Seacrest Convalescent Hospital

SEACREST CONVALESCENT HOSPITAL Seacrest Convalescent Hospital and Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO. Case 31-CA-6217 June 8, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On February 7, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Intervenor' filed excep- tions and a supporting brief, and the General Counsel filed an answering brief to the Intervenor's 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, find- ings,2 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 Respondent, Seacrest Conva- lescent Hospital, San Pedro, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. I Jacob & Kading was permitted to intervene at the hearing. 2 The Intervenor has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This matter was heard before me in Los Angeles, California, on November 11, 1976, and January 6, 1977. The charge was filed June 21, 1976, by Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO (Union). The complaint issued July 30, 1976, and alleges violations by Seacrest Convalescent Hospital (Respondent) of Section 8(aX5) and (1) of the National Labor Relations Act (Act). At the start of the hearing, Stuart M. Levine, an attorney, moved to intervene in the name of an entity identified as Jacob & Kading, which he represented to have purchased the facility in question the previous day. The motion was granted. On the second day of the hearing, Mr. Levine stated that he was appearing for a firm known as Western Convalescent Centers, Inc., which he said was the purchas- er's true identity, and for an individual by the name of Harry Planc, whom he identified as the prospective lessee operator of the facility. No evidence was proffered in support of Mr. Levine's representations. The parties were given opportunity at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed by the General Counsel and Mr. Levine. I. ISSUES The complaint alleges that Respondent violated Section 8(aX5) and (1) of the Act by withdrawing recognition from the Union as the representative of certain of its employees, and by refusing to sign a bargaining agreement reached with the Union. The answer denies any wrongdoing. n. JURISDICTION Respondent is a California corporation engaged at relevant times in the operation of a nursing home in San Pedro. Its annual gross revenues exceed $100,000, more than $10,000 of which comes from Medi-Cal, a health program funded jointly by the State of California and the United States Government. Respondent is a health care institution within the meaning of Section 2(14) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7). In addition it satisfies the Board's discretionary jurisdictional standard for nursing homes as enunciated in East Oakland Community Health Alliance, Inc., 218 NLRB 1270 (1975). [II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts On January 15, 1976, the Union was certified by the National Labor Relations Board as the bargaining repre- sentative of Respondent's employees in this unit: All employees employed at the facility located at 1416 West 6th Street, San Pedro, California; excluding professional employees, office clerical employees, regis- tered nurses, guards, and supervisors as defined in the Act.' Several bargaining sessions ensued between Respondent and the Union. The chief spokesmen were John Prager, an I It is concluded that this is an appropriate unit with Sec. 9(b) of the Act. Certification issued in Case 3 I-RC-3329. 230 NLRB No. 9 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney, for Respondent; and Thomas Ramsay, business representative, and James O'Dell, research associate, for the Union. On May 14, 1976, agreement in principle was reached on all terms of a contract, contingent upon approval by Alice Kahan, owner of Respondent, and ratification by the Union's membership. It also was understood, in Prager's words, that "substantial language drafting needed to be resolved." The agreement was to go into effect the first pay period after ratification and have a 3-year term. On May 16, Prager informed O'Dell that Kahan had approved the agreement and "that what remained for us to do was to work out the language of the proposals that haven't had language worked out; that the Union . . . would have to take the agreement to ratification vote ... and that the effective date of the contract . . . could be . . . June 1st, assuming that the contract was ratified ... prior to that time." On May 17, during a meeting between the two, O'Dell agreed to Prager's suggestion that another agreement negotiated between Prager's law firm and O'Dell serve as a model concerning language. In the same meeting, O'Dell said he would be away for a couple weeks, and that Ramsay would oversee the ratification vote, which was scheduled for May 18. Prager asked that Ramsay be instructed to tell him when ratification had occurred, so that Prager "could begin putting together the contract so that all parties could execute it." The agreement was ratified on May 18,2 and Ramsay told Prager of this on May 27. Prager responded that he "would begin preparation of the written agreement as soon as possible," which he estimated would be June 1. By Prager's admission, there were "no unresolved issues" at this time. On May 30 and 31, the three shifts of Respondent's employees were summoned to meetings at Respondent's facility. The meetings were conducted by one Elias Pelman, who identified himself as the new administrator of the facility. During one of the meetings,3 Pelman said that he understood that a bargaining agreement had been negotiat- ed, but that he would not recognize the agreement, nor would he deal with the Union "in any way, shape, or form." Pelman continued that he could do better for the employees than could the Union and asked that they give him 3 months to do so. On June I, after Prager had begun to reduce the bargaining agreement to final written form, he received a telephone call from Pelman. As a result of this call, the contents of which are largely unrevealed on the record, Prager stopped work on the agreement, never to resume. Also on June 1, one of the unit employees told Ramsay of Pelman's comments at the employee meeting described above. On June 2, O'Dell called Prager, asking if it were true that the facility had been sold. Prager answered that he "did not know what was going on," but that he had "learned of a rumor the previous day ... to that effect." O'Dell then asked if Prager had finished drafting the 2 Ramsay testified that ratification occurred Tuesday, May 16. Since May 16 was a Sunday, and since the record otherwise indicates that the vote was set for Tuesday. May 18, it is concluded that he misspoke, and meant to say May 18. agreement, and Prager told of the call from Pelman, saying he had discontinued the project as a result. On June 3, O'Dell sent this letter: Administrator Seacrest Convalescent Hospital 1416 West 6th Street San Pedro, California 90732 Dear Sir: After an election conducted by the National Labor Relations Board, in which a majority of the employees employed by Seacrest Convalescent Hospital voted to have Hospital and Service Employees Union, Local 399 become their bargaining representative, the Union was Certified by the National Labor Relations Board as the exclusive bargaining representative for the non-profes- sional employees employed by Seacrest Convalescent Hospital, exclusive of the business office, clerical employees. The Union has been informed that you have recently purchased Seacrest Convalescent Hospital from its prior owner. Under Federal law, as a successor employer, you are required to recognize the Union and bargain with them with respect to wages, hours, and working conditions for the employees represented by the Union. The Union hereby demands that you recognize it as the exclusive bargaining representative for the employees at Seacrest Convalescent Hospital as required by Federal law. The Union and Seacrest Convalescent Hospital negoti- ated a Collective Bargaining Agreement, effective June 1, 1976. The Union expects you to meet the terms of the contractual obligations which you have inherited, as the purchaser of Seacrest Convalescent Hospital, and expects you to meet any additional commitments or inducements which you may have offered that exceed those previously negotiated. Please contact the undersigned as soon as possible, so that we can execute the Collective Bargaining Agree- ment negotiated by the convalescent hospital. Very truly yours, And, on June 8, Ramsay sent this letter: Mrs. Alice Kahan 338 North Mansfield Avenue Los Angeles, California 90036 Dear Mrs. Kahan: As you probably have heard, the new owners of the business located in Seacrest Hospital have told their employees they are refusing to recognize Local 399 as 3 The record contains testimony of what happened at only one of the meetings. 24 SEACREST CONVALESCENT HOSPITAL the bargaining agent for our people working at the hospital. As you can well imagine, the people are both dispirited and confused. They have fought long and hard to bring the Union to Seacrest. Now, it appears to them they have been deserted by you just as their efforts were about to come to fruition. I am writing you this letter to ask for a meeting with you to discuss means which you may have at your disposal to assist this Union and our members at Seacrest in gaining recognition from the new owners. I would be happy to call upon you at your home or any other place you would designate. We hope you will take advantage of this opportunity to meet with us. I would hope to hear from you no later than Wednesday, June 16th. I look forward to meeting you personally as the people at Seacrest speak highly of you and remember their days under the direction of you and your late husband with real fondness. Sincerely yours, Neither letter was answered. Sometime in June, O'Dell and Ramsay prepared a written document embodying the agreement reached with Prager. It was received in evidence without objection, and there is no evidence to refute its substantive or linguistic completeness and accuracy. It is credited as a true embodiment of the agreement. There is no evidence, however, that Respondent ever was asked to sign it. Although the record alludes to a possible change in ownership of the facility in question after the bargaining agreement was reached, it is devoid of probative evidence that any such change indeed took place. Findings in that regard consequently cannot be made. B. Discussion That a bargaining agreement was reached between Respondent and the Union, to become effective June 1, 1976, is uncontroverted. It is plain, moreover, that Respondent withdrew recognition from the Union on about June 1, an incident of which was its repudiation of the agreement. Not only did Pelman announce to at least some of the employees in late May that, as the new administrator, he would not honor the agreement or deal with the Union "in any way, shape, or form"; but Respondent's attorney/bargaining spokesman, Prager, abandoned his commitment to reduce the agreement to final written form for signing after being called by Pelman on June 1. And, after that, Respondent failed to respond to the Union's letters about the situation. While there is no evidence that Respondent literally refused to sign a written agreement, as alleged, it did the equivalent by repudiating the agreement, thereby violating ' All outstanding motions inconsistent with this recommended Order hereby are denied. 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 Section 8(aX5) and (1). Respondent further violated that section, as alleged, by evincing a withdrawal of recognition in the manner above described. CONCLUSIONS OF LAW 1. By ceasing to recognize the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit on about June 1, 1976, and by concomi- tantly repudiating the bargaining agreement it had reached with the Union, as found herein, Respondent engaged in unfair labor practices in violation of Section 8(aX5) and (1) of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Seacrest Convalescent Hospital, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to recognize Hospital and Service Employ- ees Union, Local 399, Service Employees International Union, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the appropriate unit with respect to their terms and conditions of employment. The appropriate unit is: All employees employed at Respondent's facility located at 1416 West 6th Street, San Pedro, California; excluding professional employees, office clerical em- ployees, registered nurses, guards, and supervisors as defined in the Act. (b) Refusing to honor the collective-bargaining agree- ment reached between it and the Union in May 1976. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their of rights under the Act. 2. Take this affirmative action: (a) Implement, retroactively to June 1, 1976, the bargaining agreement reached between it and the Union in May 1976, making whole all employees, including any who have since left the payroll, for any wage or benefit losses suffered by reason of its failure to give timely effect to the agreement, with interest at 6 percent per annum.5 (b) Upon the Union's request, sign the written embodi- ment of the above agreement, which document is referred to in the body of this decision and is in evidence herein as General Counsel's Exhibit 5. (c) Preserve and, upon request, make available to the Board or is agents, for examination and copying, all payroll records, social security payments records, timecards, personnel records and reports, and all other records become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 5 Nothing herein shall be construed as requiring Respondent to revert to wage and benefit levels below those now in force. E.g., Harold W Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596 (1969). 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary for determination of the amounts owing under the terms of this Order. (d) Post at its place of business in San Pedro, California, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director of Region 31, after being signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director of Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 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 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 participated and had a chance to give evidence, the Board has found that we had committed certain unfair labor practices and has ordered us to post this notice and abide by it. The National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT refuse to recognize Hospital and Service Employees Union, Local 399, Service Employ- ees International Union, AFL-CIO, as the exclusive collective-bargaining representative of our employees in the appropriate unit with respect to their terms and conditions of employment. The appropriate unit is: All employees employed at our facility located at 1416 West 6th Street, San Pedro, California; excluding professional employees, office clerical employees, registered nurses, guards, and supervi- sors as defined in the Act. WE WILL NOT refuse to honor the collective-bargain- ing agreement reached between us and the Union in May 1976. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE WILL implement, retroactively to June 1, 1976, the bargaining agreement reached between us and the Union in May 1976, making whole all employees, including any who have since left the payroll, for any wage or benefit losses suffered by reason of our failure to give timely effect to the agreement, with interest of 6 percent per annum on the wage losses. WE WILL, upon the Union's request, sign the written embodiment of the above agreement. Nothing in this notice is to be construed as requiring us to revert to wage and benefit levels below those presently in force. SEACREST CONVALESCENT HOSPITAL 26