La Mesa Convalescent Hospital

182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vincent F. Lang and Wilma Lang d/b/a La Mesa Con- valescent Hospital and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 542, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 21-CA-12711 March 28, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 20, 1974, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority,in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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 Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Vincent F. Lang and Wilma Lang d/b/a La Mesa Convalescent Hospital, La Mesa, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE IRVING ROGOSIN, Administrative Law Judge: The com- plaint, issued September 10, 1974, alleges that since about May 23, 1974, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) and Sec- tion 2(6) and (7) of the Act. Specifically, the complaint alleges that Respondent has conditioned reinstatement of economic strikers to their former positions with Respondent on their agreement to forego further picketing on behalf of the Union or any other labor organization.' I Designations herein are as follows: The General Counsel, unless other- wise stated or required by the context, his representative at'the hearing, Vincent F. Lang and Wilma Lang d/b/a La Mesa Convalescent Hospital, Respondent, the Company, or the Employer; Teamsters, Chauffeurs, Ware- Respondent's answer admits the procedural and jurisdic- tional allegations of the complaint but denies the substantive allegations. Pursuant to -due notice, a hearing was held before me on October 24, 1974, at San Diego, California. All parties were represented by counsel or lay representatives, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence rele- vant-and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. The General Counsel and one of Respondent's representa- tives discussed the issues informally on the record, and filed briefs on or before November 15, 1974. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case, based on the appearance and demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and_ it is hereby found that, at all times material herein, Vincent F. Lang and Wilma Lang d/b/a La Mesa Convalescent Hospi- tal, have been engaged in the operation of a nursing home or convalescent hospital at La Mesa, California. In the conduct of its business, Respondent provides ser- vices to patients valued in excess of $100,000 annually, and purchases and receives products valued in excess of $30,000 annually, which originate outside the State of California. The complaint further alleges, Respondent's answer ad- mits, and it is hereby found that, at all times material herein, Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Union herein, is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Preliminary Statement It was stipulated at the hearing that, on December 11, 1973, the Union was certified by the Board as exclusive repre- housemen and Helpers Local Umon No. 542, International Brotherhood of Teamsters, Warehousemen and Helpers of America, the Charging Party or the Umon; the National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C § 151, et seq.), the Act, the National Labor Relations Board, the Board The original charge was filed and served on May 28, 1974 Unless otherwise mdicated, all events occurred in May 1974. 217 NLRB No. 37 LA MESA CONVALESCENT HOSPITAL sentative of Respondent's employees in an appropriate unit.2 It was further stipulated that, on or about May 21, 1974, the Union called a strike on behalf of the employees in the appropriate unit, and that the strike was current at the time of the hearing. B. Interference, Restraint, and Coercion Denise Press, a nurses aide, was hired on June 28, 1973, and was continuously employed in that capacity, working on the 3 to 11 p.m. shift, until the strike. Prior to the commence- ment of the strike, she was also taking a nurses aide course. When Press arrived at the hospital on May 21, at 9 o'clock in the morning (to attend her nurses aide course), she discov- ered that a strike was in progress and that a picket line had been established. Press joined the pickets and carried a picket sign, announcing that employees were on strike. She picketed that day from about 9 a.m. to 3 p.m. The following day, May 22, she picketed from 9 a.m. to 1 p.m., and on May 23, for an hour, from 9 to 10 a.m., when she ceased picketing, went to the hospital office and told the person on duty that she was there to pick up her paycheck. Later that day, Press spoke to her nurses aide instructor, Mrs. Belyeu, and asked her to what extent her absence from class would affect her grades . Still later the same day, Press and Beth Whelden, another nurses aide, who had been on the picket line, called on Mrs. Fromberg, the director of nurses, and spoke to her about returning to work. Fromberg said that they would be welcome to return but that they would have to talk to the Langs, the hospital administrators. The same morning, Press met with the Langs and From- berg in Mr. Lang's office. When Press told Lang that she wished to return to work, Lang said that he wanted to read something to her, and proceeded to read from a prepared statement. The statement, on a hospital letterhead, as intro- duced in evidence, reads as follows: You have the right to picket. I have the right to insist that your return to work is unconditional and will return to work on my conditions. A strike is going on. One of these conditions in your returning to work is that you work and not picket-If you picket you do not work. You have the right to picket. I am not interfering with that right. That is your choice. Picket if you choose, but-you cannot picket and work. When he had finished reading the statement, Lang asked Press whether she was prepared to abide by it, and suggested that she think it over. Press left to talk to Mrs. Belyeu, and told her that she would like to return to class. Afterward, 2 The appropriate unit is described as follows: All licensed vocational nurses, nurses' aides, orderlies and housekeeping, dietary, maintenance, laundry and janitorial employees employed by the Employer at its facility located at 7800 Parkway Drive, La Mesa, California, excluding all other employees, office clerical employees, registered nurses , outside salesmen, watchmen, guards, professional employees and supervisors as defined in the Act (21-RC-13397) 183 Press spoke to Fromberg, and told her that she had decided to return to work. Press returned to work that day and-has been working at the hospital since. Whelden, too, returned to work the same afternoon on the same shift as Press. Whelden told Press that she, too, had been required to talk to Lang, and that he had read her the same statement he had read to Press.' It is undisputed that Lang did not offer and Press did not ask for any further explanation of the statement. Lang testi- fied, however, that the only condition of reinstatement he imposed was that "if she desired to come back to work, that she would work and not strike or strike and not work." Asked whether the conditions of reinstatement appearing in the written statement were meant to apply to Press' "off-time when she wasn't on [the] job," Lang testified, "Well, I don't have any control of anybody's off work hours," though he did not tell her that the "prohibition" against picketing did not apply to times when she was not working on her shift. Lang's testimony was wholly at variance with the contents of the prepared statement which, while giving lip service to the employee's right to picket, nevertheless, required her to elect whether to picket or work. To renounce the right to picket, even during off-duty hours, it must be assumed, in view of the breadth of the statement, as a condition of reinstatement. Nowhere in the statement was there any suggestion that the right of employees to picket during off-duty hours was unim- paired, and any uncertainty or ambiguity in this regard must be resolved against Respondent. There has been no discussion by Lang with either of these two employees on the subject of picketing since their rein- statement, though it is evident that they have since been effectively inhibited from picketing while off duty. It is conceded that the statement was not communicated by Re- spondent to any of the other employees. The sole question is whether, by Respondent's statement to the two employees requiring them to elect between picketing and working, and by conditioning their reinstatement on the renunciation of the right to picket, even on their off-duty time, Respondent has interfered with, restrained, or coerced employees in the exercise of rights guaranteed in Section 7, and has discriminated in regard to their hire and tenure of employment to discourage membership in a labor organiza- tion, in violation of Section 8(a)(1) and (3) of the Act. It has long been recognized that an employee may strike or remain at work but he may not do both at the same time.4 This principle, however, does not preclude an em- ployee from engaging in peaceful picketing during off-duty hours. This right is a clearly protected statutory right guaran- 3 Whelden did not testify, and Press ' testimony regarding Whelden's conversation with Lang was received without objection. Moreover, Lang, in effect, admitted reading the statement to these employees before rehiring them 4 "An employee cannot work and strike at the same time He cannot continue in his employment and openly or secretly refuse to do his work He cannot collect wages for his employment , and, at the same time, engage in activities to injure or destroy his employer's business. Hoover Co. v N.L.R.B., 191 F.2d 380, 389 (C.A 6), and see N.L.R.B. v Montgomery Ward & Co, 157 F 2d 486, 496 (C A 8), United Biscuit Company v NL R.B., 128 F.2d 771 (C A 7) " N.LR B. v. Local Union No. 1229, International Brotherhood ofElectrical Workers [Jefferson Standard Broad- casting Company], 346 U S 464, fn 12 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teed by Section 7 of the Acts Manifestly,-in asserting that the employee would be required to choose between picketing and working, Respondent was attempting to equate picketing with striking. Both employees, however, had abandoned the strike and unconditionally offered to return- to work. Re- spondent could not condition their reinstatement on their renouncing their right to picket during off-duty periods. It is, therefore, found that, by the conduct described above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 11 The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative 'action designed to effectuate and policies of the Act. It has been found that Respondent stated to employees, who had abandoned the strike and offered unconditionally to return to work, that they would be re- quired to elect between picketing and working, without quali- fication, and conditioned their reinstatement on the renuncia- tion of the right to picket, even on their off-duty time, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7, and discriminating in regard to their hire and tenure of employment to discour- age membership in a labor organization, in violation of Sec- tion 8(a)(1) and (3) of the Act. It shall, therefore, be recom- mended that Respondent cease and desist from such unfair labor practices. Since the employees alleged to have been discriminated against have sustained no loss of earnings at- tributable to Respondent, there is no occasion for requiring that they be made whole. Upon the basis of the foregoing findings of fact and, upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Vincent F. Lang and Wilma Lang d/b/a La Mesa Con- valescent Hospital, La Mesa, California, Respondent herein, ,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(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Lo- cal Union No. 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By stating to employees, who had abandoned the strike 5 Edir, Inc, d/b/a Wolfe's, 159 NLRB 686, 695 (1966); Sears, Roebuck & Co., 168 NLRB 955 (1967), Burns Ford, Inc., 182 NLRB 753, 760-761 (1970) and offered unconditionally to return to work, that they would be required to elect between picketing and working, without qualification, and by conditioning their reinstate- ment upon the renunciation of the right to picket,_ even on their off-duty time, Respondent has interfered with, re- strained, and coerced employees in the exercise of rights guar- anteed in Section 7, and has discriminated in regard to their hire and tenure of employment to discourage membership in a labor organization, thereby engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Secon 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclu- sions of law and, upon the entire record, pursuant to Section 10(c) of the Act, I make the following recommended: ORDER6 Respondent, Vincent F. Lang and Wilma Lang d/b/a La Mesa Convalescent Hospital, La Mesa, California, their offic- ers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Stating to employees, who abandoned the strike and offered unconditionally to return to work, or any other em- ployees, that they be required to elect between picketing and working, without qualification, and conditioning their rein- statement on the renunciation of the right to picket, even on their off-duty time, in violation of Section 8(a)(1) and (3) of the Act. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise'of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Post at its place of business in La Mesa, California, copies of the attached notice marked "Appendix."7 Copies of said notice, on forms to be furnished by the Regional Director for Region 21, shall, after being signed by Respon- dent's duly authorized representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this recommended Order, what steps Respondent has taken to comply herewith. 6 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. 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. 7 In the event 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 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." LA MESA CONVALESCENT HOSPITAL 185 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT state to employees, who had abandoned the strike and offered unconditionally to return to work, or any other employees, that they will be required to elect between picketing and working , without qualifica- tion, or condition their reinstatement on the renuncia- tion of the right to picket, even on their off-duty time, in violation of Section 8(a)(1) and (3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section ,7 of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by the proviso to Section 8(a)(3) of the Act. VINCENT F. LANG AND WILMA LANG d/b/a LA MESA CONVALESCENT HOSPITAL