Pacific Grove Convalescent Hospital

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 48 518 P.G.H.C.C., Inc. d/b/a Pacific Grove Convalescent Hospital and SEIU United Healthcare Workers West, Service Employees International Union. Cases 32–CA–22879 and 32–CA–22894 August 6, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On May 9, 2007, Administrative Law Judge Gerald A. Wacknov issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, P.G.H.C.C., Inc., d/b/a Pacific Grove Convalescent Hos- pital, Pacific Grove, California, its officers, agents, suc- cessors and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). “(a) Soliciting employees to sign a petition to decertify SEIU United Healthcare Workers West, Service Em- ployees International Union as their collective- bargaining representative.” 2. Substitute the attached notice for that of the admin- istrative law judge. 1 The Respondent has moved to strike the Charging Party’s excep- tions on the grounds that they fail to comply with the Board’s Rules. We find it unnecessary to rule on the motion because we decide, below, to deny the Charging Party’s exceptions on the merits. 2 No exceptions were filed to the judge’s finding that the Respondent violated Sec. 8(a)(1) by unlawfully soliciting the signatures of two employees on the decertification petition. 3 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 4 We shall modify the judge’s recommended Order to include the appropriate cease and desist language for the violation found. We deny the Respondent’s request for an award of attorney’s fees, as we find the Charging Party’s exceptions are not frivolous. See gen- erally Sea-Jet Trucking Corp., 327 NLRB 540, fn. 1 (1999), enfd. mem. 221 F.3d 196 (D.C. Cir. 2000); Frontier Hotel & Casino, 318 NLRB 857 (1995), enfd. in part 118 F.3d 795 (D.C. Cir. 1997). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT solicit employees to sign a petition to de- certify SEIU, United Healthcare Workers West, Service Employees International Union as your collective- bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. P.G.H.C.C., INC, D/B/A PACIFIC GROVE CONVALESCENT HOSPITAL Michelle M. Smith, Esq., for the General Counsel. Maria Anastas, Esq. and Aaron Roblan, Esq. (Davis Wright Tremaine, LLP), of San Francisco, California, for the Re- spondent. Bruce A. Harland, Esq. (Weinberg, Roger & Rosenfeld), of Alameda, California, for the Union. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice a hearing in this matter was held before me in Pacific Grove, California on February 27, 28, and March 1, 2007. The charge in Case 32–CA–22879 was filed by SEIU United Healthcare Workers West, Service Employees International Union (the Union) on October 13, 2006, and an amended charge was filed by the Union on January 30, 2007. The charge in 32–CA–22894 was filed by the Union on October 26, 2006. Thereafter, on January 30, 2007, the Regional Director for Re- gion 32 of the National Labor Relations Board (the Board) issued a consolidated complaint and notice of hearing alleging violations by P.G.H.C.C., Inc., d/b/a Pacific Grove Convales- cent Hospital (the Respondent) of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The complaint was orally amended at the hearing to add an additional Section 8(a)(1) allegation. The Respondent, in its written and verbal PACIFIC GROVE CONVALESCENT HOSPITAL 519 answer to the complaint allegations, denies that it has violated the Act as alleged. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from Counsel for the General Counsel (the Gen- eral Counsel) and counsel for the Respondent. Upon the entire record, and based upon my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a California corporation with its office and principal place of business located in Pacific Grove, Cali- fornia where it is engaged in the operation of a convalescent hospital. In the course and conduct of its business operations the Respondent annually derives gross revenues in excess of $100,000, and has received federal Medicare funds in excess of $5,000. It is admitted and I find that the Respondent is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issue in this proceeding is whether the Re- spondent has violated Section 8(a)(1) and (5) of the Act by unlawfully causing the circulation of a decertification petition and thereafter withdrawing recognition from the Union. B. Facts John Lund has been the owner and president of the Respon- dent since January, 2006.1 He owns and operates seven nursing homes in California, with a total employee complement of ap- proximately 500 employees. He has been involved in collec- tive-bargaining negotiations, grievance matters, arbitration, informational picketing and handbilling, and similar labor rela- tions matters with the SEIU at various facilities.2 He has always retained labor counsel prior to acquiring the nursing homes he owns and operates, including the Respondent, because, as Lund testified, “I knew, as a successor employer, I had certain rights and I knew that it was delicate what I could and couldn’t say . . . I didn’t want to do anything improper.” He has been involved in negotiating about a dozen contracts over a period of 15 years. The Union and the Respondent’s predecessor had maintained a collective-bargaining relationship for many years. Upon ac- quiring the Respondent Lund hired the Respondent’s then- current complement of employees after advising them that they 1 All dates or time periods hereinafter are within 2006 unless other- wise stated. 2 The record does not indicate how many of his facilities are union- ized. would be hired subject to the wages, hours, and conditions of employment established by the Respondent. Thereafter he rec- ognized the Union as the collective-bargaining representative of the Respondent’s employees, and his attorney commenced to bargain with the Union over an initial collective-bargaining agreement. Since becoming the Respondent’s owner he has maintained contact with its administrator, John Jones, and has visited the facility about once a month to check in with Jones, make rounds, and oversee the operations. Bargaining sessions were held on March 7, March 28, April 18, and June 26. At the June 26 bargaining session the parties entered into a document entitled “Tentative Agreements” which contains recognition provisions and several additional items, but nothing regarding wages and most economic matters. By September the parties had not had a subsequent bargaining session, but had exchanged letters proposing further bargaining dates. In early September Lund returned to the facility for a peri- odic routine visit. At a nurse station, one of the Certified Nurs- ing Assistants (CNA’s), Monica Tonga, approached him and asked when the employees were going to get a raise. Several other CNA’s were working nearby and gathered around when they overheard Tonga’s question. Lund testified that he replied, “I can’t give you a raise because I’m in negotiations with the Union currently.” According to Lund, nothing further was said about raises, and he made no mention of any employee being entitled to $18 per hour either with or without a union, infra. Then, according to Lund, another CNA who was present, namely Phillip Lamar, began asking Lund about the Respon- dent’s paid time off (PTO) policy. Lund explained the policy as best he could. He then asked if someone could get an employee handbook, which sets out the details of the policy. CNA Valerie Domenighini volunteered to do so while Lamar, according to Lund, “ran to his car to get his check stubs, because he didn’t think [PTO] was being . . . properly reflected on his checks.” Then, after the two employees returned, the conversation con- tinued. At some point, Domenighini asked him, “how do we get rid of this Union?” Lund believes that only Lamar and Domenighini were present at the time.3 Lund told her that he would have to get back to her on that and would get her an answer in a couple of weeks. Lund testified that he “knew it was a question that could get me into trouble if I answered it improperly, potentially an unfair labor practice.” Following this visit Lund contacted his attorney about the matter, and received an email dated September 7, setting forth two ways the employees could remove the Union: by collecting signatures from a majority of bargaining unit employees on a petition stating they no longer wished to be represented by the Union, or by obtaining such signatures from at least 30 percent of the employees in order to begin the election process through 3 From a careful reading of the transcript it appears that not all the participants remained for the entire length of the conversation, as some participants remember some portions and not others, and some indi- cated that they needed to continue working since this spontaneous conversation was not during a break period. Nevertheless, it also ap- pears that employees who had returned to work were working at or near the nurse station and were able to overhear portions of the remainder of the conversation between Lund, Lamar, and Domenighini. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520 the Board. On his next visit to the facility some 2 weeks later, apparently on September 28, both Lamar and Domenighini approached him and Domenighini asked, “have you got some- thing for me?” Lund said he did and gave her the email and walked away. There was no further conversation. Lund does not recall whether Domenighini and Lamar kept the email or, after reading it, immediately gave it back to him. Shirlita Castelo has worked for the Respondent for 17 years. She is currently making $13.83 per hour.4 She was present during the foregoing conversation between Lund and Tonga, who began the conversation as Lund happened to pass by the nurse station where Tonga and several other employees were working. After Tonga initiated the conversation by asking about a raise, other interested employees gathered around to hear Lund’s answer. Castelo’s version of the conversation is as follows: And she [Tonga] asking him when we can have the raise. And he said he cannot give us a raise because we still in the Union. And he [Lund] turned around as he said to Beth [Elizabeth Alcantara], Beth been there a long time and she should have $18.00 per hour but we still on the Union so she cannot have the $18.00. So Valerie [Valerie Domenighini] told us that, okay, we going to out of the Union, that’s what she said. CNA Elizabeth Alcantara has worked for the Respondent for nearly 19 years. She is currently making $13.83 per hour. Al- cantara testified that when Tonga asked when the employees could get a raise, Lund replied, “. . . if you want the raise, you have to give up, you know, the Union.” Then Tonga, using Alcantara as an example, mentioned that Alcantara had been there almost 19 years and was “only getting thirteen something an hour.” To this Lund replied, “oh, so if you are not Union I can give you like $18.00 an hour.” Tonga worked for the Respondent for about 4 years. She left the Respondent’s employ on February 25, 2007, approximately 3 weeks prior to the hearing. Tonga began the colloquy with Lund by asking him “when we going to get a raise.” Tonga testified as follow regarding Lund’s response to her question: “His response was telling me and everybody else who was there that, I can’t do anything right now because I’m still under negotiating with Union.” According to Tonga, Lund said noth- ing about a raise for anyone to $18 per hour or about getting rid of the Union. Regarding the possibility of a wage increase, Tonga testified she understood from Lund’s answer, “that when they finished negotiating they might or might not [receive a wage increase], so I was satisfied with his answer.” Then, fol- lowing this colloquy, Phillip Lamar, who was also present, began talking to Lund about other matters not concerning pay raises. Lamar has worked for the Respondent for 3 years. Lamar testified that Tonga asked Lund about the raise and Lund “said that we couldn’t get a raise because we were in Union negotia- tions.” Elaborating, Lamar testified Lund said, “That we’re in Union negotiations and he couldn’t give us raises, he has to go 4 The record indicates that no employee was making more than $3.83 per hour, and that employees in certain job classifications were making considerably less. through them first.” Then Lamar began talking to Lund about a particular problem concerning his paycheck. Lamar does not recall any other discussion whatsoever regarding wage in- creases. Domenighini has worked for the Respondent since February 1. During her testimony Domenighini initially gave the follow- ing account of the conversation: Well, all of us were up at station two just doing out (sic) chit chat, messing around up there and John Lund came up and Monica had said to him, when are we going to get a raise? And at this time John said, well, I’m in negotiations with the Union at this time and all raises go through them. Immediately following this exchange, according to Domenighini, there was discussion of an unrelated matter raised by Lamar. However, Domenighini then inconsistently testified that after Tonga asked Lund about raises, the subject of merit raises was discussed, and Lund said, “he thought that he could give us merit raises for the job performance that we did.”5 Then Domenighini gave yet a third version of the conversation, namely, that after Lund answered Tonga’s question, Domenighini explicitly told Lund that she thought his answer was “bull shit.” She said this because she was very much op- posed to the Union and believed Lund’s answer “was bull be- cause why do we have to go through the Union for a raise . . . I mean why can’t we just get the raise?”6 Lund testified that no employees at any of his nursing homes make anything “even close” to $18 per hour. Tonga, who has been employed at various facilities, testified that she knows of no CNA’s who make as much as $18 per hour in a convalescent facility such as the Respondent’s, as distinguished from an acute care facility such as a community hospital which requires a totally different level of patient care. The record contains no contrary evidence. Lamar testified that he read the aforementioned email docu- ment handed to him by Lund and immediately returned it to him. He then prepared a decertification petition for employees’ signatures and began circulating the petition on September 29. On September 30 he gave the petition to Domenighini who continued the process. On October 1, Domenighini submitted the petition, containing 25 signatures,7 to Respondent’s Admin- 5 No other witness to the conversation mentioned any discussion of merit increases. 6 Significantly, Domenighini also changed other portions of her tes- timony. She appeared to be attempting to adjust her testimony to what- ever would support her particular interests. I do not credit her testimony except to the extent it is corroborated by other witnesses. 7 Neither Castelo nor Alcantara signed the petition. Tonga, who did sign the petition, testified she had two separate conversations with Castelo about the matter. During the first conversation Castelo asked her why she signed the petition and Torre said, “that’s my free will. I’m not going to interfere with you and you should not . . . interfere with me.” During the second conversation, much closer to the date of the hearing herein, Castelo said she was told by the Union that “we going to get, if you change your mind and change your story, we going to get a lot of money out from John Lund” in the form of backpay from Janu- ary 2006. Tonga, who was leaving the Respondent’s employ, said she didn’t care and that she was not going to change her story because it PACIFIC GROVE CONVALESCENT HOSPITAL 521 istrator, John Jones, and asked him if he would obtain two addi- tional signatures, naming two employees who had, according to Domenighini, indicated a willingness to sign. Jones did so, infra. The parties stipulated that “During the payroll period ending September 30, there were 43 employees in the bargain- ing unit.” Thus, at the time Domenighini submitted the petition to Jones it had already been signed by a majority of bargaining unit employees. As noted above, Jones solicited the signatures of two em- ployees, namely, Raul Datuin and Carmen Torre, on the peti- tion. The Respondent admits that Jones’s conduct in this regard was improper. Datuin is no longer working for the Respondent and was ap- parently dismissed for cause. According to Datuin, Jones ap- proached him at work and directed him to sign the petition. Jones told him that the Union was just taking his money, that a majority of the employees had already signed, that they needed numbers, and that this is what John Lund wanted. Carmen Torre testified that Jones approached her with the petition and said, “they trying to get rid of the Union and eve- rybody sign it.” Jones said the Union is “good for nothing.” He also said, “And you can always change you mind if anything happens, any troubles, you always can come to me and ask me if we can fix any troubles.”8 Torre was not asked whether Jones made this latter statement before or after she signed the peti- tion. Jones testified that he is responsible for the day to day ad- ministration of the Respondent’s facility and has had no in- volvement with union negotiations or union matters. He is pri- marily responsible for patient care. Jones testified that Domenighini gave him the petition and told him there were two additional employees who were interested in signing. Without obtaining Lund’s permission, he approached them individually and simply asked if they wanted to sign. He did not know at the time that his conduct in this regard was improper. Datuin vol- unteered that he was very much opposed to the Union and signed the petition. Regarding his conversation with Torre, Jones does not recall whether he told Torre that a majority of the workers had already signed; however, after signing the petition Torre asked him a question about a payroll issue. He told her to go to the payroll person if she had a problem, “and if you can’t resolve it, contact me and I’ll help you.”9 On October 2, the same date Jones solicited the two afore- mentioned signatures, Respondent’s attorney sent the following letter to the Union: My client has advised me that an overwhelming majority of employees at the Pacific Grove facility have signed a petition seeking to remove your Union as their bargaining representa- tive. Consequently, my client is hereby withdrawing recogni- tion from the Union. Should you have any questions, please was the truth. Castelo was not asked about the first conversation, but testified that the second conversation never occurred. 8 The complaint was orally amended at the hearing to further allege that, “On or about October 2nd, John Jones solicited and impliedly promised to remedy grievances.” 9 Torre was not called as a rebuttal witness and did not deny Jones’s testimony in this regard contact the undersigned. C. Analysis and Conclusions The General Counsel contends that Lund impliedly told the employees that the Union was the impediment to their receiving substantial wage increases, and that his comments were the catalyst for the decertification petition; therefore, the petition was tainted and the Respondent’s subsequent withdrawal of recognition was unlawful. I credit the testimony of Lund, Tonga, Lamar, and Domenighini and find that Lund did not make the remarks at- tributed to him by Castelo and Alcantara. In particular I was impressed with Tonga’s account of the conversation. Tonga, who was no longer working for the Respondent at the time of her testimony, initiated the conversation and, insofar as the record shows, was the most neutral witness among the entire group. Thus, Domenighini and Lamar prepared and circulated the decertification petition and were the first to sign it, while Castelo and Alcantara refused to sign it.10 I also credit Tonga’s testimony that Castelo, at some point shortly prior to the hear- ing, attempted to cause her to change her account of the con- versation and that Tonga adamantly refused, replying that she intended to tell the truth. Further, it is highly improbable that Lund would have made the statements attributed to him by Castelo and Alcantara. The record establishes that Lund is well acquainted with union- management labor relations matters and that he was not particu- larly acquainted with the employees; thus, he would not have known their union sentiments. Accordingly, he would not have made such overt antiunion remarks to this spontaneous gather- ing of employees as there was no way for him to know whether this alleged promise of approximately a 30 percent wage in- crease would cause employees to initiate a decertification peti- tion, or would have the deleterious effect of causing the Union to increase its wage demands at the bargaining table and thereby present a stumbling block to the ongoing contract nego- tiations. Indeed, it would appear that the amount of the alleged wage increase is in and of itself so inordinate as to render Lund’s alleged remark highly implausible. The Respondent admits, and I agree, that Respondent’s Ad- ministrator, John Jones, unlawfully solicited the signatures of two employees on the decertification petition. I find that by such conduct the Respondent has violated Section 8(a)(1) of the Act. However, in the absence of any specific contrary testimony from Torre, I credit Jones’s testimony that Torre signed the petition prior to his remarks that she could come to the Respon- dent to attempt to resolve any problems. Therefore, I shall dis- miss the allegation that Jones impliedly promised benefits to Torre in exchange for signing the petition. The parties stipulated that the petition contained 25 signa- 10 In this regard, I do not credit the rather implausible testimony of Castelo and Alcantara that they did not sign the petition because they were waiting to see if Lund would carry through with his promise to grant wage increases. If Lund had told them that the Union was the impediment to wage increases, as they testified, their reasoning makes no sense. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522 tures before Jones solicited the final two signatures, and that there were 43 employees in the bargaining unit. From the fore- going, I find that the petition was not tainted by the Respon- dent’s conduct, that it was validly signed by a majority of bar- gaining unit employees, and that the Respondent’s withdrawal of recognition from the Union was not unlawful. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has violated Section 8(a) (1) of the Act as found herein. THE REMEDY Having found the Respondent has violated and is violating Section 8(a)(1) of the Act, I recommend that it be required to cease and desist therefrom and from in any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. I shall also recommend the posting of an appropriate notice, attached hereto as “Appendix.” On these findings of fact and conclusions of law and on the entire record, I issue the following recommended11 ORDER The Respondent, P.G.H.C.C., Inc., d/b/a Pacific Grove Con- 11 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. valescent Hospital, Pacific Grove, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Soliciting employees to sign a decertification petition. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which is necessary to effectuate the purposes of the Act. (a) Within 14 days after service by the Region, post at its Pa- cific Grove facility copies of the attached notice marked “Ap- pendix.”12 Copies of the notice, on forms provided by the Re- gional Director for Region 32, after being duly signed by the Employer’s representative, shall be posted immediately upon receipt thereof, and shall remain posted 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 Employer to ensure that the notices are not altered, defaced, or covered by any other material. (b) Within 21 days after service by the Regional Office, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. P.G.H.C.C., INC, D/B/A PACIFIC GROVE CONVALESCENT HOSPITAL 12 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”