Lillian Abrahamson Nursing Home

2520 MADISON CORP. 2520 Madison Corporation d/b/a Lillian Abrahamson Nursing Home and Hospital and Nursing Home Division, Local 451, Culinary Workers and Bartenders , Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Case 19-CA-3978 February 17, 1969 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On October 15, 1968, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member 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 briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent, 2520 Madison Corporation d/b/a Lillian Abrahamson Nursing Home, Everett, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'Regardless of the date of passage of title, it is clear that Mr McLean acted in the capacity of administrator of the nursing home prior to March 19, 1968 , and his acts and conduct are attributable to Respondent TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner: This matter was heard at Seattle, Washington on July 30 and 31, 1968. The complaint , issued May 23, 1968, and based upon charges filed March 29, May 20 and May 23, 1968, by Hospital and Nursing Home Division , Local 451, Culinary Workers and Bartenders , Hotel & Restaurant Employees & Bartenders International Union , AFL-CIO, 551 herein called the Union, alleges that Respondent, 2520 Madison Corporation d/b/a Lillian Abrahamson Nursing Home had engaged in unfair labor practices within the meaning of Section 8(a)(5) and 8(a)(1) of the Act. Briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS 2520 Madison Corporation, d/b/a Lillian Abrahamson Nursing Home is a Washington corporation engaged in the operation of a proprietary nursing home at Everett, Washington. Respondent took over the operation of the Lillian Abrahamson Nursing Home, previously operated by Abrahamson, during the month of March 1968. Since that date, Respondent has derived ` gross revenues therefrom at a rate in excess of $100,000 per annum and has purchased goods and materials from suppliers located outside the State of Washington, or from suppliers located inside Washington who in turn receive said merchandise from outside that State, at a rate in excess of $5,000 per annum. Respondent projects for the fiscal year beginning July 1, 1968, gross revenues in excess of $100,000 and purchases of supplies in excess of $5,000 from sources outside the State of Washington. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Hospital and Nursing Home Division , Local 451, Culinary Workers and Bartenders , Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; The Issues Respondent assumed operation of this nursing home no later than early or mid-March of 1968. This was a functioning concern, there was no interruption of operations, there were no basic occupational changes and substantially all personnel were retained, including Head Nurse Charmaine Slattery. The corporation is controlled by two doctors and Ward McLean was designated by them as administrator of the home and the superior of Slattery. McLean also administers three other nursing homes operated by Respondent in Seattle, Washington. The Union conducted an organizational campaign among these employees both before and after the takeover with authorization cards signed during February and March On March 12, the Union filed a petition for an election and on March 15, it wrote to Respondent. Therein, it requested recognition; offered to prove its majority; and proposed bargaining for a contract. This demand was in the hands of McLean on March 19. As of that date, the Union had 27 cards from the 40 or 41 employees in the unit, all signed on or before March 15 but for one signed on March 17.' 'The parties agreed that there were 40 in the unit A janitor and maintenance man, Harold Lowman, makes the total 41 174 NLRB No. 86 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges that Respondent interrogated its employees concerning union activities, granted benefits, threatened loss of previously granted benefits, sponsored a petition repudiating the Union and unilaterally changed working conditions, all within the meaning of Section 8(a)(1) of the Act. It further alleges that on or after March 19, 1968, Respondent refused to bargain with the Union, within the meaning of Section 8(a)(5) of the Act. B. Interference, Restraint, and Coercion 1. Sequence of Events Promptly after receipt of the demand for recognition on March 19, Respondent took steps to counteract the Union's campaign.' Administrator McLean respectively summoned Assistant Cook Mabel Searle and Head Cook Marie Ensign to the office, told them that they were to be supervisors and announced a pay raise of 10 cents per hour effective immediately. Respondent conceded that it did not regard this as a promotion to supervisory status. The record discloses that these two employees, and particularly Searle, had been most active in signing up union members. Indeed, Head Nurse and Assistant Administrator Slattery had indicated to Searle on or about March 8 her awareness of the organizational campaign. McLean similarly gave 10-cent raises to three nursing aides, Florence Serviss, Norma Callis and Bertha Kona, telling them that they would thereafter be supervisory aides. Respondent does not contend that they thereby became supervisors and I find that this involved little change of duties. Shortly before the end of March and apparently about March 27, McLean called a staff meeting during the change between the day and afternoon shifts with employees of both in attendance. It is undisputed that on this occasion McLean promised a 10-cent wage increase to all employees, effective July 1; a new vacation plan with 1 week after 1 year's employment and 1 additional day per year up to a total of 4 weeks, as contrasted with the existing policy of only 1 week; and 2 paid holidays, as contrasted with the existing policy of none. One or two days later, McLean held another staff meeting According to Mabel Searle, McLean stated that he had learned that certain girls were interested in the Union and had signed up. He added that this would require him to negotiate with the Union, that this would tie his hands and that negotiations might last 12 to 18 months. In that event, he might be unable to fulfill the three promises he had made at the previous meeting. He suggested that the girls sign a petition repudiating the Union as their negotiating agent. McLean admitted herein that he brought to this meeting a typed document containing such language. According to Ensign, he said that if the girls wanted to draw up a petition he would take it "and see if they would withdraw." The testimony of McLean here leaves much to be desired. Although testifying that several employees had brought this paper to him, he also conceded that he brought the document to the meeting and proceeded to speak about it. While cautioning the girls not to copy the petition word for word, McLean left the document with them and departed the scene. Signatures thereto were TThere is some variation in the testimony as to the precise dates of the events detailed below . It is undisputed, and I find , that they occurred after March 19 and prior to the end of that month. solicited by one, Norma Derrick, a registered nurse and McLean's assistant, who devotes her time to checking conditions in all four of the nursing homes operated by Respondent. While Respondent does not concede that Derrick is a managerial employee and a supervisor,' the fact is that McLean provided and left the sheet of paper, that Derrick supervised its copying in longhand by an employee, Lipps, and that Derrick then proceeded to solicit signatures thereto. I find, in this context, that Derrick, who is excluded from the bargaining unit, was acting as an agent of Respondent Later that day, McLean summoned the 4 p.m. shift to the lunchroom. As Carol Erickson testified, McLean stated that he understood the employees favored unionization and told them what Respondent would offer if they signed a slip of paper which he passed down to the girls. This was a typewritten document, not the handwritten copy made earlier that day by Lipps, it decreed that the signers did not want the Union and would go along with Respondent. I find, as Erickson testified, that McLean made clear that this meant retaining the previously promised benefits, including the July 1 raise in pay, an improved vacation plan and the two holidays McLean further spoke with the employees of the graveyard shift. He explained, as Eileen Blankenburg testified, that it would be a long time before the Union could benefit them. He said he wanted to be fair and give them a chance to obtain their pay raises, increased vacations and two holidays and then proceeded to ask Blankenburg to sign the petition. The wage increases were granted in July, as promised, and it appears that Respondent has also put into effect the other two promised changes. At no time were these taken up with the Union and its demand for recognition has been completely ignored. A word here about the testimony of McLean is perhaps in order. Where in conflict with that of the witnesses heretofore set forth, it is not accepted. He strove to convey his precise shading of events even though the facts were to the contrary. For example, he persisted that Respondent took over the nursing home on April 1, a date subsequent to the conduct attacked herein by the General Counsel. Yet, the record was replete with evidence that McLean was already on the scene when the Union's demand for recognition was received on March 19 and when the March staff meetings were held. Indeed, his own testimony so discloses. He claimed that the petition emanated from two rank and file employees who asked him to present this to the appropriate authority, presumably the Board. However, he admitted that in his desire to help them he suggested some changes in wording and agreed to submit this to the Board.' The simple answer is that he admittedly brought the petition to the meetings and introduced to the employees the concept that they should sign it, thereby repudiate the Union, and thus receive the recently promised benefits. Perhaps his own testimony is best descriptive here, where he testified that he wished only the owners to receive credit for benefits granted to employees. He attempted further to defend his activities on the premise that he was attempting to bring wage rates in this nursing home in line with those in the three other homes 'Despite the fact that McLean also divides his time among all four homes 'The ultimate fate of the petition is not disclosed herein. 2520 MADISON CORP. and also to comply with the new federal minimum wage. This claim overlooks the wage raises given to some employees in March and the fact that several employees already receiving wages'in excess of the federal minimum did receive additional wage increases. 2. Conclusions as to interference, restraint, and coercion I find that the initial pay raises to Searle and Ensign were motivated by their union activities and constituted an effort to influence them against union support. The ostensible reason that they had become supervisors is not supported by the record . Viewed similarly are the raises to Serviss, Callis and Kona. See General Electric Co. v. N.L.R.B., 400 F.2d 713 (C.A. 5). The announcement of changes in working conditions for the entire staff, including the July 1 pay raise, the improved vacation plan and the new holiday plan, but 8 days after receipt of the Union ' s request for recognition can only be viewed , on this record , as a blatant attempt to seduce these employees away from their efforts to better working conditions through the Union. N L.R.B v. Exchange Parts Co, 375 U.S. 405. That this was so motivated is demonstrated by McLean's sponsorship within 1 or 2 days of an attempt to procure signatures repudiating the Union . Indeed, he in effect put forth the spectre that failure to abandon the Union could result in holding up the promised benefits for many months . The fact is that he introduced the concept of rejecting the Union by means of a petition and his top assistant solicited signatures thereto on the first shift. McLean in person then solicited signatures to the petition among employees of the other two shifts. I find that the foregoing amply supports the position of the General Counsel that Respondent granted benefits to employees to counteract their union activities , threatened their loss 'in the event of unionization, and sponsored a petition repudiating the Union . It also follows that Respondent unilaterally changed working conditions and ignored the designated bargaining representative , as will appear below . I further find that by the foregoing conduct Respondent has interfered with , restrained and coerced its employees in the exercise of the rights guaranteed in Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. C. Refusal to Bargain 1. Appropriate unit The complaint alleges that all employees of Respondent at its Everett , Washington nursing home , excluding office clerical and professional employees , registered nurses, licensed practical nurses, guards and supervisors, constitute an appropriate bargaining unit. This is a basic and common single facility unit The rank and file employees are spread over three shifts, all are involved directly or indirectly in the care of patients and they include kitchen workers , nurses aides and laundry workers. I find that the above -described unit, including the janitor-maintenance man, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 553 2. Majority representation There were 41 in the appropriate unit at the time material herein. The General Counsel has introduced in evidence 27 authorization cards, all signed prior to the receipt by Respondent on March 19, 1968, of the Union's request for recognition. The cards are clear on their face and state simply that the signers authorize the Union to represent them for the purposes of collective bargaining. There is substantial and uncontroverted evidence that those who solicited the signatures similarly explained only that the purpose of the card was to authorize the Union to bargain with Respondent The cards were authenticated either by the signatories or by the solicitors and recipients of the cards. In one case, that of Prinsibina Avila, Avila authorized her mother to sign her name. In another case, that of Rosa Lee Johnston who was convalescing from a back injury, her daughter testified that she witnessed the signature. I have carefully considered the testimony concerning each of the 27 cards and find that they constitute reliable evidence of the intent of the signers. I further find that on March 19, 1968, the Union was and now is the representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. 3. The refusal to bargain Respondent received the Union's request for recognition on March 19. It at no time raised any issue as to the appropriateness of the unit and it has not challenged the claim of the Union to majority representation. Indeed, it never replied to the letter and has continuously ignored the Union. This alone constitutes evidence that it has evaded its obligations under the Act. But Respondent went further. It took active steps to undermine the Union's majority status. It immediately granted wage increases to five key employees, these including two of the principal organizers, on the fiction that they had been promoted to supervisory status. On or about March 27, it announced an across the board wage increase and improved vacation and holiday benefits. Shortly thereafter, Administrator McLean warned the employees that the advent of the Union might prevent Respondent from putting these' improvements into effect for many months and coupled this with a suggestion that they sign a petition repudiating the Union. Indeed, he brought a prepared petition to the meeting of the first shift and thereafter personally solicited signatures to copies of the petition on the second and third shifts. Finally, Respondent ultimately put these improved working conditions into effect and entirely ignored the Union. The evidence strongly preponderates in favor of the position of the General Counsel that by the foregoing conduct Respondent refused to bargain in good faith. I find that Respondent has thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) and, derivatively, Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III and occurring in connection with its operations set forth in section I, above, have a close, intimate and substantial 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act.' I shall recommend that Respondent be ordered to recognize the Union and, upon request, bargain with it concerning rates of pay, wages, hours and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The unfair labor practices committed by Respondent amount to an evasion of its obligations under the Act and conduct in derogation of the principles of good faith collective bargaining. The inference is warranted that Respondent maintains an attitude of opposition to the purposes of the Act with respect to the protection of employee rights in general. It will accordingly be recommended that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1. 2520 Madison Corporation d/b/a Lillian Abrahamson Nursing Home is an employer within the meaning of Section 2(2) of the Act. 2. Hospital and Nursing Home Division, Local 451, Culinary Workers and Bartenders, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent's nursing home in Everett, Washington, excluding office clerical and professional employees, registered nurses, licensed practical nurses, guards and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization was on March 19, 1968, and now is, the exclusive representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing on March 19, 1968, and thereafter, to recognize and bargain with the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct; by unilaterally granting pay raises, vacation and holiday benefits; by threatening their withdrawal; and by sponsoring a petition repudiating the Union, in the context of a union organizational campaign, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 'This remedy is not intended in any manner to suggest that Respondent not retain or that it change adversely to employees existing conditions of employment RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, it is recommended that Respondent, 2520 Madison Corporation d/b/a Lillian Abrahamson Nursing Home, Everett, Washington, its officers, agents, successors and assigns shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Hospital and Nursing Home Division, Local 451, Culinary Workers and Bartenders, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, as the exclusive representative of its employees at Everett, Washington, excluding office clerical and professional employees, registered nurses , licensed practical nurses, guards and supervisors. (b) Unilaterally changing working conditions, threatening the loss of improved working conditions, or sponsoring petitions repudiating union representation, in the context of a union organizational campaign, or in any other manner interfering with, restraining or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, or other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its nursing home in Everett, Washington, copies of the notice attached hereto and marked "Appendix."6 Copies of said notice on forms provided by the Regional Director for Region 19 shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 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. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of receipt of this Decision what steps it has taken to comply herewith.' `In the event this Recommended Order be 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 the Board's Order be 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." 'In the event this Recommended Order be 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 the Respondent has taken to comply herewith " 2520 MADISON CORP. 555 APPENDIX NOTICE TO ALL EMPLOYEES 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: WE WILL recognize, and, upon request , bargain collectively with Hospital and Nursing Home Division, Local 451, Culinary Workers and Bartenders , Hotel & Restaurant Employees & Bartenders International Union , AFL-CIO as the exclusive bargaining representative of all employees at our nursing home in Everett, Washington, excluding office clerical and professional employees, registered nurses, licensed practical nurses, guards and supervisors , with respect to rates of pay , wages, hours of work or other terms and conditions of employment , and, if an understanding is reached , embody such understanding in a signed agreement. WE WILL NOT unilaterally change working conditions, threaten the loss of improved working conditions, or sponsor petitions repudiating union representation , in the context of a union organizational campaign, or in any other manner interfere with, restrain or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. 25 20 MADISON CORPORATION D/B/A LILLIAN ABRAHAMSON NURSING HOME (Employer) Dated By (Representative) (Title) 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 directly with the Board's Regional Office, Republic Building, 10th Floor, 1511 Third Avenue, Seattle, Washington 98 101, Telephone 583-7473.