Community Convalescent Hospital

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Medical Manors, Inc., d/b/a Community Convalescent Hospital and Community Convalescent East and Hospital & Institutional Workers' Union , Local 250, Service Employees International Union, AFL-CIO. Cases 20-CA-5926 and 20-CA-6637 October 19, 1972 DECISION AND ORDER On February 7, 1972, Trial Examiner Maurice Alexandre issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings and findings, but not his conclu- sions and recommendation. Respondent owns and operates two convalescent hospitals. The Union represents the employees, in each, but under separate, although nearly identical, collective-bargaining contracts. The contracts contain standard grievance-arbitration and no-strike clauses, and clauses guaranteeing a union representative ac- cess to employees to ascertain whether the contracts are being complied with. The complaint alleged, and the Trial Examiner found, that Respondent had unilaterally changed the terms and conditions of employment set forth in the collective-bargaining agreements between the Union and Respondent by (a) denying the union representa- tives contract visitation rights, and (b) paying its em- ployees wage rated other than those called for in the bargaining contracts, thereby in both instances violat- ing Section 8(a)(5) and (1) of the Act. The Trial Exam- iner rejected Respondent's contention that these contract disputes should be disposed of under the contract grievance-arbitration procedure. We do not agree with the Trial Examiner on the question of de- ferral to the Grievance-arbitration procedure. Denial of Visitation Rights The collective-bargaining contracts contain the following clause: A qualified representative of the Union shall be allowed to visit the premises of the Employer for the purpose of ascertaining whether this Agree- ment is being observed. This privilege shall be exercised reasonably. The Union representative shall report to the office at the time of any visit and shall not interfere with the normal conduct of work. He will be allowed to meet with an employee in a designated area at the time of the employee's normal break periods. He will enter and leave by the front door .... Early in 1970, the Union filed unfair labor prac- tice charges against Respondent alleging that the lat- ter had violated Section 8(a)(5) and (1) of the Act by refusing union representative entry to its premises notwithstanding the contract provision affording the Union visitation rights. These unfair labor practice charges were settled with the approval of the Acting Regional Director on August 14, 1970. Pursuant to the terms of the settlement, Respondent posted no- tices stating that it would not "deny in any manner ... access to [its] premises" to union representatives. In November 1970, the Regional Director notified the par- ties that the settlement agreement had been complied with and the case was closed. On March 10, 1971, Respondent denied visita- tion rights to Gary R. Robinson, business representa- tive of the Union. In Mr. Robinson's words, the following happened: On that date, Willie Anderson, another Lo- cal 250 business agent, and I visited the Commu- nity Convalescent Hospital East. Our purpose .. . was to visit with employees in the nurses' lounge on their break periods. As we walked in the front door, Mrs. Lidy [Respondent's administrator] was standing in the hall. I said, "Hello, Mrs. Lidy" and she went right back ... into her office. Then, the secretary started yelling, "Mr. Robinson." So I said, "Don't worry about it. Mrs. Lidy knows that we are here. We are going to visit with employees in the break room." The secretary then called Mrs. Lidy, who appeared back in the hall, she said "You didn't visit the office, so you don't have my permission to visit the hospital. At this point . . . I said that the contract rights said that we have a right to visit and also there has been a National Labor Relations Board settlement that gives us a right to visit the hospi- tal, at which point Mrs. Lidy said, "What NLRB settlement?" and I started to explain what about how last August there had been a settlement with Mrs. Lidy, had been signed, and had been posted in her facility for 60 days .... Following the above incident, and the new unfair labor practice charges based thereon, the Regional Director withdrew his approval of the settlement agreement and issued a consolidated complaint based on the old as well as new unfair labor practice charges. The Trial Examiner found that, because of Respondent's unlawful postsettlement conduct,.the settlement agreement was properly set aside and that findings based on Respondent's presettlement con- duct may be made in this case. We do not agree. Except for the incident in March 1971, the settlement agreement was fully complied with by Respondent 199 NLRB No. 139 COMMUNITY CONVALESCENT HOSPITAL from the time of its signing to the time of the hearing in this case in October 1971. Robinson testified that in 1971 alone, he visited the hospital 10 or 12 times without trouble, except for the March altercation de- scribed above. In view of the fact that Respondent has complied with the settlement agreement except for the one occasion in March 1971, we do not consider that this isolated violation warrants setting aside the settle- ment agreement and using Respondent's conduct prior thereto as a basis for finding that Respondent has engaged in unfair labor practices before or after the agreement. The collective-bargaining contract between the Union and Respondent contains a four-step griev- ance procedure culminating in arbitration to deal with: Any and all disputes with reference to the inter- pretation or application of any provision of the Agreement. Inasmuch as the Union's visitation rights derive en- tirely from the terms of the collective-bargaining agreement, it is apparent that the dispute relating to the March 1971 incident involves the "interpretation or application" of a provision of the agreement and therefore is cognizable under the contract grievance- arbitration procedure. Under these circumstances, we shall defer to that procedure in accordance with the principles of Collyer. t Unilateral Changes in Wage Rates Contrary to the Trial Examiner, we find that the question whether Respondent paid its employees at the contractually required rates should be deferred to arbitration. Although Respondent may have engaged in unwarranted foot-dragging in complying with the contractual grievance-arbitration procedures, that procedure has not broken down and is still available to the parties. It is clear that, notwithstanding Respondent's uncooperative attitude, all of its em- ployees' grievances relative to nonreceipt of contrac- tually required wages have been completely processed through the grievance procedure and are ready for arbitration. Moreover, the Union has obtained an or- der from the Superior Court of Solano County, Cali- fornia, compelling Respondent to proceed to arbitration, and the court retains jurisdiction over it to ensure that the order is complied with. This pro- vides the Union with a speedy remedy should Re- spondent not proceed promptly to arbitration.' With 1 Collyer Insulated Wire, 192 NLRB No. 150. 2 We are less sanguine about the successful operation of the parties' own voluntary procedures here than we have been in cases where the bargaining history demonstrates full acceptance by the parties of the grievance and arbitration route to the resolution of disputes While Respondent's reluctance to proceed promptly to resolve disputes gives us pause in deciding to with- 841 matters in this posture, it is evident that little would be gained by inserting the Board into a dispute that the parties can resolve through arbitration, and one that until the issuance of the June 1971 complaint both parties regarded as involving no more than queq- tions of contract interpretation and relatively limited contract violations. REMEDY In accordance with our decision in Collyer Insu- lated Wire, 192 NLRB No. 150, we shall order that the allegations of the complaint be dismissed, but we shall retain jurisdiction solely for the purpose of entertain- ing an appropriate and timely motion for further con- sideration upon a proper showing that (a) the disputes have not, with reasonable promptness after the is- suance of this Decision, either been resolved by am- icable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board orders that the complaint herein be, and it hereby is, dismissed; provided however, that: Jurisdiction of this proceeding is hereby retained for the limited purpose indicated in that portion of our Decision and Order entitled "Remedy." MEMBERS FANNING AND JENKINS, dissenting: For the reasons expressed in our dissents in Col- lyer Insulated Wire, 192 NLRB No. 150, and its proge- ny, we would determine the merits of this case rather than defer to arbitration. To the lengthy history of this case, including a settlement of prior alleged viola- tions, Respondent's subsequent breach of that agree- ment, the setting aside of that agreement, Respondent's further alleged breaches of the Act, and Respondent's refusal to abide by the contract provi- sions establishing arbitration, our colleagues in de- ferring to arbitration now require the Union to continue a lawsuit to get Respondent into the arbitra- tion process and, after that, to engage in an arbitra- tion hearing or trial. Simple recital of these facts demonstrates the emptiness of the Collyer rule and of the majority's refusal to decide statutory issues hold the exercise of our jurisdiction, nevertheless both the court order and our own decision herein should impress upon Respondent the necessity for honoring its agreement to utilize the agreed-upon dispute resolution proce- dures. And as in Collyer, as noted infra, we are also retaining jurisdiction against the contingency that Respondent might engage in further foot-drag- ging in such manner that the disputes in issue are not promptly submitted to arbitration. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought to us. Respondent's continued defiance of the Act, its refusal to abide by its contract calling for arbitration, and our colleagues' deferral nonetheless, all "strike at the foundation" (in the majority's words) of the arbitration process in the same way as did the employer's alleged threat to the shop steward because of his presentation of grievances in Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44. Respondent's con- duct also strikes at the foundation of statutory rights, of course, a matter we feel impelled to continue to call to the majority's attention despite our unsuccessful efforts thus far. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case was heard in San Francisco, California, on October 12, 13, and 18, 1971, upon a consolidated complaint issued on June 15, 1971,1 alleging that Respondent had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. In its answer, Respondent denied commission of the unfair labor practices alleged. The issues presented are: (1) wheth- er or not Respondent violated the above sections by unilat- erally changing its employees' terms and conditions of employment as set forth in collective-bargaining contracts with the Union; (2) whether or not deferral of this case to arbitration is appropriate; (3) whether or not the charges were sufficient under Section 10(b) of the Act to support an amendment to the complaint sought by the General Coun- sel at the hearing; and (4) whether or not Respondent was prejudiced by the sequence in which testimony relating to its presettlement conduct and its postsettlement conduct was received at the hearing. Upon the entire record,2 my observation of the witness- es, and the brief filed by the General Counsel,3 I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION The answer admits the following allegations of the 1 Based upon a series of unfair labor practice charges filed by Hospital and Institutional Workers Union, Local 250, Service Employees International Union, AFL-CIO, hereafter called the Union The said charges are discussed below. 2 The General Counsel's unopposed motion to correct the transcript is granted and it is ordered that the said motion be , and it hereby is, made a part of the record herein and identified as TX Exh. 1. 3 Although given the opportunity, Respondent failed to file a brief During the course of the heanng, Counsel for Respondent stated that Respondent wished to withdraw from the heanng , i.e., had no desire to cross-examine witnesses or adduce evidence, and would rely on legal arguments Permission to withdraw was granted At the time, the following colloquy with counsel for Respondent took place TRIAL EXAMINER I understand You will file a brief, won't you? wa.THESiNa At the present time, I intend to file a brief Now, that is my intention. TRIAL EXAMINER Well, I trust that your intentions will not change because if you are going to be pressing legal arguments, I would like to know what they are. In the absence of a brief from Respondent , its position can only be gleaned from comments made by counsel at the hearing complaint: At all times material herein, Medical Manors, Inc., d/b/a Community Convalescent Hospital and Community Convalescent East,4 a California corporation, has been en- gaged in the operation, for profit, of two convalescent hos- pitals, Community Convalescent Hospital and Community Convalescent East, both located in Vallejo, California, pro- viding nursing care and convalescent services to patients. During the past year, in the course and conduct of its business operations, Respondent received gross revenue in excess of $100,000. During the past year, in the course and conduct of its business operations, Respondent purchased and received goods valued in excess of $10,000, which were shipped to it from suppliers within the State of California who in turn received the said goods directly from sources located out- side the State of California. Respondent is, and at all times material herein has been, an Employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. I find the facts to be as admitted, and that Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Unilateral Changes in Wage Rates It is undisputed that the Union has been the exclusive bargaining representative of Respondent's employees in an appropriate unit at each of its two convalescent hospitals involved herein, and that at all times material Respondent and the Union have been parties to two separate collective- bargaining contracts respectively covering the employees in each of the said two units. Each contract contains an appen- dix setting forth three schedules of wage rates applicable to unit employees in various job classification. These sched- ules were effective October 1, 1968, October 1, 1969, and October 1, 1970, respectively. In addition, each schedule provided for each job classification therein a starting rate, a higher rate after 6 months, and a still higher rate after 1 year.5 The parties are in disagreement as to the interpretation to be given to the contracts, i.e., with respect to the dates when the employees were entitled to receive wage increases. The General Counsel contends that each employee was en- titled to receive increases in accordance with a rate schedule only until the date on which the new rate schedule became effective; that from and after that date, each employee was entitled to be paid in accordance with the rate provided in the new schedule; and that in determining whether he was entitled to the rate payable after 6 months or after 1 year, 4 Name of Respondent appears as amended at the hearing 5 The above-mentioned rates are set forth in Appendix A and Appendix B attached to this Decision. COMMUNITY CONVALESCENT HOSPITAL 843 his length of service should be computed from the date he was hired. Respondent admitted at the hearing that it did not pay the wage rates called for by the interpretation adopted by the General Counsel. It argued, however, that the interpretation was erroneous, that the wage rates which it paid under its own interpretation were the ones required by the contracts, and hence that it did not deviate from the contract provisions as alleged. According to Respondent's interpretation of the contracts, each employee was entitled to receive, during the entire first year of his employment, the wage rates set forth in the wage schedule in effect at the time he was hired. Thereafter, on second and third anniversary dates of his employment, he would receive the wage rates called for by the schedules in effect on such anniversary dates. I agree with the General Counsel. As I read the appendices to the contracts, they appear on their face to provide for payment of the scheduled wage rates to all the employees in each job classification on each of the three effective dates set forth therein. In other words, on its effective date, each new schedule of rates supersedes the previous schedule. Respondent's interpretation could result in the application of three different rate schedules to employees hired in three different years, even though they were in the same job classification. I believe that this view places a strained interpretation upon the contracts. In addi- tion, it would produce anomalous results which the con- tracting parties presumably did not intend. Under Respondent's interpretation, the wage rate of an employee hired in January 1969 would continue for some time to lag behind that paid to another employee in the same classifica- tion hired in October 1969. As a result, of the two said employees, the junior and less experienced employee would earn more money. Under the General Counsel's interpreta- tion, the reverse would be true .6 In addition, the uncontradicted evidence shows that Employee Barham was paid less than the rates set forth in the schedule applicable to her, even as interpreted by Re- spondent. Finally, it is undisputed that McElroy, the repre- sentative of the California Association of Employers who executed the contracts on behalf of Respondent admitted to Robinson, the Union's business representative, that the latter's interpretation of the contract, which was identical with that advanced by the General Counsel, was the correct one. For the above reasons, I find that the General Counsel's interpretation of the contracts is reasonable and correct, that Respondent paid to its employees wage rates different from those required by the contracts, and that it thereby unilaterally changed its employees' terms and con- ditions of employment. Such conduct violated Section 8(a)(5) and (1) of the Act. I also find such conduct began October 1, 1969. either additional pay therefor or another day of leave as a holiday. Employee Barham testified without contradiction that although she worked on several holidays, she received no holiday pay. According to the uncontradicted testimony of Union representative Robinson, Lidy, Respondent's ad- ministrator and an admitted agent of Respondent, conced- ed to him that she had not given holiday pay to employees who were required to work on Labor Day, one of the hol- idays designated in the contracts, and that she did not in- tend "to pay any holidays" because she could not afford to do so. No explanation or defense of such conduct has been presented by Respondent. I find that Respondent's failure to abide by the holiday pay provision of the contracts con- stituted a unilateral change in its employees' terms and conditions of employment. Such conduct violated Section 8(a)(5) and (1) of the Act. C. The Denial of Access to Respondent's, Premises by the Union's Representative Section 18 of each of the collective-bargaining con- tracts provides as follows: A qualified representative of the Union shall be al- lowed to visit the premises of the Employer for the purpose of ascertaining whether this Agreement is being observed. This privilege shall be exercised rea- sonably. The Union representative shall report to the office at the time of any visit and shall not interfere with the normal conduct of work. He will be allowed to meet with an employee in a designated area at the time of the employee's normal break periods. He will enter and leave by the front door. The Union may appoint a shop steward for the purpose of receiving grievances. Such procedures shall not be handled dur- ing the working time of such steward or any employee. The record establishes without contradiction that between December 16, 1969, and March 10, 1971, union representa- tive Robinson attempted to visit Respondent's facilities on numerous occasions for the purpose of servicing the con- tracts, both of which contained grievance and arbitration pr6visions;7 that he acted in conformity with the require- ments of the above-quoted contractual provisions; but that Lidy on a number of such occasions prevented Robinson from visiting the premises by threats, by calling police offi- cers, or by physical force.8 I find that by such conduct, Respondent unilaterally changed the employees' terms and conditions of employment, hindered their efforts to have their grievances processed, and interfered with their right to bargain- collectively through representatives of their own choosing. Such conduct violated Section 8(a)(1) and (5) of the Act. B. The Unilateral Changes in Holiday Pay The collective-bargaining contracts here involved desig- nate certain "paid" holidays, and provide that an employee who is required to work on a holiday shall receive 6 An example of these differing results may be seen in the tables attached hereto as Appendix C and Appendix D 7 Robinson testified that he is in charge of servicing the contracts, e.g., following up any grievances about which he learns; that in October 1969, he learned from employees of Respondent that they were not being paid the wage rates set forth in the collective-bargaining contracts ; and that he filed a number of grievances relating thereto 8 As noted, Respondent withdrew from the hearing, and presented no evidence to 'show that Robinson failed to abide by the contracts, acted unreasonably, or sought to abuse the right of visitation . Accordingly, no useful purpose would be served in unduly lengthening this decision by a detailed description of Lidy's unusual conduct. According to Robinson, Lidy on several occasions predicated her denial of access upon Robinson 's failure Continued 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Respondent's Other Defenses 1. The settlement agreement The record shows that following the complaint and answer in Case 20-CA-5926, the Acting Regional Director on August 14, 1970, approved a settlement agreement and withdrew the complaint. Thereafter, an original and amended charges in Case 20-CA-6637 were filed on March 12, April 29, and June 6, 1971. On June 15, 1971, following his investigation of the charges, the Regional Director de- termined that Respondent was continuing to engage in un- lawful conduct, reopened Case 20-CA-5926, withdrew his approval of the settlement agreement, and issued a consol- idated complaint based upon the charges filed in both cases. It is well settled that continuing violations of the Act by a respondent constitute a breach of a settlement agree- ment to which the latter is a party, justify the setting aside of the agreement, and permit a proceeding upon a com- plaint alleging both presettlement and postsettlement viola- tions. Southeastern Stages, Inc., 174 NLRB No. 85. Respondent has not contended otherwise, nor has it claimed that there were no postsettlement violations. What it did contend at the hearing was that the Trial Examiner commit- ted prejudicial error by refusing to grant Respondent's re- quest that the General Counsel be required to establish postsettlement violations before being permitted to adduce evidence relating to presettlement violations. The record establishes that on March 10, 1971, i.e., several months after the settlement agreement, Lidy unlaw- fully prevented Robinson from visiting Respondent's prem- ises for the purpose of discussing with employees any problems they might have. In presenting evidence regarding this incident, the General Counsel first called a police offi- cer, who testified that he came to the premises in response to a call regarding a disturbance; that when he arrived, Lidy was screaming that she wanted Robinson out of the build- ing and physically tried to force the latter out through the door; and that since each expressed a desire to press charges against the other, the officer took both Lidy and Robinson to the Police Department. The General Counsel next called Robinson as a witness and he was permitted, over Respondent's objection, to give testimony regarding Respondent's conduct on a chronological basis, beginning with its presettlement conduct. It was at that point that Respondent claimed prejudice and withdrew from the hear- ing. Since the record establishes unlawful postsettlement conduct, I find that the settlement agreement was properly set aside and that the above findings relating to Respondent's presettlement violations may properly be made. In such circumstances, I further find that the se- quence in which the testimony relating thereto was received is irrelevant, and that Respondent has not been prejudiced. 2. Deferral to arbitration As noted above, this case requires interpretation of the contracts involved, and the contracts contain grievance- to obtain permission to enter. However, the visitation provisions of the con- tracts contain no requirement that such permission be obtained arbitration provisions. Citing the Collyer case,9 Respondent contended at the hearing that the Board should not interpret the contracts here involved, thereby implying that the com- plaint should be dismissed and that the issues here pre- sented should be resolved through the use of the grievance-arbitration procedures. In the circumstances of this case, it ill behooves Respondent to make this conten- tion. Unlike Collyer, the record here shows that Respondent on a number of occasions prevented the Union's representa- tive from visiting its premises to discuss grievances with employees, and that the Union found it necessary to seek a court order requiring Respondent to submit the grievances to arbitration. It is thus apparent that Respondent has con- sistently engaged in conduct in derogation of the grievance- arbitration procedure in its contracts. Cf. Gateway Trans- portation Co., Inc., 193 NLRB No. 1. Accordingly, I find that deferral is not appropriate here, and that this is a case in which the statutory power to remedy unfair labor prac- tices should be exercised. 3. Section 10(b) The initial and amended charges in Case 20-CA-5926 were filed on February 2 and May 27, 1970, respectively. Those charges alleged that Respondent had violated Section 8(a)(1) and (5) of the Act by unilaterally changing its em- ployees' terms and conditions of employment in that it breached the provisions of its collective-bargaining con- tracts with the Union which permit a union agent to visit its premises for the purpose of policing the contract. None of those charges made specific reference to a violation based on wage rate changes. However, the original charge stated: "Through these and other acts the Employer has violated and interfered with rights guaranteed by Section 7 of the Act." The complaint based upon these charges, issued on June 5, 1970, alleged the denial of access set forth in the said charges. On March 12, April 29, and June 8, 1971, the charges in Case 20-CA-6637 were filed. Like those in Case 20-CA- 5926, such charges alleged violations based on denial of access, and made no specific reference to wage rate changes. However, based on his investigation of the new charges, the Regional Director concluded that Respondent had violated the Act by unilaterally changing the wage rates of its unit employees; and on June 15, 1971, he issued a consolidated complaint, based on all the charges theretofore filed, which included allegations of violations relating to the wage rates. Those allegations recited that the said violations began on October 1, 1970. Respondent conceded at the hearing that the initial charge in Case 20-CA-6637, which was filed with- in 6 months of October 1, 1970, would support the allega- tion of the wage rate violation in the complaint. At the hearing, the General Counsel moved to amend the complaint so as to allege that the wage rate violation began October 1, 1969. Respondent opposed the motion, contending that the initial charge in Case 20-CA-6637, filed on March 12, 1971, was not timely under Section 10(b) of the Act and could not support the amendment. Decision on the motion was reserved. The General Counsel contends in his brief that the initial charge in Case 20-CA-5926 is suffi- 9 Collyer Insulated Wire, 192 NLRB No. 150. COMMUNITY CONVALESCENT HOSPITAL cient to support the amendment. I agree with the General Counsel and grant his motion to amend. It is well settled that under Section 10(b), a complaint may properly allege a violation not set forth in a charge if the charge was filed within 6 months of the violation, and if the violation is sufficiently related to the unfair labor practices which are contained in the charge. Both of these requirements are met here. The initial charge in Case 20- CA-5926 was filed within 6 months of October 1, 1969. In addition, the violation alleged in that charge, i.e., Respondent's refusal to permit union access to Respondent's premises, was closely related to the allegation in the complaint relating to changes in wage rates. Both involved unilateral changes prohibited by Section 8(a)(5) of the Act. Employees had complained to the Union about the wage rate changes, and the union representative's thwarted attempts to visit the premises were for the purpose of dis- cussing the grievances with the employees. Robinson testi- fied without contradiction that on October 23, 1969, he filed with Respondent a grievance relating to the wage rates paid to several employees. Respondent thus could not help but be aware that the union attempts to visit its premises were related to the wage rate grievances. In the circumstances, the February 12, 1970, charge alleging the denial of access "gave the Respondent ample notice of the locale and gener- al nature of the violations for which it might be held ac- countable if the Board investigation set in motion by the charge should reveal other conduct in violation of the Act." Casino Operation, Inc., 169 NLRB 328, 331. It may also be noted that in this respect, that charge does not differ from the March 12, 1971, charge which, Respondent concedes, would support the complaint allegations relating to the wage rate change. I find that the allegations in the consol idated complaint are supported by the charges in Case 20- CA-5926 as required by Section 10(b) of the Act. CONCLUSIONS OF LAW 1. By unlawfully changing the contractual wage rates and holiday pay of its employees, and by unlawfully pre- venting a union agent from visiting its premises for purposes of policing its collective-bargaining contracts with the Un- ion, Respondent engaged in unfair labor practices in viola- tion of Section 8(a)(1) and (5) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of the Act. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary, and recommend, that Respondent be or- dered to cease and desist from the unfair labor practices found, and from in any other manner interfenng with, re- straining, or coercing its employees. Affirmatively, I recommend that Respondent pay to its employees the wage rates and holiday pay provided in col- lective-bargaining contracts covering such employees, make said employees whole for any losses they may have suffered as a result of the failure to pay the wage rates and holiday pay provided in any collective-bargaining contracts cover- ing them, and include interest thereon at the rate of 6 per- 845 cent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER10 Respondent, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Unilaterally instituting changes in wage rates, hol- iday pay, or other terms and conditions of employment of its employees, during the effective terms of any collective- bargaining contracts covering said employees. (b) Unlawfully preventing any authorized agent of a union, during the effective terms of any collective-bargain- ing contracts with such union, from visiting its premises for a purpose, and in a manner, permitted by such contracts: (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Pay to its employees the wage rates and holiday pay provided in collective-bargaining contracts covering its em- ployees, and make its employees whole for any losses they may have suffered as a result of its failure to pay the wage rates and holiday pay provided in any collective-bargaining contracts covering them, as set forth in the section herein entitled "The Remedy." (b) Preserve, and make available to the Board or its agents, on request, for examination and copying, all payroll records and reports, and all other records necessary to ana- lyze the amount of backpay due under the terms of this Recommended Order. (c) Permit any authorized union agent, during the ef- fective terms of any collective-bargaining contracts with such union, to visit its premises for a purpose, and in a manner, permitted by such contracts. (d) Post at each of its two convalescent hospitals in Vallejo, California, in places where notices to employees are ordinarily posted, copies of the attached notice marked "Appendix E."I I Copies of said notice on forms provided by the Regional Director for Region 20, after being signed by a representative of the Respondent, shall be posted imme- diately upon receipt thereof, and be maintained for 60 con- secutive days thereafter in conspicuous places. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (e) Notify the Regional Director for Region 20, in writ- 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 11 In the event that the Board's Order is enforced by a Judgement of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith.12 12 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read . "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " [Appendixes A and B appear on annexed pp. 846a and 846b] APPENDIX C Example of Results of Respondent ' s Interpretation of Contracts Maid-Laundry Classification Applicable Action Date Wage Schedule Emp. Taken Action Rate 10/1/68 A Hired 1 /1/69 1.70 10/1/68 A 6-mo.inc. 7/1/69 1.75 10/1/69 B Hired 10/2/69 1.75 10/1/68 A 1-yr.inc. 1/1/70 1.80 10/1/69 B 6-mo.inc . 4/2/70 1.85 10/1/69 B 1-yr.inc. 10/1/70 1.90 10/1/69 A 2d anni- versary 1 /1/71 1.90 10/1/70 B 2d anni- versary 10/1/71 2.00 10/1/70 A 3d Anni- versary 1/1/72 2.00 APPENDIX D Example of Results of General Counsel's Interpretation of Contracts Maid-Laundry Classification Applicable Action Date Wage Schedule Emp. Taken Action Rate 10/1/68 A Hired 1/1/69 1.70 10/1/68 A 6-mo.inc. 7/1/69 1.75 10/1/69 A 6-mo. category 10/1/69 1.85 1U/1/69 B Hired 10/2/69 1.75 10/1/69 A 1-yr. category 1/1/70 1.90 10/1/69 B 6-mo. inc. 4/2/70 1.85 10/1/70 A 1-yr. category 10/1/70 2.00 10/1/70 B 1-yr.inc. 10/2/70 2.00 APPENDIX E NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT unilaterally change the wage rates, holiday pay, or other terms or conditions of employ- ment of our employees during the effective term of any collective-bargaining contracts covering such employ- ees. WE WILL NOT unlawfully refuse to permit an author- ized union agent, during the effective term of any such contracts with the union, from visiting our premises for a purpose, and in a manner, permitted by the said contracts. WE WILL pay to our employees the wage rates and holiday pay provided in any collective-bargaining con- tracts covering them, and make them whole for any loss they may have suffered as a result of our failure to abide by any such contracts in the past. WE WILL permit any authorized union agent, dur- ing the effective terms of any collective-bargaining contracts with such union, to visit our premises for a purpose, and in a manner, permitted by such contracts. MEDICAL MANORS, INC, d/b/a COMMUNITY CONVALESCENT HOSPITAL AND COMMUNITY CONVALESCENT EAST (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415- 556-3197. 846a APPENDIX A The following are the wage rates and effective dates set forth in Appendix "A" attached to the collective-bargaining contract between the the Union and Respondent covering the employees at Community Convalescent Hospital East: Effective October 1. 1968 Start 6 Mo. 1 Yr. Maid-Laundry 1.70 Hr. 1.75 Hr. 1.80 Hr. Janitor 1.80 1.85 1.90 Cook 1.85 1.95 2.00 Cook's Helper/K. H. 1.70 1.75 1.80 Nurses Aide 1.70 1.75 1.80 Charge Aide 2.10 2.15 2.20 Team Leader/Med. Aide 1.85 1.90 1.95 Relief Team Leader 1.75 1.80 1.85 L.V.N. 2.40 2.45 2.50 Orderly 1.75 1.80 1.85 Effective October 1. 1969 Maid-Laundry 1.75 1.85 1.90 Janitor 1.85 1.95 2.00 Cook 1.90 2.05 2.10 Cook's Helper/K. H. 1.75 1.85 1.90 Nurses Aide 1.75 1.85 1.90 Team Leader/Med. Aide 1.90 2.00 2.05 Relief Team Leader 1.80 1.90 1.95 L.V.N. 2.45 2.55 2.60 Charge Aide 2.15 2.25 2.30 Orderly 1.80 1.90 1.95 Effective October 1. 1970 Maid-Laundry 1.80 1.95 2.00 Janitor 1.90 2.05 2.10 Cook 1.95 2.15 2.20 Cook's Helper/K. H. 1.80 1.95 2.00 Nurses Aide 1.80 1.95 2.00 Charge Aide 2.20 2.35 2.40 Team Leader/Med. Aide 1.95 2.10 2.15 Relief Team Leader 1.85 2.00 2.05 L.V.N. 2.50 2.65 2.70 Orderly 1.85 2.00 2.05 The above are minimum wages . The Employer, at his option, may pay higher rates or reduce such higher rates , but in no case lower than the above minimum rates. 846b APPENDIX B The following are the wage rates and their effective dates set forth in Appendix A attach and Respondent co ed to the vering the collective- employe e bargaining s at Commu contract be nity Convale tween the scent Hosp Union ital: Effective August 1. 1968 Start 6 Mo. 1 Yr. Maid-Laundry 1.65 Hr. 1.70 H. 1.75 Hr. Janitor 1.75 1.80 1.85 Cook 1 . 80 1.85 1.90 Cook ' s Helper 1 .65 1.70 1.75 Nurses Aide 1.65 1.70 1.75 Charge Aide 2.00 2.05 2.10 Team Leader 1.75 1. 80 1.85 Relief Team Leader 4-r6 5 1.70 (10-1-68) 44 1.75 (10-1-68 ) 45 1.80 ( 10-1-68) L.V.N. 2.25 2.30 2.35 ' Effective August 1. 1969 Maid-Laundry 1. 70 1.75 1.85 Janitor 1.80 1.85 1.95 Cook 1.85 1.90 2.00 Cook ' s Helper 1 .70 1.75 1.85 Nurses Aide 1.70 1.75 1.85 Charge Aide 2.05 2.10 2.20 Team Leader 1.80 1.85 1.95 Relief Team Leader 1.75 1.80 1.90 L.V.N. 2.30 2.35 2.45 Effective August 1. 1970 Maid-Laundry 1.70 1.85 1.95 Janitor 1 . 80 1.95 2.05 Cook 1 . 85 2.00 2.10 Cook ' s Helper 1 . 70 1.85 1.95 Nurses Aide 1.70 1.85 1.95 Charge Aide 2.05 2.20 2.30 Team Leader 1.80 1.95 2.05 Relief Team Leader 1 .75 1.90 2.00 L.V.N. 2.30 2.45 2.55 The above are minimum wages. The Employer, at his option , may pay higher rates or reduce such higher rates , but in no case lower than the above minimum rates. * Apparently , the wage rates for the classification of "Relief Team Leader" were amended on October 1, 1968.