Chico Convalescent Hospital

CHICO CONVALESCENT HOSPITAL 547 Evison J. Dent and Doris L. Dent, Co-Partners, d/b/a Chico Convalescent Hospital and Service Employ- ees International Union, Local No. 22, AFL-CIO. Case 20-CA-7800 May 10, 1974 DECISION, ORDER, AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY' AND PENELLO. On October 24, 1973, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed a brief in answer to Respondent's exceptions and in support of the Decision of the Administrative Law Judge and, in addition, filed cross-exceptions, to which Respondent filed an answering 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 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 :.-:opt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, e,,, amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Evison J. Dent and Doris L. Dent, Co-Partners, d/b/a Chico Convales- cent Hospital, Chico, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. [Direction of Election and Excelsior footnote omitted from publication.] i In his Decision, the Administrative Law Judge referred to the Respondent as the "Dents." The Respondent has excepted to these findings on the grounds that the Dents, as individuals, were not shown to have been engaged in commerce. We agree. We therefore amend the Administrative Law Judge's Decision by deleting all references to the Dents , individually, as the Respondents and substituting therefore "Evison J. Dent and Dons L. Dent, Co-Partners, d/b/a Chico Convalescent Hospital." DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On July 24 and 25, 1973, I presided over a hearing at Chico, California, to try issues raised by a complaint issued on May 3, 1973, a first amendment to that complaint dated May 23, 1973, and a second amendment to that complaint dated July 13, 1973.1 The amended complaint alleges that the Dents,2 as successor employers to the previous operators of CCH, Robert and Shirley McChesney, violated Section 8(axl), (3), and (5) of the Act by: (1) changing wage rates of some of its employees without prior notice to or bargaining with Service Employees International Union , Local No. 22, AFL-CIO,3 their exclusive collective-bargaining represent- ative, and (2) discharging those of its employees who engaged in a strike because of those changes. While conceding they made the wage changes in question, the Dents deny they were successor employers; contend they were legally entitled to make such changes; deny they discharged the strikers ; allege that they bargained in good faith with the Union concerning the wages, hours, rates of pay, hours, and working conditions of their employees; allege the strike was an economic and not an unfair labor practice strike ; assert that the General Counsel failed to prove that the Union represented a majority of their employees in an appropriate unit prior to the changes ; and, finally, urge that no remedial election order should issue in view of extensive union and striker misconduct during the course of the strike .4 The issues are: 1. Whether the Dents were successor employers; 2. Whether the Union represented a majority of the Dents' employees within a unit appropriate for collective- bargaining purposes prior to the time the Dents changed the rates of pay of employees within the unit; 3. Whether the Dents violated Section 8(a)(5) of the Act by reducing the unit employees' wage rates without prior notice to or bargaining with the Union; 4. Whether the Company bargained in good faith with the Union concerning the unit employees' wages, rates of pay, hours, and working conditions; 5. Whether the strike was an economic or unfair labor practice strike; i The charge which inspired the amended complaint was filed by Service Employees International Union , Local No. 22, AFL-CIO, on September 22, 1972 In their brief, the Dents renewed their objection to my admission of the second amendment to the complaint . The Dents based their oNectiou on the ground that the Regional Director exceeded his authority by issuing allegations of violation by the Dents of Sec 8(a)(3) of the National Labor Relations Act, as amended (hereafter called the Act). The Dents argue that since the Washington Office of the General Counsel authorized the issuance of the original complaint and the first amendment to that complaint, which were limited to allegations of violation of Sec 8 (aXI) and (5) of the Act, and since unsuccessful attempts at settlement were based on those 8(a)(1) and (5) allegations, Sec. 3(d) of the Act and Sec. 10262 of the manual prevented the subsequent issuance by the Regional Director of the second amendment to the complaint. I reaffirm my denial of the Dents' objection to the admission of the second amendment to the complaint. A complaint and amendments thereto may be authorized either by the General Counsel through his Washington Office and/or the Regional Director. The issuance of the second amendment to the complaint, having been authorized by the Regional Director, therefore complies with Sec. 3(d) of the Act and Sec. 10262 of the manual. R Evison J. Dent and Dons L. Dent, Co-Partners, d/b/a Chico Convalescent Hospital, hereafter referred to as CCH. 3 Hereafter referred to as the Union. 4 The General Counsel stated in the amended complaint he is not seeking a recognition and bargaining order in view of certain strike misconduct, but requests a remedial election. The Union acquiesced to this position. 210 NLRB No. 81 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6.'J Whether the Company discharged striking employ- ees for participating in the strike; and 7. Whether strike misconduct by the Union and the strikers warrants withholding a remedial election order. The General Counsel and the Dents appeared by counsel and the Union by its business manager, Thomas Coleman. They were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Dents. Based on my review of the entire record,5 observation of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find that the Dents at all times material were employers engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Since the 1960's Robert and Shirley McChesney have owned and operated a chain of nursing homes or convalescent hospitals. They utilized the name Statewide Convalescent Hospitals for the overall operation. The hospitals were generally engaged in the care of aged and mentally deficient patients . The McChesneys followed the practice of forming separate corporations to operate each home or convalescent hospital. They organized a corporation in 1966 to operate CCH. They leased the land and buildings utilized in operating CCH from a group of owners .6 B. The McChesney-Union Contracts On July 1, 1967, Mrs. McChesney entered into a 3-year contract with the Union and one of its sister locals, Local 250, wherein, inter alia, she recognized the Unions as the exclusive bargaining representatives of employees at nine convalescent hospitals operated by the McChesneys at the time, including CCH. The recognition covered employees in the following classifications : maid, housekeeping depart- ment; maintenance man; kitchen helper; relief cook; cook; orderly; nurses aide; medicine nurse ; senior nurses aide-charge or team leader ; licensed vocational nurse; nursing trainee ; and ward clerk. On October 20, 1970, Mrs. McChesney entered into an individual (one hospital) 3-year contract limited to CCH wherein, inter alia, she recognized the Union as the S The unopposed motion by the General Counsel to correct the transcript is granted. The corrections are set out in full in Appendix A, attached hereto [omitted from publication] 6 Russello and Rosenberg, a partnership ; Henry Albers; Leslie M. and Albert H . Kessler; Michael and Joseph Augello; and Statewide Security Company, a corporation. exclusive bargaining representative of essentially the same classifications covered by the July 1, 1967, contract.? C. The Changeover From McChesney to Dent By the sprang of 19728 the McChesneys were in financial difficulty at CCH and were in default on obligations under the lease with Russello, et at, covering CCH. In March, a member of the owner group, Henry Albers, contacted the Dents to see if they were interested in taking over operation of CCH. The Dents at the time were in the same business as the McChesneys, operating three nursing homes .9 By mid-April, Russello, et at, and the Dents reached a tentative agreement for the changeover. On April 25, the McChesneys and Russello, et at entered into a contract wherein the parties agreed to cancel the September 30, 1966, lease agreement between them covering CCH and the McChesneys agreed to convey title in all personal property on the premises of CCH, including beds, mattresses, blankets, pillows, bedding, linens, cook- ing utensils, flatware, food supplies, inventory, medical supplies, etc. to Russello, et at in satisfaction of the delinquency in rent and other obligations due to Russello, et at, effective April 30. On April 26, Russello, et at signed a contract wherein the Dents leased all the real and personal property at the CCH premises for a 20-year term commencing May 1, 1972. The Dents arrived at CCH on May I to take possession of the property and assume operation of CCH. They were unable to do so, however, because the McChesneys refused to authorize the Dents to operate CCH under the McChesney license until they could secure their own. The Dents secured their license sometime in May and took over operation of CCH on June 1. D. The Dent-Union Contacts On April 28, Mrs. McChesney sent a letter to Coleman stating the McChesneys would cease operating CCH on May 1, 1972. On receiving the letter in early May, Coleman instructed Union Business Representative William Flagg to make contact with the new operators, advise them of the contract between the Union and the McChesneys (which still had some time to run) and ask them to assume that contract for the balance of its term. Flagg contacted Mary Ann Puch, CCH's administrator, and learned the identity of the new operators-the Dents. In early May, Flagg telephoned Mrs. Dent, informed her he was a representative of the Union, advised her the Union had represented the employees of CCH under successive contracts for several years, stated he was sorry he missed Mrs. Dent during her visit to CCH on May 1, and asked for a meeting with the Dents to discuss the terms of the current contract and see if there would be any problems over continuation of the currently effective r Maid, kitchen helper, relief cook, cook, orderly, aide, med. nurse, licensed vocational nurse, maintenance, ward clerk, trainees for nurses aide, housekeeping, laundry, orderly. 8 Read 1972 after all subsequent date references omitting the year. 9 Located at Waterview , Quincy, and Red Bluff, California. CHICO CONVALESCENT HOSPITAL contract. Mrs. Dent replied there probably would not be any real problems but she wished to discuss ths matter with her husband and would call him back in a week.10 By late May, not having received any call from Mrs. Dent, Flagg again telephoned her and asked for a meeting. Mrs. Dent advised Flagg that the Dents were going to have a representative handle any dealings with the Union and their representative would contact the Union to arrange a meeting. E. The Employee Complement Before and After the Changeover The final McChesney payroll for the CCH employees (for the payroll period May 15-31) reflects a complement of 36, including the administrator." Union dues were checked off on the final McChesney payroll by 23 CCH employees and remitted to the Union, pursuant to the 1970-73 McChesney-Union contract covering CCH. The first Dent payroll for the CCH employees (for the payroll period June 1-15) reflects a complement of 42, including 35 of the 36 employees on the McChesney May 15-31 payroll.12 It is clear from the foregoing that the Dents continued the entire McChesney work force at CCH in their employ, including the administrator, and I so find. F. The Business Operations Before and After the Changeover As noted heretofore, the McChesneys cared for elderly and mentally deficient patients at CCH. On May 31, the McChesneys were caring for 60 patients. The same 60 patients remained at CCH in the care of the Dents commencing June 1. The Dents employed the same work force to perform the same duties the members thereof had performed while in the employ of the McChesneys. The Dents utilized the same premises, equipment, supplies, and materials the McChesneys had utilized, to care for the same patients. The "employing industry" thus continued unchanged both under the McChesney and Dent operation of CCH. G. The Wage (and Other) Reductions On June 5, the Dents held a meeting with the staff. Mrs. Dent distributed forms headed "Applications for Employ- ment" and asked the employees to fill them out, stating she wanted the information on the forms to acquaint herself with each employee's background. The forms contained blanks directing the employees to show the length of their 10 Flagg's testimony, as recited above, is credited. Mrs. Dent's denial that Flagg mentioned the Union's representative status or contract during their conversation seems incredible , and Flagg was a convincing witness. 11 Mary Ann Puch Puch ran the hospital on a day-to-day basis for the McChesneys, and had worked up in their employ from a job within the unit (she was a former member of the Union), then as secretary assistant to the previous administrator and, finally, administrator She regularly participat- ed in meetings to process grievances arising under the McChesney-Union contracts covering CCH's unit employees, was familiar with the terms of those contracts, and maintained a copy thereof. The administrator, RN's, and the administrator's office clerical assistant were not covered by the 549 employ by the McChesneys, job classification, and wage rate. On June 10, the McChesneys mailed the checks for the last payroll period under their operation , ending May 31, to CCH. The Dents distributed those checks to the employees, enclosing with the checks a written notice that wage scales were under review, might be revised, and all employees' date of hire was June 1.13 On or about June 15 , the Dents distributed to all their employees except those classified as LVN (licensed vocational nurse) and maintenance written notices of new wage rates, effective June 15 . The new wage rates in each instance were substantially lower than the previous rates paid by the McChesneys and the Dents. The notice also contained a request that each employee not wishing to remain in the Dents' employ at the new scale so notify them. The Dents made no effort to notify or bargain with the Union concerning their proposed wage cuts prior to effecting same. On June 28, the Dents notified the unit employees that "vacations and sick leaves that were accrued through your former employer cannot be honored" and that, while they would consider requests for time off, any grant thereof would be at their discretion and without pay. In late June, the Dents held a second meeting with the employees. In the course of the meeting, an employee asked why the wage cuts were made . Mrs. Dent replied that the McChesneys had gotten into trouble because wages were too high. She also stated she heard talk of a strike and advised the employees if a strike occurred, they would be replaced. H. The Union Reaction and Dent Arrangements for Bargaining The employees notified Flagg of the wage rate and vacation policy changes, plus Mrs. Dent's remarks. Flagg notified Coleman. Coleman instructed Flagg to advise the employees the changes were illegal. On June 20, the Dents joined the California Employers Association and authorized its regional manager, A. Selby Lewis, to represent them in dealing with the Union. On June 29, Lewis notified Coleman he would be representing the Dents in any dealings with the Union. He and Coleman agreed to meet on July 13. On June 30, Coleman sent a letter to Lewis confirming their agreement to meet on July 13 and enclosed a copy of a contract between the Union and Sacramento Convales- McChesney-Union contracts 12 Came Myles was listed on the May 15-31 payroll and was not listed on the June 1-15 payroll There were eight new hires on the latter payroll. 13 The Dent claim of unawareness of the wage rates of CCH employees covered by the McChesney-Union contract until the July 13 Dent-Union meeting is rejected. Not only was their administrator in possession of these rates (Mrs Dent conferred with Mrs Puch prior to the changeover and had to be concerned over labor costs), but they showed their awareness of such rates by their comments that wage scales were under review and that previous wage scales were too high. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cent Hospital (another McChesney operation represented by the Union).14 In the letter, Coleman also told Lewis the Union wanted a general wage increase of 15 cents over the pre-June 15 rates` for the following 2 years, an increase in the hospital program contribution to $15 a month, and adoption of a pension program. 1. The July 13 Dent-Union Meeting At the July 13 meeting, the Union was represented by Coleman, Nina Tull (the Union's steward at CCH), and a second CCH employee, Diane Lofgren. The Dents were present for management, plus Lewis and his assistant, Bruce Burgundy. Lewis opened the meeting by stating he was representing the Dents, that they were willing to recognize the Union, and that they were there to negotiate a contract."from scratch." Coleman responded with the statement he believed they should start from the terms established under the McChesney regime and wanted to bargain up from there. Coleman also stated the wage cuts should be restored. Lewis repeated his position that negotiations should start from "scratch" Coleman advised Lewis the Union felt the wage cuts were a violation of law; that the Company was obligated to maintain preexisting wage rates and conditions pending bargaining over changes therein and the Union would file charges if they were not restored. Lewis replied he was there to negotiate a contract and was willing to pay the prevailing wages in the area, which the Dents had ascertained as a result of a wage survey. After a union caucus, during which Coleman suggested the Committee see what the Dents were prepared to offer, Coleman and Lewis agreed to see where they could agree, using the CCH-Union 1970-73 contract as a guide. The parties started from the beginning of the contract. They agreed to changes in paragraph A, substituting the Dents as the owners and operators of the facilities covered by the contract. With respect to paragraph B, Lewis stated he wanted a different management rights clause. Coleman suggested that Lewis prepare one and the Union would probably accept it. They agreed to section 1, the recogni- tion provision, unchanged. With reference to section 2, covering union security and check off, Lewis announced the Dents were not willing to grant any union security. Coleman replied if this was Lewis' position there was no reason to go any further, there would never be agreement on a contract without the union-security provision. Lewis replied he agreed there was no point in talking further if that was the Union's position. Coleman left the room with the statement he was going to file unfair labor practice charges. J. The Strike On July 29 the union leaders took a strike vote among CCH's employees represented by them over the Dents' unilateral wage and benefit cuts 15 and alleged failure to bargain in good faith on July 19. The strike vote carried. 14 The terms of the Sacramento Convalescent Hospital contract were identical with those of the CCH-Union contract. 15 Employee hospital-surgical coverage lapsed by virtue of the Dents' failure to make any contributions to the health program established under On August 19 the strike began. Handbills to the public and the members stated that the strike was called because of the Dents' unilateral wage and benefit reductions. The picket signs also carried the legend that the strike was over the Dents' unilateral wage reductions. While picketing has ceased, it is the Union position that it is still on strike. K. Analysis and Conclusions 1. The successor issue I find and conclude that the Dents were successor employers to the McChesneys in the operation of CCH. The Dents took over the same premises upon which the McChesneys operated CCH; they served the same pa- tients; they retained the same work force and manage- ment; and they utilized the same equipment and supplies. Thus the "employing industry" remained unchanged. 2. The unit and the Union's majority representative status By terms of the 1970-73 agreement between the McChesneys and the Union, the Union was recognized as the exclusive collective-bargaining representative of all CCH employees classified as maid, maintenance, kitchen helper, relief cook, cook, orderly, aide, med. nurse, L.V.N., nurse trainee, and ward clerk, thereby excluding the administrator, any office clerical assistant(s) and registered nurse(s). The Dents continued the same classifications in their employ. I find and conclude that a unit consisting of CCH employees classified as maid, maintenance, kitchen helper, relief cook, cook, orderly, aide, med. nurse, L.V.N., nursing trainee, and ward clerk, excluding administrators, RN's, office clerical employees, guards and supervisors, consti- tutes a unit appropriate for purposes of collective bargain- ing under Section 9 of the Act. Twenty-three of the former McChesney employees the Dents continued in their employ on June 1 authorized the McChesneys to check off union dues from their May 15-31 wages and remit same to the Union . On May 31, the McChesneys, by a currently effective contract with some time to run, were recognizing the Union as the exclusive collective-bargaining representative of the CCH employees within the unit described above. It may be presumed that such majority representative status continued unchanged on and after June 1 unless such presumption is rebutted.16 At no time on or after June I did the Dents question, much less rebut, the Union's continued majority represent- ative status among their employees in the CCH unit. On the contrary, they recognized the Union as the exclusive collective-bargaining representative of their employees within the unit on July 13. I therefore find and conclude that, at all times pertinent, the McChesney-Union 1970-73 contract. As noted heretofore, paid sick leave and vacation programs were also dropped. 1s Barrington Plaza and Tragniew, Inc., 185 NLRB 962. CHICO CONVALESCENT HOSPITAL 551 the Union represented a majority of the Dents' employees at CCH within the unit specified heretofore. 3. The 8(a)(5) Issue Prior to the Dents' assumption of the CCH operations, Union Business Representative Flagg informed Mrs. Dent of the existence of a current contract between the Union and the Dents' predecessor (the McChesneys), and requested a meeting to discuss its assumption . Mrs. Puch, administrator under both McChesneys and Dents, had a copy of that contract in her possession at the offices of CCH setting forth the existing wage rates of the CCH employees covered thereby. The Dents continued to pay the existing wage rates from June 1 through June 15 for all employees in the unit. On the latter date, the Dents made substantial reductions in the wage rates of all classifications within the unit except L.V.N. and maintenance, without prior notice to or bargaining with the Union. In the case of N.L R.B. v. Burns International Security Service, Inc., 406 U.S. 272 (1972), the Supreme Court ruled that, where it was clear a new employer planned to and did retain his predecessor's employees, he was obligated to consult with the exclusive collective-bargaining representa- tive of those employees before fixing the terms of their employment.17 Since the issuance of that case, the Board has ruled that, even in the absence of a preconceived plan to retain all of a predecessor's employees, a successor employer is nevertheless obligated to consult the Union representing those employees prior to making any changes from their initial wages, hours, and working conditions.is The Dents obviously planned to, and did, continue the unit employees in their employ following their takeover, in the same "employing industry." Under the rule of the decisions cited above, they were therefore obligated to consult with the Union both prior to fixing the initial rates of pay of the unit employees and prior to making any changes therein . They did not do so. I therefore find and conclude that the Dents violated Section 8(a)(1) and (5) by their June 15 reductions in the wage rates of their unit employees without prior notice to or consultation with the Union. 4. The July 13 bargaining At the July 13 negotiations, Lewis stated his willingness to recognize the Union and to negotiate a contract covering the wages, rates of pay, hours, and working conditions of the unit employees. The question, however, is whether his ignoring of the Union's request that wage rates, etc., be restored to the levels which existed at the time the Dents assumed operation of CCH and continued at those levels pending either agreement or impasse over changes therein proposed by the parties constituted good-faith bargaining. In the course of the July 13 meeting Lewis at no time expressed a willingness to restore the wage cuts made on 17 Also see Bachrodr Chevrolet Co., 205 NLRB No 122 (on remand from 468 F.2d 963 (C A. 7, 1972)). is Ranchway Inc., 203 NLRB No. 118; Howard Johnson Co., 198 NLRB No. 98. June 15 and to bargain over whether such wage rates should be reduced. I find and conclude that by Lewis' failure or refusal to agree to restore the wage cuts and maintain such restored wage rates pending agreement to changes therein or impasse, the Dents failed or refused to bargain in good faith and thereby violated Section 8(axl) and (5) of the Act. 5. The strike It is clear from the evidence that both the July 29 strike vote authorization and the August 19 strike were caused by the Company's unilateral June 15 wage reduction. Findings have been entered above that this wage reduction was an unfair labor practice. I therefore find and conclude that the strike was an unfair labor practice strike. 6. The alleged discharges Immediately upon commencement of the strike, each striker received from the Dents a notice containing his name and the following message: Your next scheduled day to work is August 20, 1972 at 7:00 a.m. If you elect not to come to work as scheduled we must assume that you have quit your job and therefore subject to being replaced. Some of the notices were distributed personally by Mrs. Dent at the picket line and others were mailed to striking employees. The Dents hired replacements as soon as the strike commenced and CCH continued in full operation. Two striking employees who unconditionally offered to return to work after the commencement of the strike were accepted in their former jobs without question. On November 17, the Dents sent a written notice to each employee stating it had come to their attention some people believed their August 19 notice constituted a discharge and further stating they wished to notify the employees this was not correct, they were only subject to being replaced, but were not discharged, if they did not report for work on August 20. I do not find that the August 19 notice was a discharge notice.19 I therefore find and conclude that the Dents did not discharge their striking employees on August 19 or thereafter. 7. The remedial election issue Originally I was scheduled to hear Case 20-CB-2835 following the hearing in this proceeding. Case 20-CB-2835 contained allegations of unlawful conduct by the Union in violation of Section 8(bx1XA) of the Act. A settlement agreement was reached in Case 20-CB-2835 immediately prior to hearing. 19 The testimony of employee Elam that Mrs. Dent told her she was fired at the time she handed her the notice is not credited. Elam appeared to be a biased witness. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties stipulated in the instant case that, for the limited purpose of deciding whether a remedial election should or should not be ordered and without conceding the truth of the matters asserted, I could consider the acts alleged in Case 20-CB-2835 as having been committed by the Union. That complaint alleges that, on July 13, Coleman assaulted Evison Dent at CCH; on August 19, Coleman and striking employees assaulted employees who crossed the Union's picket lines ; on August 20, Flagg and various strikers threw rocks through a window of CCH; on August 23, strikers, in the presence of Flagg, threatened to break CCH's windows; on August 23, Flagg, in the presence of the Dents, broke the windows of an automobile driven by Lewis; on August 24, Flagg threw paint onto employees attempting to cross the Union's picket line; on unknown dates in August, and on August 27, Flagg followed nonstriking employees in his motor vehicle and thereby intimidated them; on various dates in August, Flagg and a striking employee assaulted employees of the Dents as they crossed the Union's picket line; on September 2, strikers broke the automobile windows of employees who crossed the Union's picket line; on September 16, Union Business Representative Lawrence, spit in the face of an employee crossing the Union's picket line; on various dates in September, Flagg spit in the faces of employees crossing the Union's picket line; and on September 18, Flagg assaulted a security guard in order to restrain him from performing services for the Dents during the strike. Ordinarily in a case of this type the Dents would be ordered to recognize the Union and to bargain with the Union at its request concerning the wages, rates of pay, hours, and working conditions of the unit employees. That remedy is not sought here. Instead, the General Counsel and the Charging Party seek an order directing an election in the unit to ascertain if the Union represents a majority therein. In my judgment, the loss of the traditional remedy and the substitution of an order directing an election is sufficient penalty for the alleged misconduct recited heretofore.20 I therefore reject the contention that no remedial election should be ordered in this proceeding. CONCLUSIONS OF LAW 1. At times material the Dents were employers engaged in commerce in a business affecting commerce with respect to their operation of CCH and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At times pertinent a unit consisting of all of the Dents' employees at CCH classified as maid, maintenance, kitchen helper, relief cook, cook, orderly, aide, med. nurse, L.V.N., nursing trainee, and ward clerk, excluding all administrators, RN's, office clerical employees, guards and supervisors is appropriate for collective-bargaining purpos- es under Section 9 of the Act. 3. At all times since June 1 the Union has represented a majority of the Dents' employees at CCH within the above unit. 4. The Dents are successor employers to the McChes- neys as operators of CCH as the term successor has been applied in cases of this type. 5. By their June 15 reductions in the wage rates of employees within the unit set out above without prior notice to or consultation with the Union, the Dents failed or refused to bargain in good faith with the Union and thereby violated Section 8(axl) and (5) of the Act. 6. By their July 13 failure or refusal to restore the wage rates of the unit employees to their former levels pending either impasse or agreement with regard to proposals for changes therein, the Dents failed or refused to bargain in good faith with the Union and thereby violated Section 8(a)(1) and (5) of the Act. 7. The strike called by the Union against the Dents at CCH commencing August 19 was caused by the Dents' failure or refusal to bargain with the Union in good faith as set forth above and therefore was an unfair labor practice strike. 8. The Dents did not discharge their CCH employees who engaged in the strike for so engaging. 9. The allegations contained in Case 20-CB-2835, if true, do not warrant denial of a remedial election order. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Dents engaged in unfair labor practices in violation of Section 8(ax1) and (5) of the Act, I shall recommend that they be directed to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act. I shall also recommend that an election be conducted among the unit employees, at an appropriate time designated by the Regional Director after the Dents have complied either with the Board Order or the order of a circuit court enforcing the Board Order in this case, to determine whether the Union continues to enjoy majority representa- tive status within the unit. In order to make the unit employees whole for losses they have suffered by reason of the Dents' unfair labor practices, I shall recommend that the Dents be directed to restore to the employee classifications affected by their June 15 reduction in wage rates the wage rates in effect for those classifications on June 14 , and to continue in effect those restored wage rates until either the Board certifies that the Union no longer represents a majority of the Dents' employees within the unit or, after bargaining with the Union, the Dents and the Union either have bargained to an impasse over changes therein or reached agreement thereon; that the Dents be directed to pay to all employees within the unit, including unfair labor practice strikers and their replacements, for all hours worked between June 15 and the date the Dents restore wage rates to their June 14 levels, a sum representing the difference between the rates w 1 am not finding the acts alleged in the complaint actually occurred, in line with the stipulation set out heretofore. CHICO CONVALESCENT HOSPITAL 553 they received during such period and the June 14 rates, with interest at 6 percent per annum; 21 and that the Dents be directed to offer the unfair labor practice strikers reinstatement to their former jobs or, if they no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, if necessary terminating any replacements hired therein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 22 Evison and Dons Dent, their partners, agents, succes- sors, or assigns, shall: 1. Cease and desist from changing the rates of pay, wages, hours, or working conditions of their employees classified as maid, maintenance, kitchen helper, relief cook, cook, orderly, aide, med. nurse, L.V.N., nursing trainee, and ward clerk until and unless the Board has certified that Service Employees International Union, Local No. 22, AFL-CIO, no longer represents a majority of said employees or they have bargained with that Union and either reached impasse or agreement over changes therein. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to each of the unfair labor practice strikers immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, if necessary terminating any replacements hired in his former job. (b) Restore the wage rates in effect on June 14, 1972, for each classification set out in this Order above. (c) Make whole each employee whose wages were reduced by the unilateral wage reduction of June 15, 1972, in the manner set forth in the section of this Decision entitled "The Remedy," with interest thereon at 6 percent per annum. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of pay due under the terms of this recommended Order. (e) Post at their Chico, California, facilities copies of the attached notice marked "Appendix B" 23 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Evison and Doris Dent, shall be posted by them immediately upon receipt thereof, and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Dents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps they have taken to comply herewith. [Direction of Election omitted from publication.] 21 While the evidence discloses the Dents, in addition to unilaterally reducing the wage rates of certain classifications, discontinued health and welfare benefits provided by their predecessor and may have changed other benefits as well (paid holidays, etc.), since the General Counsel relied solely on the unilateral wage reduction in his complaint allegations and this was the only unilateral change litigated at the hearing, I shall not recommend that the Dents be directed to restore all rights , benefits, and privileges enjoyed by the unit employees under the McChesneys which were discontinued, reduced, or otherwise changed by the Dents without prior notice to or bargaining with the Union. 22 In the event no exceptions are filed 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. 10248 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. 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties appeared and had the opportunity to offer evidence, findings have been entered that we violated the National Labor Relations Act by failing to consult with Service Employees International Union, Local No. 22, AFL-CIO, prior to reducing wage rates of our employees at the Chico Convalescent Hospital represented by that Union and by failing to restore those wage rates to their original levels at the Union 's subsequent request, thereby causing our employees represented by the Union to engage in a strike over our unfair labor practices. As a result of those findings, we have been ordered to do the following and notify you that: WE WILL restore to our employees at the hospital the wage rates which were paid to their classifications prior to our June 15, 1972, reductions therein. WE WILL continue in effect those restored wage rates until either the National Labor Relations Board certifies that the Union no longer represents a majority of our employees at the hospital in the unit set out below or, after bargaining with the Union, we have reached either impasse or an agreement concerning changes therein. WE WILL pay to our employees at the hospital, including unfair labor practice strikers and their replacements, for all hours worked by them between June 15, 1972, and the date we restore to our employees the wage rates which were paid to their classifications prior to our June 15, 1972, reduction therein, a sum representing the difference between the rates of pay they received during such period and the June 14, 1972, rates for their classifications, with interest at 6-percent per annum. WE WILL offer to all of our employees at the hospital who went on strike on August 19, 1972, or thereafter because of our unfair labor practices reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. In the event a majority of our employees at the hospital in a unit consisting of : 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all employees at Chico Convalescent Hospital classified as maid, maintenance, kitchen helper, relief cook, cook, orderly, aide, med. nurse, licensed vocational nurse, nursing trainee, and ward clerk, excluding administra- tors, registered nurses, office clerical employees , guards and supervisors as defined in the Act vote for representation by Service Employees International Union, Local No. 22, AFL-CIO in a secret-ballot election conducted by the Regional Director for Region 20 of the National Labor Relations Board, we shall, at the request of the Union, meet and bargain with it con . erning the rates of pay, wages, hours, and conditions of employment of our employees within that unit. EvisoN J. DENT AND DORIS L. DENT, CO-PARTNERS, D/B/A CMCO CONVALESCENT HOSPITAL (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 directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335.