Danville Nursing Home

1 Oakwood Manor, d/b/a Dandle R e t d CIerLs W 7 2 5 , Pro= f d o d and H d t h Dlvlslon, d w & Commercial Workem Intenutiond AFI~cI~-CLC. 25-CA- 1 25-CA-11428, and 25-CA- 1980, Hutton Secticm 1qc) Labor Relations R e lations as ita orders Oakwood ita suc- ceason, asrigmi, aaid EO l(c) and re- 1- paragraph6 surveillance 1 (g): "(g) guaranteed p~ - Respondent h excepted ECW credibili?y fhdinga m d e Adminhlrative u Bcud'a aublhhd wemJc dminirtrative law molutiom witb map03 to u n l a the clar prepcdmna relevant evidence con- vima IU th.t raolmtiorv are incorrst. Standad Dry m d w t a I=. 544 (1950). ma. 188 F.Zd Cir. cuefully examined record find buL Tor rrvaring bm f d i n p . Contrary Law b warrmted t h cac u Reapadmt'n unlawtul wduct, interrolptlonr, of facility, diirimi~tory uigammts u u dirrimimtory dirhuga. w u extmsive md -bed not dl, the employsc Hkkmorr F d IRK, Fmthcnnorc, AdminLtrative Law indvertmtly fuled pro+ remedy finding lhat Rapondent violated SeE. 8(a)(1) the employed activitia. ly, we rhll Administrative Law Judge's recommended ud notice Respondem cease md deaiat urh rprvcillure. i NOTICE EMPLOYEES P ~ D BY OF LABOR Afler Nationd WILL NT conceming Retail Clerka a/ discharge clobure NOT discharw diecriminating employees h o w othcr because above-narned regular RNs, all d l services supervisors, service office exer- i DANVILLE NURSING HOME 907 Inc., Nursing Home and Union, Cue United Food Union, Cases 1356, 25-CA-113562, 1 1446 February 20, 198 1 DECISION AND ORDER On August 28, Administrative Law Judge S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and had decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.' ORDER Pursuant to of the National Act, as amended, the National Labor Board adopts Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby that the Respondent, Manor, Inc., d/b/a Danville Nursing Home, Danville, Indiana, officers, agents, and shall take the action set forth in recommended Order, as modified: 1. Insert the following as paragraph the subsequent accordingly: "(c) Engaging in of employees* union and/or protected concerted activities." 2. Substitute the following for new paragraph In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights them in Section 7 of the Act." to by t k Law Judge. It the policy not to an judge's credi- bility of dl of the the Wall 91 NLRB 362 (3d 1951). We have the and M to the Administrative Judge, we find that a broad order in includ- ing thrats closure of the md work well molt. if of compliment. Cf. 242 NLRB 1357 (1979). the Judge to a for his by engaging in surveillance of its union According. modify the Order to provide that from engaging in 254 NLRB No. 108 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX To ORDER THE NATIONAL RELATIONS BOARD An Agency of the United States Government a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the Labor Relations Act, as amended, and has ordered us to poet this notice. WE interrogate our employees their union membership in, or ac- tivities on behalf of, Union Local 725, Professional and Health Care Division, w United Food and Commercial Workers In- ternational Union, AFL-CIO-CLC, or any other labor organization. WE WILL NOT threaten our employees with or of our facility if they become members of the above-named Union or select it as their collective-bargaining repre- sentative. WE WILL engage in surveillance or our employees* union and/or protected concerted activities. WE WILL NOT discourage membership in the above-named Union or any other labor organi- zation by or against in work assignments, of as- signments, or in any manner with re- spect to their hire, tenure of employment, or & any term or condition of employment, of their union activities. WE WILL NQT discharge employees because they engage in concerted activity protected under the Act. WE WILL NOT refuse to recognize the Union as the exclusive bargain- ing representative of our employees in the fol- lowing appropriate unit: All full-time and part-time service and maintenance employees employed at our facility, exclusive of all LPNs, health all relief health service supervisors, all food supervi- sors, all technical employees, all cleri- cal employees, all professional employees, all guards and all supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the W8 1 cise ae W i McDaniel, Faudree, Raley, full aemiority wn as terminations. also Wilma McDanieI CASE H ~ N BRANDON, cases heard 14-17. Caae 25-CA-11356 was fded Ckrks L a d Professional Health a/w & Worken AFL-CIO-CLC, 1979,' ch.rges ia Cases 25-CA-11356-2, and 25- 15. wnrolidating cases, co~~tidated issued Octobar 30 wes 1 an tirst that Oakwood B(aXl), (3, aa imua ftamed complaint as an thc 8(8)(1) iatcrrogation employee, threats employees @) violated 8(a)(3) employees houm ardwur less agreeable becaw I 8(aM5) recognize working conditions witn- after filed conrolid.ted complaint Indiana, place business Rapondent isruance complaint, c o r n grw revenues excars at period busi- neu operatiom, ucess Notwithst@ing gross grm en- ga,@ wmmera w i t h 2(6) ?he assert jurisditim proprieury nursing as Respondent having grona annum excess Uniwmi@ Nursing here tbe discretionary standards nwr- r tion also indicated Govenunent having requisite Drrxel Home I n c , bem the muning 2(6) fmd consistent thc admission hcaring, is, bem all tima 8 2(5) 11. PRACIICES Ogonimtionol Campaign Rcspon- on Collinq as nursks and ob- DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the rights guaranteed them under Sec- tion 7 of the Act. WE WILL, upon request, recognize and bar- gain with the above-named Union the exclu- sive representative of the employees in the above-described unit concerning wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement if re- quested to do so. WE WILL offer to Barbara Collins, Holly Phillips, Pam Sharon and Dorothy Story immediate and reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their or other rights and privileges previ- ously enjoyed, and WILL make them whole, with interest, for any loss of pay they may have suffered a result of their unlawful WE WILL make whole Barbara Collins and for any loss of pay re- sulting from the discriminatory assignments of work to them. DECISION STATEMENTOF THE S. Administrative Law Judge: These were in Indianapolis, Indiana, on April 1980. The charge in by Retail Union, 725, and Care Division, United Food Commercial International Union, herein called the Union, on September 21, while the 25-CA-11428, CA-11446 were filed by the Union on September 25 and October 9 and respectively. An order a complaint and notice of hearing on and amended on November and the day of the hearing. The consolidated wmplaint, as amended, alleged Manor, Inc., d/b/a Danville Nursing Home, herein called the Respondent or the Employer, violated Section and (5) of the National Labor Relations Act, amended,herein called the Act. The as by the allegation, the Respondent's answer. and litigated at the hearing whether Respondent: (a) violated Section of the Act by of by of discharge and facility closure. by surveillance of a union meeting, and by discharge of six for participating in protected concerted activity under the Act; Section of the Act by assigning to less of work and more or tasks of their union activity; and (c) violated Section and (1) of the Act by refusing to and bargain with the Union on and after August 2, and by unilaterally chang- ing existing employee hours and without notice to the Union or affording the Union an opportunity to bargain thereon. Upon the entire record, including my observation of the demeanor of the and due consider- ation of the briefs by the General Counsel, and the Respondent, I make the following: The alleged, and the Respon- dent admitted that the Respondent is a corporation duly organized under the laws of maintaining a prin- cipal office and of at Danville, Indiana, where it is engaged in the business of operating a propri- etary nursing home. The admits that during the 12-month period preceding of the in the and conduct of its business operations, it re- ceived in 5100,000. In the same of time the Respondent in the course of its and for patient care, received Medicaid payments in of 5100,000. its ad- missions with respect to its revenues and re- ceipts of Medicaid payments in the amounts stated above, the Respondent denies that it is an employer in the meaning of Section and (7) of the Act. Board has previously held that it will over homes such the here revenues per in of $100,000. Home, 168 NLRB 263 (1967). The Respondent clearly meets Board's for the of jurisdiction. The Board has that payments to an employer fmm the Federal through Social Security and Medicare program may be considered as an impact on commerce, thereby providing the basis for statutory jurisdiction. 182 NLRB 1045 (1970). Accordingly, I find and conclude that the Respondent is, and has at all times material, an employer engaged in commerce within of Section and (7) of the Act. I further and conclude, with the Gener- al Counsel's allegation and Respondent's at the that the Union and has at material herein, labor organization within the meaning of Section of the Act. ALLEGED UNFAIR LABOR A. The Union The Union's organizational drive among the dent's employees began with Barbara Collins' telephonic contact with John Drake, an organizer for the Union, July 30. employed by the Respondent a aide, met with Drake on the afternoon of July 30 909 henelf afternoon Drake. su-fully signrturu formu services Collina G m e d bem bem represent "wages, also unam- biguou be designations collectivebargaining I5 thosc B. Ma/ority Status Bargaining having IS signed dent's administrator, Lauth's Drake preamt- addresd representatives, representative letter requested recognition alm agremnent." "rec- ' ardr obl.incd Collilu (G.C. Exhm. fmm employm W i Sue McDmiel, Faudree Cnwford. Wagk. Wly Stranger 30. whik card# Stwy, Shuon IWey, Brendm Gilliun, K.tbehc lid are cards Buelah Hmry An- grliqlv J e l l i i are Augud 2. Employe aLo her card and testified t k date apparing w u in d that r t d l y i p e d This conrbtmt that gave Augurt 1. Augm ognition a Subequently, 2, petition Board's Y Case seeking election recognition. wm September was 1980, issuance herein purposea b a r g d ~ n g 9(b) RNs, servica service technical office profarsion- employee^, guard& supervisonr Respondent'n General C O W revded paiod Augurt had employeg, individuals, Dorm Heiss Bunis, stipo- lated h&g supervison Mindel, Counsel Mindel, according ' record% week times hm be employeer. SUJI Hospital & O'Conno* Inc, Gocd Santa Kaiser Mindel narnea were payroll ac as Marshall ofice Happi- tad - - 3 DANVILLE NURSING HOME tained union authorization cards from him for distribu- tion to other employees. Collins signed a card that and gave it to Subsequently, during the remainder of July 30 and over the next 3 days, Collins obtained the of 14 otha employees on union authorization cards. and re- turned them to Drake directly or through Wanda Huff- man. a health director for the Respon- dent. testified for the Counsel and identified h a own card as well Y the 14 other individuals' cards which had solicited directly by her or which had returned to her directly by the individual card signer.' She further testified that in soliciting the cards she told the employees that she wanted to get the Union to the employees. In addition to designating the Union as the employees' collective-bargaining agent for hours. and working conditions," the cards distributed by Collins contained the following language: "I agree that this card may used either to support a demand for recognition, NLRB elec- tion, or a signature comparison, at the discretion of the Union." The Respondent has not attacked the authenticity nor the validity of the cards as of the employee representatives. Accordingly, I conclude that the cards identified by Collins, includ- ing her own, constituted valid designations of the Union as the collective-bargaining representative of card signers. The Union's and the Request for Around 2 p.m. on August 2, received union authorization cards by the Respondent's employ- e e ~ ,John Drake with David Day, an International repre- sentative for the Union, visited John Lauth, the Respon- in office at the Respon- dent's nursing facility. After introductions ed Lauth with a letter to Robert Lauth, John Lauth's father and president of the Respondent. John Lauth, in the presence of the two read the letter which stated that the Union was the majority of the Respondent's employees in a unit of "service and maintenance, employees, excluding techni- cal employees, professional employees, guards, and su- pervisors." The and offered to prove the Union's majority status through a "card check." Day handed Lauth a proposed "recognition After reading both the letter and the The by 13-27) Pun John Patty and bar t k date July the signed by Dorothy Russell, Phyllis Nancy Brown, and dated July 31. The of and dated Holly Phillip identi- fied that on the cud, July I , error she the cud on August I. is with Collins' tatimony Phillip her the card on Accordingly, 1 find and conclude, that Phillip signed her card on I. agreement" Lauth directed Drake and Day to leave the premises. on August the Union filed a represen- tation with the Regional Office,docket- ed 25-RC-7270, an in the same unit of Respondent's employees in which the Union had sought As a result of the petition, an elec- tion scheduled for 27, but following the Union's filing of the charges in Cases 25-CA-11356 and 25-CA-11356-2, the election was indefinitely postponed on September 26. The petition eventually dismissed on March 26, apparently because of the Region's of the consolidated complaint with its al- legations of an unlawful refusal to bargain by the Re- spondent. The complaint alleges, the Respondent admits, and I find that the following unit of the Respondent's employ- ees is a unit appropriate for the of collective within the meaning of Section of the Act: All full-time and regular part-time service and main- tenance employees of the Respondent employed at its facility, exclusive of all all LPNs, all health supervisors, all relief health services super- visors,all food supervisors, all em- ployees, all clerical employees, all al all and all as de- fined in the Act. The payroll records submitted in evi- dence by the that for the pay- roll ending 3 the Respondent a total of 27 including two J. and Dorothy whom the Respondent at the were within the meaning of the Act. It also included Margaret the Re- spondent's dietician whom the General would exclude from the unit. to the payroll worked from 3 to 6 hours a and received a rate of pay roughly three that of the regular unit employees The Board previously found dieticians to professional See Jose Health Center Inc., Hospital. and Sa- maritan Hospital of Clara Valley, 228 NLRB 21 (1977); Foundation Hospitals, 219 NLRB 325 (1975). Accordingly, and since the unit here excludes professional employees, I find, consistent with the Gen- eral Counsel's position, that may not be included in the appropriate unit. The General Counsel would also exclude Ardis Mar- shall and Mary Martin whose not on the payroll for the period ending August 3, but were on the prior to August 3 well subsequent to August 3. John Lauth testified that was em- ployed as his secretary and did clerical work. Ac- cordingly, I conclude that Marshall is an office clerical and as such she may not be included in the unit of non- professional employees here involved. See Valley Ltd. 220 NLRB 1339 (1975). Lauth testified with re- Drake's tatimony in the foregoing respects war admitted by Lauth. spect who nursc signed 5 c d August reveals Burria, Mindel, Marshall, 25 em- ployea. appuvq fmd b a d employes represented employes only requested thereaRer. ?Be Inteqation quickly k a m e aware organizatioaal uncontradict- Colfins, ' Burris, kitchen 1. Burris basis Hdly n- Respondent, Heisr, Reapondent'n conversation H e i ~ , according to uked responded she H e h was talking Appumtly thee waa convemtioa ploy- when employ- eea regarding tuti- former. of Heise, being Heias' had signed 8(a)(1) Augurt Danville. identified Wilma McDaniel, Raley, Sdly Wagle, Tindal, organizer G.C. hul been nurscs her nu-' Heiu wes stay gmcrally denied incident. credit inas- PI impressed good did additiod Heid clear understanding that union ir Respondent's as as M the absence 8(a)(l) limited Means, 4:45 p.m. and observed Bostick from Collina' Meem kstified that acqruinted with h i to s a neighbor Collins minutes to afta passed Sesrs, daughter Barbua also tutified Couns~l 4:45 to minutes occupant spezifically waa ite Means' positively 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Martin that Martin was a registered nurse was employed on a consultant basis and was utilized by the Respondent about 4 hours a week. As a registered Martin is a professional employee who may not be included in the service and maintenance unit appropriate herein. The IS employees who union authorization cards were included on the Respondent's payroll lists4 for the period from August 3 through October with the exception of one, John R. Crawford, who his employment after the payroll period ending August 24. Further examination of the payroll for the period of 3 through October 5 that, excluding Heiss, and Martin, the total em- ployment in the bargaining unit varied from to 26 It and I and conclude, that on the valid union authorization cards executed by the IS the Union a majority of the in the appropriate unit not on August 2 when the Union recognition but also at all rel- evant times C. Alleged of Employees and Surveillance of the Union Meeting The Respondent of the Union's campaign. According to the ed and credible testimony of Collins asked Doro- thy Respondent's supervisor, to sign a union authorization card on July 3 declined on the of her supervisory status. On the following day, Phillips, a part-time aide for the telephoned Donna director of nursing, to find out Phillips' work schedule. In the course of the Phillips, her if she had signed a "cud." Phillips that did not know what about. no further about a card. Heiss, in her testimony, denied any knowledge of union activity among the em- prior to August 2 Drake and Day visited Lauth. Moreover, she denied interrogating any their union activities. Considering the mony of Phillips and Heirs, I credit the Phillips impressed me as honest and straightforward in her testi- mony and worthy of belief. In the absence any other logical explanation, I conclude that in her question to Phillips, waa referring to the union authorization cards distributed. I further conclude that inquiry into whether or not Phillips a card constitut- ed unlawful interrogation in violation of Section of the Act. On the afternoon of 3, around 4 p.m., a meet- ing of employees of the Respondent interested in the Union took place at Collins' home on Wilson Street in Employees by Collins as attending the meeting were Pam Faudree, Sharon Dorothy Story, Holly Phillips, Stranger, Brenda Russell, Patty Katherine and John Crawford. Union Drake also attended. Word of the meeting to be held at Collins' Eah. 30. home had been passed around among the employees at the nursing home, but referred to as a "home ec" meeting. Dorothy Story, employed by the Respon- dent as a ride, testified that prior to leaving the nursing home at the end of shift to attend the union meeting she talked with Supervisor Heirs at the desk in the Respondent'r facility. Heiss, according to Story, asked Story if she were going to the meeting that night at Barbara's (Collins). Story denied any knowledge of any mating. replied that that good because Story should "just out of it." Heiss the I Story's testimony on the point much Story me as a candid and reliable wit- ness with generally recall. I therefore find that Heirs inquire of Story about the meeting and I infer from Heirs' remark to Story to the effect that Story should stay out of it waa reflective of the meeting was a mating. Such inference supported by the general opposition to the Union noted by its unlawful conduct found herein well of any explanation why Story should stay out of any particular type of meeting. Accordingly, I conclude that Heiss' inquiry of Story constituted interrogation in violation of Section of the Act. Respondent's interest in the union meeting was not to Heiss' inquiry of Story. Sandra a former employee of the Respondent until November I, 1978, and a sister to the Respondent's employee Kather- ine Tindal, testified that on August 3 she took Tindal to Collins' home for the union meeting around 4 p.m. Means returned at or about Lauth parked in an automobile she recognized as his at the corner of and Wilson Streets approximately a half Mock home. she was well truth and automobile and related that she waved at truth but he did not return her wave and looked away. Means proceeded on the home of of for a few and then to Collins' home pick up her sister, Tindal. She did not observe Lauth at any time she initially him. Cheri the of Collins and a former employee of the Respondent, for the General that while standing in front of Collins' house at or about on August 3 she observed John Louth's automobile parked for a period of 3 5 on Wilson Street at the corner of Wilson and Bostick. While Sears testified that there was a male in the car,she did not identify Louth. However. she stated she able to identify Louth's car by the fact that it had large rust spots on side. John Louth testified for the Respondent that he was at the nursing home during the time that he was identified by Means and Sears as being near Collins' home. I find his testimony in this regard unconvincing when consid- ered in the light of testimony identify- ing Lauth as being on the scene. Means impressed me as a sincere and obviously disinterested witness. Sears also appeared to be reliable and made no attempt to embellish her testimony by identification of anything other than