Edmonds Villa Care Center

EDMONDS VILLA CARE CENTER 705 Villa Care, Inc.. d/b/a Edmonds Villa Care Center and Northwest Economic Council, Local No. 900, chartered by United Food and Commercial Workers International Union, AFL-CIO.' Cases 19-CA-10547 and 19-CA-10609 May 22, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On August 21, 1979, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the General Coun- sel filed an exception and brief in support thereof and in support of portions of the Administrative Law Judge's Decision, and Respondent filed an an- swering brief to the General Counsel's exception to the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions 2 and briefs and has decided to affirm the rulings, find- ings,3 and conclusions of the Administrative Law Judge, as modified herein. The Administrative Law Judge found that Re- spondent did not violate Section 8(a)(l) of the Act when it discharged employees Cox and Tiffault. The General Counsel has excepted to this finding. For the reasons set forth below, we find merit in the General Counsel's exception. Respondent operates a nursing home. On June 14, 1978, 4 the Charging Party (the Union) was cer- tified as the exclusive bargaining representative for a unit which included, inter alia, nurses aides at Re- spondent's facility. At the time of the events de- The name of the Charging Party, formerly Northwest Economic Council, Local No. 900, chartered by Retail Clerks International Union, AFL-CIO, is amended to reflect the change resulting from the merger of Retail Clerks International Union and Amalgamated Meatcutters and Butcher Workmen of North America into a new union identified as United Food and Commercial Workers International Union, AFL-CIO, on June 7, 1979 2 Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 3 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In his Decision, the Administrative Law Judge inadvertently referred to the complaint as alleging that Respondent violated Sec. 8(a)(3) of the Act, rather than Sec. 8(a)(l), in discharging employees Cox and Tiffault 4Except as otherwise indicated. all dates are in 1978. 249 NLRB No. 95 scribed below, negotiations had not commenced between Respondent and the Union. On the morning of June 17, only five of the scheduled six nurses aides reported for work on the morning shift, and one of them walked off the job 2 hours into the shift. The four remaining aides on that shift, including Cox and Tiffault, agreed that Cox should act as their spokeswoman and seek time-and-a-half pay for that shift as compensation for working "short." In response to Cox's demand on behalf of the aides, the charge nurse and the bookkeeper, in turn, indicated that they had no au- thority to grant such pay. Each of the aides then spoke to Barry, Respondent's director of nursing, who informed them that it was not Respondent's policy to pay time-and-a-half for working "short" and that it would be improper to authorize such payment, particularly since the Union was now their bargaining representative. Barry further stated that no change would be made in Respondent's policies "until the union contract had been set- tled." 5 Two of the aides then decided to return to work, but Cox and Tiffault insisted that they would leave unless they were assured that they would be paid time-and-a-half. Barry told them that if they left they need not return. Cox and Tif- fault left, and Respondent called in aides who were assigned to another shift to fill in for them. On June 19, her next scheduled working day, Cox went to Respondent's facility and spoke with Ad- ministrator Larson in an attempt to explain her ac- tions of June 17. Larson cut her off and informed her that she could not be reinstated. Subsequently, Cox applied for a position with Respondent as a housekeeper and was rejected. The Administrative Law Judge found that Cox and Tiffault had engaged in a walkout. He con- cluded that the walkout was not unlawful under Section 8(g) of the Act,6 and thus did not lose its protected nature by virtue of the employees' failure to give Respondent 10 days' notice of their intent to strike. He concluded that the walkout was un- protected, however, because he found that the em- ployees demanded an immediate change in their pay, with the ultimatum that they would leave the I The Administrative Law Judge found, and we agree, that the latter statement was not unlawful in the context in which it was made. a The Administrative Law Judge relied on Walker Methodist Residence and Health Care Center, Inc., 227 NLRB 1630 (1977), and Long Beach Youth Center, Inc., a/k/a Long Beach Youth Home (formerlv Trailback. Inc.), 230 NLRB 648 (1977), in which the Board found that Sec. 8(g) ap- plies only to strikes and picketing in which a labor organization is in- volved. The Administrative Law Judge distinguished Iniernional Union of Operating Engineers. Local Na 948 (Ostopathic Haspital Founders Asso- ciation. dib/a Oklahoma Oseopathic Hosital), 238 NLRB 1113 (1978), in which the Board found unprotected employee picketing concerning a matter then under discussion between the hospital and the union in- volved, since in the instant case Respondent and the Union were not dis- cussing the matter which led to the walkout. EDMONDS VILLA CARE CENTER 705 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job if Respondent did not make such a commitment at that time. He further concluded that the employ- ees sought to force Respondent to deal indepen- dently with them to the possible detriment of the Union's status as exclusive bargaining representa- tive and that, had Respondent acceded to the demand, it would have made an unlawful unilateral change in its policy. We agree with the Administrative Law Judge that Section 8(g) is inapplicable to the walkout. Contrary to the Administrative Law Judge, how- ever, we find that, in the particular circumstances of this case, the walkout did not lose its protected nature by the demands made by the employees. Unlike the Administrative Law Judge, we find that the employees did not exceed the bounds of protected activity in seeking premium pay for this "short" crew. In the first place, there is no evi- dence that the employees' request for assurances they would be paid time-and-a-half was contrary to any bargaining position of the Union or that the employees otherwise acted in derogation of the Union's status as collective-bargaining representa- tive.7 Thus, as noted above, the Union was certi- fied only 4 days before the demand for premium pay, and negotiations for a collective-bargaining agreement had not yet begun. And there is no evi- dence that at any time, before or after the walkout, the Union proposed premium pay provisions incon- sistent with the demand made by the employees. Moreover, given Respondent's past practice with regard to premium pay in similar circumstances, it is doubtful that a grant of premium pay for that shift would have violated Section 8(a)(5). Thus, Respondent on at least one or two previous occa- sions retroactively granted premium pay to ern- ployees, including Cox, who had worked on "short" crews. And, what the employees sought here was not a substantial or material change in Respondent's policy. 8 Significantly there was no demand by the employees that Respondent estab- lish an unvarying rule requiring premium pay fr every "short" shift. In these circumstances, we conclude that the employees, in demanding premi- um pay for this shift and thereafter striking in sup- port of this demand, did not seek to cause Re- spondent to act in a clearly unlawful manner. Ac- cordingly, we conclude that Cox and Tiffault were economic strikers who were subject to permanent 7 In finding that the employees' demand for premium pay s was unpro- tected, the Administrative Law Judge relied on Tailored Trend, Inc., 126 NLRB 336 (1960). However, the Board in that case specifically found it unnecessary to decide the analogous issue presented in that case. I The Board previously has held that changes in an employer's pcac- tice which are not "material, substantial, lor] significant" do not necessar- il) violate Sec 8(a)(5). See Weather Tec Corporation, 238 NLRB 1535 (1978). and cases cited at fn. I I therein replacement but not to discharge. The Adminis- trative Law Judge found, and we agree, that Re- spondent in fact discharged the striking employees, and we note that at no time has Respondent claimed that it had simply replaced the strikers by June 19, when Cox sought to return to work. We therefore find that Respondent violated Section 8(a)(1) when it discharged and thereafter refused to reinstate Cox and Tiffault for engaging in an eco- nomic strike, and we shall include appropriate re- medial provisions in our Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Villa Care, Inc., d/b/a Edmonds Villa Care Center, Edmonds, Washington, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with, threatening, or coercing em- ployees in their union activities by indicating to employees that certain privileges regarding excused absences for doctors and dental appointments will no longer prevail in the event the Union is elected as their collective-bargaining representative. (b) Discharging or otherwise discriminating against any employee in regard to hire, tenure of employment, or any term or condition of employ- 9 St. Regis Paper Company, 232 NLRB 1156 (1978): "Faced with con- certed activity in support of a . . . demand the employer believes it may not meet, the employer can lawfully hire replacements." 'o In view of Respondent's notification to Cox and Tiffault that they "need not return" if they engaged in their proposed economic strike, we find that it was unnecessary for the strikers unconditionally to offer to return to work in order to activate Respondent's backpay obligation. Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979). In any event, as noted above, Cox went to Respondent on her next scheduled working day and was told that she would not be rehired. Thus, Cox's offer to return was rejected, without any claim that she had been replaced perma- nently, and her later application for a different position with Respondent also was rejected It is evident that any offer to return by Tiffault would have been futile. At the hearing herein, Cox and Tiffault stated that they did not wish to return to work for Respondent. We find that these statements do not con- stitute a waiver of their right to reinstatement, for the questions which led to these responses were not valid offers of reinstatement, and Re- spondent has not otherwise offered them reinstatement. W. C. McQuaide, Inc., 239 NLRB 671 (1978), and cases cited at fns. 2-4 therein. In par (c) of his recommended Order, the Administrative Law Judge required Respondent to cease and desist from "in any similar manner" in- terfering with employees' exercise of their Sec. 7 rights, rather than using the language "in any like or related manner" customarily used by the Board in narrow injunctive orders. We shall include the appropriate lan- guage in our Order. We agree with the Administrative Law Judge's finding that Respond- ent violated Sec 8(a)(5) and (1) of the Act by refusing to furnish neces- sary and relevant information requested by the Union concerning em- ployees' names, classifications, dates of hire, current wage rates, and the dates and amounts of their last pay increases. As a remedy therefor, the Administrative Law Judge recommended, inter alia, a general bargaining order. However, the complaint did not allege, nor did the Administrative Law Judge find, that Respondent generally refused to bargain with the Union. We therefore shall include in our Order an appropriate provision remedying the specific 8(a)(5) and (1) violation found herein. EDMONDS VILLA CARE CENTER 707 ment for engaging in activity protected by Section 7 of the Act. (c) Refusing to bargain in good faith with the Union by refusing to furnish necessary and relevant requested information concerning employees' names, wages, and dates of last wage increases. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed necessary to effectuate the policies of the Act: (a) Offer Denise Cox and Marjorie Tiffault im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed. (b) Make Denise Cox and Marjorie Tiffault whole for any loss of earnings they may have suf- fered due to their discharge in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).) (c) Upon request, bargain collectively and in good faith with Northwest Economic Council, Local No. 900, chartered by United Food and Commercial Workers International Union, AFL- CIO, as the exclusive bargaining representative of the employees in the unit set forth below, by fur- nishing the said labor organization with the follow- ing information it has requested with respect to all unit employees: Name of each employee, his or her classification, date of hire, current wage rate, and the date and amount of his or her last pay increase. The bargaining unit is: All service and maintenance employees em- ployed by Villa Care, Inc., d/b/a Edmonds Villa Care Center at its Edmonds, Washing- ton, facility, employed as cooks, kitchen aides and assistants, nurses' aides and orderlies, laun- dry workers, housekeepers, maintenance em- ployees, physical therapy aides and ward at- tendants, excluding office clerical employees, guards, supervisors, registered nurses, licensed practical nurses and confidential employees as defined in the Act. (d) Post at its Edmonds, Washington, facility copies of the attached notice marked "Appen- dix."'' Copies of said notice, on forms provided by X In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the Words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- the Regional Director for Region 19, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER PENELLO, dissenting in part: I agree with my colleagues that Respondent vio- lated Section 8(a)(1) of the Act by telling an em- ployee that time off for medical appointments would no longer be available if the Union were voted in and that Respondent violated Section 8(a)(5) by refusing to furnish necessary and rele- vant information requested by the Union. Howev- er, contrary to my colleagues and for the reasons fully set forth in the Administrative Law Judge's Decision, I would find that Respondent did not violate Section 8(a)(l) of the Act by allegedly dis- charging employees Cox and Tiffault. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, threaten, or coerce our employees in their union activities by indicating that certain personal privileges regarding excused absences for doctors and dental appointments will no longer prevail in the event the Union is elected as their collec- tive-bargaining representative. WE WILL NOT discharge or otherwise dis- criminate against employees in regard to hire, tenure of employment, or any term or condi- tion of employment for engaging in protected activity. WE WILL NOT refuse to bargain in good faith with Northwest Economic Council, Local No. 900, chartered by United Food and Commercial Workers International Union, AFL-CIO, as the exclusive bargaining repre- sentative of the employees in the unit set forth below, by refusing to furnish the said labor or- EDMONDS VILLA CARE CENTER 707 708 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD ganization with information it has requested with respect to all unit employees of Villa Care, Inc., d/b/a Edmonds Villa Care Center, as hereinafter set forth in this notice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain collectively and in good faith with Northwest Economic Council, Local No. 900, chartered by United Food and Commercial Workers International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the unit set forth below, by furnishing the said labor orga- nization with the following information it has requested with respect to all unit employees: Name of each employee, his or her classifica. tion, date of hire, current wage rate, and the date and amount of his or her last pay in- crease. The bargaining unit is: All service and maintenance employees em- ployed by Villa Care, Inc., d/b/a Edmonds Villa Care Center at its Edmonds, Washing- ton, facility, employed as cooks, kitchen aides and assistants, nurses' aides and order- lies, laundry workers, housekeepers, mainte- nance employees, physical therapy aides and ward attendants, excluding office clerical employees, guards, supervisors, registered nurses, licensed practical nurses and confi- dential employees as defined in the Act. WE WILL offer to reinstate Denise Cox and Marjorie Tiffault to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and WE WILL make them whole, with interest, for any earnings lost be- cause we discharged them. VILLA CARE, INC., D/B/A EDMONDS VILLA CARE CENTER DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard by me in Everett, Washington, on March 29 and 30 and in Seattle, Washington, on April 9, 1979. The charge in Case 19-CA-10547 was filed on June 310, 1978,' the charge in Case 19-CA-10609 was filed on July 26, and both charges were served on or about the same dates on Respondent. The complaint and order ' All dates hereinafter shall refer to the year 1978 unless otherwise in- dicated. consolidating cases issued August 29, and was served on Respondent on or about the same date. 2 Respondent filed its answer on September I in which it acknowl- edged certain prerequisite jurisdictional data, but denied the commission of any unfair labor practices. The complaint alleges Respondent to have illegally made threatening and coercive remarks to employees in violation of Section 8(a)(1) of the Act; to have wrongful- ly discharged Denise Cox and Marjorie Tiffault because of their protected concerted activities in violation of Sec- tion 8(a)(3) of the Act; and to have failed to supply the Union, upon proper request, with certain necessary and relevant employee data in violation of Section 8(a)(5) of the Act. The parties were given full opportunity to present evi- dence, to argue orally, and to submit briefs. Helpful briefs were received from both the General Counsel and Respondent, and have been carefully considered. Based upon the entire record, including my observation of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a State of Washington corporation with offices and a place of business in Edmonds, Washington, where it is engaged in the business of operating a nursing home. During the past 12 months, which period is repre- sentative of all times material herein, Respondent, in the course and conduct of its business operations, had gross sales of goods and services valued in excess of $100,000. During the same period of time, Respondent, in the course and conduct of its business operations, purchased and caused to be transferred and delivered to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State of Washington, or from suppliers within said State which in turn obtained said goods and materials di- rectly from sources outside the State of Washington. Based upon this admitted information, I herewith find Respondent to be an employer within the meaning of Section 2(2) of the Act and to be engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED Respondent does not deny and I herewith find North- west Economic Council, Local No. 900, charted by Retail Clerks International Union, AFL-CIO, to be, and at all times material herein to have been, a labor organi- zation within the meaning of Section 2(5) of the Act. I1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Besides resolving the credibility issue concerning whether or not certain alleged coercive remarks were or were not made to certain employees, the more difficult or elusive question to be resolved concerns the status of Cox and Tiffault. Did Cox and Tiffault voluntarily quit? 2 An amendment to the consolidated complaint issued on March 16, 1979, and wsas served on Respondent on or about the same date. EDMONDS VILLA CARE CENTER 709 Were they involved in protected concerted activity? Does Section 8(g) come into play under the circum- stances of this case? B. Background On or about April 12, the Union filed a petition re- questing an election among certain of Respondent's em- ployees. As a result of that petition an election was held, and on June 14 the Regional Director for Region 19 cer- tified the Union as the exclusive bargaining representa- tive for Respondent's employees in the following appro- priate unit: All service and maintenance empoyees employed by Villa Care, Inc., d/b/a Edmonds Villa Care Center, at its Edmonds, Washington, facility employed as cooks, kitchen aides and assistants, nurses aides and orderlies, laundry workers, housekeepers, mainte- nance employees, physical therapy aides, and ward attendants, excluding office clerical employees, guards, supervisors, registered nurses, licensed prac- tical nurses, and confidential employees as defined in the Act. As part of the pleadings, Respondent has admitted the following named individuals to be agents and supervisors of Respondent within the meaning of Section 2(11) of the Act: Norman Levin, executive vice president; Mary Whitaker, vice president of operations; Linda M. Larson, administrator; and Erlys Barry, director of nursing. On one or two occasions during the organizational campaign, Erlys Barry is alleged to have made certain threatening and coercive remarks to employees that will be discussed in greater detail infra, and on May 25 at a general employees meeting Respondent, through its agents, Levin, Whitaker, and Larson, is alleged to have engaged in certain 8(a)(1) misconduct that will also be discussed in greater detail infra. On June 17, after the Union had been certified as the collective-bargaining rep- resentative but before any actual negotiating sessions or labor-management agreement had actually occurred, the nurses aides demanded time-and-a-half payment for work performed on their regular shift because there was a "short" crew. When they were told that it could not be paid, Tiffault and Cox walked off the job, resulting in their discharge. The refusal to bargain aspect of this case stems from a request made by the Union on or about June 22 for the name of each employee, and his or her classification, date of hire, current wage rate, and the date and amount of his or her last wage increase. Re- spondent has refused to furnish the Union the requested data on the basis that it is not relevant and necessary for the collective-bargaining process. C. Testimony Regarding the Various Incidents Alleged to be Violative of the Act 1. Threats and/or promises to Cox Denise Cox, a nurses aide, testified that, during the first part of April, she had a conversation with Erlys Barry, the director of nursing, and, when asked to relate the relevant conversation, Cox replied as follows: A. It started out with something else we were talking about, but it ended up she asked me if I knew that the Union had filed a petition. I said yes, that I did know. She asked why we wanted a union. I said, well, it was because of our working condi- tions. I didn't mention anything about pay, or any- thing like that. She asked-she said, do you know, she said, after they file a petition and if they're voted in, that they would have bargaining session procedure, some kind of bargaining deal, and that they could have something like that put off, some- thing like that could never be reached at any cer- tain time, it could be put off. She said at the most you could get a nickle raise, she said, if that much. She said something about they couldn't pay any more than that. She said they didn't have to agree to any con- tract, that they could keep putting it off, you know, it could take a long time, you know. She said about 6 months they could keep putting it off. Cox testified that the conversation continued as they proceeded toward the lounge or breakroom, where there were other employees-namely, Gloria Burton, Darlena Backen, and Joanne Smith-and where Barry repeated what she had told Cox in the hallway. Backen, who has served on the negotiating committee that has met with Respondent's representatives in an effort to reach a contract, generally confirmed the text of Cox's conversation with Barry; however, she did indi- cate that Barry's remarks were in response to questions that were being asked by Cox. Backen further testified that she was never asked questions by Barry or Larson regarding her interest or activities on behalf of the Union. Cox testified that about 2 weeks later, just before get- ting off work, she had another conversation with Barry that was initiated by Barry in which Barry stated: A. Well, she said that the Union had got into an- other place called Queen Ann Villa, they were voted in there and they were having some kind of problems. They had not kept the promises they had made. She had an article on it that she would like me to see. From that she said she didn't think the Union could do very much for us, that it was people like Mr. Levin, that went to Olympia to get us any kind of raise. She mentioned a 21 cent raise we were supposed to get in July, which she didn't want me to repeat. She said it was people like him that was doing it. She said if the Union was so in- terested in our behalf, why weren't they there with Mr. Levin lobbying for the same thing. She also said, you know, that she had given me time off for certain doctor and dentist appointments, and she said there would be no more of that. She repeated herself again about that. Cox testified that she had on several occasions request- ed personal time off for doctor or dentist appointments EDMONDS VILLA CARE CENTER 709 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either for herself or because of her children, and that it had been granted by Barry. Cox further related that in the latter part of May she was shown the article regard- ing the Union which Barry had referred to in the earlier conversation. Barry testified that, shortly after Respondent learned that the Union was interested in representing the em- ployees at the Edmonds Villa Care Center, a meeting was held in Larson's office in which there was a general discussion of the things which supervisors could and could not do in connection with the union campaign (see Resp. Exh. I). Barry testified that the list of "do's and "don'ts" was thoroughly discussed, and that she had a good idea of what she could and could not do during the union campaign. When Barry was asked if she recalled a conversation with Denise Cox in the employees' lounge regarding the Union, Barry replied that she only recalled the incident vaguely and did not remember the questions she was asked by Cox, but, "We were still in the hall. way, and Denise asked me a question about the Union, and that's where-or, about something to do with the Union-and that's where it started. We walked into the employees' lounge and sat down and started talking about it." She testified that Cox had initiated the conver- sation by asking her some questions regarding the Union. Barry also acknowledged remembering a discussion with Cox regarding the activities of the Union at another health care center. Barry denied that she ever told any employee that they could only expect or hope for a 5- cent raise. She testified that she did tell employees that the Union could not expect to get more wages for them than the State allowed Respondent for state patients. Barry also denied telling any employee that Respondent could put off, delay, or otherwise frustrate the attempts of the Union to obtain a contract. Barry also denied ever having asked any of the employees, individually or in a group, why they wanted union representation. Barry related that Cox had been asked, not only by Linda Stark but also by herself, to limit her doctor's and dentist's appointments to other than her working hours. Barry acknowledged that on one occasion she had said to Cox "[s]omething to the effect that with a union con- tract, we would maybe have a little more leverage in keeping her to stick to her scheduled hours and days" Barry denied, however, ever having told Cox that, if the Union came in, she would be unable to grant those per- sonal favors. Regarding the conversation concerning the Union at another Villa Care location, Barry testified that Cox "had heard that the Union was in another Villa Care, and I had an article which showed that it was not-that it had been voted on in Bellingham, but was not, in fact, in. I showed her this article." 2. The May 25 meeting Respondent does not deny that there was a meeting held on May 25 attended by Levin, Whitaker, Larson, Barry, and any employees who wished to voluntarily come and hear Respondent's side of the question regard- ing union representation. Cox's testimony regarding what took place at this meeting was rambling and not very specific as to comments that were made by any of the supervisory personnel. She testified that Levin stated that he was not opposed to a union because his father had been a union man, but in this case he did not feel that a union was necessary. It was possible to solve their problems without an outsider. Cox testified that Whi- taker acknowledged that the working conditions were bad, but that she was trying everything she possibly could to get more help. Cox also testified that Levin so- licited grievances and complaints from the employees and asked that they be brought to him. Linda Larson testified that at the May 25 meeting Whitaker said specifically, "but I believe she said she would be available and willing to come out from Issa- quah and discuss with the employees any problems they had at any time, and that she was available." However, Larson explained that this comment was made in connec- tion with a discussion of how employees could address their grievances. It was explained that there had been an employees' council which met on a regular basis for pur- poses of considering employees' complaints and griev- ances, but, because communications at the Villa Care Center had been quite good, the employees elected to have the council disbanded. It was suggested that, if the employees wished to have the council reinstated, they would be free to do so. After the meeting had broken up and there were further questions and discussion about the advisory council, some employees expressed a total unawareness of the council. Larson informed them that it was set forth in the personnel policy, and that, if they did not have a copy, she would try and get a copy for them. Elbi Hanka, a former nurses aide who resigned on June 30, testified that Whitaker had "stressed the point we do not need a union, that they will not do us any good; come to us with your problems, we'll work as a family; why pay union dues." She testified that Levin's remarks at the May 25 meeting consisted primarily of his efforts to obtain a higher grant of wages from the state legislature, and he also stated that the books were open to the employees to show them that they could not afford to pay any additional wages at that time. Hanka also testified that there were discussions regarding when time and a half was paid and what should be paid when the aides were working shorthanded. Whitaker testified that Levin had opened the meeting, and that his remarks were very general. He specifically stated that an election was coming up, that the employ- ees were to be under no pressure, that the vote was secret and nobody would know how they voted one way or the other, and that he wanted them to realize that management wanted to be able to answer any questions. In response to a question as to whether or not Levin had suggested that an employee committee be established for the resolution of their problems, Whitaker replied that she had answered the question that had been asked, namely, "How can we let people know what we need and what we want?" to which Whitaker stated she re- plied that the personnel policies provided for an employ- ee council which is called an advisory council, which in all of the Villa Care facilities is set up to meet once a month so that nonsupervisory personnel "can express- without people trying to influence them one way or the ------ EDMONDS VILLA CARE CENTER 711 other-they can express what they want and what they don't what." Whitaker continued: It was my understanding at Edmonds Villa Care Center that the employees had got together and de- cided not to have the advisory council meet, be- cause they had enough meetings, and they felt that they had good communications with the administra- tor and that they didn't need it; so, I just brought it up in answer to the question of what they could do. I told them that they had that in the personnel poli- cies, but they had voted not to have it. Whitaker testified that the question regarding griev- ances had come up in response to a question as to how they could get their problems resolved, to which she stated there was a regular grievance procedure provided for in the personnel policy manual. 3. The terminations of Cox and Tiffault The more important and critical issue involved in this matter concerns the events of June 17 about which there is no serious dispute.a On Saturday, the 17th, Cox re- ported for work along with four other nurses aides-Tif- fault, Kramp, Mahoney, and Smith. Normally, there were supposed to be at least six nurses aides on duty, and in some instances in the past there had been as many as eight. The aides were extremely busy, and, when Joanne Smith sought to have one of the licensed nurses assist her in giving a suppository only to be told by the nurse that she was too busy and that Joanne would have to do it herself, Smith walked out in disgust.4 This left only four nurses aides to perform the usual function of six or more. The aides discussed the situation and decided that, because they were working "short," they should be paid time and a half for their work. Cox became their spokes- man and first spoke to the charge nurse, who advised her that the matter would have to be taken up with the front office; that she had no authority to authorize time and a half. All four girls proceeded to the front office and dis- cussed the matter with the bookkeeper, Doris Wenner. Wenner advised them that she had no authority to au- thorize additional payment, and Cox asked if it would be all right to use the telephone to speak to Larson. When told that Larson was not available, she then asked if she could speak to Barry. Cox informed Barry of the short crew and demanded that they be authorized time and a half payment. Barry informed the aides that it was not Respondent's policy to pay time and a half for work with short crews, and that it would be improper for her to authorize additional pay- ments, particularly in view of the fact that the Union was now the bargaining representative of the employees. Cox told Barry that she would not work with a short crew unless she was to be paid time and a half. According to Barry, she told each of the four nurses aides that, "Until the union contract had been settled, we were sticking to Villa Care policies, and it was not in the policy to pay time and a half." Kramp and Mahoney de- 3 What follows is taken largely from the testimony of Wenner and Barry. 4 Smith is not involved in these proceedings. cided to stay on, but when Tiffault and Cox insisted that they were going to leave unless they were assured that they would be paid time and a half, Barry told them that if they left they need not return. Both Tiffault and Cox walked off the job and did not return that day, but neither did they picket or display their protests to the working conditions in any visible manner other than walking off the job. Sometime on Monday, June 19, Cox went to the Villa Care Center and, according to Larson, attempted to apologize or at least explain that she had been upset on the previous Saturday and wished to explain her actions. At that time Larson again assured her that, while she had been a good employee, she had been in the wrong in leaving the patients unattended, and that it would not be possible to continue her employment at the Villa Care Center. Some 2 or 3 weeks later Cox returned to Villa Care Center and spoke to Wenner concerning a possible job as a housekeeper. At that time she was informed that they were not in need of any additional housekeeping employees. Tiffault never returned to the Villa Care Center to offer herself for employment.5 4. The failure to provide employee data As early as June 27 the Union requested negotiating data from Respondent, including the name of each em- ployee, and his or her classification, date of hire, current wage rate, and the date and amount of each employee's last pay increase. (see G.C. Exhs. 3, 4, 5, 6, and 8.) On January 15, 1979 (see G.C. Exhs. 10, 10(a), and 10(b)), Respondent furnished the Union with a list of wages for hourly employees included within the bargaining unit and their month and year of hire broken down into the various departments, such as nurses aides, activities, maintenance, dietary, and laundry and housekeeping. However, the names of the individual employees and their last wage increases was not shown. In addition to the information furnished, Respondent also offered to allow the union president to examine Respondent's rec- ords, but stated that it would not allow any note taking. Elliot Willman, who is president of the Union and who serves as its chief negotiator, testified that it has been his experience that in a first contract of this nature each employee would end up getting a different wage in- crease. He testified that, in order to get such a contract ratified, it has been the Union's practice to "advise each individual employee of what their current rate is and, then, the amount and percent that they would receive during the duration of the contract, so that when they vote on the agreement they know the amount for them personally that they would be voting on." Willman fur- ther testified that he needed to know the date of each employee's last increase in order to calculate an appro- The record indicates that Tiffault never had any intentions of ever returning to work at the Villa Care Center. Cox received other employ- ment on July 18, and stated in open court that she had no desire to be returned to or reinstated in her employment with the Villa Care Center. It should be noted that both Tiffault and Cox applied for unemployment compensation from the State of Washington, but were denied any com- pensation on the basis that they had quit. I do not regard the decision by the Washington State Unemployment Compensation Commission as bind- ing on me, and shall not regard their decision as a factor influencing my decision in this matter. EDMONDS VILLA CARE CENTER 711 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate increase that might bring each employee up to at least the cost-of-living increases that have occurred since the date of their last increase. Williams further testified that he needed to know the names of each of the em- ployees because in some instances employees in the same classification might be drawing a larger wage than other employees in the same classification. Some differences might be entirely justified because of experience or some special task that that employee performed that perhaps others in the same classification were not performing. Knowledge of these special situations is necessary in order to protect the employees from not receiving a de- crease in pay because of the Union's negotiating efforts. Respondent did not deny its failure to furnish the names of the employees and their specific wages and its only defense was that it felt that it owed an obligation to the employees not to reveal their personal salaries. D. Analysis and Conclusion While I feel that Cox may have "baited" Barry through a system of questions and then exhibited a will- ingness to twist and relate those responses in a manner that would be most favorable to finding acts of interfer- ence and coercion, nevertheless from the evidence before me I must find that Barry unnecessarily and illegally told Cox that personal leaves and absences of short duration for doctor's and dentist's visits would be eliminated under a union contract. Cox testified that Barry made such remarks to her, and Barry did not deny having made remarks to the general effect that personal leaves of absence for doctor's and dentist's visits would not be permitted under a union contract. I find such a comment to have been coercive and to have violated Section 8(a)(1) of the Act. I do not find the conversation which occurred in the hallway and continued in the lounge area between Barry and Cox to have been violative of the Act largely because of the lack of definitiveness of just exactly what Barry is alleged to have said, and also be- cause of the testimony of Backen, who testified that Barry was responding to questions asked by Cox. In my opinion, Cox has taken innocent and permissible state- ments out of context and turned them around in a manner that would make them appear to be threatening and coercive. I shall recommend dismissal of the allega- tions contained in paragraph 6(a) and (b) of the com- plaint. I shall also recommend dismissal of the allegation con- tained in paragraph 7 of the complaint dealing with the May 25 meeting at the Villa Care Center. The thrust of paragraph 7 in the complaint concerns the solicitation of grievances at the May 25 meeting. Respondent had ; complete grievance procedure prior to the advent of the Union (see p. 12 of Resp. Exh. 3), and I am convinced from the testimony contained in this record that any ref- erences to grievances on the part of Respondent's repre- sentatives had to do with referring the employees to the already established grievance procedures as set forth ill Respondent's policy and procedures manual. The fact that Cox, as well as some of the other employees, may have been totally unware of any established grievance procedure strengthens Respondent's argument that this grievance discussion occurred in response to employees' questions as to how their grievances and gripes could be handled. The policy and procedures manual was availa- ble for perusal, and in at least one instance an employee signed a form indicating that she had read and under- stood the personnel policies manual (see Resp. Exh. 6, a form signed by Tiffault). I find the failure of Respondent to provide the Union with the names and current wage rate of each employee, as well as the data and amount of their last wage in- crease, to be violative of Section 8(a)(5) of the Act. The parties acknowledged that this information had been re- quested in writing on several occasions, and also ac- knowledged that in several instances it had been dis- cussed during the negotiations. Willman's explanation of why the information was necessary and needed was logi- cal and reasonable. I herewith find the information to be relevant and necessary in order for the Union to perform its function of representing the employees in the collec- tive-bargaining process, and the failure of Respondent to furnish said information to be a violation of their obliga- tion to bargain with the Union. As indicated earlier herein, the real heart of this case concerns the discharge of Tiffault and Cox on June 17. General Counsel argues persuasively that Cox and Tif- fault were engaged in protected concerted activity when they walked off their job on June 17, and that, when they were told by Barry that, if they walked off the job they need not return, they were unlawfully discharged in violation of Section 8(a)(3) of the Act. General Counel further points out that the conduct of Tiffault and Cox was not the action of a labor organization, requiring a 10-day notice before a strike (see Sec. 8(g) of the Act), and points to the Board's holdings in Walker Methodist Residence and Health Care Center, Inc., 227 NLRB 1630, 1631 (1977), and Long Beach Youth Center, Inc., etc., 230 NLRB 648 (1977), in which the board found that "the legislative history, policy considerations, and Board pre- cedents all point toward an interpretation of Section 8(g) as applicable only to strikes or picketing involving a labor organization." (Emphasis supplied.) In either the Walker Methodist nor the Long Beach cases just cited was there a union involved. General Counsel, perhaps in anticipation of Respondent's argument, correctly points out the Board's recent decision in International Union of Operat- ing Engineers, Local No. 948 (Osteopathic Hospital Founders Association, d/b/a Oklahoma Osteopathic Hospi- tal), 238 NLRB 158 (1978), wherein the Board found the work stoppage to be a violation of Section 8(g) of the Act, as readily distinguishable because the issue in ques- tion had been a matter under discussion between the re- spondent hospital and the union involved. In the instant case Respondent and the Union were not engaged in a discussion to resolve the issues in question at the time Cox and Tiffault walked out. In addition to making the argument that employees Cox and Tiffault lost their employee status under Section 8(g) of the Act, which argument must be held to be without merit in view of the Board's definitive language in the Walker Methodist and Long Beach cases heretofore cited, Respondent also argues that employees Cox and Tiffault were terminated pursuant to reasonable rules and regulations of which they were both aware (see Resp. EDMONDS VILLA CARE CENTER 713 Exhs. 4 and 5). While there was some testimony tending to indicate that on one or perhaps two occasions Cox had been paid time-and-a-half pay when she had worked on a "short" crew, it is also clear from the credited testi- mony of Barry and Larson that it was not Respondent's policy to pay time and a half for working on a short crew, that the extra money received by Cox was pursu- ant to a job well done, and that she was advised of the payment of the additional money after the job had been performed. The employees that were called in to work on June 17 following the walkout were not paid time and a half for working on a short crew, but were paid time and a half for those hours in excess of 8 which they worked on that day. The testimony of Cox and Tiffault con- vinces me that they demanded that they be paid time and a half for working on a short crew, otherwise they were going to leave the job immediately. Such an ultimatum is quite different from suggesting that a grievance would be filed, or that the matter should be discussed with the Union. Such a demand for a unilateral change in policy placed Respondent in an untenable position. In order for Respondent to have complied with the request, it would have committed an unfair labor practice; namely, unilat- erally changing the working conditions at the request of employees rather than in compliance with its obligation to bargain exclusively with the Union as the collective- bargaining representative of the employees. The activi- ties of Cox and Tiffault in demanding an immediate com- mitment for the payment of time and a half for working on a short crew was an act of forcing Respondent to deal independently with them to the possible detriment of the bargaining agent's statutory position as exclusive bargaining representative. s The comment by Barry to Cox that she could not do anything because of the Union was nothing more than a layman's expression of the law. It was neither coercive or illegal. I therefore find and conclude that the act of Cox and Tiffault in demanding an immediate commitment to pay time and a half for working with a "short" crew was an act which was not protected concerted activity because it would have required Respondent to have committed an unlawful act-namely, to have unilaterally acted in changing its policies at the demand of two employees rather than negotiating with the statutory bargaining representative. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- 6 Tailored Trend, Inc., 126 NLRB 336 (1960). putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW i. Villa Care, Inc., d/b/a Edmonds Villa Care Center, is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Northwest Economic Council, Local No. 900, char- tered by Retail Clerks International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, through the conduct of its supervisor, Erlys Barry, interfered with, restrained, and coerced em- ployees in the exercise of their Section 7 rights, and therefore violated Section 8(a)(l) of the Act, when Su- pervisor Barry informed employees that personal leave for doctor and dental appointments would no longer pre- vail in the event the Union were elected as the employ- ees' bargaining representative. 4. Respondent did not bargain in good faith when it failed to provide the Union with necessary and relevant information regarding employees' names, wage rates, and dates of last wage increases as requested by the union representative, and thereby violated Section 8(a)(5) and (1) of the Act. 5. All other allegations of the complaint have not been proven by a preponderance of the evidence, and are to be dismissed. Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that the Board issue an order requiring it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Respondent will be ordered to bargain with the Union as the duly designated representative of its employees in the following appropri- ate bargaining unit, and to provide the necessary and rel- evant bargaining information as heretofore indicated in this Decison: All service and maintenance employees employed by Villa Care, Inc., d/b/a Edmonds Villa Care Center, at its Edmonds, Washington, facility, em- ployed as cooks, kitchen aides and assistants, nurses aides and orderlies, laundry workers, housekeepers, maintenance employees, physical therapy aides, and ward attendants, excluding office clerical employ- ees, guards, supervisors, registered nurses, licensed practical nurses, and condfidential employees as de- fined in the Act. [Recommended Order omitted from publication.] EDMONDS VILLA CARE CENTER 713