The Presbyterian Hospital

PRESBYTERIAN HOSPITAL 935 The Presbyterian Hospital in the City of New York and Local 32B-32J, Service Employees Interna- tional Union, AFL-CIO. Cases 2-CA-21047 and 2-CA-21065 21 September 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 3 December 1986 Administrative Law Judge Julius Cohn issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed a cross-exception and supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the records in light of the exceptions and briefs and has decided to affirm the judge's rulings , findings,2 On 24 February 1987 the Respondent filed a motion to reopen the record for purposes of receiving evidence that the construction of the Respondent's new kitchen facility is nearing completion or completed. The judge found that at the time of the hearing this kitchen was under construction and was projected to occupy approximately one-third of the "warehouse" where the discriminatees performed maintenance work in support of its present motion, the Respondent claims, inter alia, that al- though the kitchen facility is not yet operational , most of the construc- tion has been completed so that operation of the kitchen is "imminent" and will occur in 1987, "once some logistical difficulties are resolved " Assuming arguendo that the facts alleged by the Respondent are accu- rate, however, we find that these circumstances arising after the close of the hearing would not alter the result . The Respondent's motion to reopen the record is, therefore, denied See National Labor Relations Board Rules and Regulations , Sec 102 48(d)(1). On 10 April 1987 Local 1199, Drug, Hospital and Health Care Em- ployees Union, RWDSU, AFL-CIO (Local 1199) filed a motion to inter- vene in these proceedings on the grounds, inter alia, that it has been cer- tified by the Board as the exclusive bargaining representative for approxi- mately 3000 employees of the Respondent , including 1800 service and maintenance employees , and that it was not notified of these proceedings until after the judge issued his decision In particular, Local 1199 con- tends that the Respondent has informed it of plans to transfer 300-500 service employees from the food service department at its main complex to the new kitchen facility sometime in 1987 and that "since Respondent's acquisition of the Warehouse , service and maintenance employees repre- sented by Local 1199 have been assigned periodically at the Warehouse" Thus, Local 1199 argues the judge erred in denying the Respondent's motion at the opening of the hearing to dismiss the complaint for failure to join Local 1199 as a necessary party Assuming arguendo that the fail- ure to join Local 1199 was error, we have considered its motion to inter- vene, and conditional cross-exceptions , as well as the supporting docu- ments, as an offer of proof and conclude that even accepting the facts alleged therein as true they would not alter the result The motion to in- tervene is therefore denied. 2 We note that the judge erred in stating that 5 years was the minimum estimate of time necessary for completion of the Respondent's new kitch- en facility Rather, the director of the Respondent's office of planning provided this time estimate in response to a question about how long the warehouse area other than the kitchen would be used for the "storaging" of equipment in connection with the Respondent's overall modernization plan We note that the record does not include a similar estimate as to when the kitchen might be completed or when it might begin operations. In addition, the judge erred in stating that the space in the warehouse other than the site of the kitchen construction was being used by the Re- spondent for the storage of equipment at the time of the hearing The uncontradicted testimony of the Respondent's vice president for oper- and conclusions as modified and to adopt the rec- ommended Order. In finding that the Respondent is a successor em- ployer under Burns Security Services, 406 U.S. 272 (1972), the judge noted that the Respondent hired a majority of the predecessor's employees in the ap- propriate unit. , In adopting the, judge's conclusion that the Re- spondent as a successor is obligated to bargain with the Union under the standard set forth in Burns, we additionally emphasize the lack of evidence that anyone other than the two discriminatees per- formed maintenance work at the warehouse from the date that the Respondent acquired it until the time of the hearing. Both of these employees were previously employed by the Respondent's prede- cessor. Accordingly, as in Burns, a majority of the Respondent's work force in the appropriate unit were former employees of the predecessor. See also Spruce Up Corp., 209 NLRB 194, 196 (1974). Thus, we agree with the judge's determination that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union on request. - We also note that the finding of successorship is consistent with the "substantial and representative complement" rule recently approved by the Su- preme Court in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).4 In this regard, the,Respondent has failed to proffer evidence concerning when or how it anticipated expanding the warehouse em- ployee complement. Our determination about the appropriateness of the unit in question is based en- tirely on facts existing at the time of the hearing, however, and is without prejudice to future peti- tions supported by a sufficient showing of changed circumstances. 5 ations was that the Respondept had not yet implemented its plans to use a portion of the warehouse for this purpose Finally, the judge erroneous- ly stated that the employees began picketing the morning after their 17 May 1985 discharge Rather, the record reveals that the picketing com- menced on 20 May 1985 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be comput- ed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C § 6621 Interest on amounts ac- crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 3 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(3) by constructively discharging the discriminatees, we disavow his alternative reasoning that the conduct in question violated Sec 8(a)(3) be- cause it arose in the context of an 8 (a)(5) violation Redlands Construc- tion, 265 NLRB 586 (1982), cited by the judge, does not support such a rationale 4 The Court in Fall River Dyeing also noted that of "particular signifi- cance is the fact that, from the perspective of the employees, their jobs did not change " The same can be said of the two employees here 5 In adopting the judge's recommended Order, we note that his desig- nation of the appropriate unit as "all service employees " at the ware- house coincides with the description of unit employees reflected in the collective-bargaining agreement between the Union and the Realty Advi- sory Board 285 NLRB No. 125 936 , DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, the record supports the, judge's finding that the warehouse was a,largely unoccupied build- ing and was not functionally integrated with 'the' Respondent's health care facilities prior to, or as of the time of, the hearing. We accordingly find it un- necessary to pass on his discussion of the policy against unit fragmentation in the health care indus- try. Cf. Kirksville College, 274 NLRB 794 (1985). Further, although we adopt the judge's conclusion that the notice requirements of Section 8(g) were not applicable to the discriminatee's picketing, we disavow his reliance on East Chicago Rehabilitation Center v. NLRB, 710 F.2d 397 (7th Cir. 1983), and rely instead on our determination that the special rules regarding health care institutions , as well as the purposes underlying the Section 8(g) notice re- quirement, are inapplicable here. In this regard, we emphasize that the warehouse was largely unoccu- pied and was not functionally integrated with the Respondent's health care facilities and that the picketing occurred only at the warehouse, which was some 3 miles distant from the Respondent's health care facilities. Cf. Painters Orange Belt Dis` trict Council 48 (St. Joseph Hospital), 243 NLRB 609 (1979). ORDER The National Labor Relations Board adopts the, recommended Order of the administrative law judge and orders that the Respondent, The Presby- terian Hospital in the City of New York, New York, its officers, agents, successors, and assigns, shall take the action set' forth in the Order. 8(a)(3) and (1) of the Act. In addition the General Coun- sel alleges violations of Section '8(a)(1) of the Act by Re- spondent, contending it unlawfully threatened employees with discharge and interrogated them concerning their support for the Union . The Respondent, in answering the complaint, denied the commission of unfair labor prac- tices. All parties were given full opportunity to participate, to produce relevant evidence, to cross-examine witnesses, and to file briefs. Briefs filed by the General Counsel and by the Respondent have been carefully considered. On the entire record of this case and my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION Respondent is a New York corporation that maintains offices and facilities within the State of New York and is engaged in the operation of a hospital . During the course of its hospital operations it receives revenues in excess of $250,000 and, in addition, purchases and receives goods and materials valued at more than $50,000 each year di- rectly from points and States located outside the State of New York. The General Counsel alleges, Respondent admits, and I fmd that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 32B-32J, Service Employees International Union, AFL-CIO - (the Union) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Kent Y Hirozawa, Esq. and David E. Leach III, Esq., for the General Counsel. James S. Frank, Esq., and Nicholas J DAmbrosio Jr., Esq. (Vedder, Price, Kaufman, Kammholz & Day), of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge. This case was tried in New York, New York, on 18, 19, 23, and 24 September 1985 On charges filed on 14 and 23 May 1985, Local 32B-32J, Service Employees International Union, AFL-CIO (the Union or Local 32B), in Cases 2- CA-21047 and 2-CA-21065, respectively, the Regional Director for Region 2 issued an order consolidating cases and a complaint alleging that The Presbyterian Hospital in the City of New York (Respondent or the Hospital), engaged in various acts of conduct in violation of Sec- tion 8(a)(1), (3), and (5) of the Act. Basically, the com- plaint alleged that Respondent unlawfully refused to bar- gain with the Union in violation of Section 8(a)(5), and had discharged two employees because of their member- ship and support for the Union, in violation of Section A. Background Respondent is a voluntary, not-for-profit hospital and, as noted, a health care institution within the meaning of the Act. It is located at West 168th Street in New York City and in that vicinity has some 25 buildings engaged in its, operations. Also in 'the area Respondent owns other property including a parking garage and residential apartment buildings, some of which have commercial storefronts that are leased to private enterprises. Re- spondent also owns property further uptown in the vi- cinity of West 219th Street, across from Baker Field, the athletic facility of Columbia University. - Respondent has some 6000 employees, many of whom are represented by various labor organizations . Actually District 1199; Hospital and Health Care Workers Union, RWDSU, AFL-CIO represents approximately 3000 of Respondent's employees, including those engaged in the service, maintenance, and clerical areas. Respondent, in addition, has collective-bargaining agreements with The New York State Nurses Association, and other labor or- ganizations. Since 1978 Respondent has been involved with a new modernization program to either replace or renovate PRESBYTERIAN HOSPITAL most of its buildings that have been in existence for more than half a century. Originally, it intended to build a new 750-bed hospital and renovate other buildings at or near the 168th Street site. However, at the behest of the offi- cials of the State of New York and their needs, Respond- ent changed its program so as to include the construction of a new community hospital, in the vicinity of Baker Field, on land owned by Respondent. At this site, a dis- tance of about 3 miles north of its main facilities, a 300- bed community hospital would be built. However, in 1983 the State declared a moratorium on new hospital construction, until costs could be cut as much as possi- ble. Accordingly,' Respondent, after appropriate study, decided that money may be saved if it could create a separate facility that would prepare the food for both the main buildings and the new community hospital. This plan was approved by the State in 1984. Pursuant to the objective, Respondent leased a portion of a warehouse at 40 West 225th Street from Silverstein Properties. The lease, executed in 1983, ran until Febru- ary 25, 1985, and contained an option to purchase the entire warehouse property. At the time of the leasing, the warehouse was to a great extent unoccupied, only two tenants remained with small spaces. In 1984, District 1199 struck the main hospital facility and, as a result, Re- spondent used a portion of the warehouse for storage and distribution of hospital supplies. In the latter part of February 1985, Respondent and Silverstein Properties executed a contract for the purchase by Respondent of the warehouse property. Thereafter, Respondent also contracted with a construction company to commence the work of building a kitchen facility. Actual construc- tion began in March or April 1985, but was halted for a while pending closing of a mortgage and then recom- menced in July 1985. At the time of the hearing only one tenant remained who occupied a small space on a month- to-month basis. It is expected that that relationship would be terminated as soon as Respondent needed the particular space. According to Respondent the plans for the warehouse include use primarily as a kitchen facility and for the purpose of storing equipment required for the moderniza- tion program, which would extend for 5 to 6 years. Thereafter, the space not needed for kitchen and storage would then be utilized as office space for Respondent, and also for receipt and distribution of hospital supplies. William Carugan had worked in the warehouse since it had been built in 1955 and continued there during the ownership of Silverstein Properties. He testified that his duties never changed over the years and consisted of in- specting the sprinkler system, taking care of the steam- boilers, roofing, waterproofing, and painting. Indeed, for most of that time he was the only employee at the build- ing. In 1978, Kenneth Kleven, a friend of Carugan, was hired by Silverstein Properties as a handyman. Silver- stein's supervisor and manager for the building was Angelo Croce, who hired Kleven on the latter's referral by Carugan. Kleven's duties were similar to Carugan's and mainly consisted of waterproofing, roofing, and gen- eral maintenance of the building In addition, both took care of boilers and sprinkler systems. As some of this work was seasonal, it is apparent that during the winter 937 they devoted most of their time to heaters and internal problems in the building, while during warm weather, 90 percent of the time would be spent on the roof fixing leaks, etc. Carugan, whose title was that of superintend- ent, did the reporting to supervision and the office, but nevertheless spent most of his time doing the mainte- nance work along with Kleven. Both Carugan and Kleven were members of Local 3'2B, the former for many years and the latter since his employment in 1978. Their employment conditions were covered by a collective-bargaining agreement between the Union and The Realty Advisory Board on Labor Re- lations of which Silverstein Properties was a member. That current contract runs from January 1, 1984, through December 31, 1986. B. The Facts Respondent took title to the warehouse building on 27 March 1985. At that time and since 1980, Andrew Toga was the director of materials management for Respond- ent. According to his testimony, he was responsible for the functions to be developed and operated within the warehouse facility; principally the food service, produc- tion kitchen, and the supply warehousing operation. Toga stated that a couple of weeks before the purchase, he had a conversation in the warehouse with Carugan and Kleven concerning their interest in staying on and joining the hospital work force after the purchase of the warehouse. They told him they were interested. He fur- ther testified that he informed them there may be a prob- lem with respect to union against nonunion designation but that the hospital was looking into the issue and hoped to have some resolution. A day or two before the closing he again visited the warehouse along with Eugene Devine, vice president for operations of Re- spondent. According to Kleven he introduced Devine to him and Carugan as his boss and said that if they buy the building he would be their boss and Devine would be his 'boss. Toga testified that he again asked them whether they were interested in joining the hospital force and they said they would. Toga stated that he then asked if they would be willing to accept nonunion positions with the hospital and they told him that they would. Kleven and Carugan testified that in the course of these conver- sations, Toga told them to continue doing the same work that they had been doing previously and also to assist the engineers who were now workingzon the building. After Respondent took over the warehouse, Kleven and Carugan did the same work as previously with the same hours, but concededly they did get a raise in pay. Toga said that he spoke to Carugan by telephone the day after his conversation and informed him that positions were being established for them within the safety and se- curity department. Toga confirms that he told them that they would function as previously doing maintenance and building supervision functions with an additional duty of safety and security. He also said that Carugan consented to this. Carugan and Kleven went to the hospital, filled out job applications, had pictures and fingerprints taken, and had a preemployment physical. Kleven stated that after 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leaving the security department they went to Toga's office and Toga again told them that they were supposed to keep doing what they had been doing before and help out the contractors with the building systems. He said that during the course of this conversation, Toga told them that there was no way that Local 32B was going to get into the building. They then asked Toga if he was in contact with, the Union and gave him the telephone number of the union agent to contact. Finally, they told Toga that they would contact the Union themselves. Carugan testified that a few days after Respondent bought the building he received a phone call from Toga who had a question concerning the power in the build- ing. During this conversation, Toga remarked that Local 32B will not get in the building. Carugan also stated that he relayed this information to Casesa, his union delegate, who advised him to continue,working. Both Carugan and Toga testified to a further conversa- tion approximately 2 weeks later. Toga said that he had been informed by, Duffy of personnel that Kleven and Carugan had not come to the office to sign paperwork concerning their benefits. She told him, in her opinion, they were having a problem accepting Respondent's ben- efits. There on Toga called Carugan and asked what his problem was. Carugan said that he did have a problem with the pension and had discussed it with his people at the union hall who advised him that their benefits with the Union were better than that with the hospital. Toga advised him to study the hospital benefits and compare them. During this conversation Carrigan asked Toga if he had heard from anyone in his Union and Toga replied that he had not. Toga further testified that about the end of April he met Carugan and ' Kleven coming into the hospital in order to fill out applications and obtain identification badges. At Toga's request they came to his office after finishing in the security department. Toga asked if they still found the union benefits to be superior to those of the hospital and they replied that they did. Toga, then told them that the nonunion safety positions in the secu- rity were the only option the hospital had. He also said that if they could not accept those terms, they- were not going to be able to continue to work for the hospital. Toga stated that the problem resulted from the existing collective-bargaining agreement with District 1199. However, he said he wanted them very much to stay with the hospital at the building. According -to Carugan, Toga again said that Local 32B would not get in the building and also that District 1199 had ruined his vaca- tion because he had to work while District 1199 was on strike. Charles Casesa, chairman of District 6 of the Union (the District in which the warehouse is located), testified he called Toga about 16 April, was told that Toga was not in, and then left a message for Toga to call him back. He said he called again the next day, received the same response, and again left a message.. Not receiving a return call, he once more telephoned on 22 April and was told that Toga was on vacation. Casesa then spoke to Kevin McCulloch, assistant to the union president and advised him of the situation. McCulloch testified -that, on being advised of this matter, he wrote a letter that was sent by certified -mail to Respondent, containing a re- quest for negotiations with the Union. He did not receive any response. Toga asserted that he; did not speak to either Casesa or McCulloch, and further states that he did not receive any letter. Having inspected a postal doc- ument, which is called a "request for receipt" (after mail- ing), which reports that this letter was delivered to Co- lumbia Presbyterian Hospital on 24 April 1985, received in `evidence, I find that the request letter was delivered to Respondent. In doing so, I find no merit to -Respond- ent's apparent contention that the letter was not properly addressed to the correct official engaged in labor rela- tions for Respondent. Both Carugan and Kleven testified that on 13 May the former called Toga regarding a leakage that had oc- curred at the building. Carugan said that, during the tele- phone conversation, Toga asked, whether he had decided on management or the Union and Carugan had 'replied the Union. Toga then told him this will be his last week and that he should come down and pick up his check. He .also asked what Kleven was going to do. The latter was standing by and also responded the Union, which Carugan reported. Toga told them again that this was Monday and that it would be their last week. He said he did not want to do this, but it was what the lawyers had advised, and that they should pick up their checks Friday morning. On Friday, 17 May, they went to the hospital to obtain their checks as instructed, and Toga's secretary directed them to the security department. They went there and received their checks and were told to go to an office where they saw Toga, Duffy, a supervisor in security, and also another man whom they did not know. This was Timothy Burgender, director of safety. Ac- cording to the testimony of Toga, earlier that week Bur- gender and he had -agreed "to' make one last effort to re- solve the matter, and failing that, their employment at the hospital was to end." Toga testified that he had gone to Burgender's office when called, and was told that Kleven and Carugan were 'refusing to sign papers and accept the benefits. Toga further testified that he told them they had discussed these matters on several occa- sions, that he had informed them of the nature of the jobs, and they had known from the beginning that these were nonunion positions within security; and that their duties and responsibilities were to be Assigned by securi- ty. According to Toga, Carugan and Kleven again said that they did not understand their benefits, and that Duffy once more explained them. They then said that the problem was with their pensions, which the Union had told them they would lose, and Carugan especially was concerned because of his age. Toga then asked them if they were resigning and they said they were not. Car- ugan asked if they were being fired and Toga said they were not. After a certain amount of back and forth with the employees saying they were being fired and Toga saying they were not, Burgender asked them to turn in their badges and keys, which they did. Carugan and Kleven proceeded to report to the Union where they were given picket signs and instructions, and PRESBYTERIAN HOSPITAL then began to picket the following morning at the ware- house. C. Analysis 1. The successorship issue It is well established that an employer who takes over, by purchase or otherwise, a business is obliged to` bargain with a union who represented the employees of its pred- ecessor, under certain circumstances. This conclusion is reached when the successor-employer has hired a majori- ty of the predecessor's employees, when there is a sub- stantial continuity of the predecessor's business, and "the bargaining unit remained appropriate after the change- over." NLRB v. Burns Security Services, 406 U.S. 272 (1972); Howard Johnson Co. v. Hotel Employees, 417 U.S. 249 (1974). a. Majority As noted above, Carugan and Kleven, the only two employed by Silverstein, the predecessor, were asked by Toga, Respondent's supervisor, if they desired to contin- ue working and they replied in the affirmative. Toga in- structed them to continue doing the same work and per- forming the same duties as they had before Respondent- took over the warehouse, which they did. The record clearly establishes that both employees continued to work for Respondent until 17 May and performed the, same duties as instructed. Moreover, they were members of the Union and informed Toga that they wished to be represented by it, and thereby constituted a majority. b. Continuity of the business At the time of the takeover of the warehouse by Re- spondent, the only occupants of the premises were Re- spondent, who is now the owner rather than a lesee of a portion of the total space, and one other tenant who oc- cupied approximately only 1000 square feet on a month- to-month basis and was subject to leaving whenever Re- spondent desired it. David Ginsberg, director of office planning for Respondent, testified that the plan was to construct a kitchen and, in effect, a food manufacturing facility at the warehouse, which would prepare all food to be delivered to the hospital at its main campus, and at the new community hospital to be constructed at the Baker Field location. The food facility would occupy ap- proximately one-third of the warehouse space. In the meantime the kitchen space is the site of construction and the other space in the warehouse is being used for the storage of equipment required for the new facilities. The current estimate of the construction program is that it will take about 5 to 6 years. On the basis of the above facts , it is clear that the en- terprise in the 225th Street premises continued substan tially as before. Storage of equipment in a building is a warehousing function and that appears to be the prime utilization of the space. Of course, it may be argued that the operation of a kitchen facility is quite different from a warehouse. However, the minimum estimate given by Respondent's witnesses is that this would not take place for a period of 5 years. Moreover, as previously noted, 939 Respondent's supervisor, Toga, directed employees Car- ugan and Kleven to continue the same duties as they per- formed prior to its takeover of the warehouse. I find, therefore, that there was "substantial continuity in the business enterprise." John Wiley & Sons v. Livingston, 376 U.S. 543, 551 (1964). c. The appropriateness of the unit Of course, in order to impose an obligation on Re- spondent to bargain with the Union as a successor-em- ployer, the bargaining unit must continue to be an appro- priate one. NLRB v. Burns Security Services, supra. The Union had a collective-bargaining agreement with the Realty Advisory Board (RAB), which covered the warehouse involved herein. Respondent has argued that this collective-bargaining agreement involves a multiem- ployer unit and that Respondent cannot properly be obliged to bargain with the Union as part of such a wide unit. However, this contention is negated by reference to the collective-bargaining agreement itself which specifi- cally provides for single building units. The agreement does not cover all employees of a specific employer nor does it cover all buildings of an employer. It only applies to those buildings committed by the employer where the Union represents a majority of the employees in a par- ticular building. In sum, the unit continued the same after Respondent acquired the warehouse. They were the same' two em- ployees, and they' were doing the same work for Re- spondent as' they did for Silverstein, the predecessor. Except for a wage, increase given by Respondent, the two employees had the same working conditions and there was no interchange of employees among the Sil- verstein properties, or with Respondent's other divisions and activities. It must be emphasized that a unit must merely be appropriate, and not the most appropriate. Based on the circumstances in this case, including the factors referred to above, I find a unit of the two ware- house employees appropriate for collective bargaining. As noted, Respondent has made additional contentions, in urging a contrary conclusion. Respondent contends that Carugan, during the course of his employment with Silverstein, was a supervisor within the meaning of the Act.-Such a finding 'would result in a one-employee unit and, therefore, inappropriate. However, Respondent has not adduced any affirmative, independent evidence to support this contention. Reliance is placed wholly on the testimony of the employees themselves. The record does not reveal any evidence that Carugan, during his em- ployment by the predecessor, had authority to hire, or fire, suspend employees, nor is there any indication that he had authority to affectively recommend these types of action, normally among the indicia of supervisory au- thority. On the other hand the record does show that Carugan and Kleven jointly performed routine tasks such as maintaining the building in good repair, fixing the roof, maintaining the hot water and other service sys- tems, and the like. This work was divided between them and if, at any time, Carugan gave direction to Kleven, this was solely on the basis of his being a senior employ- ee rather than a supervisor. In all other matters such as 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leave time, pay rates, or any other conditions of his em- ployment, - Kleven would have to obtain consent or di- rection `from the building manager who was in fact the supervisor of both of them. In a similar situation, involv- ing the -same union as in the instant case, the Board found that a building "superintendent," a title that Caru- gan did not possess, was more in the nature of an experi- enced senior employee who routinely supervised mainte- nance of a building. Such employee reports to a supervi- sor-but- does not exercise independent judgment on per- sonnel matters. Elias Mallouk Realty Corp., 265 NLRB 1225 (198-2).-Actually Respondent mainly relied on the fact that Carugan referred Kleven to his supervisor, stat- ing that he believed Kleven could do the job. After Kleven was interviewed by the building manager, he was hired. This type of recommendation does not constitute exercise, of supervisory' authority. Assuming it could be said that Kleven's hiring was the result of Carugan's rec- ommendation, this single exercise of just one of the usual indicia of supervisory authority, over a long period of time, is insufficient to confer supervisory status on Caru- gan ,Accordingl-y,, and on-the-basis of the above, I find that Carugan,was-,not a supervisor within the meaning of the Act. - , Respondent also contends that Carugan and Kleven were, guards, within the meaning of Section 9(b)(3) of the Act_ and, therefore, Respondent was not obliged to bar- ^gaiu with the Union; which admits nonguards to mem- bership. While working for the predecessor employer, the two employees were engaged constantly in the main- tenance, aspect of the warehouse building. They repaired and .maintained the roof and performed other duties re- 'lating to the, physical'condition of the- premises. The record, is -clear. that Toga directed the employees, when Respondent took. over,, to continue performing the same work and duties -that, 4 they : did, before. Respondent as- signed'them to work in the security department of Re- spondent, indicating 'top them that these-were the only places,it'had available for them to be employed. Toga stated he told' Carugan 'that, in addition to the mainte- nance and building supervision- functions they had previ- ously performed, they would, also have duties in safety and security. However,, the record does not reveal what, if any, duties and responsibilities they had with respect to safety ,,and -,security. , Specifically, Respondent makes much of the fact that Carugan and Kleven opened and closed the building. Such functions are performed by many employees in many industries, but that duty does not categorize an employee as a guard within the mean- ing of the Act, The two employees also maintained the water lines and the sprinkler system. Respondent urges that this indicates duties in connection with fire preven- tion. However, in order to have status as guards, em- ployees must have authority to enforce,the rules of their employer. Cf. United Technologies Corp., 245 NLRB 932 (1979). Once again the record is devoid of evidence indi- cating that these two employees were informed of the rules that they were to enforce and, further, whether they were actually engaged in performing such duties. In sum, I find that, Respondent has not established that, Kleven and Carugan had attained guard status as defined by the Act and I find that they were basically warehouse maintenance employees. Respondent contends that the two employees at the warehouse should be accreted to a unit of maintenance employees working at its hospital location who-are cur- rently represented by District 1199. Having found the two employees in question are maintenance: type work- ers, this argument does have some surface appeal. How- ever, it is completely inconsistent with the actions taken by Respondent relating to the two employees at the warehouse.. Respondent's witnesses have testified that on more than one occasion the, employees were informed that the only positions available to, them were nonunion jobs in the security- department. Although, most of Re- spondent's employees other than the `security department employees at the hospital are represented by various labor organizations, Respondent not only insisted, but re- fused to place these employees in other than nonunion positions. It now turns around to argue that they should be, accreted to a unit of union-represented employees. Moreover, the factors encompassed in, Board policy re- garding accretion provide no basis for a finding of an ac- cretion in this matter. Thus,` there is no evidence of any interchange of employees between the warehouse and the hospital facility, the day-to-day supervision does not appear to be the same, and the operation of the ware- house and hospital facility on a daily basis are separate. Accordingly, I find that,thereshouid be no accretion of the two employees to the, District ,1199 unit. See ,Towne Ford Sales, 270 NLRB 311 (1984). Nor do I find merit in. Respondent's. contention that the special policy against unit fragmentation in,the-health care industry, precludes the application, ofk the single-facil- ity presumption regarding appropriateness 'of, ,unit. See Long Island Jewish-Hillside Medical Center,v. NLRB, , 685 F.2d 29 (2d cir. 1,982), The record in, this case, reveals that Respondent already, has, numerous; units represented by different, unions. To apply this principle, urged by,,Re- spondent would presumably result in .accretion , to, the maintenance. ,unit represented by District 1199, , which Respondent itself hasrefused to do by requiring the two employees to be employed in ,nonunion positions. Accordingly, on the basis ,of'the foregoing, I find that "all seivice.employees, employcd by ,Respondent, at, its warehouse, ,facility, , is an , appropriate unit for the pur- poses of collective-bargaining within the, meaning of Sec- tion 9(b),of the Apt." , , , , - d. Conclusion as to successorship Having found that the Union represents a majority of the employees in an appropriate unit and that there has been "substantial continuity" by Respondent's ownership and operation of the warehouse, at the present time and the foreseeable future, I find that Respondent has a duty to bargain in good faith with the Union as representative of its warehouse employees. 2. The alleged violation of Section 8(a)(5) of the Act The record reveals that the Union's -representative at- tempted to communicate by telephone with Respondent PRESBYTERIAN HOSPITAL in order to request bargaining. Having had no response, the Union further wrote a letter again requesting bar- gaining and once more to no avail. By failing to respond to the Union's request for recognition and bargaining, Respondent has , failed' and refused to recognize the Union as the collective-bargaining representative of the warehouse employees and thereby violated Section 8(a)(5) and (1) of the Act. 3. The alleged violations of Section 8(a)(1) of the Act The complaint alleges violations by Respondent of Section 8(a)(1) of the Act by unlawfully interrogating the two employees on 13 May. As noted above, the em- ployees testified that on that date, during the course of a telephone conversation, Toga asked Carugan "what is it, management or Union?" Carugan replied Union and was then told by Toga that this was his last week and he should come down and pick up his check. Toga also asked him what Kleven was going to do and Carugan immediately inquired of Kleven who was, nearby and also replied Union. 'Toga, then indicated it would be the same thing for Kleven, that' this would be his last week also. I find in the context, of this inquiry, coming after Respondent had already, violated Section 8(a)(5) of the Act by refusing to respond to` the Union's' request for recognition and bargaining made on 22 April, and fur- ther in light of'Toga's previous conversations in which he repeatedly asserted they' would have to choose be- tween their union and the nonunion jobs being offered them, that his question constituted a coercive and unlaw- ful interrogation. Central Washington 'Hospital, 279 NLRB 60 (1986)., Toga himself testified 'that, during the same conversa- tion, he told Carugan that the hospital could not contin- ue to pay them, unless all the terms and conditions of their employment with the hospital' were accepted. He asked Carugan'if he understood that and Carugan replied he did. Because Toga had, told them''many times previ- ously'that the only positions available to them were non- union, it is clear their-retention of employment was con- ditioned on their rejection of the Union and 'acceptance of nonunion positions. 'I 'find again in the overall context and the clear -meaning' of Toga's words that this consti- tuted a threat of - discharge - unless they rejected the Union. Thereby Respondent violated Section 8(a)(1) of the Act by such threat. Indeed his, continuation of the conversation by informing them that this was to be their last week and they should pick up their checks on Friday, in effect, constituted a discharge. 4. The alleged violation of Section 8(a)(3) The last day of employment of Carugan and Kleven was 17 May. As directed they reported on that date to the office at the hospital in order to pick up their checks. However, because Bergender and Toga had, in the inter- im, agreed to make a last effort to retain them, they were then instructed to go to Bergender's office. The testimo- ny of Toga is to the effect that he started the discussion by reviewing all their earlier talks about the matter. He reminded them that on several occasions they had dis- 941 cussed the nature of their employment and "they had known from the outset that it had to be a nonunion posi- tion within the security department, that their duties and responsibilities were to be as assigned by the security de- partment, that the benefits they were to receive were those benefits appropriate for that level or position within the hospital as extended to all hospital employees of that level." Toga then testified that Carugan and Kleven said they did not understand what their benefits were and at that point it was explained to them. Toga further asserted that the employees said they had a prob- lem with their pension, that they would lose the pension, and had been so advised by their union. Toga stated that he asked Carugan and Kleven if they were resigning from the hospital and they said they were not. Carugan then asked him if they were being fired and they were told they were not. At that point, Bergender then asked them to turn in their ID badges and their keys. The testimony of Toga is not inconsistent with that of the employees. Indeed Bergender, testifying on behalf of Respondent, stated that at one stage, Toga asked the two employees if they were telling him that they were not able to work under the terms by which they were hired. They replied that they were, but it was their desire to maintain affiliation with Local 32B. When they repeated that they could not work under the terms, having re- ferred to their Union, they were then' asked by Ber- gender to turn in their badges and keys. In addition Kleven testified that he told Toga, and Bergender, and I credit him in this regard, that they had' never even start- ed negotiating with his Union, and had not made any at- tempt to contact his agent. Respondent contends that it did, not discharge or ter- minate these employees but that they quit. It is clear from the outset, based on testimony of Respondent's wit- nesses, that Respondent, insisted the two employees be placed in a nonunion department, and that continued em- ployment was conditioned on-, accepting "nonunion" po- sitions. It is equally clear that the employees having been represented by the Union, and+ being concerned about their pensions, among other things, expressed the desire that Respondent at least discuss' these matters with the Union. This Respondent has refused to do In' these cir- cumstances, I find that their discharges were construc- tive and that thereby Respondent violated Section,8(a)(3) of Act. Moreover, in the context of my previous deter- mination that Respondent violated Section 8(a)(5) of the Act by its refusal, as a successor employer, to bargain with the Union as the representative of these employees, it would also follow that Respondent violated Section 8(a)(3) by discharging these unit employees. See Red- lands Construction Co., 265 NLRB 586 (1982). Finally, Respondent raises the issue of it being a health care institution and because the two discharged employ- ees subsequently had engaged in picketing without ob- serving the notice requirements of Section 8(g), this ac- tivity reduced them to the status of unprotected strikers. Obviously Respondent is a health care institution. How- ever, its operation of the warehouse, particularly during the time period of these proceedings, had no relationship to its health care mission . At the time in question and 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during a projected period of several years, based on Re- spondent's evidence, there were no health care activities going on at the warehouse, and indeed any operations at the site were suspended while construction work to con- vert that facility was going on. I find that the ownership and operation of the warehouse did not interfere or have anything to do with the hospital operation. In fact the record also shows that these two employees, involved herein, had no contact with any of the hospital employ- ees, nor was there any interchange, or other relationship, nor did the picketing pose any threat to Respondent's ability to care for patients (see East Chicago Rehabilita- tion Center, v NLRB, 710 F.2d 397, 404 (7th Cir. 1983)). I, therefore, find that the 8(g) notice requirements were not applicable to the picketing by these employees at the warehouse owned by Respondent, because there was no connection with nor did it have any affect on Respond- ent's operation as a health care institution. CONCLUSIONS OF LAW 1. Respondent The Presbyterian Hospital in the City of New York is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act. 2. Local 32B-32J, Service Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. , All service employees employed by Respondent at its West 225th Street warehouse facility, excluding guards and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been the exclu- sive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By failing and refusing, at all times since 22 April 1985 to recognize and bargain with the Union as ,the ex- clusive representative of the employees in the appropri- ate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By coercively interrogating employees concerning their desire for union representation, and by threatening employees with discharge because the employees sup- ported the Union, Respondent has violated Section 8(a)(1) of the Act. 7. By constructively discharging William Carugan and Kenneth Kleven because they sought union representa- tion, Respondent has violated Section 8(a)(1) and 3 (3) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the, Act. 9. Respondent has not engaged, in unfair labor prac- tices except as specifically found above. to cease and desist therefrom and- to take certain affirma- tive action designed to effectuate the policies of the Act. Having further found that Respondent discriminatorily discharged Carugan and Kleven, and has refused to rein- state them, I shall recommend that Respondent be or- dered to offer these employees immediate and full rein- statement to their former positions of employment or, if these positions are not available, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. Respondent shall also be ordered to make whole these employees for any losses they may have suffered by reason of the discrimination against them. The loss of earnings for these employees shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and shall include interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend that Respondent expunge from its files any reference to the discharges of Carugan and Kleven, and notify these employees in writing that this has been done, and - that evidence of these actions will not be used by Respondent as a basis for further person- nel actions against them. On the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) -of the Act, I issue-the following recommended' ORDER The Respondent, The Presbyterian Hospital in the City of New York, New York, its officers, agents, suc-' cessors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain collectively with Local 32B-32J, Service Employees International Union,' AFL-CIO as the exclusive bargaining -representative of its employees in the following appropriate unit: All service employees employed at its West 225th Street facility, excluding all guards and supervisors as defined in the Act. (b) Coercively interrogating their employees concern-, ing such employees' activities or sympathies on behalf of Local 32B-32J, Service Employees International Union, AFL-CIO. (c) Threatening employees with discharge because of their support for and activities on behalf of the Union. (d) Discharging or refusing to reinstate employees be- cause of their activities on behalf of or support for the Union. (e) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. THE REMEDY ' If no exceptions are filed as provided by Sec 10246 of the Boards Having found that Respondent has engaged in certain Rules and Regulations, the findings, conclusions, and, recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the unfair labor practices in violation of Section 8(a)(1), (3), Board and all objections to them shall be deemed waived for all pur- and (5) of the Act, I shall recommend that it be ordered poses PRESBYTERIAN HOSPITAL (a) Bargain collectively, on request, with Local 32B- 32J, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Offer William Carugan and Kenneth Kleven imme- diate and full reinstatement to their former positions of employment or, if these jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority and other rights and privileges previously en- joyed. (c) Make whole William Carugan and Kenneth Kleven for any loss of earnings and other benefits suffered by them as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (d) Expunge from its files any reference to the dis- charges of William Carugan and Kenneth Kleven, and notify these employees, in writing, that this has been done and that evidence of these unlawful terminations will not be used by it as a basis for future personnel action against them. (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Post at its West 225th Street warehouse in New York, New York, copies of the attached notice marked "Appendix."2 Copies of the notice on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places `including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the ,Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed as to such allegations not specifically found violative of the Act. 2 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 Nation- al 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 943 After a hearing at which all parties had an opportunity to give evidence it has been found that we violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT refuse to recognize and bargain collec- tively with Local 32B-32J, Service Employees Interna- tional Union, AFL-CIO as a exclusive bargaining repre- sentative of our employees in the following appropriate unit All service employees employed by us at our West 225th Street, New York warehouse facility, exclud- ing all guards and supervisors defined in the Act. WE WILL NOT question you concerning your activities or sympathies on behalf of Local 32B-32J, Service Em- ployees International Union, AFL-CIO or those of other employees. WE WILL NOT threaten you with discharge because of your support for or activities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Union, as the exclusive collective-bargaining representa- tive of our employees in the appropriate unit described above, with respect to rates pay, wages, hours of em- ployment, and other terms and conditions of employment and, if an agreement is reached, embody such under- standing in a signed agreement. WE WILL offer William Carugan and Kenneth Kleven immediate and full reinstatement to their former positions of employment or, if these jobs no longer exist, to sub- stantially equivalent position, without prejudice to their seniority and other rights and privileges previously en- joyed. WE WILL make whole William Carugan and Kenneth Kleven for any loss of earnings and other benefits suf- fered by them as a result of our discrimination against them, plus interest. WE WILL expunge form our files any reference to the discharges of William Carugan and Kenneth Kleven and notify these employees, in writing, that this has been done and that evidence of these unlawful terminations will not be used by us as a basis for future personnel ac- tions against such employees. THE PRESBYTERIAN HOSPITAL IN THE CITY OF NEW YORK