Aaron Convalescent Home

National Labor Relations Board - Board Decisions

Dec 29, 1971

194 N.L.R.B. 750 (N.L.R.B. 1971)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aaron Convalescent Home and National Union of
Hospital and Nursing Home Employees, Local
1199H, an affiliate of Retail , Wholesale and
Department Store Union , AFL-CIO and Non-
Professional Employees of Nursing Homes, Hospi-
tal and Geriatric Services Union, Inc. Case
9-CA-6317
December 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge and amended charge filed on June
11 and 25, 1971, by National Union of Hospital and
Nursing Home Employees, Local 1199H, an affiliate
of Retail,' Wholesale and Department Store Union,
AFL-CIO, herein called Local 1199H, and duly
served on Aaron Convalescent Home, herein called
the Respondent, the Acting General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 9, issued a complaint on August
10, 1971, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1), (2), and (3) and Section 2(6) and (7) of
the National Labor Relations Act, as amended.
Copies of the charge, amended charge, complaint,
and notice of hearing before a Trial Examiner were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges, in substance, that the, Respondent
and its agents, at its nursing homes in Cincinnati,
Ohio, violated Section 8(a)(1), (2), and (3) of the Act.
More specifically, the complaint alleges that, on
various occasions, between on or about June 7 and 21,
1971, the Respondent violated Section 8(a)(1) by (1)
engaging in surveillance of employees' activities on
behalf of Local 1199H; (2) engaging in surveillance of
the meeting place and meeting of employees with
representatives of Local 1199H; (3) interrogating
employees concerning their activities on behalf of
Local 1199H; (4) threatening to discharge employees
because of their activities on behalf of Local 1199H;
(5) threatening employees that if they signed authori-
zation cards for, or attended meetings conducted by,
Local 1199H they would be discharged; (6) initiating
and maintaining an unlawful no-solicitation rule
forbidding all types of solicitation; and (7) restricting
and interfering with the solicitation of employees and
distribution of literature by Local 1199H by instruct-
ing employees not to receive literature from agents of
Local 1199H. The complaint further alleges that in or
about December 1970,1 the Respondent violated
Section 8(a)(2) of the Act by illegally assisting Non-
Professional Employees of Nursing Home, Hospital
and Geriatric Services Union, Inc., by allowing said
labor organization to solicit on its premises while
excluding agents of Local 1199H and by soliciting
signatures of new employees on authorization cards
of said labor organization, thereby interfering with
the formation or administration of a labor organiza-
tion. Finally, the complaint alleges that the Respon-
dent between on or about June 8, 1971, and on or
about June 21, 1971, violated Section 8(a)(3) of the
Act by demoting, transferring, and discharging
certain employees, and at all times thereafter failing
and refusing to reinstate them to their former
positions, because of their membership in, sympathy
for, and activities on behalf of Local 1199H, and in
order to discourage membership in that Union.
On October 4, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and Memorandum in Support of
Motion for Summary Judgment based upon the
Respondent's failure and refusal to file a timely
answer as required by Sections 102.20 and 102.21 of
the Board's Rules and Regulations. Subsequently, on
October 13, 1971, the Board issued an Order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. On
October 26, 1971, the Respondent filed an opposition
combined with a general denial of the allegations of
the complaint.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the Board
makes the following:
Ruling on the Motion for Summary
Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any
allegations in the complaint not specifically denied
or explained in an answer filed, unless the
' Inadvertently , the complaint sets forth the date as December 1971
194 NLRB No. 114
AARON CONVALESCENT HOME
respondent shall state in the answer that he is
without knowledge, shall be deemed to be admit-
ted to be true and shall be so found by the Board,
unless good cause to the contrary is shown.
The complaint and notice of hearing served on the
Respondent specifically stated that unless an answer
was filed to the complaint within 10 days from the
service thereof "all of the allegations of the complaint
shall be deemed to be admitted to be true and shall be
so found by the Board." Further, according to the
Motion in Support of Motion for Summary Judg-
ment, counsel for the General Counsel made several
oral requests of Respondent to file an answer to the
complaint, but Respondent failed and refused to do
so. Thereafter, on September 24, 1971, counsel for the
General Counsel notified both the administrator and
the assistant administrator of the Respondent, by
registered mail, that unless the Respondent filed an
answer to the complaint by the close of business on
September 30, 1971, a Motion for Summary Judg-
ment would be filed. Thereafter, on October, 4, 1971,
no answer having been filed, counsel for the General
Counsel filed a Motion for Summary Judgment.
On October 26, 1971, the Respondent filed an
answer and a Motion in Opposition to Motion for
Summary Judgment, attaching thereto an affidavit of
John J. Thomas, Respondent's president and chief
executive officer. The Respondent generally denies
the allegations of the complaint and submits, in
substance, that its failure to file an answer was due to
the absence of Thomas, who was on vacation, during
the period from September 21 through October 8,
1971. On November 1, 1971, counsel for the General
Counsel filed a reply to the Respondent's Motion in
Opposition to General Counsel's, Motion for Summa-
ry Judgment in which he submits that the Respondent
offers no reason for its failure to file an answer from
the date of the complaint on August 10, 1971, to the
date of Thomas' absence from the city commencing
on September 21, 1971. Moreover, there is no denial
that the Respondent was aware of the 10-day period
in which to file its answer, nor an explanation for its
failure to ask for an extension of time within which to
do so. Nor is any explanation given by the Respon-
dent for its complete silence from August 10, 1971,
until September 21, 1971.
As the Respondent has not filed an answer within 10
days from the service of the complaint, and as no
good cause to the contrary has been shown, in
accordance with the rule Set forth above, the allega-
tions of the complaint herein are deemed to be
admitted to'be true and are so found to be true.2
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
751
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is engaged in
the administration and operation of two convalescent
homes, Aaron Convalescent Home and Alaska
Convalescent Home, both in Cincinnati, Ohio. At all
times material herein, Aaron Convalescent Home and
Alaska Convalescent Home are, and have been,
affiliated businesses with common officers, owner-
ship, directors, and operators, constituting a single
integrated business enterprise, whose directors and
operators formulate and administer a common labor
policy for the aforenamed companies, affecting the
employees of said companies. During the past
calendar year, a representative period, Respondent
received gross revenues in excess of $100,000. During
the same period, Respondent purchased goods and
services valued in excess of $10,000 from firms located
in the State of Ohio which, in turn, purchased those
goods directly from points outside the State of Ohio
and individually satisfy one of the Board's jurisdic-
tional standards.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of. Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
National Union of Hospital and, Nursing Home
Employees , Local 1199H, an affiliate of Retail,
Wholesale and Department Store Union , AFL-CIO,
and Non-Professional Employees of Nursing Homes,
Hospital and Geriatric Services Union , Inc., each is
and has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
At various times between on or about June 7, 1971,
and on or about June 21, 1971, the Respondent and its
agents (I)- engaged in surveillance of employees'
activities on behalf of Local 1'199H; (2) engaged in
surveillance of the meeting place and meeting of
employees with representatives of Local 1199H; (3)
interrogated employees concerning their activities on
behalf of Local 119§H; (4) threatened to discharge
employees because of their activities on behalf of
Local 1199H; (5) threatened employees that if they
signed authorization cards for or attended meetings
2 Wilson and Sons; 193 NLRB No. 51, and cases cited therein.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted by Local 1199H they would be discharged;
(6) initiated and maintained an unlawful no-solicita-
tion rule forbidding all types of solicitation; and (7)
restricted and interfered with the solicitation of
employees and distribution of literature by Local
1199H by -instructing employees not to receive
literature from agents of Local 1199H.
Accordingly, we find that, by the aforesaid conduct,
the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed under Section 7 of the Act and that, by
such conduct, the Respondent thereby engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
B. The 8(a)(2) Violation
In or about December 1970 the Respondent illegally
assisted Non-Professional Employees of Nursing
Home, Hospital and Geriatric Services Union, Inc.,
by allowing said labor organization to solicit on its
premises while excluding agents of Local 1199H and
by soliciting signatures of new employees on authori-
zation cards of said labor organization.
Accordingly, we find that by such conduct the
Respondent interfered with the formation or adminis-
tration of a labor organization and has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(2) of the Act.
C. The 8(a)(3) Violations
On June 8, 14, and 21, 1971, respectively, the
Respondent demoted, transferred, and discharged
Joann Banks, and on June 21, 1971, the Respondent
also discharged Ella Mae Kemp, Thelma Harris,
Roxie Young, and Regina Smith, and at all times
thereafter failed and refused to reinstate them to their
former positions becausg of their membership in,
sympathy for, and activities on behalf of Local
1199H, and in order to discourage membership in that
Union.
Accordingly, we find that, by the Respondent's
aforesaid conduct it discriminated in regard to the
terms and conditions of employment of its employees,
thereby discouraging membership in a labor organiza-
tion and that by such conduct the Respondent
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, ,above, occurringinconnectionwith its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having-found that the Respondent-has engaged in,
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (2), and (3) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily
demoted, transferred, and discharged Joann Banks
and discriminatorily discharged Ella Mae Kemp,
Thelma Harris, Roxie Young, and Regina Smith, and
refused to reinstate them to their former positions, we
shall order that the Respondent offer them immediate
and full reinstatement to their former or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights
and privileges, and to make them whole for any loss of
earnings they may have suffered by payment to them
of sums of money equal to the amount they normally
would have earned as wages from the dates of the
respective discharges of Kemp, Harris, Young, and
Smith and from the date of the demotion, transfer,
and discharge of Banks, less net earnings, in accord-
ance with the formulas set forth in F. W Woolworth
Company, 90 NLRB 289, and Isis Plumbing, Heating
Co., 138 NLRB 716.
As the unfair labor practices committed by the
Respondent were of a character which go to the very
heart of the Act, we shall order the Respondent to
cease and desist from infringing in any other manner
upon the rights of employees guaranteed by Section 7
of the Act.
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent, Aaron Convalescent Home, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. National Union of Hospital and Nursing Home
Employees, Local' 1199H, an affiliate of Retail,
Wholesale and Department Store Union, AFL-CIO,
and Non-Professional Employees of Nursing Homes,
Hospital and Geriatric Services Union, Inc., are labor
organizations within the meaning of Section 2(5) of
the Act.
3. By the acts and conduct described in section 111,
A, B, and C, the Respondent has interfered with,
restrained, and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor
AARON CONVALESCENT HOME 753
practices within the meaning of Section 8(a)(1), (2),
and (3) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (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,
Aaron Convalescent Home, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in surveillance of employees' activities
on behalf of Local 1199H and of the meeting place
and meeting of employees with representatives of said
local.
(b) Interrogating employees concerning their activi-
ties on behalf of Local 1199H.
(c) Threatening to discharge employees because of
their activities on behalf of Local 1199H and
threatening employees that if they signed authoriza-
tion cards for or attended meetings conducted by
Local 1199H they would be discharged.
(d) Initiating and maintaining an unlawful no-
solicitation rule forbidding all types of solicitation.
(e) Restricting and interfering with the solicitation
of employees and distribution of literature by Local
1199H by instructing employees not to receive
literature from agents of Local 1199H.
(f) Assisting Non-Professional Employees of Nurs-
ing Homes, Hospital and Geriatric Services Union,
Inc., by allowing said labor organization to solicit on
its premises while excluding agents of Local 1199H
and by soliciting signatures of new employees on
authorization cards of said labor organization.
(g) In any other manner rendering unlawful
assistance or support to Non-Professional Employees
of Nursing Homes, Hospital and Geriatric Services
Union, Inc., or to any other labor organization.
(h) Demoting, transferring, or discharging employ-
ees because of their membership in, sympathy for, and
activities on behalf of Local 1199H or otherwise
discouraging membership in that Union.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Joann Banks, Ella Mae Kemp, Thelma
Harris, Roxie Young, and Regina Smith immediate
and full reinstatement to their former or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges.
(b) Notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(c) Make whole Joann Banks for any loss of pay she
may have suffered by reason of her demotion,
transfer, and termination by payment to her a sum of
money equal to the amount she normally would have
earned from the dates of her demotion, transfer, and
termination to the date of the Respondent's offer of
reinstatement in the manner set forth in the section
entitled "The Remedy."
(d) Make whole Ella Mae Kemp, Thelma Harris,
Roxie Young, and Regina Smith for any loss of pay
each of them may have suffered by reason of the
discrimination against them by payment to each of
them of a sum of money equal to the amount they
normally would have earned as wages from the date
of their termination to the date of the Respondent's
offer of reinstatement in the manner set forth in the
section entitled "The Remedy."
(e) 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.
(f) Rescind the application of the no-solicitation
rule forbidding all types of solicitation or other
activities protected by Section 7 of the Act.
(g) Post at its nursing homes in Cincinnati, Ohio,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's representative, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(h) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
3 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we
hereby notify our employees that:
WE WILL NOT engage in surveillance of employ-
ees' activities on behalf of Local 1199H and of the
meeting place and meeting of employees with
representatives of said local.
WE WILL NOT interrogate employees concerning
their activities on behalf of Local 1199H.
'WE WILL NOT threaten to discharge employees
because of their activities on behalf of Local
1199H and threaten employees that if they signed
authorization cards for or attended meetings
conducted by Local 1199H they would be dis-
charged.
WE WILL NOT initiate and maintain an unlawful
no-solicitation rule forbidding all types of solicita-
tion.
WE WILL NOT restrict and interfere with the
solicitation of employees and distribution of
literature by Local 1199H by instructing employ-
ees not to receive literature from agents of Local
1199H.
WE WILL NOT assist Non-Professional Employ-
ees of Nursing Homes, Hospital and Geriatric
Services Union, Inc., by allowing said labor
organization to solicit on its premises while
excluding agents of Local 1199H and by soliciting
signatures of new employees on authorization
cards of said labor organization.
WE WILL NOT in any other manner render
unlawful assistance or support to Non-Profession-
al Employees of Nursing Homes, Hospital and
Geriatric Services Union, Inc., or to any other
labor organization.
WE WILL NOT demote, transfer, or discharge
employees because of their membership in, sympa-
thy for, and activities on behalf of Local 1199H or
otherwise discouraging membership in that Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL offer to Joann Banks immediate and
full reinstatement to her former or, if that job no
longer exists, to a substantially equivalent position
without prejudice to any seniority or other rights
and privileges previously enjoyed, and make her
whole for any loss of pay suffered as a result of her
demotion, transfer, and discharge.
WE WILL offer to Ella Mae Kemp, Thelma
Harris, Roxie Young, and Regina Smith immedi-
ate and full reinstatement to their former or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to any seniority
or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered
as a result of discrimination practiced against
them.
You are free to become and remain members of
National Union of Hospital and Nursing Home
Employees, Local 1199H, an affiliate of Retail,
Wholesale and Department Store Union, AFL-CIO,
or any other labor organization.
Dated By
AARON CONVALESCENT
HOME
(Employer)
(Representative) (Title)
Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Office Building, Room 2407, 550
Main Street, Cincinnati, Ohio 44199, Telephone
216-522-3715.