Local 144, Service Employees

LOCAL 144, SERVICE EMPLOYEES 483 Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees Union, Service Employees International Union, AFL-CIO (Charles A. Sigety, d/b/a Florence Nightingale Nursing Home) and Jasmine Spence. Case 2-CB-5205 January 17, 1974 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENEI.LO On September 10, 1973, Administrative Law Judge Thomas S. Wilson issued the attached Decision in this proceeding. Thereafter. General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to exceptions. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i In adopting the Decision of the Administrative Law Judge , we do so only because we agree with and rely on his findings that Spence was never given and never exercised supervisory authority. Inasmuch as Respondent never specifically requested the Administrative Law Judge to defer to arbitration under our decision in Collyer Insulated Wire, 192 NLRB 837. we find that question not properly raised and therefore conclude it unnecessary for us to pass upon or adopt that part of the said Decision MacDonald Engineering Co, 202 NLRB 748 DECISION STArEMENT OF THE CASE THOMAS S. WILSON, Administrative Law Judge: Upon a charge alleging a violation of Section 8(b)(2) duly filed on August 18, 1972, and amended on December 13, 1972, to allege a violation of "Section 8(b), subsection (s)(l)(B)8(2) [sic]" by Jasmine C. Spence, herein referred to as the Charging Party, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel,' and the Board respectively, the Regional Director for Region 2 (New York, New York), issued its complaint dated March 30, 1973, against Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees' Union, Service Employees International Union, AFL- CIO, herein referred to as the Respondent. The complaint alleged that Respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(B) and Section 2(6) and (7) of the Labor Management Relations Act, 1947 as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held before me in New York City, New York, on June 11 , 12, 13, and 14, 1973. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to produce evidence material and pertinent to the issues. At the conclusion of the hearing oral argument was waived. Briefs were received from General Counsel and Respondent on August 3, 1973. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. BUSINESS OF THE EMPLOYER Charles A. Sigety is, and has been at all times material herein, an individual proprietor doing business under the trade and style of Florence Nightingale Nursing Home, herein called the Employer. At all times material herein the Employer has maintained a nursing home and place of business at 175 East 96th Street in the city and State of New York, herein called the nursing home, where it is, and has been at all times material herein, continuously engaged in providing nursing and convalescence care and services and related services for profit. During the past year, which period is representative of its annual operations generally, the Employer, in the course and conduct of its operations, derived gross revenues therefrom in excess of $100,000. During the past year , which period is representative of its annual operations generally, the Employer , in the course and conduct of its business, purchased and caused to be transported and delivered to its nursing home pharmaceu- tical supplies and other goods and materials valued at an excess of $5,000 of which goods and materials valued in excess of $5,000 were transported and delivered to its nursing home in interstate commerce directly from States of the United States other than the State in which it is located. Accordingly, I find that the Employer is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. Ii. THE LABOR ORGANIZATION INVOLVED Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees' Union, Service Employees Internation- I term specifically included the attorney appearing on behalf of the General Counsel at the hearing 208 NLRB No. 65 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al Union, AFL-CIO, is a labor organization admitting to membership employees of the Employer. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts At all times material herein and since June 18, 1970, at least, Respondent and the Guild of New York Nursing Homes, Inc., have been parties to a master collective- bargaining agreement covering the wages, hours, and working conditions of certain specified employees, includ- ing those in the dietary department, employed by various nursing homes which were members of said Guild. As such a member of the Guild, the Employer here was bound by this master agreement. The master agreement provided for final and binding arbitration for differences of interpreta- tion in the terms and conditions of such agreement. For the 3-1/2 years prior to June 30, 1972, Jasmine Spence had been employed by the Employer here as one of its five "dieticians" in its kitchen. She was being paid $156 per week. Despite her 3-1/2 years of steady employment Spence was the next to last dietician in the Employer's employ in seniority. During the period of time prior to June 30, 1972, it was the duty of each of the Respondent's dieticians to consult daily with the patients on two floors about their menu preferences for the following day's meals. In view of the fact that only 40 odd of the Employer's 407 patients were competent to make their own menu selections, this daily consultation could not have taken too much time. Thereafter these dieticians were responsible for "calling food line"; i.e., seeing to it that the Employer's cooks served each patient's tray in accordance with the patient's personal desires and according to his or her doctor's menu orders. After the trays had been properly serviced, they were delivered to the individual patient by the tray girls or waitresses. In or prior to June 1972 the Employer, as an economy measure, decided to change its food distribution system by eliminating its chef and the dieticians' daily visits to the patients. Instead of giving the patients a daily menu selection, the patients' food preferences were recorded on a permanent laminated card kept in the kitchen plus orders telephoned to the kitchen by the nurses for the patients. This new system provided that the "calling of the line" was thereafter to be done from these permanent laminated cards, thus eliminating the necessity for the daily visits to the patients by the dieticians. Thus theoretically, at least, the five dieticians were to be eliminated along with the chef by the new system. Upon learning of the proposed elimination of the dieticians, the Union protested that the master agreement prevented the elimination of the five dieticians on the grounds that their elimination would increase the workload of the other unit employees and was thus in violation of the 2 According to Spence, before accepting this job she inquired whether Steiner had received any legal advice as to whether this new job would violate union rules in any way At some unknown time Steiner informed Spence that the Employer's attorney answered that question in the negative on the ground that the new job was not a unit job It is interesting that Spence, a union member, made no inquiry to that effect of her then representative, the Union master agreement. The Union carried this matter to arbitration before Arbitrator Julius J. Manson. After hearing the evidence the arbitrator found in pertinent part as follows: The hearing produced no evidence to show that the employer is arbitrary or discriminatory in using his power to layoff the dieticians. It is too early to determine whether there would be a sufficiently appreciable increase in the workload of others in the work unit to bar any of the layoffs. If the Union should find a significant addition in work-load it would be free to use the grievance machinery later. It would be equitable to provide a time interval with the layoffs spaced out, so that the phasing-out process would be completed by the end of August. During this period the parties could assess the impact of the lay- offs. Having heard the testimony, proofs and arguments, I make the following award: Award The intended permanent layoff of five dieticians is proper under the contract. The lay-offs shall be spaced out at intervals, and be completed by the end of August. Thereafter it was decided between the arbitrator and the attorneys that the layoffs would be made according to seniority, that dieticians Dorothy Green and Spence would be laid off by the end of June, and that the other three dieticians, Pearl Greene, P. Etienne, and R. Davenport, would be dismissed by the end of August. So, on June 30, in accordance with that arrangement, dieticians Green and Spence were discharged. Green never returned. However the next day, Sunday, July 1, Employer's food service manager, Helmut Steiner, telephoned Spence at her apartment and inquired if sh•^ would become his assistant. As she had no job, Spence accepted.2 On Monday, July 2, Spence reported for work as usual but this time if Spence and Steiner are to be believed, not as a dietician but as "assistant food service director," a supervisory nonunit position.3 That day Steiner instructed her that she would be assisting in putting in the new system, would be doing purchasing, taking inventory, and would be in full charge of the kitchen in Steiner's absence. It was also arranged that Spence's salary would be $190 per week. About 11 a.m., dust before the lunch hour, Steiner called a meeting of the kitchen staff and announced to them that Spence was now his assistant "with the power to hire and fire."4 Again according to the testimony of Spence and Steiner, it was also on July 2 that, upon the recommendation of Spence, tray girls (waitresses) Diaz and Poulson were 3 This title was selected because it was thought to give the Employer a "stronger argument " It was not, however, ever recorded on Spence's payroll sheet although her salary increase was 4 This testimony by Steiner and Spence does not quite appear to accord with Spence's affidavit to the Board on August 18, 1972, as will be more fully developed hereinafter. LOCAL 144, SERVICE EMPLOYEES promoted to the newly established position of "diet clerks" whose duties were to take orders for patients' food by phone from the nurses on the floor and to call the food line. However it was established that this promotion entailed no pay increase until August 15 and subsequent to Spence's dismissal. Spence worked steadily from July 2 to July 10. Apparently she was learning how to take inventory and make purchases. In addition she was also engaged in making up the new permanent laminated cards for the installation of the new food distribution system. On or about July 10 Union Business Representative Pagan came into the Employer's kitchen and discovered Spence "calling the line" just as she had formerly as a dietician. Pagan objected that this was a violation of the arbitration award and that, if Spence was to continue to do unit work, that job must be offered to the displaced dieticians in order of seniority as provided in the master agreement. Acting upon advice of counsel, the Employer thereupon decided to put Spence "on ice," the attorney's phraseology, by sending her home to work on the new permanent laminated cards required under the new proposed food distribution system. The purpose of this was to keep Spence out of the Union's sight and mind until after all the dieticians had been released. Spence did not reappear at the nursing home until at least July 225 when she was seen by the last remaining dietician, Davenport, who again complained to the Union. Davenport was dismissed about the first of August. Business Representative Pagan returned from his vaca- tion about August 14 when he next appeared at the nursing home at a mealtime and discovered Spence again calling the food line. He immediately sought and secured an appointment on that matter with DiRubbio for early the following morning. DiRubbio was the home's Administra- tor. Because of this appointment with Pagan, DiRubbio ordered Spence not to appear for work the following morning and for her to so inform Steiner who was away from work that day. However, on August 15, Spence did appear for work contrary to these orders because she had been unable to contact Steiner and because she realized that diet clerk Diaz would not be in at work that morning to call the line for the breakfast meal. Spence's conscientiousness in this regard caused a great deal of trouble. Because of this when Pagan appeared for his early morning appointment with DiRubbio, he went i.ito the kitchen and discovered Spence again calling the line for the breakfast meal. Admittedly Pagan thereupon "blew his stack" when he and DiRubbio got to the Employer's penthouse offices for their conference. Pagan claimed that the Employer was violating the arbitration agreement as well as the master agreement because, if the Employer intended to retain any of the dieticians under this new food distribution system, then the job or jobs should be offered to the dismissed 5 The dates here depend upon the witnesses ' recollections because mysteriously a number of the nursing home's records turned up missingjust poor to the hearing 6 Although Steiner had ordered the consulting certified dietician, 485 dieticians in accordance with their seniority rather than giving the job to a unit employee with lesser seniority. Pagan promptly attempted to contact the arbitrator to get the arbitration reopened on the grounds that the retention of Spence violated that award as well as violating the master agreement which required a unit job to be offered in accordance with seniority. However Pagan was unable to contact the arbitrator by phone. He did go to the kitchen and issue order that no unit employees were to call the lunch line .6 It so happened that inspectors for Medicaid were in the building on an inspection that morning. Thus a foulup of the distribution of the lunch meal would have had serious consequences for the nursing home. DiRubbio consequent- ly became very busy talking over the phone with the owner, Sigety, as well as the Employer's attorney who advised that, if Pagan succeeded in reopening the arbitration, the Employer would probably be found to have violated the award by its actions in the Spence matter as well as the master agreement. So after considerable hubbub and innumerable confer- ences, DiRubbio finally acceded to Pagan's demands that Spence be dismissed, at least until those laid-off dieticians holding greater seniority had been offered and refused the job Spence was filling at that time. DiRubbio first ordered Steiner to fire Spence. He refused. DiRubbio then had Spence called to the penthouse office for the second time that morning and told her that she was dismissed for her "insubordination" in disobeying his direct order not to appear for work that morning.7 At the time of the dismissal, Spence claimed that her present position was supervisory and asked Pagan why he was doing this to her. His answer was that the Employer was violating both the award and the collective-bargaining agreement by keeping Spence in a unit job and that he had to represent not only Spence but also the other employees in the unit. So the Employer dismissed Spence on August 15 at the insistence of the Union that the Employer abide by both the arbitration award and the collective-bargaining agree- ment . Spence had not since been reinstated. B. Conclusions This case started out badly on October 18, 1972, when Spence, after her dismissal on August 15, appeared at the Board's New York Regional Office and, after having been interviewed, signed an affidavit and a charge against the Union for allegedly violating Section 8(b)(2), which charge read as follows: Since on or about July 2, 1972 the above-named labor organization by its officers, agents and representatives, caused the Florence Nightingale Nursing Home, and Employer to terminate the employment of Jasimine [sic] Spence, an employee, in violation of Section 8(a)(3) of the Act. [Emphasis supplied.] Gdbrith, to leave the nursing home prior to Pagan's above order, Gilbrith did remain and did call the line for lunch. 7 DiRuhbio acknowledged that he had to search for a cause for dismissal and came up with the one given to Spence. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From that inauspicious start the case has steadily gone from bad to worse. By letter to Spence dated September 21, 1972, the Regional Office refused to issue a complaint on the above charge for the following reasons: It appears from the investigation that the position held by you and from which you were discharged, was that of a supervisor within the meaning of Section 2(3) of the National Labor Relations Act. The Act, with some exceptions not applicable here, does not afford protection to individuals serving as supervisors. However, assuming that it could be established, as you contend, that we would be unable to assist you in this situation for the following reasons. [sic] If the position to which you were recalled were nonsuperviso- ry than the evidence tends to establish that the Union in asking the Company to lay you off and in obtaining your layoff after you were recalled by the Company, was acting within the bounds of its contractual right as defined, in Article 6 of the collective-bargaining agreement, since that agreement requires that the Company recall laid-off employees in order of their seniority and this provision was not followed by the Company in your case. The evidence does not tend to establish that the Union violated the Act in any other manner encompassed by your charge.8 Spence appealed this dismissal to the Board in Washing- ton but on December 13, 1972, also signed an amended charge alleging a violation by the Union of "Section 8(b)(1)(B)8(2) [sic ]" in that: Since on or about July 2, 1972, the above-named labor organization by its officers, agents and represent- atives has restrained and coerced Florence Nightingale Nursing Home, an employer, in the selection of its representative for the purposes of collective bargaining or the adjustment of grievances and has caused said employer to terminate the employment of Jasimine [sic] Spence in violation of Section 8(a)(3) of the Act .9 On February 23, 1973, the Region's dismissal of the 8(b)(2) charge was sustained in Washington, but that dismissal did not affect the amended 8(b)(1)(B) charge on which the Region issued the instant complaint on March 30, 1973. It is apparent that the 8(b)(2) and the 8(b)(1)(B) charges are mutually exclusive in that the first would be applicable only if Spence were an "employee" whereas the latter would be applicable only in the event that Spence was at the time of her dismissal a "supervisor." Thus the initial point for determination here would seem to be whether, as of the date of her dismissal on August 15, 1972, Spence was an employee or a supervisor. The 8 In the light of the evidence produced at the hearing, this dismissal of the 8(b)(2) charge appears fully justified. 9 From this verbiage it is clear that the charge was intended to indicate a violation of Sec 8(b)(i)(B) 10 The effect of this appeal by Spence, however, can have little importance in the decision of the issue because working people are not trained lawyers with knowledge of the subtleties and distinctions which have now grown up around this Act Regional Office and Washington, acting upon some evidence, obviously found Spence to be a "supervisor" whereas Spence, acting on somebody's advice, appealed that ruling thus obviously contending that as of that date she considered herself still to be an "employee" without supervisory status.io At the heanng Spence and Steiner testified that on July 2 Steiner announced to the dietary employees that Spence had been appointed his "assistant" and had "the power to hire and fire," that on that same date at Spence's recommendation tray girls Diaz and Poulson were promot- ed to "diet clerks" resulting in a $15-per-week increase in salary received for the first time after Spence's discharge, that Spence was authorized to approve timecards after mathematically figuring out the hours worked by the employee involved (which was subject to a second check in the payroll department), and that Spence was informed that in the future she would handle grievances and give orders in Steiner's absence. On the surface this testimony would give the appearance that Spence was in fact a supervisor. But this oral testimony does not conform with the facts as stated in the affidavit Spence signed at her interview at the Regional Office on August 18. In this affidavit Spence stated: In my job as assistant to Mr. Steiner, I was not given the authority to hire anyone. I was not asked for my recommendation on hiring anyone in the short time I held the position so I do not know if I can recommend hiring anyone. The same goes for firing or transferring employees. I was not told I could do either nor did I have the opportunity to recommend either. To the best of my knowledge I could not promote or recommend promotions.ii The employees of the kitchen are assigned certain jobs by Mr. Steiner. As his assistant I would check to make sure Steiner's assignments were carried out. I would tell the girls on the food line who should put the desserts on the trays and who would put the coff.e on and I would check to make sure it was done right on each tray.i2 I could not and did not discipline any employees as asst. to Steiner. If someone came in late Steiner would speak to them. I could and did send an employee home because they did not feel well. I handled grievances when Steiner was not in. I also took over his duties on his days off.13 It thus appears that the oral testimony at the hearing and the facts stated in the affidavit are in substantial conflict. The oral testimony appears to have become rather grossly exaggerated following the dismissal of the 8(b)(2) charge possibly in an effort to prove Spence a "supervisor." Then it appears from the testimony of DiRubbio that the alleged "promotion" of Spence to "supervisor" was, in fact, ii Compare this statement with the alleged promotion of Diaz and Poulson noted in the oral testimony 11 This was exactly what Spence had done as a dietician i i The only "grievance" Spence mentioned in her oral testimony was a disagreement between two tray girls as to who was to put the coffee on the tray and who was to put the desserts on the tray This hardly classifies as a "grievance " LOCAL 144, SERVICE EMPLOYEES a device drean-ed up by Steiner, DiRubbio, and the Employer's attorney by which to avoid and evade both the arbitration and the collective-bargaining agreement with the Union. It appears that Steiner had ceased speaking to dieticians Daverport and Etienne after their testimony at the arbitration hearing. All five dieticians, including Spence, had been in favor of the Union's efforts on their behalf at the arbitration whose purpose was to prevent the dismissal of all five dieticians. However the Union decided to rely on the testimony of the two most senior dieticians. Davenport and Etienne, at the arbitration so that the other three did not tesify. Spence's feelings toward the Union's arbitration attempt appeared to have changed with the offer made her by Steiner on July 1. Steiner obviously did not want to retain either Daven- port or Etienne after the arbitration hearing. But he did intend to retain Spence and Pearl Greene, dieticians who had not testified at the arbitration but who were the third and fourth in line of seniority. His plan was to give Spence and Pearl Greeae the titles of "assistant food service director" and "kitchen manager," respectively, both supposedly supervisory positions, thus apparently remov- ing the two from the unit and from the seniority clause contained in the collective-bargaining agreement. As it happened, Steiner had let the assistant director's job remain vacant since September 1971. The kitchen manag- er's job had been unfilled since May 1972 and remained that way at least until October 1972. Under these circumstances it seems quite clear that Spence's "promotion" was purely verbal and made, in fact, only for the purpose of avoidance and evasion of the arbitration and the Union's collective-bargaining agree- ment. During the weeks the Employer put Spence "on ice" working at her home, she could under no circumstances have exercised any of her alleged supervisory duties. Her testimony as well as her affidavit prove that neither before nor after her return to the nursing home from being "on ice" did Spence exercise any supervisory functions. She was merely teaching the new "diet clerks" how to call the food line in place of the dismissed dieticians-when Spence was not calling that line herself as she had done previously. This was all unit work. Spence was not a supervisor. I so find. As Spence was still doing unit work even after July 2, 1972, she, like all the other employees in the unit, was subject to the terms and conditions of the collective- bargaining agreement between the Employer and the Union.14 This finding that Spence was not a bona fide supervisor at the time of her discharge in a fact concludes this unfair labor practice case. As Spence was not a supervisor, it necessarily follows that the Union could not have been coercing the Employer in the selection of its agent for collective bargaining or handling of grievances. Hence the Union could not have violated Section 8(b)(1)(B) of the Act. Even if it could be found that Spence was in fact a bona fide supervisor here, it is still highly doubtful that 14 Birmingham Country Club, 199 NLRB 854. 15 See International Brotherhood of Electrical Workers, Local 134, AFL-CIO v. N L R B, 487 F2d 1143 (C A D.C.. 1973) Contra: N L R B v. 487 Respondent violated Section 8(b)(1)(B) for the reason that its actions here were in no way related to or prompted by any supervisory action taken by Spence 15 of which, of course, there were none in the instant case. In view of the Board's recent preoccupation with deferring unfair labor practice cases to arbitration in an ever increasing number under the Collyer'6 theory, the question may arise why that procedure was not followed here. It is clear that the instant unfair labor practice case stemmed from and grew out of the arbitration award of June 14, 1972, relating to the dismissal of the five dieticians. Under these circumstances it might well appear perfectly logical to defer-or refer-this matter to the arbitrator so that he could take care of his own and at the same time incidently ' help relieve the Board's allegedly burgeoning caseload. This is especially so as the Board has apparently taken the position that it is "inconceivable" to it that an arbitrator would not consider the unfair labor practice aspects of a case during an arbitration.17 However there were several reasons for not following that procedure here. When the idea was suggested at the hearing, neither General Counsel nor Respondent's attor- ney expressed any enthusiasm for the idea although on August 15 Pagan actively sought to reopen the award. Of course the Employer was not represented there. Then, although Spence had been a sort of "class action" grievant during the original arbitration, and favored the arbitration at that time, her position subsequently underwent a change. Hence it was doubtful if either General Counsel, Respondent, or the Employer could, or would, have adequately presented her present position. Nor, in all probability, would she have been financially able to appeal from an adverse award whereas General Counsel can-and hopefully will-appeal this decision. Finally, and most importantly, once all the evidence had been presented in the instant case which could have been presented to the arbitrator, why expend the time and the money on another arbitration hearing sometime in the future when it is, or should be, clear that time is of the essence in handling labor problems? Upon the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees' Union, Service Employees Internation- al Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Charles A. Sigety, d/b/a Florence Nightingale Nursing Home at all times material herein, has been and now is an individual engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees' Union, Service Employees Internation- al Union, AFL-CIO, has not herein committed any violation of Section 8(b)(1)(B) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this proceeding, and Wisconsin Electric Power Co. 486 F 2d 602 (C.A 7, 1973). IB 192 NLRB 837 17 Gulf States Asphalt Company, 200 NLRB No 100 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursuant to Section 10(c) of the Act, I hereby issue the ORDER 18 following recommended: I hereby recommend that this case be dismissed in torn. 18 In the event no exceptions are filed as provided by Sec 102 46 of the provided in Sec 102 48 of the Rules and Regulations, be adopted by the Rules and Regulations of the National Labor Relations Board, the findings . Board and become its findings, conclusions , and order, and all objections conclusions, recommendations, and recommended Order herein shall, as thereto shall be deemed waived for all purposes