Ayer Lar Sanitarium

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 751 (N.L.R.B. 1969)

AYER LAR SANITARIUM
Ayer Lar Sanitarium and Hospital and Professional
Employees Division , Local 399, Service Employees
International Union , AFL-CIO. Case 21-CA-7922'
April 30, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 24, 1968, Trial Examiner E. Don
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings,' conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent , Ayer Lar
Sanitarium , Gardena, California , its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order.
'This case was consolidated for hearing with Case 21-RC-10690, which
was thereafter severed and remanded to the Regional Director for further
appropriate action By his Order dated April 15, 1969, the Regional
Director set aside the election conducted on January 23, 1968, in Case
21-RC-10690
'The Respondent excepts to some of the Trial Examiner 's credibility
resolutions . It is the Board 's established policy, however, not to overrule a
Trial Examiner 's resolutions as to credibility unless , as is not the case here,
the preponderance of all the relevant evidence convinces us that they are
incorrect . Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188
F.2d 362 (C.A. 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON, Trial Examiner : A charge in Case
21-CA-7922 was filed on January 26, 1968, by Hospital
and Professional Employees Division Local 399, Service
751
Employees International Union, AFL-CIO,' and amended
on February 15, 1968. On March 29, 1968, the General
Counsel of the National Labor Relations Board, herein
the Board, issued a complaint alleging that Ayer Lar
Sanitarium, herein, Respondent, had violated Section
8(a)(1), (3), and (5) of the Act. On January 25, 1968, the
Union filed objections to an election conducted by the
Board in Case 21-RC-10690, on January 23, 1968. On
April 3, 1968, the Regional Director for Region 21 issued
a Report on Objections and Order Directing Hearing and
Order consolidating the CA and RC cases and a notice of
Hearing.
Pursuant to due notice, a hearing in this consolidated
matter was held before me in Los Angeles, California, on
July 16 and 17, 1968. The parties fully participated. Briefs
of the parties have been received and considered.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, a California corporation, is a proprietary
nursing home with its principal place of business in
Gardena, California. During 1966, it performed services
valued in excess of $100,000. During 1967, it received
Medi-Cal payments in excess of $100,000, of which over
$50,000 were United States Government funds
Respondent is now, and at all material times has been, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
At all times material, the Union has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Did Respondent by various acts and conduct
interfere with, restrain, and coerce its employees in
violation of Section 8(a)(1) of the Act; 2. Did Respondent
discharge employee Dorothy Osby because of her union
activities in violation of Section 8(a)(3) and (1) of the Act;
Did Respondent beginning November 22,2 violate Section
8(a) (5) and (1) of the Act by refusing to bargain with the
Union; Should the results of the January 23, election
which the Union lost, be certified?
B. The Facts as to 8(a)(1)
Amos Ayers, Clara Ayers, and Patricia Miller are
supervisors of Respondent within the meaning of the Act.
Their respective demeanors impressed me unfavorably and
I do not credit their testimony unless corroborated by
otherwise credited testimony.
Within a few days after November 27, employees
Margarita Saavedra and Shirley Doil asked Patricia
Miller to prepare for them letters seeking withdrawal
from the Union. There is insufficient probative evidence
that either of these employees was an agent of
'Name as amended at the hearing
'Hereinafter the last 6 months of the year refer to 1967 and the first 6
months of the year refer to 1968 unless otherwise specified
175 NLRB No. 119
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent.
Shortly before the election , Miller asked employee
Marion King according to King 's credited testimony, if
she had signed a card for the Union and King said she
had not , although she had . Miller then stated that if King
had signed a card Miller could write a letter for King, as
a withdrawal . King declined the offer.
Employee Alma Marshall credibly testified that before
the election , Miller told her that in her office was a letter
which Marshall could sign if she wished to withdraw from
the Union . Marshall went to the office and signed the
letter.
Sandra Lee Brown credibly testified that she was an
employee of Respondent who was studying to be a
registered nurse . About a month before the election Miller
said there was a paper for Brown to withdraw from the
Union , in Miller' s office if Brown wanted to withdraw,
adding that having something to do with a Union might
cause her concern in getting her nursing degree.
Employee Willie B. Payne credibly testified that shortly
before the election , Miller told her most of the employees
had withdrawn from the Union and inquired if she wanted
to. Payne did not reply . The next day Payne entered
Miller's office and signed a piece of paper to withdraw
from the Union . When Miller spoke to Payne about
withdrawing from the Union she said Payne , because of
her age , would not be able to get a job as would a
younger person . She was 59.
Employee Mamie Lee Rouse credibly testified that
Clara Ayers a couple of weeks before Christmas, among
other things , said to her they had some letters in the office
she would like all the employees to sign . She said the
Union wouldn ' t get in after the letters were signed. Rouse
signed the letter.
Henderson credibly testified that shortly before the
election, Amos Ayers said to her personally that if the
Union came in he would have a catering service come in
and do the work of the kitchen help.
Rouse credibly testified that early in December, Clara
Ayers said to her that she and her, Mr. Ayers had decided
that they would not be able to pay the union price if the
Union came in and they could get a catering service "and
go right through the kitchen." Employee Emma Payton
was present when Clara Ayers made this statement.
About the day of the election, according to the credited
testimony of Payne, Miller told her that if the Union
came in Respondent would have to pay 100 percent of the
insurance and the older girls wouldn't be able to work.
Miller added that much as they liked Payne' s work, they
would hate to get rid of her.
King credibly testified that Amos Ayers shortly before
the election told her he didn't want the Union in and he
would close the place down if the Union came in.
According to the credited testimony of Saavedra, about
a week before the election , Amos Ayers told her he would
give the girls a 5-cents -an-hour raise instead of holidays.
Doil credibly testified that Miller and Amos Ayers
spoke to her and Saavedra about attending a union
pancake breakfast on the day before the election.' They
were asked to attend the breakfast on their lunch break
and "see what was going on," and who was there and
come back and report . They attended the breakfast and
when they returned they said nothing was going on. The
conduct of Miller and Amos Ayers in this regard
constituted surveillance in violation of Section 8(a)(1) of
the Act.
'I do not credit testimony contrary to Doil's
C. Concluding Findings as to 8(a)(1)
In addition to the unlawful surveillance , Respondent
violated Section 8 (a)(1) of the Act by soliciting and
preparing for the employees , withdrawal letters from the
Union ; by interrogating employees as to their union
activities; by threatening to bring in a catering service and
replace the kitchen help if the Union came in ; by telling
an employee that if the Union came in it would displace
the older employees because of insurance costs; by
remarking to an employee at the time it solicited a letter
withdrawing from the Union that it would be hard for
someone of her age (59) to obtain a job; by threatening it
would close down if a union came in the place; and by
telling an employee it would give the employees a
5-cents-an -hour wage increase instead of holidays.
D. The Facts as to 8(a)(3)
Dorothy Osby was discharged on February 7, roughly 2
weeks after she was the Union ' s observer at the Board
election and while the Union 's objections to the election
were pending . She was terminated in the middle of a
workday by Miller . Miller had decided to discharge her
before she called her in to receive her final paycheck and
be told of her discharge.
Osby impressed me as being a completely honest
witness . I have taken into consideration the fact that she
was an organizer for the Union , earning $68 per week, at
the time she testified . However, her demeanor impressed
me favorably and I credit her testimony.
At the time of her discharge she had been employed as
a nurse' s aide for almost 2 years and no complaint had
ever been made about her work . Fellow employees
testified she handled her patients well. Miller testified that
when, at the time of her discharge, Osby asked if Amos
Ayers would give her a recommendation , Miller replied,
"Dorothy , I can ' t speak for Mr . Ayers , but if you ever
call me , I will recommend you."'
During her employment , Osby had a patient named
Mrs. Urea who had been there for several years. Mrs.
Urea had a son named Lino Urea. Neither Mr. nor Mrs.
Urea testified . Miller testified that a few days before
Osby's discharge Mr. Urea saw her and said that the last
few times he was in to see his mother she was crying and
very upset , saying Osby had handled her very roughly and
complaining about working conditions and wages. Mr.
Urea said he didn ' t think this was fair to his mother.
According to Miller, Urea repeated his complaints to Mr.
Ayers who said something would be done . Miller
thereupon called Respondent ' s attorney and told of the
conversation with Mr. Urea . The attorney advised her to
get the complaint in writing. She phoned Mr. Urea and
asked him to put his complaints in a letter.'
Upon the entire record , including the postmark on the
envelope and stipulation of counsel and without regard to
the testimony of Miller, I find Mr . Urea wrote a letter to
Miller on February 5 ,6 which was received by Miller on
February 7.
It must be noted that according to Miller she had
reports of misconduct by Osby including reports of Osby's
discontent with her job from one Della Todd , who did not
It is difficult to conceive that Respondent's superintendent would
recommend a nurse's aide who abused patients.
'I note again that Miller's uncorroborated testimony is not credited.
'The letter has a date of 1-5, which I find to be in error because the
envelope is dated February 6.
AYER LAR SANITARIUM 753
testify, only after the election. Mr. Urea, in his letter, on
the other hand, stated his mother had been complaining
about her care and had been unhappy "in the past few
months." While he referred to the care his mother had
been receiving from "the day time nurse" he immediately
added that "they" (emphasis supplied) had been very
rough in handling her and cross and "they" let her fall.
He added, "the nurse [sic] have [sic] complain [sic] to my
mother about the pay and too much work." It is plain
that as he used the plural pronoun "they" he may well
have intended "nurses." before the plural form of the verb
has. He did not want his mother bothered about the
"nurses [sic] problems," thereby again indicating he may
have reference to more than one nurse bothering his
mother. I find that if Miller had had a nondiscriminatory
interest in the letter she received she would have made
inquiry not only of Osby but also of the other "nurses"
who tended to Mrs. Urea's case, including those who
cared for Mrs. Urea on Osby's days off. Mrs. Urea had
been a patient of Respondent for at least several years and
I am convinced it had been Miller's experience, over the
years, that patients sometimes make unfounded
complaints about the care they receive. I find it would be
only the normal thing for Miller to make some inquiry, of
Mrs. Urea or Osby, or other employees, before deciding
to discharge Osby. However, Miller asked no questions of
anyone to discover if there were any merit to her. Mr.
Urea's complaint or whether some nurse or nurse's aide
other than Osby was culpable. An official of a sanitarium
would be more interested in the welfare of her patients
than summarily to discharge an employee of almost 2
years' standing as to whose work there had never been
any expressed criticism, without even asking the patient or
the employee or other employees whether there was merit
to a complaint from a relative against the employee. I
have already found I do not credit the testimony of Miller
unless corroborated by otherwise credited testimony.
Neither Mrs. Urea, nor Mr. Urea, nor Della Todd have
corroborated substantial portions of Miller's testimony.
Other than Mr. Urea's hearsay statement in his letter that
Mrs. Urea had been permitted to fall, there is no evidence
that she ever fell.
I credit Osby's testimony that she did or said none of
the things attributed to her by Miller and slight inquiry by
Miller would have so established to Miller's satisfaction
had Miller had an objective interest in dealing with Osby.
As previously found, Miller had decided to discharge
Osby upon receipt of the letter with no investigation of the
complaint.
I find that, as Osby testified, she engaged in no
misconduct by deed or word. I further find that
Respondent siezed upon Mr. Urea's letter as a pretext for
ridding itself of a satisfactory employee who had the one
glaring fault of having been a Union observer at the
Board election 2 weeks earlier. This finding is manifestly
clear when considered in the light of Respondent's deep
antiunion aniumus as demonstrated by its 8(a)(1) activities
found, supra , and by Osby's excellent record as a nurse's
aide . It is not conceivable to me that Respondent's
official, Miller, would tell Osby that she would give Osby
a recommendation upon request, if she believed Osby had
mistreated Mrs. Urea. That the alleged reasons for the
discharge of Osby are pretexts emphasizes that the true
reason for Osby's discharge was a desire to get rid of an
employee who had been the Union's observer, at a time
when the Union' s objections to the election were pending.
I conclude that by discharging Osby, Respondent violated
Section 8(a)(3) and (1) of the Act.
E. The 8(a)(5) and (1) Violation
I The appropriate unit
The appropriate unit includes all nonprofessional
employees of Respondent, including dietary employees,
maids, janitors, storekeepers, maintenance employees,
ground keepers, orderlies, nurse's aides, licensed
vocational nurses and laboratory helpers; excluding all
professional employees, including physicians and
registered nurses, office clerical employees, guards and
supervisors as defined in the Act.
2. Exclusions from the unit
Lee Ayers is excluded from the unit because he is the
son of Amos and Clara Ayers, Respondent's owners,
Amos Ayers being the majority stockholder.
3. The majority
With Lee Ayers excluded from the unit, there were 24
employees included within the appropriate unit on
November 22, when Respondent received the Union's
demand for recognition. The Union's demand letter of
November 20, received by Respondent on November 22,
was a clear demand for recognition and bargaining.
Seventeen employees testified credibly and clearly that
they had signal unambiguous membership application
cards for the Union, authorizing the Union to represent
them in collective bargaining with Respondent, before
November 22. Thus at the time Respondent received the
Union's demand for recognition, the Union represented a
majority of Respondent's employees. On November 27,
Respondent denied the Union's request for bargaining and
the Union filed an election petition on November 28.'
4. The lack of good-faith doubt
The 8(a)(1) violations of Respondent, as found, supra,
make clear that in refusing the Union's November 20,
bargaining request, Respondent was motivated by a desire
to gain time to undermine the Union. Respondent's
8(a)(1) activities indicate only that Respondent wholly
rejected the principle of collective bargaining and acted in
bad faith with a determination to destroy the Union's
majority and to frustrate the desires of its employees.'
I conclude that by refusing to recognize and bargain
with the Union on and since November 27, Respondent
has not had a good-faith doubt of the Union's majority,
but rather, in bad faith, refused to bargain with the Union
in violation of Section 8(a)(5) and (1) of the Act.
F. The Objections to the Election
The objections to the election are substantially the same
as some of the 8(a)(1) allegations of the complaint which I
have found to have merit. Thus the objections to the
election are well founded. I recommend that Case
21-RC-10690 be severed from this consolidated proceeding
and transferred to the Regional Director for further
appropriate processing.
'The election was held on January 23 . The Union lost.
'Joy Silk Mills, Inc, 85 NLRB 1263, enfd . as modified 185 F.2d 732
(C.A.D C ), cert. denied 341 U S. 914.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above , have a close , intimate, and
substantial relation to trade , traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act. The nature
of the violations strikes at the heart of the Act and calls
for a broad order.
It has been found that the Union represented a
majority of Respondent's employees in an appropriate
unit and requested recognition and bargaining , the same
being unlawfully refused. I shall recommend that
Respondent bargain, upon request, with the Union and, if
any understanding is reached, embody such understanding
in a signed agreement.
It has been found that Respondent discharged Osby in
violation of Section 8(a)(3) and (1) of the Act. I shall
recommend that Respondent offer Osby reinstatement and
make her whole for any loss of pay she may have suffered
by reason of the discrimination against her in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289,
with interest computed in the manner described in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By discharging and failing to reinstate Osby,
Respondent violated Section 8(a)(3) and (1) of the Act.
4. All nonprofessional employees of Respondent,
including dietary employees , maids, janitors , storekeepers,
maintenance employees , grounds keepers , orderlies,
nurse's aides, licensed vocational nurses and laboratory
helpers ; excluding all professional employees , including
physicians and registered nurses , office clerical employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. The Union has been at all times since on or about
November 22, and now is, the exclusive bargaining
representative of the employees in the above-described
unit within the meaning of Section 9(a) of the Act.
6. Since November 27, by refusing to bargain
collectively with the Union as the exclusive bargaining
representative of the employees in the aforesaid unit,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. By surveillance, interrogation, soliciting and
preparing withdrawals from the Union, threatening to
replace the kitchen help with a catering service, telling
employees the advent of a Union would displace older
employees, threatening to close down the sanitarium if a
union came in and by promising a wage increase instead
of a holiday , Respondent has interfered with , restrained
and coerced employees and committed unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein, it is recommended
that Respondent, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in surveillance , interrogation , soliciting or
preparing withdrawals from the Union, threatening to
replace kitchen help with a catering service, telling the
employees that the advent of the Union would displace
older employees, threatening to close down the sanitarium
if the Union came in, and promising employees a wage
increase instead of a holiday, with respect to its
employees' membership in, sympathies for, or other
concerted activities on behalf of any labor organization.
(b) Discouraging membership in the Union or any other
labor organization, by discharging or in any other manner
discriminating against its employees , except as authorized
by Section 8(a)(3) of the Act.
(c) Refusing to bargain collectively, upon request, with
the Union as the exclusive bargaining representative of its
employees in the above described unit.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
join or assist the Union or any other labor organization or
otherwise engage in activities protected by the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to reinstate Osby to her former or
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and make her
whole in the manner set forth in "The Remedy" portion
of this decision for any loss of earnings by reason of
Respondent 's discrimination against her.
(b) Bargain collectively, upon request, with the Union
as the exclusive bargaining representative of its employees
in the above described unit.
(c) Preserve and, upon request , make available to the
Board or its agents all records necessary to determine the
amount of backpay due under this Recommended Order.
(d) Post at its Gardena, California, sanitarium copies of
the notice attached marked "Appendix."' Copies of said
notice, on forms to be provided by the Regional Director
for Region 21, shall after being signed by Respondent's
authorized representative, be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days , in conspicuous places , including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.' °
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals , enforcing an Order" shall be substituted for the words "a
Decision and order "
"In the event that this Recommended Order is adopted by the Board,
AYER LAR SANITARIUM 755
this provision shall be modified to read. "Notify the Regional Director for
Region 21, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
You are free to join or not to join any union of your
choice. We do not have the right to interfere with your
choice.
WE WILL NOT engage in surveillance, or
interrogation, or solicit or prepare withdrawals from
Service Employees International Union, AFL-CIO,
Hospital and Professional Employees Division Local
399, or threaten to replace kitchen help with a catering
service, or tell employees that the coming into our
premises of the above Union would displace older
employees, or threaten to close down the sanitarium if
the above Union comes in or promise a wage increase
rather than a holiday, with respect to your membership
in, sympathies for or other concerted activities on
behalf of the above Union or any other labor
organization.
WE WILL NOT discharge or in any other way
discriminate against any of our employees because of
their activities in behalf of the above named Union or
any other union or because of other protected concerted
activities.
WE WILL NOT refuse to bargain collectively with the
above Union as the exclusive bargaining representative
of our employees in the following appropriate unit:
All nonprofessional employees of ours, including
dietary employees, maids, janitors, storekeepers,
maintenance employees, grounds keepers, orderlies,
nurse's aides, licensed vocational nurses and
laboratory helpers; excluding all professional
employees, including physicians and registered
nurses, office clerical employees, guards and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with our
employees in exercising their rights to join or assist, or
to refrain from joining or assisting any union, except to
the extent that such right may be affected by an
agreement requiring membership in a labor
organization as authorized by Section 8(a)(3) of the
Act.
WE WILL pay Dorothy Osby for the wages she lost
because we discharged her.
WE WILL offer Dorothy Osby her former or
substantially equivalent job back.
WE WILL bargain collectively, upon request, with the
above-named Union, as the bargaining representative of
our employees in the above described unit, and embody
in a signed agreement any understanding we reach.
Dated By
AYER LAR SANITARIUM
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229.