Kings Terrace Nursing Home and Health Facility

KINGS TERRACE NURSING HOME 251 Kings Terrace Nursing Home and Health Facility and Local 522, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 2-CA-141 10 December 14, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On August 5, 1976, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the Charging Party filed an answering brief to Respondent's exceptions, and the General Counsel filed a memorandum in support of the Administrative Law Judge's Decision. 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, as modified herein. Respondent does not except to the Administrative Law Judge's fording that it violated Section 8(a)(1) and (3) of the Act by discharging employee Rizzo, but does except to that part of the Administrative Law Judge's recommended Order requiring it to pay litigation expenses to the Board and the Charging Party. We find merit in Respondent's exceptions. A complaint was issued in this case on March 23, 1976, alleging that Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee James Rizzo_and by subsequently failing and refusing to reinstate the employee because of his protected union activities. Respondent denied the charges in its answer, and the parties were informed that the hearing would be held on June 14, 1976. Respon- dent's witnesses were not present at the hearing, apparently because they were engaged in other litigation the same day. The case was continued until the next day to allow time for counsel for Respondent to present his witnesses. The next day, Respondent's counsel called counsel for the General Counsel and told him the case had been settled. Later that morning, however; Rizzo appeared at the hearing and denied having been contacted about a settlement. The Administrative Law Judge found the 8(a)(1) and (3) violations and ordered that Rizzo be reinstated with backpay. Additionally, the Administrative Law Judge, fmding this litigation to be "frivolous and unwarranted" within the Tiidee rationale,' ordered Respondent to reimburse the Board and Charging Party Union for litigation costs and expenses. In Heck's Inc., 215 NLRB 765 (1974), the Board reviewed and fully considered the question of award- ing litigation expenses and costs to the charging party. The Board reaffirmed its position, heretofore expressed in Tiidee Products, that the award of litigation expenses, except in extraordinary circum- stances involving frivolous defenses, would discour- age respondents from gaining access to the appropri- ate forum in order to fully litigate debatable defenses. We do not believe that this is an appropriate case in which to impose the extraordinary remedy of the award of litigation expenses. The Administrative Law Judge ordered the reim- bursement remedy primarily because Respondent did not present any witnesses to dispute the General Counsel's witness. However, the Board considers many cases where respondents do not present wit- nesses. Here Respondent thoroughly cross-examined the General Counsel's witness and then rested its defense. While the Administrative Law Judge is certainly justified in drawing adverse inferences concerning the violations alleged, no justification exists for penalizing Respondent because of its method of trying its case. As far as the alleged reinstatement offer is concerned, Respondent admits poor judgment, but there is no allegation and no evidence that bad faith was involved. In Tiidee Products, Inc., supra, wherein litigation expenses were assessed against a respondent, the respondent had engaged in numerous violations of the Act, reflecting a hostile attitude toward collective bargaining. The Board emphasized that the remedy was justified because of the "patently frivolous" nature of the defense offered by the respondent. Where the defenses raised by the respondent are "debatable," rather than frivolous, the remedy has been found to be unwarranted, even where the employer has "engaged in `clearly aggravated and pervasive misconduct' or, in the `flagrant repetition of conduct previously found unlawful, ...: "2 In light of both the totality of circumstances herein and the Board's stated policy of refraining from assessing litigation expenses, except in unusual cir- cumstances, as described above, we find that the imposition of the extraordinary remedy is not justi- fied in the instant case. 1 Tiidee Products, Inc., 194 NLRB 1234 (1972) 227 NLRB No. 47 2 Heck's, Inc, supra at 767. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as modified below, and hereby orders that the Respon- dent, Kings Terrace Nursing Home and Health Facility, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 2(b) and reletter the succeed- ing paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that the Kings Terrace Nursing Home and Health Facility has violated the National Labor Relations Act and has ordered us to post this notice. We therefore notify you that: WE WILL NOT discourage membership in Local 522, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organi- zation, by discriminatorily suspending or disc- harging any of our employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer employee James Rizzo immedi- ate 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, and make him whole for his loss of earnings, as provided in the Board's Decision and Order. KINGS TERRACE NURSING HomE AND HEALTH FACILITY DECISION FRANK H. ITKIN, Administrative Law Judge: This case was heard by me on June 14 and 15, 1976, in New York, New York. Unfair labor practice charges were filed by the Union on February 11, and an unfair labor practice complaint issued on March 23 , 1976. The complaint alleged that Respondent Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging employee James Rizzo on or about February 9, 1976, and by subsequently failing and refusing to reinstate the employee because of his protected union activities . Respon- dent Employer filed an answer to the complaint on or about March 29, 1976, admitting certain allegations of the complaint, but denying that it had committed any unfair labor practices. Upon the entire' record, including my observation of the one witness who testified in this proceeding, employee James Rizzo, I make the following: FINDINGS OF FACT Respondent Employer is a partnership, registered in the State of New York, with its principal place of business at 2678 Kingsbridge Terrace in the"Borough of Bronx, where it is engaged in operating a nursing home and providing nursing, health care, and related services to the elderly. During the past 9 months, which period is representative of its operations generally, Respondent Employer derived gross revenues in excess of $250,000 from its operations. During this same period, Respondent Employer purchased nursing and medical supplies valued in excess of $10,000 from firms within the State of New York, which nursing and medical supplies originated outside of the State of New York. It is undisputed and I find and conclude that Respondent Employer is therefore an employer engaged in commerce within the meaning of Section 2 (2), (6),(7), and (14) of the Act. Further, it is undisputed and I find and conclude that Joseph Ciraldo is the administrator for Respondent Employer and, of all times material to this case, acted on its behalf and as its agent . In addition, it is undisputed and I find and conclude that Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. Employee James Rizzo gave the following uncontrovert- ed testimony before me. On Friday, January 30, 1976, employee Rizzo spoke with Administrator Ciraldo about obtaining employment as a maintenance worker at Respon- dent's facility. Ciraldo told Rizzo that Rizzo "had the job and to report to work." Rizzo's first day of work at the Employer's facility was on Friday, February 6. Upon leaving the Employer's facility that day, Rizzo was ap- proached by a representative of Charging Party Union who urged Rizzo to join the Union and to "hand out some of those cards to the rest of the employees inside the building .... 11 Rizzo agreed to do this. And, during Rizzo's next day of work, Monday, February 9, Rizzo passed out the union cards "to some of the employees" during his lunch break. Rizzo explained: During lunchtime ... I gave a few of the cards to some of the employees and then ... I went back to the floor that I was working on and on the floor I saw one other KINGS TERRACE NURSING HOME 253 employee ...; I handed him one of the cards and at that time Mr. Ciraldo saw me doing that. Rizzo's lunch period was from 12:30 to 1 p.m. The above incident occurred about 12:45 p.m. Rizzo further ex- plained: Mr. Ciraldo ... came from one of the rooms or around the corridor bend and he [Ciraldo] heard me [Rizzo) explaining to the [other employee] about the cards and he asked, what's going on here, and I then proceeded to explain to him about the cards, and he demanded [that both of] us ... go down to his office. Well, what are you [doing], what's going on, he asked, and then I explained to him about the cards, about the gentleman on Friday, and then what he told me was that he couldn't stand this type of activity in the building and he would have to let me go. Rizzo testified that he was still. on his lunch break when observed by Ciraldo soliciting the union membership of his coworker and that he believed that the other worker was also on his lunch break. Rizzo recalled that Ciraldo "didn't think it was right that I do this in the building and that he couldn't put up with this activity in the building." Rizzo was summarily terminated by Ciraldo.t I credit the above testimony of employee Rizzo. His testimony is undenied.and, relying also upon demeanor, I find him to be a credible and trustworthy witness. Counsel for Respondent Employer asserted before me during the morning of June 14 that his witnesses, including Adminis- trator Ciraldo, were unavailable-because they were testify- ing in another proceeding. After General Counsel's witness testified, the hearing was continued over into the afternoon of June 14 to enable counsel for Respondent to produce his witnesses. During the afternooon of June 14, the hearing was again continued over to the morning of June 15 to enable, counsel for Respondent to produce his witnesses. However, on the morning of June 15, counsel for Respon- dent did not appear. Instead, he telephoned General Counsel asserting that the case had been settled. According to General Counsel, this case in fact has not been settled.2 Discussion- and Remedy On this record, I find and conclude that Respondent Employer terminated employee Rizzo on February 9, 1976, because the employee was engaged in protected union activities. Employee Rizzo, while on his lunch break, solicited the union membership of a coworker, who was also on his meal break. Management summarily terminated employee Rizzo because it would not permit such "activity On or about February 6, 1976, . Charging Party Union moved to intervene in the representation proceedings pending before the Board pertaining to Respondent's employees. The Union's motion to intervene was later denied by the Board's Regional Director, noting that the representation hearing in the pending proceedings had closed on January 8, 1976, and the Union's "showing of interest is dated thereafter." See G.C. Exhs. 2 through II 2 General Counsel states in his postheanng letter to me dated June 28, 1976, that employee Rizzo advised him on June 28 "that he had received a in the building," in clear violation of Section 8(a)(1) and (3) of the Act. See, e.g., Central Hardware Company v. N.LRB., 439 F.2d 1321, 1325 (C.A.- 8,1971)3; Talon, Inc., 170 NLRB 355 (1968); Exide Alkaline Battery Division of ESB, Inc., 177 NLRB 778 (1969), enfd. 423 F.2d 663 (C.A. 4, 1970); and Daylin, Inc., 198 NLRB 281 (1972), enfd. 496 F.2d 484 (C.A. 6, 1974). To remedy the above unfair labor practice findings, I recommend that Respondent Employer cease and desist from engaging in such conduct; cease and desist from in any other manner infringing upon employee Section 7 rights; and post the attached notice. I further recommend that Respondent Employer, to the extent it has not already done so, offer employee Rizzo immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his unlawful termination by payment to him of a sum of money equal to that which he normally would have earned from the date of Respondent's discrimi- nation to the date of Respondent's offer of reinstatement, less net earnings during such period with backpay comput- ed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company,90 NLRB 289 (1950). Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Further, I recommend that Respondent Employer preserve and make available to the Board, upon request, all payroll records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations. In addition, for the reasons stated below, I recommend that Respondent Employer pay the Board and Charging Party Union the costs and expenses incurred by them in the investigation, presentation, and conduct of this case before the National Labor Relations Board. Recently, in Heck's, Inc., 215 NLRB 765 (1974), the Board reviewed and fully considered the question of awarding litigation expenses. The Board reaffirmed its position that the award of litigation expenses, except in extraordinary circumstances involving frivolous defenses, would discourage respondents from gaining access to the appropriate forum in order to fully litigate debatable defenses. See Winn-Dixie ..Stores, Inc., _224 NLRB 1418 (1976). The Board quoted in Heck's, Inc., supra, from its earlier decision in Tiidee Products, Inc., 194 NLRB 1234, 1236-37 (1972), where the Board had stated: We agree with the court, however, that frivolous litigation such as this is clearly unwarranted and should be kept from the nation's already crowded court dockets, as well as our own. While we do not seek to foreclose access to the Board and courts for meritorious certified letter from Robert J. Reilly, Respondent's Housekeeping Depart- ment head, in which he was offered his Job back.. " General Counsel also states in his letter: As there has been no attempt by Respondent or its counsel to settle this matter through this office to this date, I must assume that the case will not be settled. 3 Enfg. in part 181 NLRB 491(1970); vacated and remanded in part 407 U S. 539 (1972), on remand 468 F.2d 252 (C.A 8, 1972). 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases, we likewise do not want to encourage frivolous proceedings. The policy of the Act to insure industrial peace-through collective bargaining can only be effectu- ated when speedy access to uncrowded Board and court dockets is available. Accordingly, in order to discourage future frivolous litigation, to effectuate the policies of the Act, and to serve the public interest we fmd that it would be just and proper to order Respondent to reimburse the Board and the Union for their expenses incurred in the investigation, preparation, presentation, and conduct of these cases, including the following costs and expenses incurred in both the Board and court proceedings: reasonable counsel fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses and per diem, and other reasonable costs and expenses. Accordingly, we shall order Respondent to pay the Board and the Union the above-mentioned litigation costs and expenses. [Footnotes omitted.] I am persuaded that this is such an extraordinary case. Here, General Counsel issued his complaint and notice of hearing on March 23, 1976. Counsel for Respondent filed an answer denying the alleged unfair labor practices. Counsel for Respondent interviewed his witnesses, includ- ing Respondent Employer's administrator, Ciraldo, and advised them that this hearing was scheduled for June 14, 1976. The witnesses, including Ciraldo, were not present on June 14 because they assertedly were testifying in another proceeding. No effort had been made to reschedule this case. Counsel for General Counsel presented his one witness, Rizzo, on June 14. Rizzo's testimony presented a clear prima facie case. Rizzo was fully cross-examined by counsel for Respondent. This case was then continued over to the afternoon of June 14 so that counsel for Respondent could contact and arrange to call his witnesses. This proceeding was later continued over to the next morning for the same purpose. Neither counsel for Respondent nor his witnesses appeared on June 15, 1976, to deny or dispute Rizzo's testimony. Instead, counsel for Respondent tele- phoned counsel for General Counsel on the morning of June 15, stating that the case had been settled. As counsel for General Counsel notes, the case has not been settled. In my view, it will best effectuate the purposes and policies of the National Labor Relations Act to require Respondent Employer to reimburse Charging Party Union and the Board for the costs and expenses incurred by them in the investigation, presentation, and conduct of this case. As the Board stated in Tiidee, supra, "frivolous litigation such as this is clearly unwarranted and should be kept from the nation's already crowded court dockets, as well as our own."' Respondent Employer, although afforded the oppor- tunity on''two separate occasions to present its defense and to deny or dispute employee Rizzo's testimony, has not done so. Instead, 'counsel for Respondent claimed to have settled the case which, as stated, is incorrect. Under the circumstances, I fmd that such conduct manifests that 4 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. Respondent Employer is engaging in frivolous and unwar- ranted litigation within the Tiidee rationale, as quoted above, and therefore costs should be awarded. CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6),(7), and (14) of the Act. 2. Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by terminating employee James Rizzo on February 9, 1976, because he engaged in protected union activities. 4. The unfair labor practices found herein affect com- merce within the meaning of Section 2(2),(6),(7), and (14) of the Act. ORDER4 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, Respondent Kings Terrace Nursing Home and Health Facility, New York, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 522, affiliated with the International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America, or in any other labor organization, by discriminatorily suspending or discharging any of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed to them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to employee James Rizzo immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in this Decision. (b) Pay to the National Labor Relations Board and the Union the costs and expenses incurred by them in the investigation, presentation, and conduct of this case before the National Labor Relations Board, such costs to be determined at the compliance stage of this proceeding. (c) Preserve and, upon request, make available to the Board, or its agents, all payroll and other records as set forth in this Decision. (d) Post at its facilities in New York, New York, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's repre- 5 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." KINGS TERRACE NURSING HOME 255 sentative, shall be posted by Respondent immediately upon said notices are not altered, defaced, or covered by any receipt thereof, and be maintained by it for 60 consecutive other material. days thereafter, in conspicuous places, including all places (e) Notify the Regional Director for Region 2, in writing, where notices to employees are customarily posted. Rea- within 20 days from the date of this Order, what steps sonable steps shall be taken, by Respondent to insure that Respondent has taken to comply herewith.