Pleasantview Nursing Home, Inc. v. National Labor Relations Board

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0438P (6th Cir.)
File Name: 03a0438p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
PLEASANTVIEW NURSING
HOME, INC.,
Petitioner/
Cross-Respondent,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent/
Cross-Petitioner,
TEXTILE PROCESSORS,
SERVICE TRADES, HEALTH
CARE, PROFESSIONAL AND
TECHNICAL EMPLOYEES’
UNION, LOCAL NO. 1,
Intervenor.
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Nos. 01-2288/2533
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
No. 8-CA-28519.
Argued: March 25, 2003
Decided and Filed: December 10, 2003
2 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
*The Honorab le George C. Steeh, United States District Judge for the
Eastern District of Michigan, sitting by designation.
Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
STEEH, District Judge.*
_________________
COUNSEL
ARGUED: Maynard A. Buck, BENESCH,
FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio,
for Petitioner. Sharon I. Block, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent.
ON BRIEF: Maynard A. Buck, Ann E. Knuth, BENESCH,
FRIEDLANDER, COPLAN & ARONOFF, Cleveland, Ohio,
for Petitioner. Sharon I. Block, Aileen A. Armstrong, Bridget
O’Connor, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
BOGGS, Chief Judge. Petitioner Pleasantview Nursing
Home, Inc. (“Pleasantview”), operated a nursing home
organized by the Textile Processors, Service Trades, Health
Care, Professional and Technological Employees
International Union, Local No. 1 (“Union”). After the 1996
negotiations between Pleasantview and the Union for a new
collective bargaining agreement (“CBA”) broke down,
Pleasantview declared an impasse and unilaterally imposed its
final offer. The National Labor Relations Board (“NLRB”),
acting on a Union charge, found Pleasantview to have
engaged in a series of unfair labor practices in violation of the
National Labor Relations Act (“NLRA”): breach of the

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requirement in previous CBAs to remit Union initiation fees;
a unilateral increase in wages of some employees during the
final negotiations; refusal to negotiate holiday and pension
buy-backs in good faith; insistence to an impasse on a change
in the initiation fee provision; and unilateral implementation
of Pleasantview’s final offer without a valid impasse.
Pleasantview petitions this court for review and the NLRB
cross-petitions for enforcement of its order to remedy these
alleged unfair labor practices. We enforce the order in part
and grant the petition for review in part.
I
Pleasantview operates a nursing home on the west side of
Cleveland. In 1984, the Union was certified as the collective
bargaining representative of Pleasantview’s orderlies and
other aides. The initial CBA between Pleasantview and the
Union went into effect in June 1985. This and all subsequent
CBAs contained a union-shop provision requiring all
employees covered by the CBA to join the Union and a
collection clause requiring Pleasantview to collect the
Union’s initiation fees from the employees’ pay each month.
Moreover, all CBAs contained a zipper clause stating that no
amendment is effective unless executed in writing by both
parties. Nevertheless, Pleasantview and the Union reached an
informal understanding not to enforce the collection clause
because doing so would place Pleasantview, at the time the
only organized nursing home in the area, at a competitive
disadvantage. This informal understanding was observed for
ten years until, in June 1995, the Union notified Pleasantview
that it had organized another area nursing home, Alpha Health
Center (“Alpha”). At this point, Pleasantview began
collecting the initiation fees for new hires. However, when
Pleasantview learned that while Alpha had indeed been
organized, there was no CBA requiring Alpha to collect
initiation fees, and there would be no such CBA for the
foreseeable future, Pleasantview once again ceased collecting
4 Pleasantview Nursing
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Nos. 01-2288/2533
the initiation fees and refunded those initiation fees still in
Pleasantview’s possession.
On April 25, 1996, the Union and Pleasantview began
negotiations for a new CBA covering the seventy-eight
employees represented by the Union. As Pleasantview was
facing a serious labor shortage, one of its aims in these
negotiations was to provide for a significant increase in the
pay of the represented employees. Pleasantview’s initial
proposal was to increase hourly wages and to finance this
increase partially by the elimination of three paid holidays
and the company contribution to Union-managed pension and
disability funds. In return, employees would receive access
to employer-sponsored investment and insurance plans.
Pleasantview also wished to be freed, explicitly, of its
obligation to collect initiation fees until another area nursing
home was required to do so. Alternatively, Pleasantview
offered to collect the initiation fees but only if the union-shop
clause was replaced by a maintenance-of-membership clause
requiring current members to remain in the Union but giving
new hires the option not to join. On May 31, the last written
CBA expired, but Pleasantview and the Union orally agreed
to extend the CBA while negotiations continued and to apply
the new CBA, when agreed to, retroactively to this date.
Subsequently, Pleasantview informed the Union that, because
of the labor shortage, it was going to increase pay unilaterally
for new hires while negotiations were proceeding. According
to Pleasantview, the Union negotiator nodded in response.
On July 6, Pleasantview did increase the starting hourly wage
for new employees and recently hired employees whose
wages were still below the new starting wage. This change
affected six employees.
On September 17, after twelve negotiation sessions,
Pleasantview, at the suggestion of a federal mediator involved
in the negotiations, made a final offer to the Union
incorporating the changes to the CBA that Pleasantview
sought. The Union rejected this offer and declined to present

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

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So is “refus[al] to bargain collectively with the
representatives of his employees.” NLRA § 8(a)(5), 29 U.S.C
§ 158(a)(5).
[T]o bargain collectively is the performance of the
mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation
of an agreement, or any question arising thereunder, and
the execution of a written contract incorporating any
agreement reached if requested by either party, but such
obligation does not compel either party to agree to a
proposal or require the making of a concession.
NLRA § 8(d), 29 U.S.C. § 158(d). Outside some limited
circumstances, “the duty to bargain collectively shall also
mean that no party to such contract shall terminate or modify
such contract.” NLRA § 8(d), 29 U.S.C. § 158(d).
The NLRB here alleges five instances of unfair labor
practices on the part of Pleasantview: the failure to collect and
remit initiation fees; the unilateral increase of starting wages
during the contract negotiations; the failure to negotiate with
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
without existence of a valid impasse. We review these issues
in the same order.
A
The first unfair labor practice alleged is Pleasantview’s
failure to collect union initiation fees as required by all CBAs
8 Pleasantview Nursing
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Nos. 01-2288/2533
1W hile Pleasantview never collected union initiation fees, except
briefly in 1995, the Union only sought collection for the six-month period
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
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
existed expired with the final written CBA on May 31. See Litton Fin.
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.
in effect from June 1985 through May 1996.1 “It is well
established that the duty to bargain includes a duty to check
off and remit union dues if there is a contractual basis for
doing so.” Cherry Hill Textiles, 309 N.L.R.B. 268, 269
(1992). A failure to do so is a violation of § 8(a)(5). Ibid.
Therefore Pleasantview violated § 8(a)(5) in failing to collect
the fees.
To counter this conclusion, Pleasantview points to the
consistent practice of the Union not to insist on collection of
the fees throughout most of its representation and of
Pleasantview not to do so. The basis for this practice appears
to have been an oral agreement between the Union and
Pleasantview not to enforce the collection clause until another
area nursing home either, according to the Union, was
organized by the Union or, according to Pleasantview,
actually began remitting union initiation fees. The sole
written record of this agreement was a letter from
Pleasantview to the Union stating that the collection clause
would be inoperative for the period covered by the initial
CBA. The NLRB generally frowns on oral modification of
written CBAs. See Beech & Rich, 300 N.L.R.B. 882, 882
(1990) (refusing to give effect to an alleged oral agreement
that “would not merely explain or clarify the parties’ intent

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2In 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
on the common-law principle that oral modification is always permissible,
a zipper clause notwithstand ing, concluded that it was. Certified Corp.,
597 F.2d at 1271. The District of Columbia Circuit rejected this
conclusion, relying on the UCC principle that gives effect to zipper
clauses. Martinsville Nylon Employees, 969 F.2d at 126 8. W e agree with
the District of Columbia Circuit both because it represents the better
policy and because the statement in Certified Corp. was mere dicta.
W hile Certified Corp. refers to an “oral modification,” the oral agreement
there was in fact a new agreement replacing the original written
agreement which at the time had already expired, mooting its zipper
clause.
regarding provisions of the collective-bargaining agreement
but would instead invalidate and nullify the written
agreement.”); NDK Corp., 278 N.L.R.B. 1035, 1035 (1986)
(“National labor policy requires that evidence of oral
agreements be unavailing to vary the provisions of a written
collective-bargaining agreement valid on its face.”); but see
Certified Corp. v. Haw. Teamsters & Allied Workers, Local
996, 597 F.2d 1269, 1270 (9th Cir. 1979) (holding that “a
written collective bargaining agreement can be orally
modified”). However, we need not decide whether oral
modification in general is impermissible because all CBAs
here contained an express zipper clause prohibiting
modification except by written agreement executed by both
parties. Such zipper clauses are legally effective. See
Martinsville Nylon Employees Council Corp. v. NLRB, 969
F.2d 1263, 1267-68 (D.C. Cir. 1992); cf. St. Vincent’s
Hospital, 320 N.L.R.B. at 44 (giving effect to oral
modification of CBA where zipper clause did not require
modifications to be in writing).2 Because neither an oral
agreement, nor an unsigned letter that by its own terms only
10 Pleasantview Nursing
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Nos. 01-2288/2533
3A separate issue arises with respect to the period from May 31,
when the final written CBA exp ired, through September 22, when
Pleasantview implemented its final offer. During this period, the parties
were operating under an oral extension of the final written CBA. Because
an oral agreement that cannot be mo dified excep t in writing would at least
be a curiosity, arguab ly this oral extension implicitly expunged the final
written C BA ’s zipper clause. Hence, during this period, the parties may
have been able to suspend the collection clause by oral agreement.
However, there is no evidence that they did so during this period and the
Union, which by then had begun to press for enforcement of the collection
clause, would have been unlikely to agree to its suspension.
covers the initial CBA, constitutes a valid modification of the
final CBA at issue here, its unambiguous language controls.3
Pleasantview also argues that the NLRB overstepped its
authority in attempting to enforce the collection clause. “The
Board is not the proper forum for parties seeking to remedy
an alleged breach of contract or to obtain specific
enforcement of its terms.” United Tel. Co. of the W., 112
N.L.R.B. 779, 782 (1955) (citing Ass’n of Westinghouse
Salaried Employees v. Westinghouse Elec. Corp., 348 U.S.
437, 444 n.2 (1955)). Pleasantview’s general point is well-
taken; precedent is clear that courts, not the NLRB, are the
proper forum for enforcement of contracts, including CBAs.
In general “a mere breach of the contract is not in itself an
unfair labor practice,” and hence not within the jurisdiction of
the NLRB. NCR Corp., 271 N.L.R.B. 1212, 1213 n.6 (1984);
see also NLRB v. C & C Plywood Corp., 385 U.S. 421, 427
(1967) (“Congress determined that the Board should not have
general jurisdiction over all alleged violations of collective
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

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to the contrary as both concerned not the collection of union
fees but the interpretation of clauses regulating the length of
the work week and limiting employee transfers, respectively.
Such substantive issues not directly involving union
representation were properly adjudicated in the courts. Thus,
the Board did not err in finding an unfair labor practice.
B
The second unfair labor practice alleged is Pleasantview’s
unilateral increase of starting wages during the 1996 contract
negotiations. While the final written CBA had expired at the
time of the wage increases, the parties were operating under
an oral extension of that CBA when Pleasantview
implemented this wage increase. “The Board has taken the
position that it is difficult to bargain if, during negotiations,
an employer is free to alter the very terms and conditions that
are the subject of those negotiations.” Litton Fin., 501 U.S.
at 198. “If an employer changes wages or other terms without
affording the Union an opportunity for adequate consultation,
it ‘minimizes the influence of organized bargaining’ and
emphasizes to the employees ‘that there is no necessity for a
collective bargaining agent.’” Loral Def. Sys. v. NLRB, 200
F.3d 436, 449 (6th Cir. 1999) (quoting May Dep’t Stores Co.
v. NLRB, 326 U.S. 376, 385 (1945)). Therefore, “an
employer’s unilateral change in conditions of employment
under negotiation is . . . a violation of § 8(a)(5), for it is a
circumvention of the duty to negotiate which frustrates the
objectives of § 8(a)(5) much as does a flat refusal” to
negotiate. NLRB v. Katz, 369 U.S. 736, 743 (1962); accord
Laborers Health & Welfare Trust Fund v. Advanced
Lightweight Concrete Co., 484 U.S. 539, 544 n.6 (1988),
aff’g 779 F.2d 497 (9th Cir. 1985); NLRB v. Talsol Corp., 155
F.3d 785, 794 (6th Cir. 1984). “[A]n employer commits an
unfair labor practice if, without bargaining to impasse, it
effects a unilateral change of an existing term or condition of
employment.” Litton Fin., 501 U.S. at 198 (citing Katz). In
this case, Pleasantview unilaterally increased the wages of
12 Pleasantview Nursing
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Nos. 01-2288/2533
some employees during the negotiations with the Union
covering that very subject. Even though this unilateral
change only affected a handful of current employees and new
hires, it was an unfair labor practice.
Pleasantview contends that these wage increases were
compelled by economic exigency and hence were exempted
from the rule against unilateral imposition of changes during
labor negotiations. “When economic exigencies compel
prompt action,” employers are authorized to make such
changes even during negotiations. Bottom Line Enters., 302
N.L.R.B. 373, 374 & n.11 (1991) (citing Winn-Dixie Stores,
243 N.L.R.B. 972, 974 & n.9 (1979)). An employer
attempting to prove economic exigency must carry a “heavy
burden.” Our Lady of Lourdes Health Ctr., 306 N.L.R.B.
337, 340 n.6 (1992). Economic exigency requires a
“compelling business justification.” Winn-Dixie Stores, 243
N.L.R.B. at 976 n.9. A mere “business necessity is not the
equivalent of compelling considerations which excuse
bargaining.” Hankins Lumber Co., 316 N.L.R.B. 837, 838
(1995). For example, “loss of an account representing 14
percent of revenue” is not an economic exigency. Angelica
Healthcare Servs., 284 N.L.R.B. 844, 853 (1987).
“[O]perating at a competitive disadvantage does not
necessarily equate to an economic emergency.” Triple A Fire
Protection, Inc., 315 N.L.R.B. 409, 414-15 (1994). “Nor
does inconvenience to the employer fall into that category.”
Farina Corp., 310 N.L.R.B. 318, 321 (1993) (citing Clements
Wire Co., 257 N.L.R.B. 1058 (1981)). “[A]n underlying
reason for not requiring bargaining when there are
‘compelling economic considerations’ is that an unforeseen
occurrence, having a major economic effect, is about to take
place that requires the company to take immediate action.”
Angelica, 284 N.L.R.B. at 853. “Consistent with the
requirement that an employer prove that its proposed changes
were ‘compelled,’ the employer must additionally
demonstrate that the exigency was caused by external events,
was beyond the employer’s control, or was not reasonably

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4A delay b etween the time a threatening condition comes to the
employe r’s attention and the time the emplo yer takes steps to counter it
is of course no t dispo sitive of the question whether the condition
constitutes an emergency. Clearly some genuine emergencies can be
anticipated well in advance.
foreseeable.” RBE Elecs. of S.D., Inc., 320 N.L.R.B. 80, 82
(1995) (footnotes and citations omitted). “[B]ecause the
exception is limited only to those exigencies in which time is
of the essence and which demand prompt action, we will
require an employer to show a need that the particular action
proposed be implemented promptly.” Ibid. (footnote and
citations omitted).
Under this standard, the NLRB’s finding that Pleasantview
did not face an economic exigency was supported by
substantial evidence and hence must be upheld. Undoubtedly,
Pleasantview faced intense labor market pressure to increase
wages. Its eagerness to do so, rare in any rational employer
not under such pressure, attests to that. However,
Pleasantview does not demonstrate that this pressure had
reached emergency levels. Rather, Pleasantview admits to
having suffered this chronic problem since 1985.
Pleasantview does not claim that it faced an immediate risk of
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
failure making an entire plant inoperable is an exigency
excusing unilateral layoffs). A business’s inability to acquire
the desired quantity of an input, here labor, at a given price is
not an economic exigency. See Hankins, 316 N.L.R.B. at 838
(a supply shortage “does not fall within this narrow exception
to the general duty to bargain.”). The conclusion that
Pleasantview did not face an economic exigency is supported
by the two-month delay between the time it first requested the
wage increase and the time it implemented it. See Our Lady
of Lourdes, 306 N.L.R.B. at 337 n.1.4
14 Pleasantview Nursing
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Nos. 01-2288/2533
Pleasantview also argues that it was entitled to increase the
wages, even in the absence of economic exigency, because
the Union either consented to the increases or waived the
right to negotiate the issue. The basis for the contention that
the Union consented is the testimony of Pleasantview’s
negotiator that the Union negotiator nodded when
Pleasantview proposed an increase in starting wages and did
not strenuously object when informed after the fact that
Pleasantview had increased the wages. Union witnesses
denied that they had consented to the wage increase. The
ALJ, after hearing testimony from both sides, chose to credit
the Union witnesses over the Pleasantview witnesses and the
NLRB adopted this finding. As “credibility determinations
must be accepted unless it is clear that there is no rational
basis for them,” we too uphold this finding. Health Care &
Retirement Corp. v. NLRB, 255 F.3d 276, 282 (6th Cir. 2000)
(quoting NLRB v. Valley Plaza, Inc., 715 F.2d 237, 242 (6th
Cir. 1983)).
On the same evidence, Pleasantview asserts that the Union
waived its right to negotiate regarding the wage increases. An
apparent tension exists in the case law regarding what actions
constitute a waiver. While the Supreme Court has stated that
“the waiver must be clear and unmistakable,” Metro. Edison
Co. v. NLRB, 460 U.S. 693, 708 (1983), the NLRB has held
that “a union which receives timely notice of a change in
conditions of employment must take advantage of that notice
if it is to preserve its bargaining rights and not be content in
merely protesting an employer’s contemplated action,”
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
right to negotiate a minor change in the terms and conditions
of employment occurring outside of negotiations. In a
negotiation, a party need not respond to every statement with
a forceful rejection and insistence on further bargaining;

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further bargaining is assumed and a waiver of the issue will
not be presumed unless it is clear and unmistakable.
Conversely, outside of negotiations, an employer can
reasonably conclude that any minor change it makes will be
acceptable unless the Union makes its desire to negotiate the
issue clear. In our case, the alleged waiver occurred during
negotiations and consisted of the Union not forcefully
rejecting the wage increase. This was not the required clear
and unmistakable waiver. Therefore, the Board was correct
in finding an unfair labor practice.
C
The third unfair labor practice alleged was Pleasantview’s
failure to negotiate with respect to its proposal for the buy-
back of pension and paid holiday provisions. The NLRA
imposes on unionized employers a duty to bargain
collectively. NLRA § 8(a)(5), 29 U.S.C § 158(a)(5). This
mutual obligation to bargain collectively is confined to good
faith discussions “with respect to wages, hours, and other
terms and conditions of employment.” NLRA § 8(d), 29
U.S.C. §158(d). Parties are obligated to negotiate on these
so-called mandatory subjects “and within that area neither
party is legally obligated to yield.” Fibreboard Paper Prods.
Corp. v. NLRB, 379 U.S. 203, 210 (1964) (citing NLRB v.
Am. (Nat.) Ins. Co., 343 U.S. 395 (1952)). Fringe benefits,
such as paid holidays and pensions, “clearly fall within the
compass of ‘wages,’ and are therefore subjects over which
employers and employees must bargain.” Amalgamated
Transit Union Int’l v. Donovan, 767 F.2d 939, 951 & n.12
(D.C. Cir. 1985) (citing Singer Mfg. Co. v. NLRB, 119 F.2d
131 (7th Cir. 1941) (paid holidays) and Detroit Police
Officers Ass’n v. City of Detroit, 214 N.W. 2d 803 (1974)
(pensions)).
Here, the NLRB alleges that Pleasantview failed to bargain
in good faith with respect to the holiday buy-back and
pension changes. It bases this conclusion on three facts: that
16 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
Pleasantview did not alter its initial bargaining position with
respect to these issues; that during one negotiation session
Pleasantview’s negotiator stated that its position regarding
holiday and pension buy-backs was non-negotiable; and that
Pleasantview unilaterally implemented the wage increase,
which it ultimately wished to finance by the holiday and
pension buy-back, for a handful of employees while
negotiations were still ongoing. We agree with the ALJ and
chairman of the NLRB, not the majority of the NLRB panel,
that these facts, separately or in combination, were
insufficient to allow the NLRB to conclude that Pleasantview
refused to negotiate these issues in good faith.
Pleasantview’s ultimate refusal to change its position
regarding the buy-backs does not constitute bad faith. “Good
faith bargaining is all that is required. That the position of
one party on an issue prevails unchanged does not mandate
the conclusion that there was no collective bargaining over
the issue.” McCourt v. Cal. Sports, Inc., 600 F.2d 1193, 1200
(6th Cir. 1979) (citing Am. (Nat.) Ins. Co., 343 U.S. at 404).
The 1947 “amendment [to the NLRA] makes it clear that the
failure to reach an agreement because of the employer’s
refusal to make a concession to the Union does not, by itself,
constitute lack of good faith.” NLRB v. United Clay Mines
Corp., 219 F.2d 120, 125 (6th Cir. 1955). Where “[t]he
failure to execute a contract was not because of a failure or
refusal to negotiate, but in the final analysis was because the
parties would not agree on one remaining issue, considered by
both of them as basically important,” no bad faith has been
evinced. Ibid. “To say that the Company should have
accepted the Union’s proposal on this issue is to ignore the
language of the statute that the obligation to bargain
collectively ‘does not compel either party to agree to a
proposal or require the making of a concession.’” Id. at 125-
26; accord McCourt, 600 F.2d at 1201. Pleasantview’s
insistence on the buy-backs constituted no more than hard
bargaining. “[H]ard bargaining, the kind countenanced by the
NLRA as an inevitable aspect of labor-management relations”

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17
is “not unfair bargaining.” NLRB v. Gibraltar Indus., 653
F.2d 1091, 1096 (6th Cir. 1981) (citing McCourt, 600 F.2d at
1200, and Fetzer Television v. NLRB, 317 F.2d 420, 424 (6th
Cir. 1963)).
The NLRB’s most serious factual ground for finding bad
faith was the statement by Pleasantview’s negotiator during
the July 25 session that the buy-backs were “non-negotiable.”
If this statement had reflected Pleasantview’s actual stance
regarding this mandatory bargaining subject, it would
undisputably have been sufficient to support a finding of bad
faith. “[I]f a party is so adamant concerning its own initial
positions on a number of significant mandatory subjects, we
may properly find bad faith evinced by its ‘take-it-or-leave-it’
approach to bargaining.” 88 Transit Lines, 300 N.L.R.B. 177,
178 (1990) (citing NLRB v. Gen. Elec. Co., 418 F.2d 736,
756-57 (2d Cir. 1969)). However, to determine the existence
of bad faith, we look to bargaining conduct, not bargaining
rhetoric. Pleasantview’s conduct both before and after the
July 25 session indicates that the “non-negotiable” statement
was mere rhetoric and not an accurate reflection of
Pleasantview’s stance. Negotiations continued for almost two
months after July 25. Pleasantview’s statement that it “just
couldn’t come up with a different plan to get the fifty cents”
wage increase, cited by the NLRB as further evidence of bad
faith, in fact indicates the opposite. It conveys a willingness
to listen to alternative ways of reaching agreement. Cf.
United Clay Mines Corp., 219 F.2d at 125 (citing NLRB v.
Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1952), for the
proposition that “[l]ack of good faith may be found from a
refusal to discuss certain subjects.”). That ultimately neither
the Union nor Pleasantview was able to “come up with a
different plan” acceptable to both is evidence of impasse, not
bad faith. Where the overall bargaining conduct indicates
good faith and willingness to negotiate, a stray statement
indicating inflexibility will not overcome the general tenor of
good faith negotiation. See Indus. Elec. Reels, 310 N.L.R.B.
1069, 1069, 1072 (1993).
18 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
Finally, Pleasantview’s implementation of the increase in
starting wages, while an unfair labor practice, is not relevant
to the issue of whether Pleasantview negotiated in good faith
regarding the holiday and pension buy-backs. Initially, we
note that this increase affected less than ten percent of the
represented employees. For more than ninety percent of the
employees, the final pay scale still rested with the outcome of
ongoing negotiations. More significant, while Pleasantview’s
overall negotiation stance was that the buy-backs were
necessary to fund the wage increases, Pleasantview only
implemented the wage increase portion of this offer during
the negotiations. The buy-backs were entirely unaffected by
this unilateral action. Hence, Pleasantview’s unilateral action
had only the most peripheral relationship to the buy-back
negotiations. The Board erred in finding this to be an unfair
labor practice.
D
The fourth unfair labor practice alleged was Pleasantview’s
insistence to the point of impasse regarding the collection of
initiation fees. “[I]nternal affairs of labor organizations are
not ‘an aspect of the relationship between the employer and
the employees,’ but rather, by statutory definition are
encompassed by the relationship between labor organizations
and employees. It follows that subjects embraced by the
internal affairs proviso are not mandatory ones.” Serv.
Employees, Local 535, 287 N.L.R.B. 1223, 1225-26 (1988)
(quoting Allied Chem. Workers, Local 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 178 (1971)), enforced sub nom. N.
Bay Dev. Disabilities Servs. v. NLRB, 905 F.2d 476 (D.C. Cir.
1990). “One subject specifically regarded by Congress as an
internal affair of labor organizations is that of the amount of
fees established and assessed on employees.” Serv.
Employees, 287 N.L.R.B. at 1226; accord N. Bay Dev.
Disabilities Servs., 905 F.2d at 478. Hence the collection
clause was not a mandatory subject of bargaining. Ibid.
However, “[u]nion security is properly a ‘condition of

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employment’ within the meaning of Sec. 9(a) of the National
Labor Relations Act and hence, is within the statutory area of
collective bargaining.” NLRB v. Andrew Jergens Co., 175
F.2d 130, 133 (9th Cir. 1949). Hence the question of whether
the CBA would contain a union-shop or a maintenance-of-
membership provision was a mandatory subject. As to non-
mandatory matters, “each party is free to bargain or not to
bargain.” Fibreboard, 379 U.S. at 210 (quoting NLRB v.
Wooster Div. of Borg-Warner, 356 U.S. 342, 349 (1958)).
However, neither party may “refuse to enter into agreements
on the ground that they do not include some proposal which
is not a mandatory subject of bargaining.” Borg-Warner, 356
U.S. at 349. “[S]uch conduct is, in substance, a refusal to
bargain about the subjects that are within the scope of
mandatory bargaining.” Ibid.; see also Taylor Warehouse
Corp. v. NLRB, 98 F.3d 892, 901 (6th Cir. 1996) (“The
parties may also bargain about any other lawful proposal, but
may not insist to impasse on proposals concerning
non-mandatory subjects of bargaining.”).
Pleasantview’s negotiation stance combined offers with
respect to a mandatory subject, union security, and with
respect to a non-mandatory subject, the collection clause. It
offered alternatively to agree to a union-shop provision in
return for an elimination or modification of the collection
clause or to agree to the collection clause in return for a
change from a union-shop provision to a maintenance-of-
membership provision. The NLRB in its analysis chose to
sever the mandatory and the non-mandatory subjects. In that
analysis, Pleasantview simply insisted to an impasse on a
change in the collection-clause, a non-mandatory subject,
violating its duty to negotiate the mandatory subjects in good
faith. As this severance of the subjects does not reflect the
evidence regarding Pleasantview’s negotiation stance, we
cannot agree.
The NLRB itself has repeatedly recognized the
permissibility of linking mandatory and non-mandatory
20 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
subjects in labor negotiations. In Nordstrom Inc., 229
N.L.R.B. 601 (1977), the NLRB stated:
That a party may not lawfully insist upon the inclusion of
proposals nonmandatory in nature is, of course, clear.
But the General Counsel’s case moves, in our view,
beyond that proposition to the extent that it negates the
considerable relationships which may exist between both
mandatory and nonmandatory subjects. Certainly,
nonmandatory subjects . . . can, as a function of cost,
bear upon a party’s wage-increase proposals [, a
mandatory subject]. To say that the proponent of the
[non-mandatory subject proposal] cannot insist upon the
inclusion of such a proposal means no more than that. It
does not mean that once, out of necessity, the
nonmandatory proposal is removed from the table, the
proponent of the nonmandatory subject is not permitted
to alter those proposals which are mandatory in light of
the removal of the nonmandatory subject.
Id. at 601. The ALJ in Laredo Packing Co., 254 N.L.R.B. 1
(1981), whose rulings, findings, and conclusions were
affirmed by the Board, stated that:
The question presented herein is whether the Union
could effectively conclude negotiations on December 14
by agreeing to those demands of Respondent which
constitute mandatory subjects of bargaining, even though
there was no agreement on Respondent’s demands
encompassing the nonmandatory bargaining subjects.
Under the circumstances of this case, I am persuaded that
Respondent was not obligated to abide by so much of the
contract which related to the agreed-upon mandatory
subjects. The record . . . reveals that the nonmandatory
subjects of bargaining advanced by Respondent as a
condition for executing a collective-bargaining
agreement were part of one collective-bargaining
package and were an essential quid pro quo for

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Respondent’s contract proposal. It is for this reason that
I find that during the time material herein Respondent
and the Union had not reached agreement on all of the
terms of a collective-bargaining agreement and for this
reason I shall recommend that this allegation be
dismissed.
Id. at 18 (citing Nordstrom; John Nickels & Leonard Whitney,
171 N.L.R.B. 1491 (1968); and N.C. Furniture, 121 N.L.R.B.
41 (1958)). Finally, in Good GMC, 267 N.L.R.B. 583 (1983),
the Board concluded in similar circumstances that the
employer had “neither failed to execute an agreed-upon
contract nor insisted to impasse on the inclusion of a
nonmandatory subject of bargaining in the contract.” Id. at
585.
Permitting labor and management negotiators to link
mandatory and non-mandatory subjects in proposed package
deals does not eradicate the distinction. The negotiators
remain enjoined to negotiate on mandatory subjects, but need
not do so on non-mandatory subjects. Disagreement on non-
mandatory subjects only still cannot lead to a valid impasse:
Circumstances may . . . exist where a party unlawfully
insists on a nonmandatory subject’s inclusion at a time
when all other matters have previously, and independent
of the outstanding nonmandatory subject, been agreed
upon. But whether such insistence amounts not only to
a refusal to bargain in good faith but, further, as
justification for compelling that party to execute so much
of the contract as relates to the agreed-upon mandatory
subjects is not . . . an issue . . . where it is clear that those
nonmandatory subjects proposed by Respondent were
part of a package containing the wage proposal.
Nordstrom, 229 N.L.R.B. at 602 (citing S. Cal. Pipe Trades
Dist. Council No. 16, 167 N.L.R.B. 1004 (1967)); see also
Good GMC, 267 N.L.R.B. at 584. Admittedly, where
22 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
mandatory and non-mandatory subjects are linked, an
unbridgeable disagreement on the non-mandatory subjects
may make agreement on the mandatory subjects more
difficult, or even lead to a genuine impasse on the mandatory
subjects which would not exist if there had been agreement on
the non-mandatory subjects. However, that reflects no more
than the necessary economic relationship that may exist
between the subjects, which was recognized as valid in
Nordstrom. 229 N.L.R.B. at 601.
Such is the case here. Pleasantview was concerned that the
reduced net wages received by employees because of the
deduction of union initiation fees would render its pay
package uncompetitive with those offered by other nursing
homes that did not have to deduct union initiation fees.
Pleasantview saw the elimination of the collection clause, or
suspension until competitors operated under similar clauses,
as one way of alleviating this concern. An alternative, and
from the point of view of Pleasantview equivalent, solution
was replacement of the union-shop clause with a
maintenance-of-membership clause.
Under a maintenance-of-membership provision, new hires
could choose whether to join the Union and pay the initiation
fees. To those who declined membership in the Union, the
pay package would be the same as without a collection clause
and hence as attractive as those of competitors without
collection clauses. Those new hires who chose to join the
Union, and therefore paid the initiation fee, would do so
voluntarily and hence presumably regarded the package of
pay (reduced by the initiation fee) plus Union membership to
be at least equivalent to the full pay package without Union
membership.
For both groups of new hires, the collection clause would
no longer present a deterrence against coming to work for
Pleasantview. Therefore Pleasantview’s alternative offers
during the labor negotiations represented two reasonably

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equivalent ways of accommodating its needs. The linkage
arose organically out of the economic relationship between
the mandatory and non-mandatory subjects and was not an
attempt to make an end-run around the distinction between
mandatory and non-mandatory subjects. Hence it was
permissible. Moreover, neither of Pleasantview’s offers with
regard to the collection clause was outlandish. Both would
have preserved the de facto, if not the de jure, status quo.
Hence they do not even constitute evidence of bad faith on the
part of Pleasantview, and no unfair labor practice was
committed.
E
The final unfair labor practice alleged was the
implementation of Pleasantview’s final offer without the
existence of a valid impasse. “[A]n employer commits an
unfair labor practice if, without bargaining to impasse, it
effects a unilateral change of an existing term or condition of
employment.” Litton Fin., 501 U.S. at 198 (citing Katz).
Impasse is defined as “that point at which the parties have
exhausted the prospects of concluding an agreement and
further discussions would be fruitless.” Advanced
Lightweight Concrete Co., 484 U.S. at 543 n.5 (quoting
Advanced Lightweight Concrete Co., 779 F.2d 497, 500 n.3
(9th Cir. 1985)). “While that state of affairs that constitutes
an impasse is not subject to precise definition, at least it
encompasses the notion that both sides are aware of precisely
what is at issue and that they have made more than a
perfunctory attempt to reach a resolution.” Blue Grass
Provision Co. v. NLRB, 636 F.2d 1127, 1130 (6th Cir. 1980)
(citing Taft Broad. Co., 163 N.L.R.B. 475 (1967)). “Absent
a valid, good-faith impasse, a company’s [unilateral
implementation] constitute[s] a breach of its duty to bargain
under § 8(a)(5) and (d) of the National Labor Relations Act.”
NLRB v. Brown-Graves Lumber Co., 949 F.2d 194, 198 (6th
Cir. 1991) (emphasis added) (citing NLRA § 8(a)(5)&(d), 29
U.S.C. § 158(a)(5)&(d); Katz, 369 U.S. at 743-48).
24 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
In the present case, Pleasantview declared the existence of
an impasse in the negotiation session on September 17 and
unilaterally implemented its final offer on September 22. The
NLRB, though it erroneously blames the impasse on failure
to reach agreement on the non-mandatory issue of the
collection clause, concedes the existence of impasse. Hence,
the sole remaining question is whether the impasse was
invalid because it was brought about by Pleasantview’s
failure to bargain in good faith. The NLRB points to
Pleasantview’s unfair labor practices as evidence of bad faith.
However, there is no “presumption that an employer’s unfair
labor practice automatically precludes the possibility of
meaningful negotiations and prevents the parties from
reaching a good faith impasse.” NLRB v. Cauthorne, 691
F.2d 1023, 1025 (D.C. Cir. 1982) (citing Rayner v. NLRB,
665 F.2d 970, 976-78 (9th Cir. 1982)). “To find otherwise
would reflect ‘an impermissibl[e] punitive justification for
continuing liability when good faith negotiations between the
parties have exhausted the prospects of concluding an
agreement.’” La Porte Transit Co. v. NLRB, 888 F.2d 1182,
1186 (7th Cir. 1989) (quoting Cauthorne, 691 F.2d at 1025).
“[A]n employer’s unilateral change in wages or working
conditions, while perhaps constituting some evidence
concerning the good faith of his subsequent overtures, is not
dispositive.” Cauthorne, 691 F.2d at 1026 n.5 (citing NLRB
v. Pac. Grinding Wheel Co., 572 F.2d 1343, 1348 (9th Cir.
1978)). Where the employer’s “unlawful conduct away from
the bargaining table did not contribute to the deadlock in
negotiations,” the impasse is not invalidated. Litton Sys., 300
N.L.R.B. 324, 333 (1990).
In the present case, we have rejected the NLRB’s two major
unfair labor practices allegations regarding the negotiations:
(1) insistence to impasse on modification of the collection
clause; and (2) failure to negotiate in good faith with respect
to the holiday and pension buy-backs. The remaining unfair
labor practices, the increase of some starting wages during the
negotiations and the failure to collect union initiation fees

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during the six months preceding the impasse, “involved minor
topics only and [were] far from crucial to the failure of the
parties to reach an agreement.” Litton Sys., 300 N.L.R.B. at
333. The wage increase affected only six out of seventy-eight
employees and was so insignificant that the Union only
learned of it weeks later from Pleasantview. The Union’s
response when it did learn of the increase is also instructive.
While, as we explained above, the Union did not clearly and
unmistakably consent to the increase or waive its right to
bargain on the issue, neither did it strenuously object, as
might have been expected if it felt that this unilateral change
seriously undermined its bargaining position. Nor did this
change remove the incentive for Pleasantview to continue to
negotiate in good faith, as the NLRB contends. Pleasantview
sought a substantial wage increase for all seventy-eight
represented employees. A wage increase for a handful of
recent employees might have slightly and temporarily
decreased the pressure on Pleasantview to reach agreement
immediately, but it did not solve its long-term problem.
Therefore it is not surprising that negotiations between the
Union and Pleasantview continued along the same lines for
more than a month after the Union learned of the wage
increase. As to Pleasantview’s failure to remit the initiation
fees, it merely continued a long-standing practice in which the
Union had acquiesced for more than a decade with only a
single brief objection more than a year before the
negotiations. Neither of these unfair labor practices was
sufficient to taint the negotiations to a degree as to call into
question Pleasantview’s good faith. Therefore, a valid
impasse existed on September 17 and Pleasantview was
within its rights to implement its final offer on September 22.
III
In the alternative to a finding of a valid impasse, in Section
II. E, above, Pleasantview also argues that it was under no
duty to recognize or negotiate with the Union after the
collapse of the strike because the Union has lost majority
26 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
support. To “withdraw recognition of a union, an employer
has the burden of demonstrating (1) that the union in fact did
not enjoy majority support; or (2) that it had a good-faith
belief, founded on a sufficient objective basis, that the union
no longer represented a majority of the employees.”
Columbia Portland Cement Co. v. NLRB, 979 F.2d 460, 464
(6th Cir. 1992) (citing NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 787 (1990)). “To prove an actual lack of
majority support, the employer must make a numerical
showing that a majority of employees opposed the union as of
the date that union recognition was withdrawn.” NLRB v.
Hollaender Mfg. Co., 942 F.2d 321, 325 (6th Cir. 1991). To
sustain the burden of proving good faith belief, the employer
must supply “objective considerations which are clear, cogent
and convincing.” Columbia Portland Cement Co., 979 F.2d
at 464 (quoting NLRB v. Flex Plastics, Inc., 726 F.2d 272,
275 (6th Cir. 1984)).
Pleasantview bases its contention that the Union had lost
support of a majority of its members on the fact that the
September 22 strike was not honored by the large majority of
the represented employees, resulting in its collapse after one
shift, and on Pleasantview’s receipt, no later than September
23, of letters of withdrawal from the Union by more than
three-quarters of the represented employees. The NLRB
objects that neither of these occurrences conclusively
demonstrates that a majority of the represented employees
intended to end representation by the Union. See Retired
Persons Pharmacy v. NLRB, 519 F.2d 486, 491 (2d Cir.
1975) (stating that the issue is “not how many employees
belonged to the union or paid dues but rather whether a
majority desired union representation for purposes of
collective bargaining.”). See also NLRB v. Wallkill Valley
Gen. Hosp., 866 F.2d 632, 637 (3d Cir. 1989) (citing Retired
Persons Pharmacy, 519 F.2d at 491, for the proposition that
there is “a clear distinction between union membership and
majority support for collective bargaining representatives”).

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The NLRB contends that the employees could have crossed
the Union’s picket lines out of economic necessity while still
desiring representation by the Union and that almost all the
letters of withdrawal merely ended membership in the Union,
possibly to avoid Union fines, while not explicitly terminating
Union representation. However, these are mere theoretical
possibilities unsupported by record evidence. Instead, the
evidence shows that an overwhelming majority of the
represented employees, when apprised of their Union’s and
their employer’s bargaining positions, refused to support the
strike and took the opportunity to work under the terms
proposed by Pleasantview. Short of a decertification petition
signed by a majority of the employees, it is difficult to
imagine clearer evidence that most represented employees
rejected further representation by the Union. At the very
least, these facts supported by clear, cogent, and convincing
evidence Pleasantview’s good faith belief that the Union no
longer represented a majority of employees.
Next, the NLRB argues that even if a majority of
represented employees wished to terminate their
representation by the Union, this termination was tainted by
Pleasantview’s unfair labor practices. “[A]n employer may
not avoid its duty to bargain by relying on any loss of
majority status attributable to his own unfair labor practices.”
Master Slack Corp., 271 N.L.R.B. 78, 84 (1984) (citing
Pittsburgh & New England Trucking Co., 249 N.L.R.B. 833,
836 (1980)). For the disaffection to be attributable to the
unfair labor practices, they “must have caused the employee
disaffection . . . or at least had a ‘meaningful impact’ in
bringing about that disaffection.” Master Slack, 271 N.L.R.B.
at 84 (quoting Deblin Mfg. Corp., 208 N.L.R.B. 392, 402
(1974)). Factors to weigh are “whether the unfair labor
practice ‘tended to (1) have a detrimental or lasting effect
upon employees; (2) cause employee dissatisfaction with the
union; or (3) disrupt employee morale, deter their
organization activities, and discourage their membership in
the union.’” Lee Lumber & Bldg. Material Corp. v. NLRB,
28 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
117 F.3d 1454, 1458 (D.C. Cir. 1997) (quoting Williams
Enters. v. NLRB, 956 F.2d 1226, 1236 (D.C. Cir. 1992)), aff’g
in part and remanding in part 322 N.L.R.B. 175 (1996); see
also Master Slack, 271 N.L.R.B. at 84 (citing Olson Bodies,
206 N.L.R.B. 779 (1973)), for a similar list of factors).
With respect to the unfair labor practices on which we grant
enforcement (Pleasantview’s breach of the collection clause
and the increase of the wages of six employees), these factors
strongly point away from finding a causal connection with the
termination of Union representation. The breach of the
collection clause did not have a detrimental effect on the
employees; it increased their take-home pay. Nor would it
induce employee dissatisfaction with the Union; to the
contrary, employees would be more likely to approve of the
Union if they could enjoy its benefits without deduction of the
initiation fees. Nor is there any argument that this breach
would disrupt employee morale or discourage membership in
the Union. Arguably, Pleasantview’s failure to remit the
initiation fees did deter the Union’s organization activities by
depriving it of funds. However, the decision of most
employees to quit the Union over the course of less than a
week, cannot plausibly be attributed to this lack of funding,
which had persisted with the Union’s acquiescence for over
a decade. Similarly, with respect to the wage increase: It did
not have a detrimental effect on any employees, could not
have caused employee dissatisfaction with the Union,
disrupted employee morale, discouraged Union membership,
or deterred organization activities. Therefore, we conclude
that there was no causal connection between Pleasantview’s
unfair labor practices and the Union’s loss of support. Hence
Pleasantview was entitled to cease recognizing or bargaining
with the Union no later than September 23 and is not required
to reopen bargaining.
Finally, Pleasantview contends that the equitable doctrine
of laches prevents enforcement of the NLRB’s order against

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5There 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).
it.5 “[A]t some point laches [will] apply against the Board for
inordinate delay in bringing an action.” NLRB v. Mich.
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.
30 Pleasantview Nursing
Home v. NLRB
Nos. 01-2288/2533
The matter is REMANDED to the NLRB for further
proceedings and orders not inconsistent with this opinion.

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