Ashville-Whitney Nursing Home

ASHVILLE-WHITNEY NURSING HOME Ashville-Whitney Nursing Home and Jim H. Pierce, Lessee and Retail, Wholesale & Department Store Union, AFL-CIO. Case 10-CA-8200 January It, 1974 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On January 29, 1971, the National Labor Relations Board issued its Decision and Order in the instant case ' finding that Respondent violated Section 8(a)(3) and (1) of the Act by refusing to employ 17 individuals because of prior union activity on their part. On October 4, 1972, the United States Court of Appeals for the Fifth Circuit entered its decision2 denying enforcement of the Board's Order without prejudice to a renewal of the Board's enforcement petition, pending further consideration by the Board. The court held that the record before it was too ambiguous to support a finding of statutory jurisdic- tion over Respondent's enterprise. Accordingly. the court remanded the case to the Board for additional findings on this point. On January 22, 1973, the Board issued an order in which it reopened the record, remanded the case for further hearing consistent with the opinion of the court, and directed the Administrative Law Judge, upon conclusion of the hearing, to prepare and serve on the parties a Supplemental Decision containing findings of fact, conclusions of law, and recommen- dations. Pursuant to notice, a supplementary hearing was held on April II and May 14, 1973, before Administrative Law Judge Joseph I. Nachman. On June 29, 1973, the Administrative Law Judge issued the attached Supplemental Decision. Thereaft- er, Respondent E. L. Clark filed exceptions to the said Supplemental 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge and to adopt his recommendations to the extent consistent herewith. In response to the court's remand, the testimony adduced at the supplementary hearing clearly indi- cates that Ipco is a corporation domiciled outside the State of Alabama, that Ipco maintains no office, warehouse, or supplier within the State of Alabama, that goods shipped by Ipco to the home at Ashville, 341 Alabama, were shipped directly from the warehouse of Ipco's Atlanta, Georgia, branch office, and that amounts due were paid directly to that office. For these reasons, we conclude that the record, as now amplified by a supplementary hearing to show $1.909.96 in direct out-of-state purchases during the period of March 18, 1970, to September 1, 1970, fully establishes the Board's statutory jurisdiction in this proceeding.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts the Recommendation of the Administrative Law Judge and hereby orders that Respondents E. L. Clark, owner, and Jim H. Pierce, lessee, of the Ashville-Whitney Nursing Home, Ashville, Alabama, their officers, agents, successors, and assigns, shall take the action set forth in our original Order dated January 29, 1971. I 188 NLRB 235 2 468 F.2d 459 3 We do not adopt the Administrative Law Judge 's conclusion that the credit allowed by Ipco on December 24, 1970. more than a year after the pro.icnbed activity occurred and in a period when the home was no longer operated by Clark or Pierce , constituted a deduction for purposes of determining the home's "affecting commerce." SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This proceeding tried before me at Ashville, Alabama, on April 11 and May 14, 1973, with the General Counsel and Respondent Clark represented by their respective counsel, pursuant to remand by the United States Court of Appeals for the Fifth Circuit, as set forth in its opinion dated October 4, 1972 (468 F.2d 459), and an order of the National Labor Relations Board (herein the Board), dated January 22, 1973, reopening the record pursuant to the remand. In its opinion of October 4, 1972 , the court of appeals approved all of the Board's procedural and unfair labor practice rulings, but denied enforcement notwith- standing its finding that "the record also discloses that the home purchased $ 1700 in supplies during a year of operation, from lpco, a firm whose 'main office' is located in Atlanta, Georgia" [468 F.2d at 467], the court stating: The present record is so ambiguous that it would require an act of faith for us to conclude that the home's purchases from Ipco "affect commerce" within the meaning of the Act. For all we know, Ipco may have an independent Alabama subsidiary. . . . It may even be an Alabama corporation. Revenues derived from Alabama sales of Ipco products may never leave Alabama, and there is admittedly no evidence proving interstate movement of Ipco products . If these possibil- ities are true, the effect on interstate commerce of the 208 NLRB No. 40 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home's dealings with Ipco would be-at least on the surface-quite remote. ... We therefore hold that the present record will not support a finding of statutory jurisdiction over the respondent's enterprise. territory to be served by its various branch offices, St. Clair County, Alabama, in which Ashville is located, is assigned to the Atlanta branch. Additionally Rodgers identified 17 invoices showing shipments from Ipco's Atlanta warehouse to the home here involved which disclose the following transactions, all in 1970: 2 Because the present record will not support a finding of statutory jurisdiction over the respondent's enter- prise, enforcement of the Board's order is Denied and the cause Remanded to the Board for additional evidence, findings of fact, and conclusions of law consistent with this opinion. [Citations omitted.] I At the remand hearing all parties were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence relevant and material to the issue on remand, to argue orally on the record, and to submit beefs. Oral argument was waived. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. Upon the stipulations of counsel, the evidence including my observation of the demeanor of the witnesses while testifying, and the entire record in the case, I make the following: FINDINGS OF FACT As set forth in the court's opinion, beginning in early September 1969, and continuing to the end of that calendar year, Clark operated the home here involved as a sole proprietor, with Pierce as his administrator, and it was during this period that the unfair labor practices found by the Board and approved by the court occurred. On January 1, 1970, Clark leased the building and all equipment therein to Pierce, and as "lessee-operator" Pierce thereafter operated the home until about December 1, 1970, when Clark canceled the lease for nonpayment of rent. Notwithstanding this lease of the home to Pierce, the court concluded, as had the Board, that, because the lease was not filed with the proper state authorities, "Clark, by his own actions, created the appearance that the home remained his principal place of business, [and that] he is not entitled to benefit from this confusion." 468 F.2d at 464. At the reopened hearing, the General Counsel called as his only witness Donald Rodgers, presently general manager of Ipco, and for about 8 years branch manager of Ipco's Atlanta office. From the copies of invoices in the record, it is apparent that Ipco is a national operations, with its main office apparently in New York City, with approximately 12 branch offices at various locations in the United 'States, including specifically, Atlanta, Georgia. Rodgers testified without contradiction that Ipco does not have in the State of Alabama any sales office, warehouse facility, or supplier from whom it obtains merchandise which it sells to its customers; that in establishing the 1 The court's remand does not involve the Board's discretionary standard for the assertion of jurisdiction over nursing homes. Rather the court approved the Board's finding that the discretionary standard was satisfied saying, "Annual gross revenue of the home exceeds the Board's $100,000 jurisdictional yardstick for nursing homes." 468 F.2d at 466. 2 Although the first two invoices show the purchaser as "Whitney Conv. Total Date Qty. Item Invoice Mar. 18 20 Fluff $208.00 Apr. 9 1 underpads Commode 31.51 Apr. 17 15 Fluff 156.00 Apr. 20 1 underpads Stethoscope 3.74 Apr. 20 Sundry Medical 30.47 supplies May 2 12 Urinals 30.95 May 2 4 dz Coffee cups 31.24 May 6 2 Patient 16.22 May 12 1 restrainers Catheter tray 22.88 May 13 1 Sterilizer 544.76 May 15 15 Fluff 156.00 underpads May 15 Sundry Medical 31.68 Supplies June 2 1 Wash Basin 22.57 June 10 15 Fluff 156.00 July 10 15 underpads Fluff 156.00 Aug. 6 15 underpads Fluff 156.00 Sept. 1 15 underpads Fluff 156.00 underpads Total purchases $1,909.963/ & Medicare Center, Inc. Ashville. Alabama," the remaining 15 show the purchaser as "Ashville-Whitney Nursing Home, Ashville , Alabama, Attn- Mr. Jim Pierce." The evidence makes it clear, however, that all the invoices represent sales to the home here involved in the period indicated, and I so find. a Rodgers testified that the specific invoices above set forth , which are in evidence as Resp. Exhs. 3(aHv), were pulled from Ipco's records, which are in storage, to support the entries appearing on Resp . Exh. 2, entitled "Aged Teal Balance " Rodgers was unable to state that the invoices in the record present a complete picture of Ipco's 1970 transaction with the home, because the search of his records was by no means thorough. According to Rodgers, under Ipco's accounting system, if a payment is received in the exact amount of a prior invoice , neither the amount of the prior invoice nor the subsequent payment thereafter appears on the computer printout of the status of the account, and that there could have been a number of additional invoices, which were paid by a check in the exact amount, which he would have difficulty locating and identifying among the stored records. ASHVILLE-WHITNEY NURSING HOME In addition to the aforementioned shipments from Ipco to the home, there is a credit bill in evidence showing that on December 24, 1970, the home returned to Ipco's Atlanta establishment the sterilizer represented by the invoice of May 13, and 45 fluff pads, apparently represented by the invoices of July 10, August 6, and September 1, resulting in a credit to the account of the home of $911.42, after deducting a 10-percent return goods charge? Thus, it appears that the net amount of goods sold by Ipco to the home during the period between March 18 and September 1, was $998.54. If this 5-1/2 month period were projected to an annual basis, the amount of such annual purchases would be approximately $2,200. Analysis and Conclusions Respondent argues that the evidence in this record fails to establish that Clark, during any period he operated the home, made any purchases from Ipco, and there is thus no evidence of the movement of goods to him in interstate commerce. This argument, in my view fails to meet the issue. I construe the court's opinion not as posing an issue as to whether ,he operations of Clark, as distinguished from those of Pierce, satisfied the jurisdictional require- ments of the statute, but rather whether the operations of home-the establishment here involved-be it owned by 4 Rodgers testified without contradiction that, although the return of this merchandise was contrary to Ipco's return goods policy, he anticipated a collection problem ,tad concluded that under the circumstances he would rather have the merchandise than an account receivable. s As my findings -ierein that there was a direct movement of goods in interstate commerce from lpco to the home, and the amount thereof, is based on the credited testimony (both oral and documentary ) of Rodgers, and not on the testimony of Pierce given at the original trial, it becomes unnecessary to consider whether, as Clark contends, it was error to reject 343 Clark, Pierce, or anyone else, were such as to require the conclusion that its operations were in commerce to a degree greater than de minimus. On that issue, I find and conclude, upon consideration of the entire record, that an affirmative answer is required. The evidence shows beyond doubt-indeed Respondent Clark does not seriously question-that at least goods of the net value of about $1,000 moved in commerce direct- ly from Ipco's Atlanta warehouse to the home in Ash- ville, Alabama, between March 18 and September 1, 1970. Whether this figure is regarded as the total movement of goods in commerce for the year 1970, or whether it is projected on an annual basis so as to reach a figure of approximately $2,200 for the year, is immaterial. In either event, this movement of goods in commerce had more than a de minimus effect thereon. See Drexel Homes, Inc., 182 NLRB 1045, 1046, where only $860 annual direct inflow from out of state was shown.5 Accordingly, for the reasons above stated, I find and conclude that the evidence sustains the Board's statutory jurisdiction over the home involved in this proceeding and recommend that the Board adhere to and reaffirm its prior Decision and Order, dated January 29, 1971, and pub- lished at 188 NLRB 235.6 the testimony he offered, which tended to establish that Pierces reputation for truth and veracity was bad. 6 In the event no exceptions are filed hereto as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 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.