Long Beach Youth Center, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Long Beach Youth Center, Inc., a/k/a Long Beach Youth Home (formerly Trailback, Inc.) and Hospi- tal and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO. Cases 21-CA-13639 and 21-RC-14169 July 6, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On May 7, 1975, Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, herein referred to as the Union, filed a petition for an election in Case 21-RC-14169. Shortly thereafter, on May 14, 1975, the Union filed a charge against Trailback, Inc. (now Long Beach Youth Center, Inc., a/k/a Long Beach Youth Home), herein referTed to as either Respondent or the Employer, alleging various violations of the Act. A hearing was held on the issues raised by the Union's election petition and, on November 19, 1975, the Board directed an election in two appropri- ate units-Unit A and Unit B.' An election was conducted in Unit A on December 19, 1975, and, as the challenged ballots were sufficient in number to affect the results of the election, the Board, on May 7, 1976, issued a Supplemental Decision and Certifi- cation of Results of Election and Order Directing Hearing on the challenged ballots.2 On May 20, 1976, the Regional Director issued an order consoli- dating the representation case with the unfair labor practice case and directed a hearing before an Administrative Law Judge. The complaint, which issued April 9, 1976, alleges that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. In its answer, Respondent admits some of the allegations of the complaint but denies the commission of the alleged unfair labor practices. On September 24 and 28, 1976, the parties executed a stipulation of facts by which they waived a hearing before an Administrative Law Judge and the is- suance of an Administrative Law Judge's decision, ' The Board's Decision and Direction of Elections is set out at 221 NLRB 527 (1975). 2 Not reported in bound volumes of Board decisions. 3 After the complaint in this case issued, Trailback, Inc., underwent corporate reorganization between on or about July 3. and November 17, 1975, and became Long Beach Youth Center, Inc. At the same time Respondent changed its function somewhat and became a children's youth home providing board, care, and supervision for male adolescents. Long Beach Youth Center. Inc., though not named in the complaint, executed the stipulation of facts and the motion to transfer proceedings to the Board as a Respondent, and is but an alter ego of Trailback, Inc. Since it is clear that both Trailback, Inc., and Long Beach Youth Center, Inc., satisfy the jurisdictional requirements of the Act (see The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB 1344 (1976), and Boys and 230 NLRB No. 90 and agreed to submit the case to the National Labor Relations Board for findings of fact, conclusions of law, and an order based upon a record consisting of the charges, the complaint and notice of hearing, the answer, the stipulation of facts with exhibits attached thereto, and the record in Case 21-RC-14169 of which the Board may take judicial notice. On November 29, 1976, the Board accepted the parties' stipulation of facts and ordered that the proceedings be transferred to the Board, granting the parties time for the filing of briefs. Thereafter, General Counsel, the Union, and Respondent filed briefs in support of their respective positions. Pursuant to the provisions of the 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. Upon the basis of the stipulation of facts, the briefs, and the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT 1. JURISDICTION Respondent Long Beach Youth Center, Inc., a/k/a Long Beach Youth Home, is a California nonprofit charitable corporation which until approximately October 1975 operated a nonprofit residential treat- ment facility for the care and treatment of emotional- ly disturbed adolescents with drug-related problems. As found by the Board in its decision at 221 NLRB 527 (1975), Respondent has been at all times material herein a health care institution within the meaning of Section 2(14) of the Act. In the normal course of its business operations, Respondent derives annual gross revenues of approximately $420,000 from agencies of the county of Los Angeles, California. We therefore find that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein.3 Girls Aid Society of San Diego, Ltd., 224 NLRB 1614 (1976)), Long Beach Youth Center, Inc., will be named as Respondent in this proceeding. In finding that Respondent Long Beach Youth Center, Inc., meets the Board's jurisdictional requirements, Member Murphy deems it unnecessary to rely on the above cases, in which she dissented. Rather, she would assert jurisdiction over Respondent Long Beach on the ground that it is the alter ego of Respondent Trailback, Inc., a health care institution, over which the Board asserted jurisdiction in the underlying representation proceeding, reported at 221 NLRB 527. The fact that Respondent Trailback underwent corporate reorganization after the unfair labor practice complaint herein issued, and that it now operates Respondent Long Beach Youth Center, Inc., cannot and does not exculpate it from responsibility for unfair labor practices committed prior to such reorganization and name change. 648 LONG BEACH YOUTH HOME II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts Respondent, at all times material herein, has operated a private, nonprofit, residential treatment facility whose function is the care and treatment of emotionally disturbed adolescents with drug-related problems. Respondent's treatment program consists of providing 24-hour skilled nursing care and medical, psychiatric, psychological, and social work services for its residents. Among Respondent's employees are nurses, maintenance personnel, and child care counselors whose function is to act as surrogate parents for the residents and supervise their daily living situation. On April 30, 1975, employees David Eastland, Stephen Wolinski, and William Bartlett met at Respondent's premises and planned a work stop- page, commonly referred to as a "sick-in," in protest of working conditions at the Employer's facility. They discussed grievances they had with Respon- dent, including their desires for changes in the personnel policies to include additional fringe bene- fits for employees and adequate break periods, and made plans to apply for membership in the Union. On May 1, 1975, at 7:15 a.m., all five child care counselors scheduled for the morning shift called in sick prior to the time they were to report for duty. During the ensuing 24-hour period, a total of 17 employees4 ceased to work concertedly to protest working conditions. The Union was not responsible for, nor did it encourage, the work stoppage. No notice of the work stoppage was given to Respon- dent. Also on May 1, all of these 17 employees met to draw up a list of written demands for presentation to Respondent's board of directors. During this meet- ing, all 17 employees signed authorization cards for the Union. On May 2, Theodore H. Hampton, Respondent's program coordinator and a supervisor within the meaning of the Act, met with the employees and was presented with the list of written demands. The following day, employees Heikkila, Bartlett, and 4 These 17 employees were William F. Bartlett, Rodney Chaplin. Betsy Chattaway, Lester Davenport, David C. Eastland, John W. Gogel. Jr., Danny L. Harrison, Wayne E. Heikkila, Lonnie Henley. John E. Lalich, Jr., Duane A. Leet, Arthur J. Moreau. Lawrence A. Motley, David Plouff, Alan Seaman, Dexter S. Umekubo, and Stephen H. Wolinsky. Eastland met with an administrative representative of Respondent's board of directors, Harold Ward, to discuss the proposed demands. Between May 5 and 11, 1975, the 17 employees ended their work stoppage and returned to Respon- dent's employ. 5 On May 9 and 11, 1975, however, Respondent sent telegrams to all of the 17 employees who had participated in the work stoppage telling them that their employment was terminated. The employees were terminated because they had ceased working on May 1, 1975, and had thereby (so Respondent stated) engaged in "child neglect and abandonment of duties in a health care facility." In a related development, Respondent, on or about May 10, discharged Supervisor Hampton for his participation in the work stoppage. Hampton had, on May 7, attended a press conference with three employees and had stated that if Respondent did not negotiate in good faith with the staff personnel he was prepared to leave Respondent's employ. On May 8, Hampton made a televised statement to the effect that the removal of adolescents from Respondent's premises appeared to him to have been deliberately promoted by Respondent in order to have an excuse to lay off the staff and avoid union negotiations. B. Positions of the Parties General Counsel and the Union contend that Respondent's discharge of its 17 unrepresented employees for engaging in a concerted work stoppage violated Section 8(a)(l) of the Act. General Counsel and the Union also contend that Respondent's discharge of Supervisor Theodore H. Hampton for his participation in the work stoppage violated Section 8(aXl) of the Act. Respondent contends that the concerted work stoppage of May I was not protected activity because the 17 participating employees failed to give the notice required by Section 8(g) of the Act and that therefore its discharge of these employees did not violate Section 8(a)(l) of the Act. Respondent also argues that its discharge of Supervisor Hampton was not violative of the Act. C. Analysis and Conclusions The stipulated facts clearly state that Respondent discharged its 17 employees because they participat- ed in a concerted work stoppage in protest of working conditions. It has long been recognized that participation in such concerted activity, even by 5 Between May I and 21, the Los Angeles County Department of Social Services and Probation transferred 24 of Respondent's 34 adolescent residents away from Respondent's facility. 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unrepresented employees, is protected by Section 7 of the Act.6 Therefore, unless it can be shown that Section 8(g) mandates a different conclusion, Re- spondent's discharge of the 17 employees violated Section 8(a)(1) of the Act. Section 8(g) of the Act requires that "[a] labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing...." Section 8(d) of the Act strengthens Section 8(g)'s prohibition by providing that any employee who engages in a strike within the notice period specified by Section 8(g) loses his or her status as an employee under the Act (and therefore forfeits any protection which the Act might bestow). Respondent argues that the notice requirements of Section 8(g) were binding on its 17 employees, and that, by failing to give notice, these employees sacrificed their protected status under the Act and could be legitimately discharged. Respondent's two- pronged argument is that: (1) despite its literal wording, Section 8(g) applies to a work stoppage in which only unrepresented employees are involved; and (2) the 17 employees, at the time of their concerted work stoppage, constituted a labor organi- zation within the meaning of Section 2(5) of the Act. We disagree with Respondent on both counts. Recently, in Walker Methodist Residence and Health Care Center, Inc. 7 -a case roughly analogous to this one-the Board concluded that Section 8(g) does not apply to a work stoppage in which no labor organization is involved. Our reasoning there was that neither the legislative history nor policy consid- erations dictated departing from a literal interpreta- tion of Section 8(g). We adhere to our approach as fully set forth in that case and accordingly reject Respondent's assertion that Section 8(g) applies to unrepresented employees. We likewise reject Respondent's contention that the 17 employees who participated in the work stoppage on May I constituted a labor organization within the meaning of the Act. Although the 17 employees met on May I to draw up a list of written demands for presentation to Respondent, there is no indication that these 17 employees formed them- selves into a group, or that they met at any other time, or that they designated themselves or any in their number as representatives for purposes of dealing with Respondent concerning grievances, conditions of work, etc. The fact that, on May I, all 17 signed authorization cards for the Union furnishes strong evidence that these employees were merely in the process of organizing and had not yet attained 6 N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9 (1962). ? 227 NLRB 1630(1977). the status of a labor organization. By signing authorization cards, the 17 employees signified their intention of designating the Union, and no other, as the organization whose purpose it would be to deal with the Employer. Accordingly, we find that this group of employees did not constitute a labor organization, and that by discharging the 17 employ- ees for engaging in concerted activity Respondent violated Section 8(a)(1) of the Act. The stipulated facts show that Supervisor Hampton was discharged on May 9 "because the employees had ceased work on May 1." That work stoppage was wholly economic in its inception and purposes and a fair reading of the record supports the conclusion that Hampton's discharge was more specifically caused by his actions and statements in support of the employees' economic strike and goals. There is no evidence that Hampton's discharge was occasioned by any activities on his part to protect employees from employer unfair labor practices nor caused by any refusal on his part to infringe on employees' statutory rights. Neither was Hampton's discharge a tactic resorted to by Respondent to cover up or to facilitate its taking unlawful action against its employees. In short, Hampton was discharged solely for siding with the employees in their econom- ic dispute with the Respondent, but as he was a supervisor his engaging in, or sympathizing with, such concerted activities was not protected by the Act. Consequently, we find, his discharge was not unlawful.8 IV. THE REPRESENTATION CASE On December 19, 1975, pursuant to the Board's Decision and Direction of Elections, an election by secret ballot was conducted in the following appro- priate unit (Unit A): All maintenance assistants, maintenance supervi- sors, housekeepers, custodians, cooks, head cooks, a.m. supervisors, p.m. supervisors, night supervisors, wing directors, child care counselors, drug abuse project assistant and volunteer coordi- nator-activities directors employed by the Em- ployer at its facility located at 4151 Fountain Street, Long Beach, California; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. Of the approximately 29 eligible voters, 26 cast ballots; 7 of which were cast against the Union. The remaining 19 ballots were challenged-a number sufficient to affect the results of the election. The parties on February 12, 1976, stipulated that 2 of the 8 Sibilio's Golden Grill, Inc.. 227 NLRB 1688 (1977). 650 LONG BEACH YOUTH HOME 19 ballots were cast by ineligible voters. The other 17 challenged ballots were cast by the 17 discharged employees named above. The parties stipulated that if the Board finds that these 17 employees were unlawfully terminated the 17 employees are eligible voters and their challenged ballots should be opened and counted and the appropriate certification should issue. Since we have found that Respondent unlaw- fully discharged the 17 employees, we shall direct that their ballots be opened and counted and the appropriate certification be issued. REMEDY Having found that Respondent discharged 17 employees in violation of Section 8(a)(1) of the Act, we will direct Respondent to offer these employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings suffered by reason of their unlawful termination, by payment to them of a sum of money equal to that which they normally would have earned from the date of their discharge to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay computed 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). We shall also direct the Regional Director for Region 21 to open and count the challenged ballots of these 17 employees and to issue the appropriate certification. CONCLUSIONS OF LAW 1. Respondent Long Beach Youth Center, Inc., a/k/a Long Beach Youth Home (formerly Trailback, Inc.), is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and has been at all pertinent times a health care institution within the meaning of Section 2(14) of the Act. 2. Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All maintenance assistants, maintenance su- pervisors, housekeepers, custodians, cooks, head cooks, a.m. supervisors, p.m. supervisors, night supervisors, wing directors, child care counselors, drug abuse project assistant and volunteer coordina- tor-activities directors employed by Respondent at its facility located at 4151 Fountain Street, Long Beach, California; excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By discharging William F. Bartlett, Rodney Chaplin, Betsy Chattaway, Lester Davenport, David C. Eastland, John W. Gogel, Jr., Danny L. Harrison, Wayne E. Heikkila, Lonnie Henley, John E. Lalich, Jr., Duane A. Leet, Arthur J. Moreau, Lawrence A. Motley, David Plouff, Alan Seaman, Dexter S. Umekubo, and Stephen H. Wolinsky, on May 9 and May 11, 1975, for participating in a concerted work stoppage in protest of working conditions, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. By discharging Supervisor Theodore H. Hamp- ton for assisting the employees in their work stoppage, Respondent did not violate Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and 2(7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Long Beach Youth Center, Inc., a/k/a Long Beach Youth Home (formerly Trailback, Inc), Long Beach, California, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Discharging its employees for engaging in a concerted work stoppage in protest of working conditions. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action: (a) Offer William F. Bartlett, Rodney Chaplin, Betsy Chattaway, Lester Davenport, David C. Eastland, John W. Gogel, Jr., Danny L. Harrison, Wayne E. Heikkila, Lonnie Henley, John E. Lalich, Jr., Duane A. Leet, Arthur J. Moreau, Lawrence A. Motley, David Plouff, Alan Seaman, Dexter S. Umekubo, and Stephen H. Wolinsky immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make the 17 above-named employees whole for any loss of earnings they may have suffered by reason of their unlawful discharges, in the manner set 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth in the section of this Decision entitled "Reme- dy." (c) 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 backpay due under the terms of this Order. (d) Post at its Long Beach, California, place of business copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representa- tive, shall be posted by Respondent 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(1) of the Act not specifically found herein. IT IS ALSO FURTHER ORDERED that the challenges to the ballots of the above-named 17 employees in the election in Unit A held on December 19, 1975, in Case 21-RC-14169 be, and they hereby are, over- ruled, and that the challenges to the other 2 ballots be, and they hereby are, sustained. IT IS FURTHER ORDERED that Case 21-RC-14169 be, and it hereby is, remanded to the Regional Director for Region 21 for the purpose of opening and counting the challenged ballots of the above- named 17 employees, serving on the parties a revised tally of ballots, and issuing the appropriate certifica- tion. 9 In the event that this 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 WE WILL NOT discharge our employees for engaging in a concerted work stoppage in protest of working conditions. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL offer William F. Bartlett, Rodney Chaplin, Betsy Chattaway, Lester Davenport, David C. Eastland, John W. Gogel, Jr., Danny L. Harrison, Wayne E. Heikkila, Lonnie Henley, John E. Lalich, Jr., Duane A. Leet, Arthur J. Moreau, Lawrence A. Motley, David Plouff, Alan Seaman, Dexter S. Umekebo, and Stephen H. Wolinsky immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, and WE WILL make them whole for any loss of earnings they may have suffered by reason of their unlawful discharge, with interest at 6 percent per annum. LONG BEACH YOUTH CENTER, INC., A/K/A LONG BEACH YOUTH HOME (FORMERLY TRAILBACK, INC.) 652