ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges
Saunders House (employer) petitions for review of an order of the National Labor Relations Board (NLRB or Board) holding that Saunders House violated section 8(a)(1) and (5) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) and (5) (1976), by unilaterally increasing the wages of its employees. The employer argues that the wage increase did not constitute an unfair labor practice because at the time of the raise it had reached an impasse in its negotiations with District 1199C, National Union of Hospital and Health Care Employees, Division of RWDSU, AFL-CIO (union). The Board concluded that an impasse did not exist and cross-petitions for enforcement of its order. We grant the petition for review and deny enforcement.
Saunders House is a nonprofit Pennsylvania corporation that provides long-term health care at its Philadelphia facility. On August 28, 1980, following an election, the Board certified the union as the collective bargaining representative of the Saunders House employees. The union's president, Henry Nicholas, requested a meeting with the employer to discuss the terms of a collective bargaining agreement, and sent the union's initial proposal to Frank Abbott, the employer's attorney and chief negotiator. The union proposed a $40 per week wage increase, plus a cost-of-living adjustment (COLA), as well as a full union security provision and a checkoff for union dues and initiation fees.
The parties met for the first time on September 16, 1980. Abbott represented the employer and Nicholas negotiated for the union. Abbott promised the union that the employer would submit a counterproposal at the next bargaining session. He also inquired whether the union continued to object to a retroactive 8% wage increase. Nicholas responded that the union opposed the raise unless it was part of an overall contract package.*fn1
On September 19, 1980, the parties met for the second time and the employer presented a proposed contract that did not provide for either a union security clause or a checkoff provision. Wage proposals were not included, but Abbott explained that they would be forthcoming. At the next meeting on September 24, the employer asked to defer discussion of economic matters.
The parties held meetings on October 8, October 29, November 5, and November 12, at which the subject of wages was not discussed. In the course of these meetings, Donna Ford, executive vice-president of the union, replaced Nicholas as the union's negotiator and the Federal Mediation and Conciliation Service appointed Christine Sickles to aid in the negotiations.
On November 24, 1980, Sickles asked Abbott and Ford what could be done to further the negotiations. Ford said that the employer had to "do something" on wages, union security, and checkoff. Abbott promised to deliver a wage proposal at the next session, and replied that "the answer is still no" to union security and checkoff. Ford told Abbott that she could not proceed further until the employer moved on the three issues.
On December 2, 1980, Abbott presented the employer's wage proposal, which was a one-year contract effective the date of ratification with a COLA on July 1, 1981. The union proposed a modified wage increase of $20 per week retroactive to September 1980, an $18 weekly increase effective September 1981, an $18 weekly increase effective September 1982, plus a COLA in the second year of the contract.
The parties conducted further negotiations on December 8, December 22, and January 26. At these meetings, both parties' positions on economic issues remained unchanged. On February 6, 1981, during the twelfth session, Ford and Abbott agreed to meet privately.
The private meeting took place in Abbott's office on February 20, 1981. This off-the-record meeting lasted about thirty minutes during which the parties reviewed their respective positions. Ford told Abbott that a contract between the parties could be reached if the employer would agree to a dues checkoff, a modified union security clause, and wage increases of 8% in each year of a three-year contract. Abbott replied that this ...