      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2       Pleasantview Nursing                     Nos. 01-2288/2533
   ELECTRONIC CITATION: 2003 FED App. 0438P (6th Cir.)           Home v. NLRB
               File Name: 03a0438p.06
                                                          Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
                                                                       STEEH, District Judge.*
UNITED STATES COURT OF APPEALS
                                                                                _________________
             FOR THE SIXTH CIRCUIT
               _________________                                                      COUNSEL

PLEASANTVIEW NURSING           X                         ARGUED:            Maynard A. Buck, BENESCH,
HOME, INC.,                     -                        FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio,
                                                         for Petitioner. Sharon I. Block, NATIONAL LABOR
                   Petitioner/ -                         RELATIONS BOARD, Washington, D.C., for Respondent.
                                -   Nos. 01-2288/2533
           Cross-Respondent, -                           ON BRIEF: Maynard A. Buck, Ann E. Knuth, BENESCH,
                                 >                       FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio,
                                ,
          v.                                             for Petitioner. Sharon I. Block, Aileen A. Armstrong, Bridget
                                -                        O’Connor, NATIONAL LABOR RELATIONS BOARD,
                                -
NATIONAL LABOR RELATIONS -                               Washington, D.C., for Respondent.
BOARD ,                         -                                               _________________
                 Respondent/ -
             Cross-Petitioner, -                                                    OPINION
                                -                                               _________________
                                -
TEXTILE PROCESSORS,             -                           BOGGS, Chief Judge. Petitioner Pleasantview Nursing
SERVICE TRADES, HEALTH          -                        Home, Inc. (“Pleasantview”), operated a nursing home
CARE , PROFESSIONAL AND         -                        organized by the Textile Processors, Service Trades, Health
TECHNICAL EMPLOYEES’            -                        Care, Professional and Technological Employees
                                -                        International Union, Local No. 1 (“Union”). After the 1996
UNION, LOCAL NO . 1,            -                        negotiations between Pleasantview and the Union for a new
                  Intervenor. -                          collective bargaining agreement (“CBA”) broke down,
                               N                         Pleasantview declared an impasse and unilaterally imposed its
    On Petition for Review and Cross-Application         final offer. The National Labor Relations Board (“NLRB”),
          for Enforcement of an Order of the             acting on a Union charge, found Pleasantview to have
            National Labor Relations Board.              engaged in a series of unfair labor practices in violation of the
                   No. 8-CA-28519.                       National Labor Relations Act (“NLRA”): breach of the

               Argued: March 25, 2003
                                                             *
                                                              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
buy-backs in good faith; insistence to an impasse on a change       On April 25, 1996, the Union and Pleasantview began
in the initiation fee provision; and unilateral implementation   negotiations for a new CBA covering the seventy-eight
of Pleasantview’s final offer without a valid impasse.           employees represented by the Union. As Pleasantview was
Pleasantview petitions this court for review and the NLRB        facing a serious labor shortage, one of its aims in these
cross-petitions for enforcement of its order to remedy these     negotiations was to provide for a significant increase in the
alleged unfair labor practices. We enforce the order in part     pay of the represented employees. Pleasantview’s initial
and grant the petition for review in part.                       proposal was to increase hourly wages and to finance this
                                                                 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
response, the Union called a strike for that date and filed an                                  II
unfair labor practices charge with the NLRB.               On
September 19, Pleasantview wrote a letter to its represented         The NLRB has jurisdiction to prevent unfair labor
employees explaining that it would implement its final offer      practices. NLRA § 10(a), 29 U.S.C. § 160(a). This court has
and informing employees that, should they not wish to             jurisdiction over petitions to review or enforce orders issued
participate in the strike, they could avoid union fines by        by the NLRB. NLRA § 10(e), 29 U.S.C. § 160(e). “We
withdrawing from the Union. On September 22, the Union            review the [NLRB’s] conclusions of law de novo . . . If the
struck and began picketing Pleasantview. However, a large         [NLRB] errs in determining the proper legal standard, we
majority of represented Pleasantview employees chose to           may refuse enforcement on the grounds that the order has no
cross the picket line that consisted of three Pleasantview        reasonable basis in law.” NLRB v. Good Shepherd Home, 145
employees and several Union officials. The strike collapsed       F.3d 814, 816 (6th Cir. 1998) (quoting NLRB v. Pentre Elec.,
after one shift. By the time the strike collapsed, more than      998 F.2d 363, 368 (6th Cir. 1993)). We review the NLRB’s
three-quarters of Pleasantview’s represented employees had        factual findings under a deferential standard. “The findings
informed Pleasantview of their withdrawal from the Union.         of the Board with respect to questions of fact if supported by
                                                                  substantial evidence on the record considered as a whole shall
   On April 30, 1997, the General Counsel of the NLRB,            be conclusive.” NLRA § 10(e), 29 U.S.C. § 160(e);
acting on the Union’s charge, filed an unfair labor practices     Universal Camera Corp. v. NLRB, 340 U.S. 474, 493 (1951);
complaint against Pleasantview. On March 20, 1998, an             NLRB v. St. Francis Healthcare Ctr., 212 F.3d 945, 951-52
NLRB Administrative Law Judge (“ALJ”) concluded that              (6th Cir. 2000). “Evidence is substantial when it is adequate,
Pleasantview had violated the NLRA by refusing to remit the       in a reasonable mind, to uphold the [NLRB’s] decision.” St.
initiation fees to the Union, unilaterally raising the wages of   Francis, 212 F.3d at 952. (Internal quotation omitted).
new and recently hired employees during the course of the         However, even when reviewing factual questions, we will not
negotiations, and by implementing its last offer without          serve “as a mere rubber stamp for the administrative agency.”
reaching a valid impasse. Pleasantview and the general            NLRB v. Cook Family Foods, 47 F.3d 809, 816 (6th Cir.
counsel appealed to a three-judge panel of the NLRB. On           1995) (quoting YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir.
August 27, 2001, this panel, over a partial dissent of the        1993)).
chairman of the NLRB, concluded that Pleasantview had
violated the NLRA in the manner cited by the ALJ and also            The NLRA protects the right of workers to unionize and
by insisting to impasse on the elimination of the initiation      bargain collectively. “Employees shall have the right to
fees and by refusing to negotiate in good faith with respect to   self-organization, to form, join, or assist labor organizations,
the buy-back of the pension and paid holiday provisions. 335      to bargain collectively through representatives of their own
N.L.R.B. No. 77. The NLRB ordered Pleasantview to cease           choosing.” NLRA § 7, 29 U.S.C. § 157. “[F]or an employer
and desist from these practices, to rescind the imposition of     . . . to interfere with, restrain, or coerce employees in the
its final offer, to make employees whole, and to reopen           exercise of the rights guaranteed in” § 7 of the NLRA is an
bargaining with the Union. Before this court now are              unfair labor practice. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1).
Nos. 01-2288/2533                  Pleasantview Nursing        7    8       Pleasantview Nursing                      Nos. 01-2288/2533
                                         Home v. NLRB                       Home v. NLRB

So is “refus[al] to bargain collectively with the                   in effect from June 1985 through May 1996.1 “It is well
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
                               A                                    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.”).
  The first unfair labor practice alleged is Pleasantview’s         Pleasantview contends whatever contractual duty to collect the fees
                                                                    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 CBA . 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
but would instead invalidate and nullify the written                            final CBA at issue here, its unambiguous language controls.3
agreement.”); NDK Corp., 278 N.L.R.B. 1035, 1035 (1986)
(“National labor policy requires that evidence of oral                            Pleasantview also argues that the NLRB overstepped its
agreements be unavailing to vary the provisions of a written                    authority in attempting to enforce the collection clause. “The
collective-bargaining agreement valid on its face.”); but see                   Board is not the proper forum for parties seeking to remedy
Certified Corp. v. Haw. Teamsters & Allied Workers, Local                       an alleged breach of contract or to obtain specific
996, 597 F.2d 1269, 1270 (9th Cir. 1979) (holding that “a                       enforcement of its terms.” United Tel. Co. of the W., 112
written collective bargaining agreement can be orally                           N.L.R.B. 779, 782 (1955) (citing Ass’n of Westinghouse
modified”). However, we need not decide whether oral                            Salaried Employees v. Westinghouse Elec. Corp., 348 U.S.
modification in general is impermissible because all CBAs                       437, 444 n.2 (1955)). Pleasantview’s general point is well-
here contained an express zipper clause prohibiting                             taken; precedent is clear that courts, not the NLRB, are the
modification except by written agreement executed by both                       proper forum for enforcement of contracts, including CBAs.
parties. Such zipper clauses are legally effective. See                         In general “a mere breach of the contract is not in itself an
Martinsville Nylon Employees Council Corp. v. NLRB, 969                         unfair labor practice,” and hence not within the jurisdiction of
F.2d 1263, 1267-68 (D.C. Cir. 1992); cf. St. Vincent’s                          the NLRB. NCR Corp., 271 N.L.R.B. 1212, 1213 n.6 (1984);
Hospital, 320 N.L.R.B. at 44 (giving effect to oral                             see also NLRB v. C & C Plywood Corp., 385 U.S. 421, 427
modification of CBA where zipper clause did not require                         (1967) (“Congress determined that the Board should not have
modifications to be in writing).2 Because neither an oral                       general jurisdiction over all alleged violations of collective
agreement, nor an unsigned letter that by its own terms only                    bargaining agreements.”). However, precedent is equally
                                                                                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
    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.
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,
the Board did not err in finding an unfair labor practice.             Pleasantview contends that these wage increases were
                                                                    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
    4
                                                                             contract; Clarkwood Corp. considers the waiver of a union’s
      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
constitutes an emergency. Clearly some genuine emergencies can be            negotiation, a party need not respond to every statement with
anticipated well in advance.                                                 a forceful rejection and insistence on further bargaining;
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
                              C                                  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
July 25 session indicates that the “non-negotiable” statement        The fourth unfair labor practice alleged was Pleasantview’s
was mere rhetoric and not an accurate reflection of                insistence to the point of impasse regarding the collection of
Pleasantview’s stance. Negotiations continued for almost two       initiation fees. “[I]nternal affairs of labor organizations are
months after July 25. Pleasantview’s statement that it “just       not ‘an aspect of the relationship between the employer and
couldn’t come up with a different plan to get the fifty cents”     the employees,’ but rather, by statutory definition are
wage increase, cited by the NLRB as further evidence of bad        encompassed by the relationship between labor organizations
faith, in fact indicates the opposite. It conveys a willingness    and employees. It follows that subjects embraced by the
to listen to alternative ways of reaching agreement. Cf.           internal affairs proviso are not mandatory ones.” Serv.
United Clay Mines Corp., 219 F.2d at 125 (citing NLRB v.           Employees, Local 535, 287 N.L.R.B. 1223, 1225-26 (1988)
Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1952), for the              (quoting Allied Chem. Workers, Local 1 v. Pittsburgh Plate
proposition that “[l]ack of good faith may be found from a         Glass Co., 404 U.S. 157, 178 (1971)), enforced sub nom. N.
refusal to discuss certain subjects.”). That ultimately neither    Bay Dev. Disabilities Servs. v. NLRB, 905 F.2d 476 (D.C. Cir.
the Union nor Pleasantview was able to “come up with a             1990). “One subject specifically regarded by Congress as an
different plan” acceptable to both is evidence of impasse, not     internal affair of labor organizations is that of the amount of
bad faith. Where the overall bargaining conduct indicates          fees established and assessed on employees.” Serv.
good faith and willingness to negotiate, a stray statement         Employees, 287 N.L.R.B. at 1226; accord N. Bay Dev.
indicating inflexibility will not overcome the general tenor of    Disabilities Servs., 905 F.2d at 478. Hence the collection
good faith negotiation. See Indus. Elec. Reels, 310 N.L.R.B.       clause was not a mandatory subject of bargaining. Ibid.
1069, 1069, 1072 (1993).                                           However, “[u]nion security is properly a ‘condition of
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
F.2d 130, 133 (9th Cir. 1949). Hence the question of whether       That a party may not lawfully insist upon the inclusion of
the CBA would contain a union-shop or a maintenance-of-            proposals nonmandatory in nature is, of course, clear.
membership provision was a mandatory subject. As to non-           But the General Counsel’s case moves, in our view,
mandatory matters, “each party is free to bargain or not to        beyond that proposition to the extent that it negates the
bargain.” Fibreboard, 379 U.S. at 210 (quoting NLRB v.             considerable relationships which may exist between both
Wooster Div. of Borg-Warner, 356 U.S. 342, 349 (1958)).            mandatory and nonmandatory subjects. Certainly,
However, neither party may “refuse to enter into agreements        nonmandatory subjects . . . can, as a function of cost,
on the ground that they do not include some proposal which         bear upon a party’s wage-increase proposals [, a
is not a mandatory subject of bargaining.” Borg-Warner, 356        mandatory subject]. To say that the proponent of the
U.S. at 349. “[S]uch conduct is, in substance, a refusal to        [non-mandatory subject proposal] cannot insist upon the
bargain about the subjects that are within the scope of            inclusion of such a proposal means no more than that. It
mandatory bargaining.” Ibid.; see also Taylor Warehouse            does not mean that once, out of necessity, the
Corp. v. NLRB, 98 F.3d 892, 901 (6th Cir. 1996) (“The              nonmandatory proposal is removed from the table, the
parties may also bargain about any other lawful proposal, but      proponent of the nonmandatory subject is not permitted
may not insist to impasse on proposals concerning                  to alter those proposals which are mandatory in light of
non-mandatory subjects of bargaining.”).                           the removal of the nonmandatory subject.

  Pleasantview’s negotiation stance combined offers with         Id. at 601. The ALJ in Laredo Packing Co., 254 N.L.R.B. 1
respect to a mandatory subject, union security, and with         (1981), whose rulings, findings, and conclusions were
respect to a non-mandatory subject, the collection clause. It    affirmed by the Board, stated that:
offered alternatively to agree to a union-shop provision in
return for an elimination or modification of the collection        The question presented herein is whether the Union
clause or to agree to the collection clause in return for a        could effectively conclude negotiations on December 14
change from a union-shop provision to a maintenance-of-            by agreeing to those demands of Respondent which
membership provision. The NLRB in its analysis chose to            constitute mandatory subjects of bargaining, even though
sever the mandatory and the non-mandatory subjects. In that        there was no agreement on Respondent’s demands
analysis, Pleasantview simply insisted to an impasse on a          encompassing the nonmandatory bargaining subjects.
change in the collection-clause, a non-mandatory subject,          Under the circumstances of this case, I am persuaded that
violating its duty to negotiate the mandatory subjects in good     Respondent was not obligated to abide by so much of the
faith. As this severance of the subjects does not reflect the      contract which related to the agreed-upon mandatory
evidence regarding Pleasantview’s negotiation stance, we           subjects. The record . . . reveals that the nonmandatory
cannot agree.                                                      subjects of bargaining advanced by Respondent as a
                                                                   condition for executing a collective-bargaining
  The NLRB itself has repeatedly recognized the                    agreement were part of one collective-bargaining
permissibility of linking mandatory and non-mandatory              package and were an essential quid pro quo for
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
immediately, but it did not solve its long-term problem.              Pleasantview bases its contention that the Union had lost
Therefore it is not surprising that negotiations between the        support of a majority of its members on the fact that the
Union and Pleasantview continued along the same lines for           September 22 strike was not honored by the large majority of
more than a month after the Union learned of the wage               the represented employees, resulting in its collapse after one
increase. As to Pleasantview’s failure to remit the initiation      shift, and on Pleasantview’s receipt, no later than September
fees, it merely continued a long-standing practice in which the     23, of letters of withdrawal from the Union by more than
Union had acquiesced for more than a decade with only a             three-quarters of the represented employees. The NLRB
single brief objection more than a year before the                  objects that neither of these occurrences conclusively
negotiations. Neither of these unfair labor practices was           demonstrates that a majority of the represented employees
sufficient to taint the negotiations to a degree as to call into    intended to end representation by the Union. See Retired
question Pleasantview’s good faith. Therefore, a valid              Persons Pharmacy v. NLRB, 519 F.2d 486, 491 (2d Cir.
impasse existed on September 17 and Pleasantview was                1975) (stating that the issue is “not how many employees
within its rights to implement its final offer on September 22.     belonged to the union or paid dues but rather whether a
                                                                    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
possibilities unsupported by record evidence. Instead, the            With respect to the unfair labor practices on which we grant
evidence shows that an overwhelming majority of the                enforcement (Pleasantview’s breach of the collection clause
represented employees, when apprised of their Union’s and          and the increase of the wages of six employees), these factors
their employer’s bargaining positions, refused to support the      strongly point away from finding a causal connection with the
strike and took the opportunity to work under the terms            termination of Union representation. The breach of the
proposed by Pleasantview. Short of a decertification petition      collection clause did not have a detrimental effect on the
signed by a majority of the employees, it is difficult to          employees; it increased their take-home pay. Nor would it
imagine clearer evidence that most represented employees           induce employee dissatisfaction with the Union; to the
rejected further representation by the Union. At the very          contrary, employees would be more likely to approve of the
least, these facts supported by clear, cogent, and convincing      Union if they could enjoy its benefits without deduction of the
evidence Pleasantview’s good faith belief that the Union no        initiation fees. Nor is there any argument that this breach
longer represented a majority of employees.                        would disrupt employee morale or discourage membership in
                                                                   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
union; or (3) disrupt employee morale, deter their                   Finally, Pleasantview contends that the equitable doctrine
organization activities, and discourage their membership in        of laches prevents enforcement of the NLRB’s order against
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.


    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).
