351 F.3d 747 | 6th Cir. | 2003
Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
STEEH, District Judge. [*] UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ COUNSEL ARGUED: Maynard A. Buck, BENESCH, P LEASANTVIEW N URSING (cid:88) FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio, (cid:45) H OME , I NC ., for Petitioner. Sharon I. Block, NATIONAL LABOR (cid:45) Petitioner/ RELATIONS BOARD, Washington, D.C., for Respondent. (cid:45) Nos. 01-2288/2533 Cross-Respondent, ON BRIEF: Maynard A. Buck, Ann E. Knuth, BENESCH, (cid:45) >
FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio, (cid:44) for Petitioner. Sharon I. Block, Aileen A. Armstrong, Bridget v. (cid:45) O’Connor, NATIONAL LABOR RELATIONS BOARD, (cid:45) Washington, D.C., for Respondent. N ATIONAL L ABOR R ELATIONS (cid:45) (cid:45) B OARD ,
_________________ (cid:45) Respondent/ (cid:45) OPINION Cross-Petitioner, (cid:45) _________________ (cid:45) T EXTILE P ROCESSORS , (cid:45) BOGGS, Chief Judge. Petitioner Pleasantview Nursing (cid:45) S ERVICE T RADES , H EALTH Home, Inc. (“Pleasantview”), operated a nursing home (cid:45) C ARE , P ROFESSIONAL AND organized by the Textile Processors, Service Trades, Health (cid:45) Care, Professional and Technological Employees T ECHNICAL E MPLOYEES ’ (cid:45) International Union, Local No. 1 (“Union”). After the 1996 U NION , L OCAL N O . 1, (cid:45) negotiations between Pleasantview and the Union for a new Intervenor. (cid:45) collective bargaining agreement (“CBA”) broke down, (cid:78) Pleasantview declared an impasse and unilaterally imposed its final offer. The National Labor Relations Board (“NLRB”),
On Petition for Review and Cross-Application acting on a Union charge, found Pleasantview to have for Enforcement of an Order of the engaged in a series of unfair labor practices in violation of the National Labor Relations Board. National Labor Relations Act (“NLRA”): breach of the No. 8-CA-28519. Argued: March 25, 2003 On April 25, 1996, the Union and Pleasantview began buy-backs in good faith; insistence to an impasse on a change negotiations for a new CBA covering the seventy-eight in the initiation fee provision; and unilateral implementation employees represented by the Union. As Pleasantview was of Pleasantview’s final offer without a valid impasse. facing a serious labor shortage, one of its aims in these Pleasantview petitions this court for review and the NLRB negotiations was to provide for a significant increase in the cross-petitions for enforcement of its order to remedy these pay of the represented employees. Pleasantview’s initial alleged unfair labor practices. We enforce the order in part proposal was to increase hourly wages and to finance this and grant the petition for review in part.
increase partially by the elimination of three paid holidays I and the company contribution to Union-managed pension and disability funds. In return, employees would receive access Pleasantview operates a nursing home on the west side of to employer-sponsored investment and insurance plans. Cleveland. In 1984, the Union was certified as the collective Pleasantview also wished to be freed, explicitly, of its bargaining representative of Pleasantview’s orderlies and obligation to collect initiation fees until another area nursing other aides. The initial CBA between Pleasantview and the home was required to do so. Alternatively, Pleasantview Union went into effect in June 1985. This and all subsequent offered to collect the initiation fees but only if the union-shop CBAs contained a union-shop provision requiring all clause was replaced by a maintenance-of-membership clause employees covered by the CBA to join the Union and a requiring current members to remain in the Union but giving collection clause requiring Pleasantview to collect the new hires the option not to join. On May 31, the last written Union’s initiation fees from the employees’ pay each month.
CBA expired, but Pleasantview and the Union orally agreed Moreover, all CBAs contained a zipper clause stating that no to extend the CBA while negotiations continued and to apply amendment is effective unless executed in writing by both the new CBA, when agreed to, retroactively to this date. parties. Nevertheless, Pleasantview and the Union reached an Subsequently, Pleasantview informed the Union that, because informal understanding not to enforce the collection clause of the labor shortage, it was going to increase pay unilaterally because doing so would place Pleasantview, at the time the for new hires while negotiations were proceeding. According only organized nursing home in the area, at a competitive to Pleasantview, the Union negotiator nodded in response. disadvantage. This informal understanding was observed for On July 6, Pleasantview did increase the starting hourly wage ten years until, in June 1995, the Union notified Pleasantview
for new employees and recently hired employees whose that it had organized another area nursing home, Alpha Health wages were still below the new starting wage. This change Center (“Alpha”). At this point, Pleasantview began affected six employees. collecting the initiation fees for new hires. However, when Pleasantview learned that while Alpha had indeed been On September 17, after twelve negotiation sessions, organized, there was no CBA requiring Alpha to collect Pleasantview, at the suggestion of a federal mediator involved initiation fees, and there would be no such CBA for the in the negotiations, made a final offer to the Union foreseeable future, Pleasantview once again ceased collecting incorporating the changes to the CBA that Pleasantview
sought. The Union rejected this offer and declined to present Nos. 01-2288/2533 Pleasantview Nursing 5 6 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB it to the Union membership for a vote. At this point, Pleasantview’s petition for review of the NLRB’s order and Pleasantview declared an impasse and stated its intention to the NLRB’s cross-application for enforcement. implement its final offer unilaterally on September 22. In
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response, the Union called a strike for that date and filed an unfair labor practices charge with the NLRB. On
The NLRB has jurisdiction to prevent unfair labor September 19, Pleasantview wrote a letter to its represented practices. NLRA § 10(a), 29 U.S.C. § 160(a). This court has employees explaining that it would implement its final offer jurisdiction over petitions to review or enforce orders issued and informing employees that, should they not wish to by the NLRB. NLRA § 10(e), 29 U.S.C. § 160(e). “We participate in the strike, they could avoid union fines by review the [NLRB’s] conclusions of law de novo . . . If the withdrawing from the Union. On September 22, the Union [NLRB] errs in determining the proper legal standard, we struck and began picketing Pleasantview. However, a large may refuse enforcement on the grounds that the order has no majority of represented Pleasantview employees chose to reasonable basis in law.” NLRB v. Good Shepherd Home , 145 cross the picket line that consisted of three Pleasantview F.3d 814, 816 (6th Cir. 1998) (quoting NLRB v. Pentre Elec. , employees and several Union officials. The strike collapsed 998 F.2d 363, 368 (6th Cir. 1993)). We review the NLRB’s after one shift. By the time the strike collapsed, more than factual findings under a deferential standard. “The findings three-quarters of Pleasantview’s represented employees had of the Board with respect to questions of fact if supported by informed Pleasantview of their withdrawal from the Union. substantial evidence on the record considered as a whole shall be conclusive.” NLRA § 10(e), 29 U.S.C. § 160(e); On April 30, 1997, the General Counsel of the NLRB, Universal Camera Corp. v. NLRB , 340 U.S. 474, 493 (1951); acting on the Union’s charge, filed an unfair labor practices NLRB v. St. Francis Healthcare Ctr. , 212 F.3d 945, 951-52 complaint against Pleasantview. On March 20, 1998, an
(6th Cir. 2000). “Evidence is substantial when it is adequate, NLRB Administrative Law Judge (“ALJ”) concluded that in a reasonable mind, to uphold the [NLRB’s] decision.” St. Pleasantview had violated the NLRA by refusing to remit the Francis , 212 F.3d at 952. (Internal quotation omitted). initiation fees to the Union, unilaterally raising the wages of However, even when reviewing factual questions, we will not new and recently hired employees during the course of the serve “as a mere rubber stamp for the administrative agency.” negotiations, and by implementing its last offer without NLRB v. Cook Family Foods , 47 F.3d 809, 816 (6th Cir. reaching a valid impasse. Pleasantview and the general 1995) (quoting YHA, Inc. v. NLRB , 2 F.3d 168, 172 (6th Cir. counsel appealed to a three-judge panel of the NLRB. On 1993)). August 27, 2001, this panel, over a partial dissent of the chairman of the NLRB, concluded that Pleasantview had
The NLRA protects the right of workers to unionize and violated the NLRA in the manner cited by the ALJ and also bargain collectively. “Employees shall have the right to by insisting to impasse on the elimination of the initiation self-organization, to form, join, or assist labor organizations, fees and by refusing to negotiate in good faith with respect to to bargain collectively through representatives of their own the buy-back of the pension and paid holiday provisions. 335 choosing.” NLRA § 7, 29 U.S.C. § 157. “[F]or an employer N.L.R.B. No. 77. The NLRB ordered Pleasantview to cease . . . to interfere with, restrain, or coerce employees in the and desist from these practices, to rescind the imposition of exercise of the rights guaranteed in” § 7 of the NLRA is an its final offer, to make employees whole, and to reopen unfair labor practice. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). bargaining with the Union. Before this court now are Nos. 01-2288/2533 Pleasantview Nursing 7 8 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB in effect from June 1985 through May 1996. [1] “It is well So is “refus[al] to bargain collectively with the representatives of his employees.” NLRA § 8(a)(5), 29 U.S.C established that the duty to bargain includes a duty to check § 158(a)(5). off and remit union dues if there is a contractual basis for
doing so.” Cherry Hill Textiles , 309 N.L.R.B. 268, 269 [T]o bargain collectively is the performance of the (1992). A failure to do so is a violation of § 8(a)(5). Ibid. mutual obligation of the employer and the representative Therefore Pleasantview violated § 8(a)(5) in failing to collect of the employees to meet at reasonable times and confer the fees. in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation To counter this conclusion, Pleasantview points to the of an agreement, or any question arising thereunder, and consistent practice of the Union not to insist on collection of the execution of a written contract incorporating any the fees throughout most of its representation and of agreement reached if requested by either party, but such Pleasantview not to do so. The basis for this practice appears obligation does not compel either party to agree to a to have been an oral agreement between the Union and proposal or require the making of a concession. Pleasantview not to enforce the collection clause until another
area nursing home either, according to the Union, was NLRA § 8(d), 29 U.S.C. § 158(d). Outside some limited organized by the Union or, according to Pleasantview, circumstances, “the duty to bargain collectively shall also actually began remitting union initiation fees. The sole mean that no party to such contract shall terminate or modify written record of this agreement was a letter from such contract.” NLRA § 8(d), 29 U.S.C. § 158(d). Pleasantview to the Union stating that the collection clause
would be inoperative for the period covered by the initial The NLRB here alleges five instances of unfair labor CBA. The NLRB generally frowns on oral modification of practices on the part of Pleasantview: the failure to collect and written CBAs. See Beech & Rich , 300 N.L.R.B. 882, 882 remit initiation fees; the unilateral increase of starting wages (1990) (refusing to give effect to an alleged oral agreement during the contract negotiations; the failure to negotiate with that “would not merely explain or clarify the parties’ intent respect to the buy-back of the pension and paid holiday provisions; the insistence to impasse regarding the collection of initiation fees; and the implementation of the final offer [1] W hile Pleasantview never collected union initiation fees, except
without existence of a valid impasse. We review these issues briefly in 1995, the Union only sought collection for the six-month period in the same order. preceding its filing of the unfair labor practices charge, starting on March 17, 1 996 . See NLRA § 10(b), 29 U.S.C. § 160(b) (“[N]o
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complaint shall issue b ased upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board.”). Pleasantview contends whatever contractual duty to collect the fees
The first unfair labor practice alleged is Pleasantview’s existed expired with the final written CBA on May 31. See Litton Fin. failure to collect union initiation fees as required by all CBAs Printing Div. v. NLRB , 501 U.S. 190 , 199 (1991) (citing NLRA § 302(c)(4), 29 U .S.C. § 186(c)(4)). However, during the course of the negotiations until Pleasantview implemented its final offer on September 22, the parties were operating under an oral extension of the final written C BA . Therefore we here address the period from March 17 through September 22.
Nos. 01-2288/2533 Pleasantview Nursing 9 10 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB regarding provisions of the collective-bargaining agreement covers the initial CBA, constitutes a valid modification of the final CBA at issue here, its unambiguous language controls. [3] but would instead invalidate and nullify the written agreement.”); NDK Corp. , 278 N.L.R.B. 1035, 1035 (1986)
Pleasantview also argues that the NLRB overstepped its (“National labor policy requires that evidence of oral authority in attempting to enforce the collection clause. “The agreements be unavailing to vary the provisions of a written Board is not the proper forum for parties seeking to remedy collective-bargaining agreement valid on its face.”); but see an alleged breach of contract or to obtain specific Certified Corp. v. Haw. Teamsters & Allied Workers, Local enforcement of its terms.” United Tel. Co. of the W. , 112 996 , 597 F.2d 1269, 1270 (9th Cir. 1979) (holding that “a N.L.R.B. 779, 782 (1955) (citing Ass’n of Westinghouse written collective bargaining agreement can be orally Salaried Employees v. Westinghouse Elec. Corp. , 348 U.S. modified”). However, we need not decide whether oral
437, 444 n.2 (1955)). Pleasantview’s general point is well- modification in general is impermissible because all CBAs taken; precedent is clear that courts, not the NLRB, are the here contained an express zipper clause prohibiting proper forum for enforcement of contracts, including CBAs. modification except by written agreement executed by both In general “a mere breach of the contract is not in itself an parties. Such zipper clauses are legally effective. See unfair labor practice,” and hence not within the jurisdiction of Martinsville Nylon Employees Council Corp. v. NLRB , 969 the NLRB. NCR Corp. , 271 N.L.R.B. 1212, 1213 n.6 (1984); F.2d 1263, 1267-68 (D.C. Cir. 1992); cf. St. Vincent’s see also NLRB v. C & C Plywood Corp. , 385 U.S. 421, 427 Hospital , 320 N.L.R.B. at 44 (giving effect to oral (1967) (“Congress determined that the Board should not have modification of CBA where zipper clause did not require modifications to be in writing). [2] Because neither an oral general jurisdiction over all alleged violations of collective
bargaining agreements.”). However, precedent is equally agreement, nor an unsigned letter that by its own terms only clear that the breach of one particular type of CBA clause, remittal of union dues, is an unfair labor practice. Cherry Hill Textiles , 309 N.L.R.B. at 269. Collection of union fees is so intricately connected to the right to bargain collectively protected by the NLRB under NLRA § 8(a)(5) that it does fall within its jurisdiction. United Tel. Co. and NCR Corp. are not
Nos. 01-2288/2533 Pleasantview Nursing 11 12 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB to the contrary as both concerned not the collection of union some employees during the negotiations with the Union fees but the interpretation of clauses regulating the length of covering that very subject. Even though this unilateral the work week and limiting employee transfers, respectively. change only affected a handful of current employees and new Such substantive issues not directly involving union hires, it was an unfair labor practice. representation were properly adjudicated in the courts. Thus, Pleasantview contends that these wage increases were the Board did not err in finding an unfair labor practice.
compelled by economic exigency and hence were exempted B from the rule against unilateral imposition of changes during labor negotiations. “When economic exigencies compel The second unfair labor practice alleged is Pleasantview’s prompt action,” employers are authorized to make such unilateral increase of starting wages during the 1996 contract changes even during negotiations. Bottom Line Enters. , 302 negotiations. While the final written CBA had expired at the N.L.R.B. 373, 374 & n.11 (1991) (citing Winn-Dixie Stores , time of the wage increases, the parties were operating under
243 N.L.R.B. 972, 974 & n.9 (1979)). An employer an oral extension of that CBA when Pleasantview attempting to prove economic exigency must carry a “heavy implemented this wage increase. “The Board has taken the burden.” Our Lady of Lourdes Health Ctr. , 306 N.L.R.B. position that it is difficult to bargain if, during negotiations, 337, 340 n.6 (1992). Economic exigency requires a an employer is free to alter the very terms and conditions that “compelling business justification.” Winn-Dixie Stores , 243 are the subject of those negotiations.” Litton Fin. , 501 U.S. N.L.R.B. at 976 n.9. A mere “business necessity is not the at 198. “If an employer changes wages or other terms without equivalent of compelling considerations which excuse affording the Union an opportunity for adequate consultation, bargaining.” Hankins Lumber Co. , 316 N.L.R.B. 837, 838 it ‘minimizes the influence of organized bargaining’ and (1995). For example, “loss of an account representing 14 emphasizes to the employees ‘that there is no necessity for a
percent of revenue” is not an economic exigency. Angelica collective bargaining agent.’” Loral Def. Sys. v. NLRB , 200 Healthcare Servs. , 284 N.L.R.B. 844, 853 (1987). F.3d 436, 449 (6th Cir. 1999) (quoting May Dep’t Stores Co. “[O]perating at a competitive disadvantage does not v. NLRB , 326 U.S. 376, 385 (1945)). Therefore, “an necessarily equate to an economic emergency.” Triple A Fire employer’s unilateral change in conditions of employment Protection, Inc. , 315 N.L.R.B. 409, 414-15 (1994). “Nor under negotiation is . . . a violation of § 8(a)(5), for it is a does inconvenience to the employer fall into that category.” circumvention of the duty to negotiate which frustrates the Farina Corp. , 310 N.L.R.B. 318, 321 (1993) (citing Clements objectives of § 8(a)(5) much as does a flat refusal” to Wire Co. , 257 N.L.R.B. 1058 (1981)). “[A]n underlying negotiate. NLRB v. Katz , 369 U.S. 736, 743 (1962); accord
reason for not requiring bargaining when there are Laborers Health & Welfare Trust Fund v. Advanced ‘compelling economic considerations’ is that an unforeseen Lightweight Concrete Co. , 484 U.S. 539, 544 n.6 (1988), occurrence, having a major economic effect, is about to take aff’g 779 F.2d 497 (9th Cir. 1985); NLRB v. Talsol Corp. , 155 place that requires the company to take immediate action.” F.3d 785, 794 (6th Cir. 1984). “[A]n employer commits an Angelica , 284 N.L.R.B. at 853. “Consistent with the unfair labor practice if, without bargaining to impasse, it requirement that an employer prove that its proposed changes effects a unilateral change of an existing term or condition of were ‘compelled,’ the employer must additionally employment.” Litton Fin. , 501 U.S. at 198 (citing Katz ). In demonstrate that the exigency was caused by external events, this case, Pleasantview unilaterally increased the wages of
was beyond the employer’s control, or was not reasonably Nos. 01-2288/2533 Pleasantview Nursing 13 14 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB foreseeable.” RBE Elecs. of S.D., Inc. , 320 N.L.R.B. 80, 82 Pleasantview also argues that it was entitled to increase the (1995) (footnotes and citations omitted). “[B]ecause the wages, even in the absence of economic exigency, because exception is limited only to those exigencies in which time is the Union either consented to the increases or waived the of the essence and which demand prompt action, we will right to negotiate the issue. The basis for the contention that require an employer to show a need that the particular action the Union consented is the testimony of Pleasantview’s proposed be implemented promptly.” Ibid. (footnote and negotiator that the Union negotiator nodded when citations omitted). Pleasantview proposed an increase in starting wages and did
not strenuously object when informed after the fact that Under this standard, the NLRB’s finding that Pleasantview Pleasantview had increased the wages. Union witnesses did not face an economic exigency was supported by denied that they had consented to the wage increase. The substantial evidence and hence must be upheld. Undoubtedly,
ALJ, after hearing testimony from both sides, chose to credit Pleasantview faced intense labor market pressure to increase the Union witnesses over the Pleasantview witnesses and the wages. Its eagerness to do so, rare in any rational employer NLRB adopted this finding. As “credibility determinations not under such pressure, attests to that. However, must be accepted unless it is clear that there is no rational Pleasantview does not demonstrate that this pressure had basis for them,” we too uphold this finding. Health Care & reached emergency levels. Rather, Pleasantview admits to Retirement Corp. v. NLRB , 255 F.3d 276, 282 (6th Cir. 2000) having suffered this chronic problem since 1985. (quoting NLRB v. Valley Plaza, Inc. , 715 F.2d 237, 242 (6th Pleasantview does not claim that it faced an immediate risk of Cir. 1983)). staff levels so low as to force it to shut down. Cf. Tylertown Wood Prods. , 251 N.L.R.B. 515, 521 (1980) (an equipment On the same evidence, Pleasantview asserts that the Union failure making an entire plant inoperable is an exigency waived its right to negotiate regarding the wage increases. An excusing unilateral layoffs). A business’s inability to acquire apparent tension exists in the case law regarding what actions the desired quantity of an input, here labor, at a given price is constitute a waiver. While the Supreme Court has stated that not an economic exigency. See Hankins , 316 N.L.R.B. at 838 “the waiver must be clear and unmistakable,” Metro. Edison (a supply shortage “does not fall within this narrow exception Co. v. NLRB , 460 U.S. 693, 708 (1983), the NLRB has held to the general duty to bargain.”). The conclusion that that “a union which receives timely notice of a change in Pleasantview did not face an economic exigency is supported conditions of employment must take advantage of that notice by the two-month delay between the time it first requested the if it is to preserve its bargaining rights and not be content in wage increase and the time it implemented it. See Our Lady merely protesting an employer’s contemplated action,” of Lourdes , 306 N.L.R.B. at 337 n.1. [4]
Clarkwood Corp. , 233 N.L.R.B. 1172, 1172 (1977) (citing Am. Buslines , 164 N.L.R.B. 1055 (1967)). This discrepancy is resolved by the difference in context: Metropolitan Edison considers an alleged waiver arising out of a negotiated contract; Clarkwood Corp. considers the waiver of a union’s [4] A delay b etween the time a threatening condition comes to the right to negotiate a minor change in the terms and conditions
employe r’s attention and the time the emplo yer takes steps to counter it of employment occurring outside of negotiations. In a is of course no t dispo sitive of the question whether the condition
negotiation, a party need not respond to every statement with constitutes an emergency. Clearly some genuine emergencies can be a forceful rejection and insistence on further bargaining; anticipated well in advance. Nos. 01-2288/2533 Pleasantview Nursing 15 16 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB further bargaining is assumed and a waiver of the issue will Pleasantview did not alter its initial bargaining position with not be presumed unless it is clear and unmistakable. respect to these issues; that during one negotiation session Conversely, outside of negotiations, an employer can Pleasantview’s negotiator stated that its position regarding reasonably conclude that any minor change it makes will be holiday and pension buy-backs was non-negotiable; and that acceptable unless the Union makes its desire to negotiate the Pleasantview unilaterally implemented the wage increase, issue clear. In our case, the alleged waiver occurred during which it ultimately wished to finance by the holiday and negotiations and consisted of the Union not forcefully pension buy-back, for a handful of employees while rejecting the wage increase. This was not the required clear negotiations were still ongoing. We agree with the ALJ and and unmistakable waiver. Therefore, the Board was correct chairman of the NLRB, not the majority of the NLRB panel, in finding an unfair labor practice. that these facts, separately or in combination, were
insufficient to allow the NLRB to conclude that Pleasantview
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refused to negotiate these issues in good faith. The third unfair labor practice alleged was Pleasantview’s Pleasantview’s ultimate refusal to change its position failure to negotiate with respect to its proposal for the buy- regarding the buy-backs does not constitute bad faith. “Good back of pension and paid holiday provisions. The NLRA faith bargaining is all that is required. That the position of imposes on unionized employers a duty to bargain one party on an issue prevails unchanged does not mandate collectively. NLRA § 8(a)(5), 29 U.S.C § 158(a)(5). This the conclusion that there was no collective bargaining over mutual obligation to bargain collectively is confined to good the issue.” McCourt v. Cal. Sports, Inc. , 600 F.2d 1193, 1200 faith discussions “with respect to wages, hours, and other (6th Cir. 1979) (citing Am. (Nat.) Ins. Co. , 343 U.S. at 404). terms and conditions of employment.” NLRA § 8(d), 29 The 1947 “amendment [to the NLRA] makes it clear that the U.S.C. §158(d). Parties are obligated to negotiate on these
failure to reach an agreement because of the employer’s so-called mandatory subjects “and within that area neither refusal to make a concession to the Union does not, by itself, party is legally obligated to yield.” Fibreboard Paper Prods. constitute lack of good faith.” NLRB v. United Clay Mines Corp. v. NLRB , 379 U.S. 203, 210 (1964) (citing NLRB v. Corp. , 219 F.2d 120, 125 (6th Cir. 1955). Where “[t]he Am. (Nat.) Ins. Co. , 343 U.S. 395 (1952)). Fringe benefits, failure to execute a contract was not because of a failure or such as paid holidays and pensions, “clearly fall within the refusal to negotiate, but in the final analysis was because the compass of ‘wages,’ and are therefore subjects over which parties would not agree on one remaining issue, considered by employers and employees must bargain.” Amalgamated both of them as basically important,” no bad faith has been Transit Union Int’l v. Donovan , 767 F.2d 939, 951 & n.12
evinced. Ibid. “To say that the Company should have (D.C. Cir. 1985) (citing Singer Mfg. Co. v. NLRB , 119 F.2d accepted the Union’s proposal on this issue is to ignore the 131 (7th Cir. 1941) (paid holidays) and Detroit Police language of the statute that the obligation to bargain Officers Ass’n v. City of Detroit , 214 N.W. 2d 803 (1974) collectively ‘does not compel either party to agree to a (pensions)). proposal or require the making of a concession.’” Id. at 125-
26; accord McCourt , 600 F.2d at 1201. Pleasantview’s Here, the NLRB alleges that Pleasantview failed to bargain insistence on the buy-backs constituted no more than hard in good faith with respect to the holiday buy-back and bargaining. “[H]ard bargaining, the kind countenanced by the pension changes. It bases this conclusion on three facts: that NLRA as an inevitable aspect of labor-management relations” Nos. 01-2288/2533 Pleasantview Nursing 17 18 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB is “not unfair bargaining.” NLRB v. Gibraltar Indus. , 653 Finally, Pleasantview’s implementation of the increase in F.2d 1091, 1096 (6th Cir. 1981) (citing McCourt , 600 F.2d at starting wages, while an unfair labor practice, is not relevant 1200, and Fetzer Television v. NLRB , 317 F.2d 420, 424 (6th to the issue of whether Pleasantview negotiated in good faith Cir. 1963)). regarding the holiday and pension buy-backs. Initially, we
note that this increase affected less than ten percent of the The NLRB’s most serious factual ground for finding bad represented employees. For more than ninety percent of the faith was the statement by Pleasantview’s negotiator during employees, the final pay scale still rested with the outcome of the July 25 session that the buy-backs were “non-negotiable.” ongoing negotiations. More significant, while Pleasantview’s If this statement had reflected Pleasantview’s actual stance overall negotiation stance was that the buy-backs were regarding this mandatory bargaining subject, it would necessary to fund the wage increases, Pleasantview only undisputably have been sufficient to support a finding of bad
implemented the wage increase portion of this offer during faith. “[I]f a party is so adamant concerning its own initial the negotiations. The buy-backs were entirely unaffected by positions on a number of significant mandatory subjects, we this unilateral action. Hence, Pleasantview’s unilateral action may properly find bad faith evinced by its ‘take-it-or-leave-it’ had only the most peripheral relationship to the buy-back approach to bargaining.” 88 Transit Lines , 300 N.L.R.B. 177, negotiations. The Board erred in finding this to be an unfair 178 (1990) (citing NLRB v. Gen. Elec. Co. , 418 F.2d 736, labor practice. 756-57 (2d Cir. 1969)). However, to determine the existence of bad faith, we look to bargaining conduct, not bargaining D rhetoric. Pleasantview’s conduct both before and after the The fourth unfair labor practice alleged was Pleasantview’s July 25 session indicates that the “non-negotiable” statement insistence to the point of impasse regarding the collection of was mere rhetoric and not an accurate reflection of
initiation fees. “[I]nternal affairs of labor organizations are Pleasantview’s stance. Negotiations continued for almost two not ‘an aspect of the relationship between the employer and months after July 25. Pleasantview’s statement that it “just the employees,’ but rather, by statutory definition are couldn’t come up with a different plan to get the fifty cents” encompassed by the relationship between labor organizations wage increase, cited by the NLRB as further evidence of bad and employees. It follows that subjects embraced by the faith, in fact indicates the opposite. It conveys a willingness internal affairs proviso are not mandatory ones.” Serv. to listen to alternative ways of reaching agreement. Cf. Employees, Local 535 , 287 N.L.R.B. 1223, 1225-26 (1988) United Clay Mines Corp. , 219 F.2d at 125 (citing NLRB v. (quoting Allied Chem. Workers, Local 1 v. Pittsburgh Plate Jacobs Mfg. Co. , 196 F.2d 680 (2d Cir. 1952), for the
Glass Co. , 404 U.S. 157, 178 (1971)), enforced sub nom. N. proposition that “[l]ack of good faith may be found from a Bay Dev. Disabilities Servs. v. NLRB , 905 F.2d 476 (D.C. Cir. refusal to discuss certain subjects.”). That ultimately neither 1990). “One subject specifically regarded by Congress as an the Union nor Pleasantview was able to “come up with a internal affair of labor organizations is that of the amount of different plan” acceptable to both is evidence of impasse, not fees established and assessed on employees.” Serv. bad faith. Where the overall bargaining conduct indicates Employees , 287 N.L.R.B. at 1226; accord N. Bay Dev. good faith and willingness to negotiate, a stray statement Disabilities Servs. , 905 F.2d at 478. Hence the collection indicating inflexibility will not overcome the general tenor of clause was not a mandatory subject of bargaining. Ibid. good faith negotiation. See Indus. Elec. Reels , 310 N.L.R.B.
However, “[u]nion security is properly a ‘condition of 1069, 1069, 1072 (1993). Nos. 01-2288/2533 Pleasantview Nursing 19 20 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB employment’ within the meaning of Sec. 9(a) of the National subjects in labor negotiations. In Nordstrom Inc. , 229 Labor Relations Act and hence, is within the statutory area of N.L.R.B. 601 (1977), the NLRB stated: collective bargaining.” NLRB v. Andrew Jergens Co. , 175
That a party may not lawfully insist upon the inclusion of F.2d 130, 133 (9th Cir. 1949). Hence the question of whether proposals nonmandatory in nature is, of course, clear. the CBA would contain a union-shop or a maintenance-of- But the General Counsel’s case moves, in our view, membership provision was a mandatory subject. As to non- beyond that proposition to the extent that it negates the mandatory matters, “each party is free to bargain or not to considerable relationships which may exist between both bargain.” Fibreboard , 379 U.S. at 210 (quoting NLRB v. mandatory and nonmandatory subjects. Certainly, Wooster Div. of Borg-Warner , 356 U.S. 342, 349 (1958)). nonmandatory subjects . . . can, as a function of cost, However, neither party may “refuse to enter into agreements
bear upon a party’s wage-increase proposals [, a on the ground that they do not include some proposal which mandatory subject]. To say that the proponent of the is not a mandatory subject of bargaining.” Borg-Warner , 356 [non-mandatory subject proposal] cannot insist upon the U.S. at 349. “[S]uch conduct is, in substance, a refusal to inclusion of such a proposal means no more than that. It bargain about the subjects that are within the scope of does not mean that once, out of necessity, the mandatory bargaining.” Ibid.; see also Taylor Warehouse nonmandatory proposal is removed from the table, the Corp. v. NLRB , 98 F.3d 892, 901 (6th Cir. 1996) (“The proponent of the nonmandatory subject is not permitted parties may also bargain about any other lawful proposal, but to alter those proposals which are mandatory in light of may not insist to impasse on proposals concerning
the removal of the nonmandatory subject. non-mandatory subjects of bargaining.”). Id. at 601. The ALJ in Laredo Packing Co. , 254 N.L.R.B. 1 Pleasantview’s negotiation stance combined offers with (1981), whose rulings, findings, and conclusions were respect to a mandatory subject, union security, and with affirmed by the Board, stated that: respect to a non-mandatory subject, the collection clause. It offered alternatively to agree to a union-shop provision in
The question presented herein is whether the Union return for an elimination or modification of the collection could effectively conclude negotiations on December 14 clause or to agree to the collection clause in return for a by agreeing to those demands of Respondent which change from a union-shop provision to a maintenance-of- constitute mandatory subjects of bargaining, even though membership provision. The NLRB in its analysis chose to there was no agreement on Respondent’s demands sever the mandatory and the non-mandatory subjects. In that encompassing the nonmandatory bargaining subjects. analysis, Pleasantview simply insisted to an impasse on a Under the circumstances of this case, I am persuaded that change in the collection-clause, a non-mandatory subject, Respondent was not obligated to abide by so much of the violating its duty to negotiate the mandatory subjects in good contract which related to the agreed-upon mandatory faith. As this severance of the subjects does not reflect the subjects. The record . . . reveals that the nonmandatory evidence regarding Pleasantview’s negotiation stance, we subjects of bargaining advanced by Respondent as a cannot agree. condition for executing a collective-bargaining agreement were part of one collective-bargaining The NLRB itself has repeatedly recognized the package and were an essential quid pro quo for permissibility of linking mandatory and non-mandatory Nos. 01-2288/2533 Pleasantview Nursing 21 22 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB Respondent’s contract proposal. It is for this reason that mandatory and non-mandatory subjects are linked, an I find that during the time material herein Respondent unbridgeable disagreement on the non-mandatory subjects and the Union had not reached agreement on all of the may make agreement on the mandatory subjects more terms of a collective-bargaining agreement and for this difficult, or even lead to a genuine impasse on the mandatory reason I shall recommend that this allegation be subjects which would not exist if there had been agreement on dismissed. the non-mandatory subjects. However, that reflects no more
than the necessary economic relationship that may exist Id. at 18 (citing Nordstrom ; John Nickels & Leonard Whitney , between the subjects, which was recognized as valid in 171 N.L.R.B. 1491 (1968); and N.C. Furniture , 121 N.L.R.B. Nordstrom . 229 N.L.R.B. at 601. 41 (1958)). Finally, in Good GMC , 267 N.L.R.B. 583 (1983), the Board concluded in similar circumstances that the Such is the case here. Pleasantview was concerned that the employer had “neither failed to execute an agreed-upon reduced net wages received by employees because of the contract nor insisted to impasse on the inclusion of a deduction of union initiation fees would render its pay nonmandatory subject of bargaining in the contract.” Id. at package uncompetitive with those offered by other nursing 585. homes that did not have to deduct union initiation fees.
Pleasantview saw the elimination of the collection clause, or Permitting labor and management negotiators to link suspension until competitors operated under similar clauses, mandatory and non-mandatory subjects in proposed package as one way of alleviating this concern. An alternative, and deals does not eradicate the distinction. The negotiators from the point of view of Pleasantview equivalent, solution remain enjoined to negotiate on mandatory subjects, but need was replacement of the union-shop clause with a not do so on non-mandatory subjects. Disagreement on non- maintenance-of-membership clause. mandatory subjects only still cannot lead to a valid impasse:
Under a maintenance-of-membership provision, new hires Circumstances may . . . exist where a party unlawfully could choose whether to join the Union and pay the initiation insists on a nonmandatory subject’s inclusion at a time fees. To those who declined membership in the Union, the when all other matters have previously, and independent pay package would be the same as without a collection clause of the outstanding nonmandatory subject, been agreed and hence as attractive as those of competitors without upon. But whether such insistence amounts not only to collection clauses. Those new hires who chose to join the a refusal to bargain in good faith but, further, as Union, and therefore paid the initiation fee, would do so justification for compelling that party to execute so much voluntarily and hence presumably regarded the package of of the contract as relates to the agreed-upon mandatory pay (reduced by the initiation fee) plus Union membership to subjects is not . . . an issue . . . where it is clear that those
be at least equivalent to the full pay package without Union nonmandatory subjects proposed by Respondent were membership. part of a package containing the wage proposal. For both groups of new hires, the collection clause would Nordstrom , 229 N.L.R.B. at 602 (citing S. Cal. Pipe Trades no longer present a deterrence against coming to work for Dist. Council No. 16 , 167 N.L.R.B. 1004 (1967)); see also Pleasantview. Therefore Pleasantview’s alternative offers Good GMC , 267 N.L.R.B. at 584. Admittedly, where during the labor negotiations represented two reasonably Nos. 01-2288/2533 Pleasantview Nursing 23 24 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB equivalent ways of accommodating its needs. The linkage In the present case, Pleasantview declared the existence of arose organically out of the economic relationship between an impasse in the negotiation session on September 17 and the mandatory and non-mandatory subjects and was not an unilaterally implemented its final offer on September 22. The attempt to make an end-run around the distinction between NLRB, though it erroneously blames the impasse on failure mandatory and non-mandatory subjects. Hence it was to reach agreement on the non-mandatory issue of the permissible. Moreover, neither of Pleasantview’s offers with collection clause, concedes the existence of impasse. Hence, regard to the collection clause was outlandish. Both would the sole remaining question is whether the impasse was have preserved the de facto , if not the de jure , status quo. invalid because it was brought about by Pleasantview’s Hence they do not even constitute evidence of bad faith on the failure to bargain in good faith. The NLRB points to part of Pleasantview, and no unfair labor practice was Pleasantview’s unfair labor practices as evidence of bad faith. committed. However, there is no “presumption that an employer’s unfair
labor practice automatically precludes the possibility of E meaningful negotiations and prevents the parties from reaching a good faith impasse.” NLRB v. Cauthorne , 691 The final unfair labor practice alleged was the F.2d 1023, 1025 (D.C. Cir. 1982) (citing Rayner v. NLRB , implementation of Pleasantview’s final offer without the 665 F.2d 970, 976-78 (9th Cir. 1982)). “To find otherwise existence of a valid impasse. “[A]n employer commits an would reflect ‘an impermissibl[e] punitive justification for unfair labor practice if, without bargaining to impasse, it continuing liability when good faith negotiations between the effects a unilateral change of an existing term or condition of parties have exhausted the prospects of concluding an employment.” Litton Fin. , 501 U.S. at 198 (citing Katz ). agreement.’” La Porte Transit Co. v. NLRB , 888 F.2d 1182, Impasse is defined as “that point at which the parties have 1186 (7th Cir. 1989) (quoting Cauthorne , 691 F.2d at 1025). exhausted the prospects of concluding an agreement and “[A]n employer’s unilateral change in wages or working further discussions would be fruitless.” Advanced conditions, while perhaps constituting some evidence Lightweight Concrete Co. , 484 U.S. at 543 n.5 (quoting concerning the good faith of his subsequent overtures, is not Advanced Lightweight Concrete Co. , 779 F.2d 497, 500 n.3 dispositive.” Cauthorne , 691 F.2d at 1026 n.5 (citing NLRB (9th Cir. 1985)). “While that state of affairs that constitutes v. Pac. Grinding Wheel Co. , 572 F.2d 1343, 1348 (9th Cir. an impasse is not subject to precise definition, at least it 1978)). Where the employer’s “unlawful conduct away from encompasses the notion that both sides are aware of precisely the bargaining table did not contribute to the deadlock in what is at issue and that they have made more than a negotiations,” the impasse is not invalidated. Litton Sys. , 300 perfunctory attempt to reach a resolution.” Blue Grass
N.L.R.B. 324, 333 (1990).
Provision Co. v. NLRB , 636 F.2d 1127, 1130 (6th Cir. 1980) (citing Taft Broad. Co. , 163 N.L.R.B. 475 (1967)). “Absent In the present case, we have rejected the NLRB’s two major a valid, good-faith impasse , a company’s [unilateral unfair labor practices allegations regarding the negotiations: implementation] constitute[s] a breach of its duty to bargain (1) insistence to impasse on modification of the collection under § 8(a)(5) and (d) of the National Labor Relations Act.” clause; and (2) failure to negotiate in good faith with respect NLRB v. Brown-Graves Lumber Co. , 949 F.2d 194, 198 (6th to the holiday and pension buy-backs. The remaining unfair Cir. 1991) (emphasis added) (citing NLRA § 8(a)(5)&(d), 29 labor practices, the increase of some starting wages during the U.S.C. § 158(a)(5)&(d); Katz , 369 U.S. at 743-48).
negotiations and the failure to collect union initiation fees Nos. 01-2288/2533 Pleasantview Nursing 25 26 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB during the six months preceding the impasse, “involved minor support. To “withdraw recognition of a union, an employer topics only and [were] far from crucial to the failure of the has the burden of demonstrating (1) that the union in fact did parties to reach an agreement.” Litton Sys. , 300 N.L.R.B. at not enjoy majority support; or (2) that it had a good-faith 333. The wage increase affected only six out of seventy-eight belief, founded on a sufficient objective basis, that the union employees and was so insignificant that the Union only no longer represented a majority of the employees.” learned of it weeks later from Pleasantview. The Union’s Columbia Portland Cement Co. v. NLRB , 979 F.2d 460, 464 response when it did learn of the increase is also instructive. (6th Cir. 1992) (citing NLRB v. Curtin Matheson Scientific, While, as we explained above, the Union did not clearly and Inc. , 494 U.S. 775, 787 (1990)). “To prove an actual lack of unmistakably consent to the increase or waive its right to majority support, the employer must make a numerical bargain on the issue, neither did it strenuously object, as showing that a majority of employees opposed the union as of might have been expected if it felt that this unilateral change the date that union recognition was withdrawn.” NLRB v. seriously undermined its bargaining position. Nor did this Hollaender Mfg. Co. , 942 F.2d 321, 325 (6th Cir. 1991). To change remove the incentive for Pleasantview to continue to sustain the burden of proving good faith belief, the employer negotiate in good faith, as the NLRB contends. Pleasantview must supply “objective considerations which are clear, cogent sought a substantial wage increase for all seventy-eight and convincing.” Columbia Portland Cement Co. , 979 F.2d represented employees. A wage increase for a handful of at 464 (quoting NLRB v. Flex Plastics, Inc. , 726 F.2d 272, recent employees might have slightly and temporarily 275 (6th Cir. 1984)). decreased the pressure on Pleasantview to reach agreement
Pleasantview bases its contention that the Union had lost immediately, but it did not solve its long-term problem. support of a majority of its members on the fact that the Therefore it is not surprising that negotiations between the September 22 strike was not honored by the large majority of Union and Pleasantview continued along the same lines for the represented employees, resulting in its collapse after one more than a month after the Union learned of the wage shift, and on Pleasantview’s receipt, no later than September increase. As to Pleasantview’s failure to remit the initiation 23, of letters of withdrawal from the Union by more than fees, it merely continued a long-standing practice in which the three-quarters of the represented employees. The NLRB Union had acquiesced for more than a decade with only a objects that neither of these occurrences conclusively single brief objection more than a year before the
demonstrates that a majority of the represented employees negotiations. Neither of these unfair labor practices was intended to end representation by the Union. See Retired sufficient to taint the negotiations to a degree as to call into Persons Pharmacy v. NLRB , 519 F.2d 486, 491 (2d Cir. question Pleasantview’s good faith. Therefore, a valid 1975) (stating that the issue is “not how many employees impasse existed on September 17 and Pleasantview was belonged to the union or paid dues but rather whether a within its rights to implement its final offer on September 22.
majority desired union representation for purposes of III collective bargaining.”). See also NLRB v. Wallkill Valley Gen. Hosp. , 866 F.2d 632, 637 (3d Cir. 1989) (citing Retired In the alternative to a finding of a valid impasse, in Section Persons Pharmacy , 519 F.2d at 491, for the proposition that II. E, above, Pleasantview also argues that it was under no there is “a clear distinction between union membership and duty to recognize or negotiate with the Union after the majority support for collective bargaining representatives”). collapse of the strike because the Union has lost majority Nos. 01-2288/2533 Pleasantview Nursing 27 28 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB The NLRB contends that the employees could have crossed 117 F.3d 1454, 1458 (D.C. Cir. 1997) (quoting Williams the Union’s picket lines out of economic necessity while still Enters. v. NLRB , 956 F.2d 1226, 1236 (D.C. Cir. 1992)), aff’g desiring representation by the Union and that almost all the in part and remanding in part 322 N.L.R.B. 175 (1996); see letters of withdrawal merely ended membership in the Union, also Master Slack , 271 N.L.R.B. at 84 (citing Olson Bodies , possibly to avoid Union fines, while not explicitly terminating 206 N.L.R.B. 779 (1973)), for a similar list of factors). Union representation. However, these are mere theoretical With respect to the unfair labor practices on which we grant possibilities unsupported by record evidence. Instead, the enforcement (Pleasantview’s breach of the collection clause evidence shows that an overwhelming majority of the and the increase of the wages of six employees), these factors represented employees, when apprised of their Union’s and strongly point away from finding a causal connection with the their employer’s bargaining positions, refused to support the
termination of Union representation. The breach of the strike and took the opportunity to work under the terms collection clause did not have a detrimental effect on the proposed by Pleasantview. Short of a decertification petition employees; it increased their take-home pay. Nor would it signed by a majority of the employees, it is difficult to induce employee dissatisfaction with the Union; to the imagine clearer evidence that most represented employees contrary, employees would be more likely to approve of the rejected further representation by the Union. At the very Union if they could enjoy its benefits without deduction of the least, these facts supported by clear, cogent, and convincing initiation fees. Nor is there any argument that this breach evidence Pleasantview’s good faith belief that the Union no would disrupt employee morale or discourage membership in longer represented a majority of employees.
the Union. Arguably, Pleasantview’s failure to remit the Next, the NLRB argues that even if a majority of initiation fees did deter the Union’s organization activities by represented employees wished to terminate their depriving it of funds. However, the decision of most representation by the Union, this termination was tainted by employees to quit the Union over the course of less than a Pleasantview’s unfair labor practices. “[A]n employer may week, cannot plausibly be attributed to this lack of funding, not avoid its duty to bargain by relying on any loss of which had persisted with the Union’s acquiescence for over majority status attributable to his own unfair labor practices.” a decade. Similarly, with respect to the wage increase: It did Master Slack Corp. , 271 N.L.R.B. 78, 84 (1984) (citing not have a detrimental effect on any employees, could not Pittsburgh & New England Trucking Co. , 249 N.L.R.B. 833, have caused employee dissatisfaction with the Union, 836 (1980)). For the disaffection to be attributable to the disrupted employee morale, discouraged Union membership, unfair labor practices, they “must have caused the employee or deterred organization activities. Therefore, we conclude disaffection . . . or at least had a ‘meaningful impact’ in that there was no causal connection between Pleasantview’s bringing about that disaffection.” Master Slack , 271 N.L.R.B. unfair labor practices and the Union’s loss of support. Hence at 84 (quoting Deblin Mfg. Corp. , 208 N.L.R.B. 392, 402 Pleasantview was entitled to cease recognizing or bargaining (1974)). Factors to weigh are “whether the unfair labor with the Union no later than September 23 and is not required practice ‘tended to (1) have a detrimental or lasting effect to reopen bargaining. upon employees; (2) cause employee dissatisfaction with the Finally, Pleasantview contends that the equitable doctrine union; or (3) disrupt employee morale, deter their of laches prevents enforcement of the NLRB’s order against organization activities, and discourage their membership in the union.’” Lee Lumber & Bldg. Material Corp. v. NLRB , Nos. 01-2288/2533 Pleasantview Nursing 29 30 Pleasantview Nursing Nos. 01-2288/2533
Home v. NLRB Home v. NLRB it. [5] “[A]t some point laches [will] apply against the Board for The matter is REMANDED to the NLRB for further inordinate delay in bringing an action.” NLRB v. Mich. proceedings and orders not inconsistent with this opinion. Rubber Prods. , 738 F.2d 111, 113 (6th Cir. 1984). However, where “there is no allegation that the delay has in any way prejudiced respondent, or given the Board, or union, an unfair advantage,” the “doctrine of laches will not apply.” Ibid. (citing Armco, Inc. v. Armco Burglar Alarm Co. , 693 F.2d 1155, 1161 (5th Cir. 1982), and NLRB v. Norfolk Shipbuilding and Drydock Corp. , 172 F.2d 813 (4th Cir. 1949)). Pleasantview’s sole allegation of prejudice was that the Board’s order would require it to reopen negotiations with the Union more than five years after the Union lost support of a large majority of covered employees. As this part of the NLRB’s order is reversed by our decision here, the question of laches is moot. With respect to the parts of the NLRB’s order affirmed here, there is no issue of unfair prejudice.
IV
For the foregoing reasons, we AFFIRM the NLRB’s conclusion with respect to Pleasantview’s non-collection of the initiation fees and with respect to the increase of some starting wage during the 1996 negotiations. We REVERSE the NLRB’s conclusion with respect to Pleasantview’s alleged failure to negotiate the holiday and pension provision, the alleged insistence to impasse regarding the collection clause, and the implementation of the final offer without existence of a valid impasse. Therefore, Pleasantview’s petition for review is GRANTED in part and denied in part, the NLRB’s cross-petition for enforcement is granted in part and DENIED in part, and the NLRB’s order is VACATED .
NOTES
[*] The Honorab le George C. Steeh, United States District Judge for the Decided and Filed: December 10, 2003 Eastern District of Michigan, sitting by designation. 1 Nos. 01-2288/2533 Pleasantview Nursing 3 4 Pleasantview Nursing Nos. 01-2288/2533 Home v. NLRB Home v. NLRB requirement in previous CBAs to remit Union initiation fees; the initiation fees and refunded those initiation fees still in a unilateral increase in wages of some employees during the Pleasantview’s possession. final negotiations; refusal to negotiate holiday and pension
[2] In Certified Corp. , the Ninth Circuit also considered the question whether an oral modification of a written CBA was legally effective in the face of a zipper clause similar to the one at issue here. That court, relying
[3] on the common-law principle that oral modification is always permissible, A separate issue arises with respect to the period from May 31, a zipper clause notwithstand ing, concluded that it was. Certified Corp. , when the final written CBA exp ired, through September 22, when 597 F.2d at 1271. The District of Columbia Circuit rejected this Pleasantview implemented its final offer. During this period, the parties conclusion, relying on the UCC principle that gives effect to zipper were operating under an oral extension of the final written CBA. Because clauses. Martinsville Nylon Employees , 969 F.2d at 126 8. W e agree with an oral agreement that cannot be mo dified excep t in writing would at least the District of Columbia Circuit both because it represents the better be a curio sity, arguab ly this oral ex tension implicitly expunged the final policy and because the statement in Certified Corp. was mere dicta. written C BA ’s zipper clause. Hence, during this period, the parties may W hile Certified Corp. refers to an “oral modification,” the oral agreement have been able to suspend the collection clau se by o ral agre ement. there was in fact a new agreement replacing the original written However, there is no evidence tha t they did so during this period and the agreement which at the time had already expired, mooting its zipper Union, which by then had begun to press for enforcement of the collection clause. clause, would have been unlikely to agree to its suspension.
[5] There is no legal bar to delayed enforcement. “Inord inate delay in any case is regrettable, but Congress has introduced no time limitation into the Act excep t that in § 10(b),” which requires a charge to occur within six month of the alleged unfair labor practice. Katz , 369 U.S. at 748 n.16; N LRA § 10(b), 29 U .S.C. § 160(b).
