Lakeland Convalescent Center, Inc.

LAKELAND CONVALESCENT CENTER Lakeland Convalescent Center, Inc. and Shirley Treadwell et al. Cases 7-CA-6497 (1) through (7) October 8, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 1, 1968, Trial Examiner Melvin Pollack issued his Decision in the above-entitled consolidated proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief, limited to the question of jurisdiction. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its power in connection with these cases to a three-mem- ber panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, conclusions and recom- mendations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Lakeland Convalescent Center, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner Pursuant to charges filed on December 12, 13, and 14, 1967, a consolidated complaint was issued on June 6, 1968 , alleging that Re- spondent had violated Section 8 (a)(1) and (3) of the National Labor Relations Act, as amended , by coercive conduct, including interrogation , threats of discharge , and the discharge of seven employees . Respondent's answer, as amended at the hearing, denies that Respondent is and has been an employer 173 NLRB No. 21 97 engaged in commerce and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, but does not otherwise controvert the allegations of the complaint The case was heard at Detroit, Michigan, on July 15 and 16, 1968 At the opening of the hearing, Respondent moved to dismiss the complaint on the ground that the conduct alleged to be violative of the Act occurred at a time when the Board's policy was not to assert jurisdiction over proprietary nursing homes such as that operated by Respondent Respondent argued in support of this motion at the close of the hearing The General Counsel has filed a memorandum opposing the motion I deny the motion for the reasons hereafter stated. Upon the entire record, I make the following FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation, operates a proprietary nursing home in Detroit Respondent's gross revenues for the rendering of convalescent services exceeded $ 100,000 in 1967 During that year, Respondent's purchases of goods and materials from Michigan suppliers exceeded $15,000, of which over $6,000 represented direct interstate shipments to Re- spondent's suppliers. I find that Respondent is engaged in commerce within the meaning of the Act, and that the assertion of jurisdiction is warranted University Nursing Home, Inc., 168 NLRB No. 53. The University Nursing Home case, prescribing standards for the Board's assumption of jurisdiction over proprietary nursing homes, was issued on November 16, 1967, and thus followed the unfair labor practices alleged in the complaint It is the Board's policy, however, to apply new or changed jurisdictional standards to all future and pending cases. Stemons Mailing Service, 122 NLRB 81, Edwin D Wemyss, An Individual, d/b/a Coca-Cola Bottling Company of Stockton, 110 NLRB 840, 843. As the Board explained in the Siemons case (122 NLRB 84-85). ... the Board does not believe that the mere fact that a respondent had reason to believe by virtue of the Board's announced jurisdictional policies that the Board would not assert jurisdiction over it, gave it any legal, moral, or equitable right to violate the provisions of the Act . This is especially true since the issuance of the Guss decision, [Guss v Utah Labor Relations Board, 353 U.S. 1, decided March 25, 19571, which eliminated all possible basis for believing that in such circumstances the provisions of the Act did not apply, or that State law would or could apply to its conduct. In the final analysis what is conclusive with us is the fact that any other policy would benefit the party whose actions transgressed the provisions of the Act at the expense of the victim of such actions and of public policy This policy has been expressly approved by the courts. Local Union No 12, Progressive Mine Workers of America, Dist No. 1 v. N.L R.B., 189 F.2d 1, 4-5 (C.A. 7), cert denied 342 U.S. 868, N.L.R.B. v. Kartarik, Inc., 227 F.2d 190, 192 (C.A. 8), N.L.R.B. v. Stanislaus Implement and Hardware Company, Ltd., 226 F.2d 377, 379 (C.A. 9), Optical Workers' Union, Local 24859 v. N.L.R.B., 229 F.2d 170, 171 (C.A 5), cert. denied 351 U.S. 963; N.L.R.B. v. F M. Reeves and Sons, Inc., 273 F.2d 710, 712 (C.A. 10); NL.R.B. v. Pease Oil Company, 279 F.2d 135, 137-139 (C.A. 2), NL.R.B. v. Guernsey Muskingum Electric Cooperative, Inc., 285 F.2d 8, 11 (C.A. 6). 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent cites N.L R.B v. Guy F Atkinson Co., 195 F.2d 141, 149 (C A. 9), as support for its position that the Board may not retroactively apply a changed jursidictional policy As noted in Guernsey-Muskingum, supra, "Each case must rest on its own facts" (285 F.2d at 11) In Atkinson, the Board reversed a longstanding policy of not asserting juris- diction over the building and construction industry and found that the employer violated the Act by discharging an employee pursuant to the provisions of a closed-shop contract executed in accordance with industry custom at the outset of a construction project but held invalid by the Board because the working force at the time of execution was "a small fraction of the contemplated total" and therefore not "representative of an appropriate unit" (195 F.2d at 144) The Ninth Circuit, in refusing to enforce the Board's order, referred to the "inequity of such an impact of retroactive policy making upon a respondent innocent of any conscious violation of the Act," (195 F 2d at 149). The present case resembles Atkinson in that the Board prior to the University Home case had not asserted jurisdiction over proprietary nursing homes but significantly differs from Atkinson in that Respondent's threats of dis- charge and discharges of employees for their union activity were flagrantly violative of the Act Cf. Pease Oil Company, supra., 279 F.2d at 139, where the Second Circuit noted that the Ninth Circuit has narrowly limited its application of the Atkinson decision. See, e.g., N.L R B. v W. B Jones Lumber Company, Inc., 245 F.2d 388, 390-391, NL.R B v Forest Lawn Memorial-Park Assn., Inc., 206 F.2d 569, 571, cert denied 347 U S. 915, and N.L R.B. v Charles E. Daboll, Jr., etc, 216 F 2d 143, 144, cert denied 348 U S. 917 But cf. NL.R.B. v. Herald Publishing Company of Bellflower, 239 F.2d 410, 411-412. In any event, I am bound to follow the Board which stated in Siemons Mailing Service, supra (122 NLRB 81, fn.11)- "To the extent that our decision herein may be deemed to conflict with the decision of the Ninth Circuit Court of Appeals in . Atkinson ., we note our disagree- ment and respectfully decline to follow its dictates."' II. THE LABOR ORGANIZATION INVOLVED Local 79, Service Employees' International Union, AFL- CIO,2 herein called the Union, is a labor organization under Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The complaint alleges, Respondent does not dispute, and I find that Respondent, in October 1967, by its management and supervisory personnel coercively interrogated its employ- ees concerning the signing and circulation of union authoriza- tion cards, and with respect to a union meeting, threatened its employees with discharge and other economic reprisals for soliciting support for the Union, stated to employees that discharges were effected because certain employees had exe- cuted union authorization cards and solicited other employees to execute union authorization cards, solicited an employee to I The Atkinson case appears incompatible with the well settled doctrine that "The principles of equitable estoppel ( cannot ] be applied to deprive the public of the protection of a statute because of mistaken action or lack of action on the part of public officials " N.L.R.B. v Baltimore Transit Co., 140 F 2d 51 , 55 (C.A. 4), cert denied 321 U.S withdraw from the Union upon the promise of retention of employment, and, because of their activities in behalf of the Union, discharged employees Shirley Treadwell, Mary Hagler, Lois Johnson, Clonne Johnson, Ammer Gene Phillips, Geneva Pharr, and Lulu Simms I conclude that Respondent, by the foregoing conduct, violated Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the Board's assumption of jurisdiction over its operations is warranted 2. The Union is a labor organization within the meaning of Section2(5) of the Act. 3. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the purposes of the Act. Having discriminatorily discharged certain employees , Respondent will be ordered to reinstate them to their former or substantially equivalent positions of employ- ment, without prejudice to their seniority and other rights and privileges , and to make them whole for any loss of earnings suffered as a result of Respondent 's unlawful action Backpay shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 The violations of the Act committed by Respondent are such that future violations may be fairly anticipated unless broadly restrained I shall therefore recommend that Respond- ent cease and desist from any invasion of employee rights under the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent Lakeland Convalescent Center, Inc , its offi- cers, agents, successors, and assigns, shall- 1 Cease and desist from (a) Coercively interrogating employees concerning union activities, threatening employees with discharge because of their organizational activities; soliciting employees to withdraw from the Union upon the promise of continued employment; or in any other manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 795, and cases cited there , cf. Wallace Corporation v N.L R.B., 323 U S 248, 253. 2 The International has recently changed its name from Building Service Employees ' International Union, AFL-CIO LAKELAND CONVALESCENT CENTER (b) Discouraging membership in the Union, or in any other labor organization, by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. 2 Take the following affirmative action, (a) Offer the following employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered in the manner set forth in the section of this Decision entitled "The Remedy " Shirley Treadwell, Mary Hagler, Lois Johnson, Clorine Johnson, Ammer Gene Phillips, Geneva Pharr, Lulu Simms. (b) Notify these employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selet.- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under this Recommended Order. (d) Post at its premises in Detroit, Michigan, copies of the attached notice marked "Appendix ."3 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by Respondent's authorized representative, 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 Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the aforesaid Regional Director, in writing, within 20 days from the date of the receipt of this decision, what steps Respondent has taken to comply herewith.4 3 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 4In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES 99 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: All our employees have the right to join or support a labor union. WE WILL NOT in any manner interfere with their exercise of this right. Specifically, WE WILL NOT coercively interrogate them concerning their union activities or sentiments. WE WILL NOT threaten employees wah discharge because of their organizational activities. WE WILL NOT solicit employees, upon promises of reten- tion of employment, to withdraw from Local 79, Service Employees' International Union, AFL--CIO. WE WILL NOT discourage membership in Local 79, or any other labor organization, by discharging or otherwise discriminating against any of our employees WE WILL offer the following employees their former or substantially equivalent jobs (without prejudice to their seniority or other rights and privileges), and WE WILL pay them for any loss because of our discrimina- tion against them Shirley Treadwell Ammer Gene Phillips Mary Hagler Geneva Pharr Lois Johnson Lulu Simms Clorrne Johnson LAKELAND CONVALESCENT CENTER, INC. (Employer) Dated By (Representative) (Title) Note We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate di- rectly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Tele- phone 226-3200.