January 7, 1981, 8 months after the fact, was
barred by the 6-month limitation period set forth in Sec-
tion 10(b) of the Act.
There is little dispute between the parties regarding
the state of the law. If the Union had knowledge that
wages had been increased more than 6 months before the
filing of its charge, Section 10(b) controls. But the testi-
mony of Respondent's witnesses as to the pre-May 8
phase of negotiations, even if credited (and I so credit it),
shows nothing more than a threat to, or an indication
that it would, increase wages. It does not constitute
notice to the Union that wages were, in fact, increased.
In all negotiations held after May 8, there is but one indi-
cation that Respondent made known the fact that wages
were increased. Hewitt believed he made such a repre-
sentation when he questioned whether the Union's
demand for 45 or 55 cents per hour included the 30 cents
which had already been granted. Assuming that I be-
lieved this testimony (and I do not), Hewitt could not
have made any mention of the increase prior to Septem-
ber 8, the first time the Union's wage proposals were
presented and discussed. September 8 was within the ap-
plicable 10(b) period. I therefore dismiss Respondent's
10(b) defense. American Bakeries Co., Inc., 249 NLRB
1249, 1256 (1980): City Roofing Co., et al., 222 NLRB
786, fn. 1 (1976), enfd. 560 F.2d 1370 (9th Cir. 1977).
That, of course, does not dispose of the allegations of
the complaint, for Board law makes clear that an in-
crease may not be given while negotiations are in pro-
cess and no impasse has been reached. See, e.g., 4'inn-
Dixie Stores. Inc., 243 NLRB 972 (1979). Again, the par-
ties are generally in agreement about the law pertaining
to impasse. The duty to bargain in good faith, protected
under Section 8(a)(5) of the Act, is defined by Section
8(d) as the duty "to meet . . . and confer in good faith
with respect to wages, hours and other terms and condi-
tions of employment." An "employer's unilateral change
in conditions of employment under negotiation is . . . a
violation of Section 8(a)(5), for it is a circumvention of
the duty to negotiate .... " V.L.R.B. v. Benne Katz, et
al., d/b/a Williamsburg Steel Products Company, 369 U.S.
736, 743 (1972); and the duty to bargain does not require
parties to agree or to engage in "fruitless marathon dis-
cussions." V.L.R.B. v. American National Insurance Com-
pany, 343 U.S. 395, 404 (1952).
Further, the parties cite as the touchstone in the reso-
lution of the often difficult question of whether the facts
of a particular case justify a finding of impasse, the
1375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's holding in Taft Broadcasting Company, 163
NLRB 475, 478 (1967), which states:
Whether a bargaining impasse exists is a matter
of judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the ne-
gotiations, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed.
The General Counsel contends that there can be no
impasse where, as a result of very little or no discussion,
the parties have reached only the primary state of bar-
gaining. Without reviewing in detail the contents of each
and every bargaining session up to May 8, it is readily
apparent that what little discussion took place was solely
the result of the Union's conduct. Indeed, the General
Counsel concedes that "as a result of Lickert's alterca-
tion with Hewitt on February 18, Respondent was legal-
ly entitled to refuse to meet with" him, but further con-
tends that that did not release Respondent from its bar-
gaining obligations with any other union representative.
The difficulty with this argument is that no other
union representative came forth to deal face-to-face with
Respondent's representatives. 4 As a result, negotiations
had barely progressed and the parties were far apart re-
garding almost all issues, with no hope of movement
unless and until the Union produced a negotiator to deal
with demands then on the table. This is not to say that
whenever, for purposes of mediation, parties are separat-
ed into different rooms and a mediator is entrusted with
carrying messages from one to the other, there must be
an impasse. But it is obvious here that nothing was to be
gained by mediation until the parties gave collective bar-
gaining a chance to work. Lickert's actions prevented
that from happening and, in the circumstances of this
proceeding, all parties knew that their efforts at negotia-
tion were for naught. I find, further, that the Union had
exhibited bad faith, and, as a result of that, an impasse
existed.
In so doing, I have credited the testimony of Hewitt
and Janet Maxwell, Respondent's administrator, both of
whom testified that at the meeting of April 4 Respondent
submitted its complete package in order to settle the dis-
pute before the Union struck. It seems most improbable
that Respondent would wait until late April to resolve
the crisis, as the General Counsel's witnesses testified.
Indeed, they admitted that the April 4 session was called
at Respondent's insistence. I also credit the narration of
Hewitt and Maxwell that Hewitt told the mediator on
April 30 that Respondent needed to hire additional help
and that the Union should clearly understand that wages
were going into effect once replacements were hired.
Lickert and one employee testified that there was no
' Union Secretary-Treasurer Frank Mastre testified only that no repre-
sentative of Respondent offered to meet with him and that he did not
refuse to meet with Respondent However, this is not to the point. The
duty to bargain requires each party to meet and confer in good faith with
the other. It was the Union's obligation to have present a representative
to bargain on its behalf, not the Employer's obligation to ask the Union
to produce such a representative.
meeting on April 30, but that there had been a meeting
on April 25 and that the mediator had never told them
that Respondent intended to implement its wage offer. I
reject that testimony. Respondent's witnesses adequately
explained that on April 24, 25, and 28, an injunction pro-
ceeding was in progress to restrain the Union's picketing
and that no negotiations took place on April 25. Further,
inasmuch as I credit both Maxwell and Hewitt, I find it
unlikely that the mediator would not have relayed Re-
spondent's message to the Union. In any event, assuming,
arguendo, that the mediator did not do so, that failure
was due to the Union's unwillingness to produce a nego-
tiator to meet directly with Respondent so that the mes-
sage could be given directly. 5
Accordingly, I dismiss the complaint's allegation that
Respondent violated Section 8(a)(5) of the Act by in-
creasing wages pursuant to its last offer without having
afforded the Union an opportunity to negotiate and bar-
gain to impasse.
In May, the Union requested Foreman to be its princi-
pal negotiator. From May 21, the time that Foreman first
appeared at negotiations, Respondent had no trouble in
dealing directly with Foreman; and it appears that nego-
tiations, though difficult, were making some progess. The
General Counsel's contention, however, is that the prog-
ress facially indicated by the testimony was in reality Re-
spondent's "surface" bargaining. In support, the com-
plaint alleges three specific bargaining proposals which
were intended to doom any thought that agreement
would be reached-that on September 9 Respondent pre-
sented as its "final" position (1) a contract to expire on
January 31, 1981, 3 weeks after the end of the certifica-
tion year, in contrast to Respondent's prior position that
it desired a 3-year contract; (2) that union initiation fees
be limited to $10 and dues, to 2 hours of pay per month,
a nonmandatory subject of bargaining; and (3) that em-
ployees be given fewer holidays than those which were
currently received by employees in contrast to prior po-
sitions taken in negotiations.
There is no question that by letter of September 9
Hewitt sent the Union Respondent's "final" proposals re-
garding numerous provisions which had not been agreed
to by the parties. Included among them were "length of
contract until January 31, 1981" and the following provi-
sion relating to union security:
Section 1. Membership in the Union is not com-
pulsory. Employees have the right to join, not to
join, maintain, or drop their membership in the
Union as they see fit. Neither party shall exert any
pressure on, nor discriminate against, any employee
as regards such matters.
The General Counsel contends that Timothy Hewitt told the Union's
attorney, Herman L. Foreman, that Respondent would not negotiate with
Lickert and Mastre. Respondent's explanalion is that it would not meet
with Lickert and anybody together and that such statement was not in-
tended to mean that Respondent wsould not meet with Mastre alone As-
suming. arguendo, that Respondent's interpretation is incorrect, there was
no showing that Foreman told l.lckert and Mastre about Timothy's state-
ment and that the Union relied upon it in not proposing Mastre as its rep-
resentative
1376
BRIARCLIFF PAVILION
Section 2. Union initiation fees are limited to ten
dollars ($10.00) and dues are limited to two (2)
hours of pay per month.
Respondent's brief does not contest that section 2 is a
nonmandatory subject of bargaining in that it has no re-
lationship to employees' terms and conditions of employ-
ment and involves only internal union affairs, Betra Man-
ufacturing Company, 233 NLRB 1126, 1135 (1977), enfd.
628 F.2d 1357 (9th Cir. 1980); and that, as a matter of
law, a party to negotiations engages in bad-faith bargain-
ing by advancing a nonmandatory subject of bargaining
to impasse. N.L.R.B. v. Wooster Division of Borg-Warner
Corp., 356 U.S. 342 (1958). Its brief also concedes that,
when its "final" proposals were made, and when Fore-
man replied by letter dated September 16 that all of the
Union's prior concessions were withdrawn, the parties
were at impasse; and it does not contest the General
Counsel's contention that a proposal for an agreement of
approximately 4-1/2 months' duration is evidence of bad-
faith bargaining. Deister Concentrator Company, Inc., 253
NLRB 358, 359 (1980). Because the parties held further
negotiations on October 16 and November 7, and Re-
spondent's proposals never changed, the term of the
agreement became less and less, and with Respondent's
apparent refusal to meet with the Union in December, its
proposal, unsupported by any rationale, was clearly not
intended to be conducive to settlement, especially be-
cause Respondent had earlier insisted and, at hearing,
was still insisting that it desired a 3-year agreement and
the timing of its later proposal of a shorter duration was
linked closely with the end of the Union's certification
year. F Strauss and Son, Inc., 216 NLRB 95 (1975), enfd.
536 F.2d 60 (5th Cir. 1976).
Respondent, however, argues that both proposals were
proper because they were interposed merely as part of a
bargaining strategy, Respondent was not sincere about
them, and the Union well knew it. The accuracy of these
contentions rests, in substantial part, upon my assessment
of the credibility of the various witnesses. Although I
credited Hewitt and Maxwell, supra, I do not do so on
these points 6 It is clear that from the commencement of
negotiations, Respondent vehemently opposed any union-
security provision, while the Union demanded the provi-
sion with equal intensity. At the first session on February
4, Hewitt asked about the Union's dues and fee structure;
and when Lickert replied that initiation fees were $150,
Hewitt stated that such high fees would impede Re-
spondent in hiring employees, particularly part-timers,
who would have difficulty, because of their low wages,
in paying such fees. At Foreman's first session on May
21, Hewitt raised the same claim and testified that Fore-
man agreed to commit to writing that the Union would
extend the payment of fees over a period of time. Hewitt
stated that if Foreman did so, it would solve Respond-
ent's problem. Foreman then and on July 9 made clear,
however, that union dues and initiation fees were solely
I As stated in N.L.R.B. v. Universal Camera Corp., 179 F. 2d 749, 754
(2d Cir. 1950): "it is no reason for refusing to accept everything that a
witness says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to beliese some and nrot
all."
matters of concern to the Union, and he would not bar-
gain about them.
The gist of Respondent's argument is that its proposal
limiting fees and dues was not intended to mean what it
says. However, I find Hewitt's explanation entirely im-
probable and discredit it. The above-quoted provision on
union security was first proposed on April 4, and never
varied. If Respondent opposed any form of union secu-
rity, as I believe it did, then Respondent had no addition-
al right to interject itself into the Union's internal affairs.
If the agreement contained no provision requiring union
membership or payment to the Union, Respondent's pro-
posal limiting fees and dues not only is of no concern to
Respondent, but also must have been offered to ensure
that agreement would not be reached and that bargaining
would fail. NVL.R.B. v. Herman Sausage Company, Inc.,
275 F.2d 229 (5th Cir. 1960); Cable Vision, Inc., 249
NLRB 412 (1980). Clearly, there is no "either/or" effect
which may be given to Respondent's proposal-that is,
either the agreement does not require employees to join
the Union and pay it dues and fees, in which event Re-
spondent should not care anything about what members
pay the Union; or the agreement has a union-security
provision, in which event Respondent might have some
concern. Nor was Respondent's proposal aimed at what
it claims was legitimate: that is, Hewitt testified that he
would be satisfied with Foreman's supply of a letter re-
garding apportionment; but the proposal seeks not appor-
tionment of initiation fees ($150), but limitation of them
to $10 and dues to 2 hours' pay per month. Further, I do
not credit Hewitt's self-serving statement that he had
told the mediator that this was not an impasse item.
Hewitt was, to be sure, glib as a witness, but not wholly
credible. Rather, I credit Foreman's testimony. I con-
clude that Respondent's proposal, concededly on a non-
mandatory subject of bargaining, violated Section 8(a)(5)
of the Act and evidenced Respondent's bad faith in its
entire dealings with the Union.'
Respondent's proposal regarding duration of agree-
ment had a checkered history. At first, the parties were
apart, Respondent wanting a 3-year agreement and the
Union proposing a I-year agreement, which it later was
willing to extend provided a cost-of-living provision
were added. On May 21, when Foreman insisted that the
Union still wanted a term of 1 year, Hewitt replied that
if Lickert wanted a short contract, Respondent would
' Maxwell testified that on October 16 Respondent offered the Union a
provision for maintenance of membership, with a yearly "window
period" whereby employees could resign from the Union; and that Fore-
man rejected this compromise Maxwell also testified that the same offer
was made on November 7, after Respondent's representatives caucused
on the matter. It appears improbable that Respondent's representatives
would have to meet privately to decide to offer the very same proposal
that had been previously made Hewitt denied that union secunty was
discussed at this meeting I credit Foreman's denial that any counteroffer
was made. Assuming. however, that such a proposal was made, Respond-
ent's proposal for limiting union dues and initiation fees still would be a
nonmandatory subject of bargaining because employees, under the coun-
terproposal, had their choice of maintaining their union membership. The
same finding is equally applicable to the suggestion raised by Respond-
ent's coiunsel, in a lettcr to the Regional Office, that Respondent's propos-
al ,was directed to the Union's desire for a checkoff Again, whether em-
ployees wish to voluntarily authorize dues deductions in various amounts
is of no conllcerll t Respoindenl
1377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make it 6 months. From that point, the parties seemingly
reversed positions, Foreman objecting that by the time
the parties completed negotiations, they would have to
begin negotiations all over again. The termination date of
the prospective agreement was not discussed at negotia-
tions held on July 9 nor on August 27, when the parties
used as the basis for their agreement, a contract between
another union and Mountain View Medical Facilities,
Inc., and reviewed each article, clause by clause. Fore-
man made various changes on the contract and stated
that he would reduce all agreements to writing and pre-
pare the same for the next meeting.
On September 8, the parties again met. Foreman pre-
sented to Hewitt a copy of his draft agreement as prom-
ised. They proceeded to go over, item by item, the areas
of agreement and disagreement. With respect to the ter-
mination date, Hewitt objected that he did not agree to a
2-year, 7-month contract term (which was a copy of
Mountain View's language) and that he wanted only 4
months. Further, Hewitt was furious because he thought
that he had agreed that Foreman was to give Respond-
ent the Mountain View contract, except where clauses
had otherwise been agreed to by the parties; and that
Foreman was revising the contract for the benefit of the
Union and in violation of his commitment. 8 Numerous
proposals were not agreed upon, and the meeting ended
with Foreman's request of Hewitt for Respondent's final
position, which resulted in Hewitt's September 9 letter.
Foreman was equally incensed with that letter as
Hewitt had been with Foreman's proposal, and wrote to
Hewitt on September 16, rescinding all prior compro-
mises made by the Union during the course of negotia-
tions. Respondent was represented at the next two nego-
tiating sessions held on October 16 and November 7 by
different counsel.9 At the second session Foreman stated
that Respondent's position regarding the termination of
the agreement was foolish and that, pursuant thereto, the
parties should be beginning negotiations for a new con-
tract. Respondent's counsel replied that he was instruct-
ed not to amend the final proposal. No further negotiat-
ing sessions were held to the time of the hearing herein,
despite Foreman's attempts to schedule another session.
Finally, on January 13, 1981, a meeting was scheduled
for January 19. However, on January 15, Foreman was
advised by the mediator that Respondent had received a
petition from its employees asking for a decertification
election and that Respondent would not negotiate any
more.
It is difficult to predict the course of negotiations or to
assess what actually are the motives in proposing certain
demands. Here, Hewitt testified that he proposed the ex-
tremely short duration clause to push the Union into
conceding Respondent's original demand for 3 years. On
the other hand, Hewitt testified that the term of 3 years
was never really an issue and that he always thought that
I It appears that Hewitt's claim was not totally unfounded In one
clause, Foreman changed the word "employer" to "employee"-a result,
he stated, of inadvertence; but I find it purposeful. It is clear that in his
submission, Foreman was still negotiating, as was Hewitt in his replies on
September 8.
9 Hewitt testified that he thought his personal participation was imped-
ing the progress of negotiations and felt it best, for the benefit of his
client, that he step aside
he and Foreman would be able to agree-all to justify
the argument that Respondent's proposal did not mean
what it clearly states. At yet another point of his testimo-
ny, however, Hewitt stated that one of the big turning
points of negotiations (he thought) was when Foreman,
on August 27, finally agreed to the 3-year agreement
which Hewitt had been insisting upon. That commitment
was coupled with Foreman's alleged assertion that the
Union would also agree to withdraw its insistence that
six discharged strikers would have to be reinstated, also
a major stumbling block to ultimate agreement. Al-
though Maxwell corroborated this latter statement, she
never mentioned Foreman's agreement to a 3-year term,
which I find was not made.
I conclude that Hewitt's shifts in his testimony are un-
reliable and, in light of Foreman's general credibility, I
find that the duration of the agreement was very much
an issue. Respondent's holding firm to such a short con-
tract duration was an indicia of its bad faith. The Gener-
al Counsel also contends that its final proposal regarding
holidays was also made in bad faith, but actually Re-
spondent insisted upon the clause taken from the Moun-
tain View contract, which called for more holidays than
those given by Respondent, if the agreement lasted for a
year or more. That the holidays were reduced by reason
of Respondent's proposal of a contract for a few months
is the fault of the latter proposal, and not the holiday
provision. Finally, merely because Respondent offers a
proposal less beneficial than its current practice is not an
indicia of bad faith. Nor does a comparison between Re-
spondent's April 4 proposal and that of September 9 lead
to a different conclusion. The General Counsel argues
that it represents a step backwards, eliminating holidays
already proposed by Respondent. It is true that in the
April 4 proposal Respondent offered five named holidays
plus three floating holidays for employees who had I
year of employment. Its September 9 proposal offered
only three named holidays, plus three floating holidays
effective April 22, 1981, in addition to the three floating
holidays for employees who had more than a year of
service. However, the two named holidays which were
eliminated by its proposal were Memorial Day and
Labor Day, both of which fell after April 22, 1981. In a
contract of reasonable duration, the effect of Respond-
ent's proposal was not to reduce its prior offer, but to in-
crease it by one holiday. I, accordingly, dismiss this par-
ticular allegation.
The General Counsel's final claim is that, based on the
totality of Respondent's actions, Respondent engaged in
bad-faith bargaining. In support, she narrows her sights
on a series of incidents, ranging from Hewitt's being un-
prepared for the August 27 meetings by not bringing his
Mountain View contract, to his failure to make enough
progress at some meetings, to his failure to bring his
principals to certain meetings, and finally, to his reliance
often on the Mountain View language, when he was also
pressing for different positions. An overview of negotia-
tions reveals a vastly different scene-both Foreman and
Hewitt were convinced that by September negotiations
had narrowed to certain issues-Foreman, whom I
credit, announcing on both October 16 and November 7
1378
BRIARCLIFF PAVILION
that only union security, length of agreement, wages, and
reinstatement of strikers separated the parties, and that if
these matters were settled, the remainder of the agree-
ment would fall into place. Hewitt and Maxwell both in-
sisted Foreman mentioned only two items, reinstatement
of strikers and union security.
From Foreman's perspective, therefore, negotiations
had succeeded to the point where, if the major items
could be resolved, the remainder of disputes would
quickly disappear. That there were so many items left
was not the fault solely of one negotiator or the other.
Both made their contributions, and I am convinced that
Lickert's earlier actions, the Union's apparently unsuc-
cessful strike, and charges by Respondent against the
Union of picket line violence created circumstances
which made bargaining exceedingly difficult, perhaps
beyond the capacity of any negotiator to fully control.
The fact remains that three of the four impasse items
were directly or indirectly caused or contributed to by
Hewitt-union security, by the attempted interference
with the Union's dues and initiation fee structure; dura-
tion of contract, by the proposal that the contract termi-
nate on January 31, 1981; and wages, by the failure of
Hewit to explain to Foreman that wages had already
been increased. The fourth item, reinstatement of em-
ployees, was tentatively settled at one point by agree-
ment of Foreman, who ultimately could not deliver on
his offer. All of these were items of impasse, and Board
law makes clear that if the parties have impassed on sev-
eral proposals, only one of which is a nonmandatory
demand, the party proposing the latter is not bargaining
in good faith. National Fresh Fruit & Vegetable Company
and Quality Banana Co., Inc., 227 NLRB 2014, 2015
(1977), enforcement denied 565 F.2d 1331 (5th Cir.
1978).
Respondent, however, relying upon Latrobe Steel Co.
v. N.L.R.B., 630 F.2d 171 (3d Cir. 1980), contends that
the impasse would have occurred notwithstanding its ac-
tions, for the parties were clearly deadlocked on the
issue of reinstatement of strikers. With some movement
on the other items of impasse and without Respondent's
actions, it cannot be said that agreement would not be
reached. I find Respondent's argument entirely specula-
tive. In addition, its reliance on Latrobe Steel is inaccu-
rate. There, the court held that the employer could not
insist upon the presence of a stenographer at bargaining
sessions because its proposal was not a mandatory sub-
ject of bargaining and could not be interposed as a con-
dition precedent to entering an agreement. 630 F.2d at
179. It enforced the Board's bargaining order. The Board
had also held that two other proposals of the employer
were nonmandatory subjects of bargaining, but the court
felt it unnecessary to decide whether they were. Instead,
the court found that the union's insistence throughout
negotiations upon the adoption by the employer of the
basic industry agreement caused the impasse to occur,
even in the absence of any other proposal, and found
that the union's strike was not an unfair labor practice
strike. The court stated, 630 F.2d at 180: "While it is true
that insistence on non-mandatory proposal, need not be
the sole cause of the impasse in negotiations, it must be a
cause of the impasse"; and, further, 630 F.2d at 181, fn.
9: "Any dispute on a mandatory subject is not sufficient
to protect a party's insistence to the point of impasse on
a non-mandatory subject. The dispute over the non-man-
datory subject must itself rise to the level of impasse."
Here, Respondent's proposals for an agreement of limited
duration and incursion into the Union's internal affairs
were both causes of the impasse and had risen to the
level of impasse. 0 Accordingly, Latrobe Steel supports
the conclusion that Respondent has engaged in unfair
labor practices under Section 8(a)(5) and (1) of the Act,
which have a close, intimate, and substantial effect on in-
terstate commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1) of
the Act, I shall recommend that Respondent be required
to cease and desist from engaging in such unfair labor
practices and, upon request, order it to bargain collec-
tively with the Union.
Because Respondent's failure to bargain in good faith
has deprived the Union of the full year of good-faith bar-
gaining to which it was entitled under its certification
and because it is desirable and no more than fair to place
Respondent and the Union in as nearly the same situation
as possible to that which existed before Respondent un-
lawfully ceased bargaining in good faith, I shall recom-
mend that the certification year be extended for a period
of 4 months" from the date when Respondent in compli-
ance with the recommended Order herein begins to bar-
gain in good faith with the Union as the recognized rep-
resentative of the employees in the appropriate unit.
Mar-Jac Poultry Company. Inc., 136 NLRB 785 (1962);
Stan Long Pontiac. Inc., 175 NLRB 433 (1969), enfd. 434
F.2d 1050 (6th Cir. 1970); Beglinger-Massie Oldsmobile-
Cadillac, Inc., 177 NLRB 161 (1969), enfd. 434 F.2d 1047
(6th Cir. 1970).
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 12
The Respondent, Harry Sann, Jr. and Winton R.
Wagner, Partners, d/b/a Briarcliff Pavilion for Special-
'0 Even if I credited Respondent's testimony that only reinstatement of
strikers and union security were at impasse, the conclusion would be the
same
" The extended period is based on the fact that impasse was reached
on the critical issues herein on September 9, 1980. Although the General
Counsel contends that the bargaining period should be extended for 12
months, time should not be credited for the penod when the Union did
not produce a representative at the bargaining table or when Foreman
and Lickeri were engaged in good-faith bargaining
: 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
findings, 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,, concilusions, and Order, and all objections thereto
shall be deemed waived for all purposes
1379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ized Care, North Huntingdon, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Service Personnel and Employees of the Dairy Industry,
Teamsters Local Union No. 205 of Pittsburgh, Pennsyl-
vania, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the certified collective-bargaining representative of all of
its full-time and regular part-time housekeeping employ-
ees, laundry employees, dietary employees, nurses' assis-
tants and physical therapy aides, who are employed at its
North Huntingdon, Pennsylvania, facility; excluding
office clerical employees, maintenance, licensed practical
nurses, registered nurses, students and guards, other pro-
fessional employees and supervisors as defined in the
Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Upon request, bargain collectively in good faith
with the Union as the certified collective-bargaining rep-
resentative of the employees in the unit set forth in sec-
tion l(a) of this Order, with respect to rates of pay,
hours of employment, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Huntingdon, Pennsylvania, facility
copies of the attached notice marked "Appendix. " 3
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
3. For the purpose of determining the duration of the
Union's certification as the representative of Respond-
ent's employees in the appropriate unit, the certification
period is hereby extended to a date 4 months from the
date Respondent commenced or commences to bargain
in good faith with the Union.
IT IS FURT HER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WEI WILL NOT refuse to bargain collectively in
good faith with Service Personnel and Employees
of the Dairy Industry, Teamsters Local Union No.
205 of Pittsburgh, Pennsylvania, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the certified collec-
tive-bargaining representative of all of our full-time
and regular part-time housekeeping employees,
laundry employees, dietary employees, nurses' assis-
tants and physical therapy aides, who are employed
by us at our North Huntingdon, Pennsylvania, fa-
cility; excluding office clerical employees, mainte-
nance, licensed practical nurses, registered nurses,
students and guards, other professional employees
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL bargain in good faith with the Union as
the exclusive collective-bargaining representative of
our employees described above, and, if an under-
standing is reached, WE Wlltl embody that under-
standing in a signed agreement.
HARRY SANN, JR. ANDI WINTON R.
WAGN R, PARTNERS, D/B/A BRIARCI IFF
PAVIIION FOR SPECIAL IZED CARE
'' In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1380