Barclay Hospital, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1980

247 N.L.R.B. 1023 (N.L.R.B. 1980)

BARCLAY HOSPITAL, INC.
Barclay Hospital, Inc. and Warehouse, Mail Order,
Office, Technical and Professional Employees,
Local 743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 13-CA- 18049
February 12, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On September 25, 1979, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed an answering brief.'
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.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs2
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 Administrative Law Judge and hereby
orders that the Respondent, Barclay Hospital, Inc.,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
' The General Counsel's motion to strike evidence not adduced at the
hearing, which Respondent opposed, is denied.
Although we need not deal with all the implications of Respondent's
argument that it has a right not to be a successor, we note that "successor-
ship" is a labor relations conclusion derived from economic facts and that a
"right" not to become a successor would suggest a right to make employment
decisions based on representational considerations clearly proscribed by
N.LR.B. v. Burns International Security Services Inc. 406 U.S. 272, fn.
(1972).
'Contrary to Respondent, the Administrative Law Judge appropriately
determined the issue of whether Respondent is a successor to London as of the
date of the Union's demand for recognition. The Administrative Law Judge
found. and we agree, that neither the changes contemplated by Respondent
prior to the Union's demand nor the changes eventually implemented
rendered Respondent's operation substantially different from that of London
Hospital. Further, we note that there is no contention that any of the changes
cited by Respondent have rendered the certified unit inappropriate.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard in Chicago, Illinois, on February 27 and 28
and March 1, 1979, pursuant to a charge filed against
Barclay Hospital, Inc.,' on September 15, 1978,2 by the
Warehouse, Mail Order, office, Technical and Professional
Employees, Local 743, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(herein the Union), and a complaint issued on October 12.
The complaint, which was amended at the hearing, alleges
that Barclay Hospital, Inc. (herein Respondent), violated
Section 8(aX5) and (1) of the National Labor Relations Act,
as amended (herein the Act), by failing and refusing as the
successor to George J. London Memorial Hospital (herein
London) to bargain collectively with the Union as the
exclusive bargaining representative of its employees in the
appropriate unit certified by the Board with respect to
wages, hours, and other terms and conditions of employ-
ment.
Respondent in its answer dated October 26, which was
amended on November 30, denies having violated the Act. It
asserts as affirmative defenses that (1) the Board's certifica-
tion of the Union in George J. London Memorial Hospital,
236 NLRB 797 (1978), was invalid and that the Union was
not the exclusive collective-bargaining representative of any
bargaining unit of London's employees,] and (2) Respondent
is not a successor to London and has no legal obligation to
bargain with the Union as the collective-bargaining repre-
sentative of any of Respondent's employees.
The issues involved are whether Respondent is a successor
to London; and whether Respondent violated Section 8(aX5)
and (I) of the Act by failing and refusing to bargain with the
Union as the exclusive bargaining representative of the
employees in the appropriate unit certified by the Board
with respect to wages, hours, and other terms and conditions
of employment.
Upon the entire record' in this case' my observations of
the witnesses, and after due consideration of the briefs filed
The correct name appear as amunended at the hearing.
' All dates referred to are in 1978, unless otherwise stated.
' This affirmative defense is hereby rejected based upon the Board's decision
in the cae cited.
'The General Counsel's unopposed motion dated April 24, 1979, seeking to
correct the transcript is hereby granted.
' A joint motion dated May 10, 1979, was filed by the parties seeking to
include in the record a document identified as It. Exh. 5(b) entitled
"Exceptions To The Acting Regional Director's Report on Objections" on the
grounds it was inadvertently omitted, and a request that It. Exh. 5. which is
already in evidence, be remarked as It. Exh. 5(s). The motion is hereby
granted.
Further, in accordance with my ruling at the hearing reserving an exhibit
number for an exhibit to be submitted, a Stipulation identified as Jnt. Exh. 14
with attached Appendix A is hereby received in evidence.
247 NLRB No. 144
1023
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the General Counsel and Respondent, I hereby make the
following:'
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a for-profit Illinois corporation, operates a
mental health care facility located at Chicago, Illinois.
During the period from March 24 when it began operations
at the facility until February 27, 1979, a representative
period, Respondent in the course of its operations derived
gross revenues in excess of $250,000, and it also received
goods and services, valued in excess of $5,000, directly from
points located outside the State of Illinois.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
Warehouse, Mail Order, Office, Technical and Profession-
al Employees, Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
London, a not-for-profit Illinois corporation, operated a
licensed 79-bed' mental health care facility (herein referred
to as the facility) located at 4700 North Clarendon Avenue,
Chicago Illinois, where it was engaged in primarily treating
public type patients. Included among its supervisory person-
nel were Adminstrator Christine Grothouse, Medical Direc-
tor Dr. Gomez, Assistant Medical Director Dr. Hendler,
Director of Nursing Roberta Mcdermott, Head of the
Housekeeping Department Ed Stanislowki, Head of the
Maintenance Department Joe Verhayen, and Director of
Personnel Services Shari Macfarlane.
The employees of London were represented by the Union
in a unit described as follows:
All employees of the Employer now located at 4700
North Clarendon, Chicago, Illinois, but excluding all
professional employees, registered nurses, licensed prac-
tical nurses, business office clericals, medical records
clericals, medical doctors, psychologists, guards and
supervisors as defined in the Act.
The Union was certified by the Board as the exclusive
representative of London's employees in this unit in its
decision issued on June 9 in George J. London Memorial
Hospital, supra. This certification resulted from an election
held on November 30, 1977, which the Union won,9 that was
'The Union did not submit a brief.
' Unless otherwise indicated the findings are based upon the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
'The facility had been found suitable for 116 beds by the Commission for
Health Planning and Resources Development of the City Council of Chicago.
conducted pursuant to a stipulation for Certification Upon
Consent Election Agreement approved on November 4,
1977. Although London filed objections to the election on
December 7, 1977, the Acting Regional Director of Region
13 in his Report on Objections issued on December 23, 1977,
recommended those objections be overruled, which recom-
mendations were adopted by the Board.
Job classifications of employees comprising the unit
included mental health associate, activity services employee,
dietary employee, day hospital employee, clinical services
employee, housekeeping employee, maintenance employee,
ward secretary, central supply employee, and purchasing
and receiving employee.
B. The Successor Issue
Charter Medical Corporation (herein Charter) purchased
London's facility, effective January 6, subject to Charter
obtaining the necessary licenses and certificate of need"'
which it subsequently obtained. A warranty deed was
executed on March 23 by London conveying the property to
Charter.
Under the terms of the purchase agreement London's
assets acquired by Charter included the machinery; equip-
ment; furniture; fixtures; supplies; drugs and medications;
real estate with improvements at that locations subject to a
mortgage Charter agreed to assume; accounts and notes
recivable; bank accounts; cash; securities; deposits; prepaid
items; books; records; files; forms; medical histories of
patients; employee records; rights to supply, fuel, utility, and
service contracts and equipment leases; and rights under
assignable licenses or permits. Charter also agreed to assume
certain of London's obligations such as those reflected on the
books and records at closing date; contracts, leases, and
written commitments assigned to it; insurance bills for
health benefits paid to London's employees; reimbursement
for unemployment compensation benefits paid to former
London employees; certain accountant, attorney, and con-
sultant fees; and obligations under a security agreement
regarding accounts receivable.
The purchase agreement also provided there would be no
mass discharges or layoffs of London's employees for at least
18 months except for labor strikes or stoppages, financial
hardship, loss of license, or similar factors.
Both prior to the purchase of the facility as reflected in a
letter from Charter's Vice President M. G. Woodward to
London's Chairman of the Board Alfred London dated
November 23, 1977, and the minutes of a meeting held by
Charter's Board of Directors on December 8, 1977, and at
the time of purchase as mentioned in the purchase agree-
ment itself, Charter was aware of the Union's status as it
existed at London.
' The results of the election were 29 votes for, and 21 votes against, the
Union, with 3 challenged ballots out of a total of approximately 63 eligible
voters.
'" To operate a certificate of need is required from the Cook County Health
System Agency approving the facility.
1024
BARCLAY HOSPITAL, INC.
Respondent," an Illinois for-profit corporation, which is
wholly owned by Charter, took over the operation of the
facility from London effective March 24': and has continued
since that date to operate it as a mental health care facility
treating private and medicare type patients.
London's Administrator Grothouse became the adminis-
trator and president of Respondent. Charter's Vice President
Woodward and Vice President Ray Stevenson are members
of Respondent's board of directors and Stevenson is also its
vice president.
The takeover of the facility by Respondent occurred
without any interruption of services and Respondent contin-
ued caring for those patients London had been treating.
According to Administrator Grothouse, at the time of the
takeover Respondent retained all of London's supervisory
personnel with any changes thereafter made being due to
attrition.
The payroll records for London and Respondent show at
the time of the takeover of the facility all of those persons
employed by London continued working for Respondent
without any new employees being hired. They were not
required to fill out applications or serve probationary
periods and were given credit by Respondent for their sick
time, overtime, vacation, and holidays they had accrued at
London. Included among those persons retained were all 52
of the employees in the unit at London.
From March 6-13, organizations which had written
agreements with London to provide various medical services
such as pharmacy, neurology, and x-ray and radiology as
well as suppliers, agreed in writing with Respondent to
continue providing their services to Respondent on the same
terms and conditions.
On May 5 Respondent's board of directors, as reflected by
its minutes, adopted London's employee personnel manual
which sets forth the policies and procedures covering the
employees and their employee benefits. These provisions
since that date have remained substantially intact. It also
adopted as its written bylaws and rules and regulations of
the medical and allied health professional staff those which
had been in effect at London. Further, it also adopted
London's written philosophy, goals, and objectives as its
own.
The stipulated evidence and records prepared by Director
of Personnel Services MacFarlane show that out of the 52
employees employed in the unit by London, who were
retained by Respondent, 37 of them" were still employed by
" Respondent's original name before being changed was Illinois Health,
Inc. d/b/a Barclay Hospital.
" London as of that date has no longer operated a mental health care
facility.
* Their names were Evelyn Chambers. Chester Cichonski. Asuncion
Corpin, Gary Eder. Sarah Ellis. Elizabeth Felix. Charles Fremling, Anna
Gelberger, John Harrison. Essie Hartzog, Ann Hogan. Alma Jones, Mattie
Jones. Jean-Jacques Joseph, Edwin Kopytko, William Kotowicz, Diane
Lagoski, Aleyamma Mathew. Irene McMorris, Joseph Metzinger, Hisako
Miyake, Daniel Navarro, Carol Negussie, Annie Peoples, Michalina Pry-
bocki. Palma Ramsay, Bernice Rembert. Yun Sook Rho, Randall Ristow,
Everlina Rodgers, Celia Rosales, Nestor Rosales, Randolph Schild, Deborah
Smith. Ernest Stavropoulos, Ollie Washington, and Arthur Winslow.
" The only changes which thereafter occurred in their job classifications
were as follows: Aleyamma Mathew was changed from mental health
associate to nurse tech on January 15, 1979; Gary Eder from dietary to
housekeeping on September 3; Celia Rosales from dietary to psychiatric aide
on November 20; and Yun Sook Rho from mental health associate to staff
the Respondent when it received the Union's bargaining
demand on July 29, discussed infra, and they remained in
their same job classifications.'4
Between the takeover by Respondent on March 24 and
the Union's bargaining demand received on July 29 Respon-
dent only hired 8 new employees" who performed unit work
and were still employed on July 29. The only other three
new employees'" hired during this period to perform unit
work had been terminated before July 29.
The job classifications of all these newly hired employees
mentioned, the first of whom was hired on April 10,"
included dietary, housekeeping, day hospital, activity ser-
vices-recreational therapy, and activity services-occupational
therapy.
Thus, as of July 29 all but 8 of the 45 employees of
Respondent performing unit work had been employed by
London at the time of the takeover and had continued
working in their same job classifications.
The facility under both London and Respondent, as
described by Administrator Grothouse and Charter's Vice
President James Smith, has operated as a mental health
facility." Both were certified by the Joint Commission on
Accreditation of Hospitals and were members of the
American Hospital Association. London had a residency
program approved by the American Medical Association
which was extended to Respondent and it also had an
affiliation with the Chicago Medical School which continued
at Respondent until at least July 1.
The same floors were used by both London and Respon-
dent for patient care, offices, and services. Food was catered
in with patients eating their meals in lunchrooms located on
each floor, while employees and guests used the cafeteria.
Patients had semiprivate rooms. The hours of the three work
shifts remained the same.
Following the takeover by the Respondent certain changes
did occur. The physical changes included converting part of
the doctor's parking lot into an enclosed patio area for use
by patients which occurred in September; remodeling the
lobby which was still in progress in late February 1979;
installing psychiatric screens" on the windows on certain
floors in October or November; and setting up seclusion
rooms2" on the third and fourth floors about September 27 in
addition to the seclusion room already located on the second
floor where London had its only seclusion room.
There were also changes in programs and services which
took place following the takeover. Administrator Grothouse,
nurse on October 15. Changes within the job classification of mental health
associate were also made on January 15, 1979 for Elizabeth Felix, Essie
Hartzog, Annie Peoples. Palma Ramsay. Randall Ristow, Joseph Metzinger.
and Hisako Miyake.
" Their names were Cynthia Allen, Keith Allen, Debra Bernstein, Julio
Gonzalez. Raul Rodnguez, Joyce Sencion, Hans Toecker, and Bridget Travis.
" Their names were Joselito Galura. Katherine Honkavaara, and Rose
Pennington.
" Katherine Honkavaara was hired on April 10.
" London received Federal funding for treating medicaid patients until
March I when it was no longer eligible.
' These are metal attachments on the outside of the windows used to
prevent occupants from getting out.
"' These rooms, as described by Respondent's policies and procedures, are
used as a protective environment for patients when they may be injurious to
themselves or others and also to provide a controlled nonstimulating
environment when the patients are unable to control their behavior.
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon being asked what changes had occurred since the
takeover, responded by saying the main changes she saw
were the adolescent unit and the approaching of the analytic
unit. Neither of these programs had existed at London.
On February 17, which was prior to the takeover, a
meeting was held between representatives of London and
Respondent including, inter alia, Charter's vice President
Smith and London's Administrator Grothouse. During this
meeting, according to both Smith and Grothouse, there was
a discussion about certain programs Respondent was consid-
ering instituting after taking over the facility. These pro-
grams included establishing an adolescent treatment pro-
gram, a long-term analytic unit, and an alcoholic treatment
program. Respondent's records reflect that at another
meeting held on May 30 attended by Vice President Smith,
the adolescent treatment program' and the alcoholic treat-
ment program were still considered as options for planning
purposes. However, the idea of the alcholic treatment
program was subsequently dropped a couple of months later.
Based upon the testimony of Doris Nixon, who is
Respondent's director of clinical services,22 the adolescent
treatment program was established on the third floor of the
facility and is treating patients, the first of whom was
admitted on August 31, ranging in ages from 13 to 19 years
old. The type of treatment used as described by her is a
behavior modification program whereby a patient is reward-
ed for the type of behavior desired and punished for the type
behavior not desired. Treatment techniques employed in-
clude group therapy and psychodrama" where the patients
in the latter instance act out their problems.
Respondent's records, dated August 11, list the job
classifications for staffing the adolescent unit as registered
nurse, social worker, psychiatric aide, ward secretary, and
activities therapist. However, according to Director Nixon,
the employees assigned to work on the adolescent unit
included clinical specialists. Four clinical specialists, a new
job classification, were first hired on August 15 to work on
the adolescent unit." Their duties, as described by Nixon,
include talking to patients about their problems and making
interpretations about what the patient has experienced and
talked about; running group and community meetings;
taking a family history from the patient's parents; and asking
patients certain questions furnished by the physician about
their backgrounds. Their qualifications required at least a
master's degree in social work or psychology and preferably
several years experience in an adolescent program. Nixon
testified that the clinical specialists are being hired to replace
employees in the mental health associate classification which
is being phased out, except those employees still working in
those classifications are being retained in those classifica-
tions. Although Nixon first attempted to describe the duties
of a mental health associate, she subsequently acknowledged
she was not familiar with their duties at either London or
Respondent.
Joseph Metzinger, who is employed as a mental health
associate by Respondent and formerly worked in that
" While Vice President Smith first testified the final decision to proceed
with the adolescent unit was made in April or May, he subsequently
acknowledged he did not know when the decision was made.
" Nixon, who had previously worked at London as an outpatient
coordinator, assumed this position in August.
" Respondent's records reflect the use of psychodrama began on the
adolescent unit on December 12.
classification at London, described his duties as assisting the
nursing staff with patient care determined by the nursing
plan worked out with the nursing staff from the team
conference and admission conference. This included physical
and nursing type care, bathing patients, helping with trays,
and talking to patients to learn what they were thinking
about.
The only other new job classification besides clinical
specialists hired at the facility since the takeover was that of
psychiatric aide. The records show the first employee hired
as a psychiatric aide occurred on July 31 when Sook Ja Choi,
who had previously worked as a unit employee for London
and then Respondent as a mental health associate prior to
her termination on May 13, was rehired on July 31 as a
psychiatric aide. Between September 5 and December 12,
five new employees were hired as psychiatric aides' and as
noted previously a former London employee, Celia Rosales,
was changed from dietary to psychiatric aide on November
20.
Joseph Metzinger, based upon his observations of the
psychiatric aides who worked on his unit, stated without
contradiction they had the same job description as the
mental health associate with the exception they could not do
any charting or paperwork. Respondent's records dated
January 2, 1979, supports Metzinger's testimony that psy-
chiatric aides do not do charting.
The stipulated evidence and records of job descriptions
prepared by Director of Personnel Services MacFarlane
establish that those employees classified as clinical specialists
and psychiatric aides are included in the unit.
Although the adolescent unit has a 24-bed capacity,
Administrator Grothouse acknowledged about Thanksgiv-
ing its only had about 12 patients and the patient load did
not begin increasing until the end of January 1979.
Beginning in October a schoolroom staffed by three
teachers and a director hired between the end of October
and February 1, 1979 was set up for those patients being
treated in the adolescent unit for which school work they
were given school credits.
While London did not have an adolescent unit it admit-
tedly did treat adolescent patients.
The psychoanalytic program adopted by Respondent is
based upon a plan submitted by Donald Schwartz who has
been employed as a consultant by the Respondent since July.
Schwartz described this program, which will house 17
patients and be located on the fifth floor, as providing a
facility for the treatment of relatively disturbed patients who
generally have more difficulty with treatment in an outpa-
tient setting or in more traditional shorter term hospitals
where if their financial resources permit they will have a stay
of 2 or 3 years of expensive psychoanalytic treatment. The
purpose of the program is to correct the emotional problems
in a more permanent lasting way and involves more intensive
treatment which is aimed at more disturbed patients and
takes a considerable time. Treatment is founded upon
psychoanalysis. It works by establishing an environment
' According to Director Nixon the number of clinical specialists had
increased to 12 by December .
" Their names were George Dawson, Julius Evans, Oliver Horan, Leo
Griffin, and Oscar Pestelos.
1026
BARCLAY HOSPITAL, INC.
where the patient feels safe to have a therapeutic regression
which means they have access to their very early primitive
feelings in an attempt to understand them and rework them
so they can integrate in a way called more adult and so they
can function in the real world.
Schwartz stated he first discussed developing the psycho-
analytic program with representatives of Charter and Ad-
ministrator Grothouse about the middle of July and again in
November. However, his written recommendations for the
plan were not submitted until about November 24 or 25 and
the final decision approving it was not made until December.
Although Schwartz stated two patients amenable to this type
program were admitted to Respondent, one in late August
or September and the other in early 1979, he acknowledged
at the time of the hearing held on March I that the unit still
had not been implemented and they were hoping this would
be done in late spring or early summer.
The delays for implementing this program were explained
by Administrator Grothouse as a lack of space available to
house the unit and a low patient census around Thanksgiv-
ing.
Another program instituted at Respondent was the team
approach concept. Schwartz, who stated the idea originated
with him as a means of attracting other psychiatrists to use
the facility and in order to obtain more business, described it
as dividing employees into clinical teams comprised of
employees from nursing, activities therapy, and clinical
services. The idea is to provide a setting in which informa-
tion about patient can be transmitted from the patient's
psychiatrist to the team assigned to that patient, within the
team itself, and from the team to the rest of the employees
on that floor about how the patient is to be treated and what
kind of intervention, if any, that the staff will have in the
patient's therapy. According to Schwartz, a team system is
more demanding upon the staff because it requires more
communication and interaction between them and requires
them to become part of the therapy of the patient if required
by the psychiatrist. Schwartz, who stated they began
planning the team approach concept in late August or
September, acknowledged the program, which is still devel-
oping, did not begin on the fourth floor 2° until December
and was not planned to start on the second floor until after
the hearing held on March 1.
Following the takeover of the facility a walk-in type
emergency room service for psychiatric patients previously
operated by London was discontinued by Respondent in
March."
C. The Refusal To Bargain
The Union's Business Representative Robert Simpson
sent Administrator Grothouse a letter dated June 16,
referring to the Board's decision certifying the Union and
requested that collective-bargaining negotiations begin im-
mediately and asked Grothouse to contact him about
arranging a meeting date.
z, The team on the fourth floor as described by Schwartz is comprised of job
clasifications including nurses, mental health associates, social workers. and
activity therapists.
" The record does not establish what, if any, staff changes were affected by
discontinuing this service.
Respondent did not receive this letter until July 29. Its
Attorney Kronenberg responded by letter dated August 7
which provided, in pertinent part, as follows:
Mrs. Grothouse has asked and authorized me to
respond to you that the management of the Hospital
must decline your request to commence bargaining at
this time because of the Hospital's belief that under the
law, properly interpreted, it has no such bargaining
duty.
A memorandum from Administrator Grothouse to Vice
President Stevenson dated August 11 contained, in pertinent
part, as follows:
Barclay, through its lawyer, has notified Local 743
that it must decline their request to commence bargain-
ing at this time because of the Hospital's belief that
under the law, properly interpreted, it has no such
bargaining duty. Particularly, I feel that Local 743 at
this time is not a representative of the employees now
on Barclay's payroll. Thirty-seven (37) of the London
employees who were interested in having themselves
represented by the Union have left the Hospital's
employment to go on to other endeavors.
This only leaves a small number of London employ-
ees, who will be outnumbered by the Barclay employ-
ees.
Between July 29, at which time 37 of the 45 employees
performing unit work were former London employees and
August 11 no new employees were hired to perform unit
work. One of those former London unit employees, Ran-
dolph Schild, was terminated on August 4 while another
former London unit employee, Sook Ja Choi, who terminat-
ed her employment with Respondent on May 13, was
rehired on July 31 to perform unit work.
D. Analysis and Conclusions
The General Counsel contends, contrary to Respondent's
denials, that Respondent is a successor to London and
violated Section 8(aX5) and (1) of the Act by failing and
refusing to bargain with the Union as the exclusive bargain-
ing representative of the employees in the appropriate unit
certified by the Board, with respect to wages, hours, and
other terms and conditions of employment,
Respondent contends it had no lawful obligation to
bargain with the Union and that the program, policies, and
procedures employed by Respondent since the takeover of
the facility preclude finding it to be a successor of London.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Section 8(aX5) of the Act prohibits an employer from
refusing to bargain collectively with the representative of its
employees.
Under the principles of Burns." as expressed by the
Supreme Court, the mere change of ownership in the
employing industry is not such an "unusual circumstance"
" N.LR.B. v. Burns Inernatrional Security Services. Inc., 406 U.S. 272
(1972).
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to affect the force of the Board's certification within the
normal operative period if a majority of employees, after the
change of ownership, were employed by the predecessor
employer. Where the bargaining unit remains unchanged
and a majority of the employees hired by the successor are
represented by a recently certified bargaining representative,
the successor is required under Section 8(a)(5) of the Act to
bargain with the incumbent union.
The obligation on the part of the successor employer to
bargain with the incumbent union exists unless it is
demonstrated that the union, which is recognized as the
majority representative of the employees in the unit to which
the employer succeeds, no longer represents a majority of the
employees on the date of the refusal to bargain, or that the
refusal to bargain was grounded on a good-faith doubt based
upon objective considerations of the union's majority status.
First Food Ventures, Inc., 229 NLRB 1228, 1230 (1977).
The initial issue to be resolved is whether Respondent is a
successor to London.
The crucial inquiry in determining whether a purchaser is
a successor for purposes of Section 8(a)(5) is the continuity
of the employing industry, which requires considering the
totality of the circumstances surrounding the transfer.
Radiant Fashions. Inc., 202 NLRB 938, 940 (1973).
The findings, supra, establish prior to purchasing Lon-
don's facility Respondent had knowledge London's employ-
ees in the unit had voted in a Board election selecting the
Union to represent them as their exclusive bargaining
representative and of the pending proceedings before the
Board on the certification issue.
The evidence, supra, establishes Respondent purchased
the assets of its predecessor London including, inter alia, the
land, building, machinery, equipment, furniture, fixtures,
inventory, records, accounts, and certain contractual rights,
and assumed certain of London's liabilities and obligations.
Upon taking over the operation of the facility it did so
without any interruption of services, assumed caring for
London's former patients and, as had London, continued
operating the facility as a mental health care facility, Not
only did it retain all of London's supervisory personnel at
the time of the takeover but, without hiring any new
employees, it retained all of London's employees including
those in the unit, and credited them with various benefits
they had acquired while employed at London.
Organizations which provided medical services and sup-
plies to London continued providing them to Respondent on
the same terms and conditions.
Shortly after the takeover, Respondent also adopted as its
own London's policies and procedures covering the employ-
ees and their benefits; the bylaws, rules, and regulations for
the medical and allied health professional staff; and its
philosophy, goals, and objectives.
Although certain physical changes were made at the
facility beginning several months or more after the takeover,
such as building a patio, remodeling the lobby, installing
psychiatric screens, and providing additional seclusion
rooms, none of these changes could be deemed significant to
affect the nature of its operations.
While certain changes in services and programs were
planned or subsequently instituted by Respondent, the only
major changes, according to Administrator Grothouse, who
served in that capacity at both London and Respondent,
were the establishment of an adolescent unit and plans for a
psychoanalytic program. However, Respondent's adolescent
unit which treated adolescents in a unit environment, unlike
London where they were treated individually, did not
become operational until the end of August, and the
psychoanalytic program, which was not finally approved
until December, was still not operational at the time of the
hearing held almost a year after the takeover of the facility.
Another program, described as the team approach concept,
which unlike the adolescent unit psychoanalytic program
was not considered prior to purchasing the facility, was not
put into effect until December.
While two new employee job classifications were created,
namely, clinical specialist and psychiatric aide, employees
were not hired for these positions until after Respondent had
received the Union's bargaining demand and the evidence
further establishes employees performing these jobs were
considered as unit employees.
These changes or contemplated changes in programs,
policies and procedures or any others as may be reflected by
the record are not, as urged by Respondent, of a sufficient
nature or extent to detract from finding Respondent to be a
successor to London. Rather, since both London and
Respondent admittedly operated the facility as a mental
health care facility such evidence further supports a finding
of successorship.
Further, the evidence establishes at the time the Union's
demand for bargaining was received by Respondent on July
29, all but 8 of the 45 employees performing unit work had
been employed by London at the time of the takeover and
had continued working in their same job classifications.
Thus, the unit had remained intact during this period and as
Respondent's own records reflect, the Union clearly contin-
ued to represent a majority of employees in the unit.
Under these circumstances and for the reasons discussed,
I find Respondent was a successor to London.
Having found Respondent to be a successor to London,
the remaining issue is whether Respondent unlawfully
refused to bargain with the Union.
The findings, supra, establish following the issuance of the
Board's decision on June 9, certifying the Union as the
exclusive bargaining representative of London's employees
in the appropriate unit, the Union requested in writing that
Respondent commence negotiations, which Respondent,
after receiving the request on July 29, refused to do. The
only reason given to the Union by Respondent for its refusal
to bargain was it had no duty under the law to bargain with
it.
While Adminstrator Grothouse further indicated in a
memorandum dated August 11, but never conveyed to the
Union, that she felt the Union did not represent the
employees then on the payroll, the findings, supra, based
upon Respondent's own records including those acquired by
it from London, clearly refutes this position.
Since Respondent is the successor to London and the
Union, which was certified by the Board on June 9 as the
exclusive bargaining representative of London's unit em-
ployees, continued at the time its demand for bargaining was
received by Respondent on July 29 to represent a majority of
Respondent's employees in the unit which remained intact,
1028
BARCLAY HOSPITAL. INC.
and of which Respondent had knowledge, I reject Respon-
dent's defenses as being invalid and find that Respondent
violated Section 8(aX5) and (1) of the Act by failing and
refusing since July 29 to bargain with the Union with respect
to those employees in the appropriate unit.
CONCLUSIONS OF LAW
I. Barclay Hospital, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Barclay Hospital, Inc., is the successor to George J.
London Memorial Hospital.
3. Warehouse, Mail Order, Office, Technical and Profes-
sional Employees, Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehouse and Helpers of America,
is a labor organization within the meaning of Section 25) of
the Act.
4. All employees of the Employer now located at 4700
North Clarendon, Chicago, Illinois, but excluding all profes-
sional employees, registered nurses, licensed practical
nurses, business office clericals, medical records clericals,
medical doctors, psychologists, 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 is now, and at all times material herein has
been, the certified and exclusive representative of all the
employees of the Respondent in the aforesaid unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
6. By refusing since July 29, 1978, to bargain with the
Union as the exclusive bargaining representative of the
employees in the aforesaid unit, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act. Accordingly, Respondent shall be
ordered to recognize and bargain collectively with the Union
with respect to the rates of pay, wages, hours, and other
terms and conditions of employment of the unit employees,
and if any understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the unit will be
accorded the services of their certified bargaining representa-
tive for the period provided by law, I shall recommend that
the initial period of certification be construed as beginning
on the date the Respondent commences to bargain in good
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
faith with the Union as the recognized bargaining represen-
tative in the appropriate unit. See Mar-Jac Poultry Company.
Inc., 136 NLRB 785 (1962); and Commerce Company d/b/a
Lamar Hotel. 140 NLRB 226, 229 (1962), enfd. 328 F.2d
600 (5th Cir. 1964), cert. denied 379 U.S. 817.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER2'
The Respondent, Barclay Hospital, Inc., Chicago, Illinois,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with the Warehouse, Mail Order,
Office, Technical and Professional Employees, Local 743,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive bargain-
ing representative of its employees in the following unit:
All employees of the Employer now located at 4700
North Clarendon, Chicago. Illinois, but excluding all
professional employees, registered nurses, licensed prac-
tical nurses, business office clericals, medical records
clericals, medical doctors, psychologists, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain with the Warehouse, Mail
Order, Office, Technical and Professional Employees, Local
743, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representative of the employees in the aforesaid appropriate
unit with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an understand-
ing is reached, embody such understanding in signed
agreement.
(b) Post at its Chicago, Illinois, facility copies of the
attached notice marked "Appendix.""' Copies of said notice,
on forms furnished by the Regional Director for Region 13,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
"' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the amended complaint be,
and hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively concerning rates of pay, wages, hours and
other and terms and conditions of employment with the
Warehouse, Mail Order, Office Technical and Profes-
sional Employees, Local 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining repre-
sentative of the employees in the bargaining unit
described below.
WE Wl.I. NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL recognize and bargain with the Warehouse,
Mail Order, Office, Technical and Professional Em-
ployees Local 743, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of our employ-
ees in the bargaining unit described below with respect
to rates of pay, wages, hours, and other terms and
conditions of employment, and if an understanding is
reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees of the Employer now located at 4700
North Clarendon, Chicago, Illinois, but excluding all
professional employees, registered nurses, licensed
practical nurses, business office clericals, medical
records clericals, medical doctors, psychologists,
guards, and supervisors as defined in the Act.
BARCLAY HOSPITAL, INC.
1030