Cedar Falls Health Care Center

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1300 (N.L.R.B. 1985)

1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Med West Health Care Management Corporation,
d/b/a Cedar Falls Health Care Center, Succes-
sor, and Nationwide Management , Inc., d/b/a
Cedar Falls Health Care Center and United
Automobile , Aerospace and Agricultural Imple-
ment Workers of ' America, International Union
and Pam Deserano and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW), Local
No. 838 . Cases 18-CA-8466-1, 18-CA-8466-3,
and 18-CA-8472
30 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 30 July 1984 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Charging Party Unions and Respondent Med West
filed exceptions and supporting briefs, and the Gen-
eral Counsel filed limited expceptions. Respondent
Med West and the Charging Party Unions each
filed an answering brief. -
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order.'
No party has excepted to the judge's finding that
Respondent Nationwide (Nationwide), the alleged
predecessor to Respondent Med West (Med West),
did not violate Section 8(a)(1) of the Act as con-
tended by the General Counsel. Accordingly, as
Nationwide did not commit any unfair labor prac-
tices, no issue of successorship within the meaning
of Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973), is' raised. Med West did not except to the
judge's finding that it violated Section 8(a)(5) and
(1) of the Act by=-refusing to bargain in good faith
with the Union, and thus does not challenge the
judge's conclusion that it is a successor as defined
in NLRB v. Burns Security Services, 406 U.S. 272
(1972).
What is in issue is whether Med West refused to
hire several employees from the predecessor on 30
September 19832 in violation of Section 8(a)(3) and
i Respondent Med West has excepted to some of the judge's credibil-
ity findings The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
2 All dates are 1983 unless otherwise indicated
(1) of the Act. The judge found Med West acted
unlawfully regarding employee Barbara Cobb,3 but
not regarding employees Shirley Bowden, Sandra
Edeker, Jean Graham, Mary Foss, and Pam DeSer-
ano. Med West has filed exceptions to the judge's
conclusion regarding Cobb, and the Charging
Party Unions have filed exceptions to the dismissal
of the allegations involving' the remaining employ-
ees. After fully considering the record, for the rea-
sons stated below, we find that'Med West unlaw-
fully refused to hire all but DeSerano.4
The relevant facts, as found by the judge and
amplified by the undisputed record, are as follows.
Cedar Falls Health Care Center (the Center) is a
residential health care facility owned by a seller
corporation, not named as a party, and managed by
Nationwide until 30 September. Paul Huffman was
the Center's administrator, and Nancy Eslinger was
director of nursing. 'A collective-bargaining agreee-
ment between the Union and the Center covering
service and maintenance employees was in effect
from 1- December 1981 through 1 December 1984.
Med West is owner of 43 nursing homes. On 28
September it reached final agreement with the
seller. corporation to purchase the Center for $1
million.
Gene Harmon, Med West's representative, ar-
rived about 11 a.m. the following day. After "ex-
changing pleasantries," Harmon requested and re-
ceived personnel -files '-containing attendance-
records,5 work evaluations,6 disciplinary warn-
ings ,7 and supervisors' notes for all 72 Center em-
ployees.8 Harmon reviewed and took notes on the
files until 12:30 p.m.
The purchase by Med West was announced at a
2:30 p.m. staff meeting. Employees were told to
submit new job applications immediately and that
they would be informed the next day if they had
We find merit to the General Counsel's and the Charging Party
Union's exception to the judge's inadvertent failure to include in the rec-
ommended Order interest on loss of earnings and other benefits incurred
by employee Cobb.
4 We agree with the judge, for the reasons he gave, that the refusal to
rehire DeSarano was not violative of the Act
8 The attendance records were grids containing separate entries for
each day of the year Different symbols were used to designate whether
an employee was present or absent and, if absent , whether the absence
was for sickness , vacation, or because the employee was not scheduled
Harmon admitted that the employee 's personnel files contained an attend-
ance grid for each year that they were employed and that "a number" of
employees had been there for more than a year
6 The work evaluations consisted of 15 separate job performance rating
categories as well as 6 questions allowing for written supervisory com-
ments on employee work performance Harmon admitted that employee's
personnel files contained an evaluation for each year they were em-
ployed
It is undisputed that several files contained one or more warnings
8 The unrefuted testimony also establishes that the files contained em-
ployee medical records and original job applications , although it is un-
clear whether, or to what extent , these documents were present in the
files of all 72 Center employees
276 NLRB No. 146
CEDAR FALLS HEALTH CARE CENTER 1301
been retained. Representatives of Med West and
Nationwide continued to discuss the sale after the
meeting, though Harmon, Eslinger, and Huffman
each denied that they talked about personnel or
union officers, membership, or activities at any
time. Harmon left at 5 p.m., taking with him the re-
employment applications and notes he had record-
ed while reviewing the employee personnel files.
On 30 September nine employees were told they
had not been rehired, including Bowden, Cobb,
Edeker, Foss, and Graham (all union members),
two nonunit employes, one of which was DeSer-
ano, and two nonunion unit members. Harmon tes-
tified that he relied solely on the information con-
tained in the employee personnel files in deciding
who would be rehired. The uncontradicted record
shows Med West removed all disciplinary warnings
from the files of the employees it retained. Nursing
Director Eslinger, who admittedly was in charge
of the personnel files, failed to recall who changed
the files or when they were changed, and provided
no explanation for the action. Med West did not
tamper with the files of employees it did not rehire.
None of the retained employees' files were offered
as evidence at the hearing.
• Mary Foss, a nurses aide, was chairman of the
Union's bargaining unit. Her union activities in-
cluded holding monthly unit meetings, attending
grievance and arbitration meetings, and assisting
stewards in writing grievances. Harmon's stated
reason for refusing -to rehire Foss was the severe
medical problems disclosed by her, personnel file
and her absence from the Center at-the time of the
purchase. Foss was able to work only' 2 months or
less in the 30-month period preceding October, and
only 6 days in the 6 months between April and Oc-
tober, though with assistance she continued to
carry out her union-related functions. On 21 Octo-
ber, however, Foss presented a medical certificate
to Med West stating she could return to works and
she applied for reinstatement. It is undisputed that
Med West hired a substantial number of employees
after Foss' application for reeemployment was sub-
mitted. No medical reports or record of absence
from Foss' file was produced at the hearing.
Barbara Cobb, also a nurses aide, was vice chair-
man of the bargaining unit. Her union activities in-
cluded substituting for Foss at various union meet- -
ings and serving as steward on the first shift. She
prepared numerous, grievances, and Eslinger once
told her that she "caused dissension" among the
staff, which Cobb assumed related to her grievance
9 The judge's "impression" in fn 4`of his decision that the certificate
merely discharged Foss from medical care and did not declare her fit for
employment is unsupported by the record Foss testified without contra-
diction that the certificate indicated she could return to work
filings. Harmon testified he did not rehire Cobb be-
cause of warnings in her personnel file for verbally
abusing patients and not getting along with her
peers and supervisors. Cobb admitted that Eslinger
once made a note in her personnel file that she was
causing dissension, but denied she had been warned
for abusing patients. No warnings or other entries
from Cobb's personnel file were produced at the
hearing.
Shirley Bowden, a housekeeper and laundry em-
ployee, was recording secretary of the unit, and,_
posted notices and minutes of meetings.. Harmon
testified that he did not rehire Bowden because of
absenteeism . Bowden admitted on one occasion her
supervisor told her she "had missed quite a bit,"
but also stated she "was getting better." 'Her most
recent job evaluation listed "Attendance" as one of
Bowden's "W[eakest] P[oints]."10 Med West re-
tained Reglie Crawley, an employee in Bowden's
department who had received three written warn-
ings and - been suspended for absenteeism, though
Bowden had never received a warning or suspen-
sion for absenteeism, or for any other reason.
Sandra Edeker , a nurses aide , was financial treas-
urer of the unit, giving a report of financial condi-
tion at meetings and maintaining a "flower fund."
She also filed 11 or 12 grievances and testified for
the Union at an arbitration. Harmon stated he did
not rehire Edeker because of her record of gossip-
ing and causing dissension. Her file contained a
written warning and two evaluations citing
Edeker's "gossiping" or "causing dissension" as ob-
jectionable.11 Eslinger admitted that other employ-
ees, evidently retained, were also "causing dissen-
sion." -
Jean Graham, a nurses aide, worked on the non-
union third shift and participated in no union func-
tions at Med West, though she continued to be an
active member of the union which had represented
her at a previous job. In mid-September Huffman
told her he had heard a rumor the nurses aides on
Grahman's shift were going to join the Union and
Graham was going to be the shift steward.12
Harmon testified Graham was not rehired because
of a back problem and difficulty in cooperating and
getting along with her peers. The health examina-
tion record from Graham's file shows that she had
10 However , the same evaluation cited "job performance" as one of
Bowden's "S[trongest ] P[oints] " In addition , Bowden was rated in the
top two categories on II of 15 performance criteria contained in her job
evaluation
I 1 The two evaluations listed as Edeker's "S[trongest ] P[oints]" "de-
pendability in completing work assignments" and "being well liked by
the residents " Edeker was also given ratings in the top two categories on
11 of 15 job evaluation criteria
12 Graham did not deny the rumor , but responded by saying "[T]hat's
interesting "
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had a head injury, back injury, and chronic back
pains. Since being hired on 17 January, Graham
had missed 1 week of work due to a job-related
back injury. A warning contained in Graham's file
shows that she was reprimanded along with three
other employees' on 11 August for "gossiping and
causing dissension." Two of the other employees
disciplined were retained by Med West.
Conclusions
We find, contrary to the the judge, that Med
West's refusal to hire employees Bowden, Edeker,
Foss, and Graham violated Section 8(a)(3) and (1)
of the Act, and we agree with him that Med-;
West's action regarding Cobb was unlawful. In re-,
versing the judge, we are guided by the principles
set forth in Wright Line.13 Under Wright Line, the
General Counsel has the initial burden of making a
prima facie case that protected conduct was a "mo-
tivating factor" in the employer's discipline of ..the
employee. Once the. General Counsel has made,
such a showing, the burden shifts to the employer
to establish it would have taken the same action
absent such conduct.
We examine initially the alleged prima facie case.
It is plain that Nationwide had knowledge of the
union membership, leadership' positions, and activi-
ties of the five alleged discriminatees.14 The criti-
cal issue is whether information regarding union
membership, leadership, or activities was communi-
cated to Med West and became a "motivating
factor" in its hiring selection process.
As previously mentioned, the alleged discrimina-
tees comprised five of seven unit employees not re-
hired.15 The group included all four union officers,
one of two union stewards, and an employee be-
lieved to be promoting union membership and
about to be appointed steward. We agree with the
judge that, where a substantial majority of the bar-
gaining unit employees not rehired were union
leaders, strong circumstantial evidence of union
animus is present, even though the respondent re-
tained some union employees.' 6
13 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert
denied 455 U S 989 (1982), approved in NLRB v Transportation Manage-
ment Corp, 462 U S 393 (1983)
" We find no merit in Med West's claim that Nationwide had no
knowledge of employee Graham's union activity In mid -September Huff-
man told Graham he had heard a rumor the third shift was going union
and that Graham was to be steward Graham did not deny the rumor
Nationwide 's belief that Graham was involved in protected activity is
controlling regardless of.whether she actually participated in such activi-
ties See Henning & Cheadle, 212 NLRB 776, 777 (1974), enf denied on
other grounds 522 F 2d 1050 (7th Cir 1975) -
15 The two other employees not rehired were not in the unit
is See NLRB Y Nabors, 196 F 2d 272, 275-276 (5th Cir 1952), cert
denied 344 U S 865 (1952) Such evidence is probative rather than dis-
positive , however NLRB Y. Computed Time Corp, 587 F 2d 790, 795 (5th
Cir 1979) - -
Harmon, Huffman, and Eslinger each testified
that there was no communication with Med West
concerning personnel or employees' union activi-
ties. In this regard, Harmon stated that he relied
solely on information contained in employee per-
sonnel files provided by Nationwide in making his
hiring decisions. The judge found, however, that
Med West's assertions were "self-serving" and con-
tradicted by the record as a whole. The undisputed
record evidence shows Harmon spent at most 90
minutes reviewing 72 personnel files-an average
of 75 seconds 17 per file. Harmon stated he exam-
ined attendance records, work evaluations, discipli-
nary warnings, and supervisory comments con-
tained in the files, and.also took notes. Under the
circumstances, we conclude, as did the judge, that
Harmon had insufficient time to review the files
adequately, and instead based his hiring decisions
on consultations with Nationwide management
concerning employees' union membership, offices,
and sympathies.
The General Counsel's prima facie case is- also
bolstered by. specific evidence of disparate treat-
ment. Thus, though lvfed West failed to rehire
Bowden allegedly for absenteeism, it has failed to
explain why it retained Crawley, an employee in
Bowden's department who had received several
written warnings and had been. suspended for ab-
senteeism. Bowden had no written warnings or sus-
pensions for absenteeism, or for any other
reason.18 Med. West has also failed' to explain why
it chose not to rehire employee Edeker allegedly
for "gossiping" and causing "dissension," when
other employees evidently retained also "caus[ed]
dissension." -
Finally, Med West has not challenged the
judge's finding that it unlawfully refused to bargain
with the Union, an act constituting additional evi-
dence of union animus.
The General Counsel has thus ',met her initial
burden, showing Med West had knowledge of the
union activities of the five alleged discriminatees
and that its knowledge was a motivating factor in
its hiring decisions. -
We next consider whether Med West has met its
burden of showing that it would have refused to
rehire the alleged discriminatees absent their pro-
tected union activities. -
As noted, Med West claims it based its hiring de-
cisions solely on information contained in the em-
ployee, 'personnel files provided by Nationwide.
17 The judge inadvertently stated that Harmon would have averaged
"85" rather than "75" seconds per file We correct the error. .
18 The only evidence of absenteeism introduced by Med West was two
job evaluations listing "Attendance " as one of Bowden 's "W[eakest]
P[oints] "
CEDAR FALLS HEALTH CARE CENTER 1303
The judge accepted the files and Harmon's testimo-
ny at face value in concluding that Med West had
met its burden with respect to Bowden, Edeker,
Foss, and Graham, but not Cobb.19 The judge's
analysis, however, is inconsistent with his previous
finding, which we have affirmed, that Harmon had
insufficient time to rely solely on his alleged hiring
criteria and instead conferred with prior manage-
ment regarding employees' union offices and activi-
ties.
The previously detailed evidence disclosing dis-
parate. treatment of Bowden and Edeker cast fur-
ther doubt on Med West's asserted motives.
We conclude that Med West's asserted defense is
pretextual, and it has thus failed to meet its burden
under Wright Line.20
Accordingly, we find that Med West's refusal to
rehire employees Bowden, Cobb, Edeker, Foss,
and Graham violated Section 8(a)(3) and (1) of the
Act.
We shall therefore issue an amended Conclusion
of Law, a new Remedy, and a new Order and
notice to employees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5.
"5. By discriminatorily failing to 'rehire Shirley
Bowden, Barbara Cobb, Sandra Edeker, Mary
Foss, and Jean Graham on 30 September -1983 be-
cause of their protected union activities, Respond-
ent Med West has engaged in unfair labor practices
19 The judge stated
As to Bowden, Harmon stated that she had a record of absenteeism,
which was supported by her personnel file As to Edeker, Harmon
testified that her file showed a record of gossiping and causing dis-
sension among employees, which indeed it did As to Graham,
Harmon stated that she had had numerous and serious health and
medical problesm and was not at the time even working for the
Center, all of which was true
Regarding Cobb, however, Harmon specified his reasons for not
rehiring her to be warnings contained in her personnel file for ver-
bally abusing patients and not getting along with her peers and su-
pervisors No such warnings or other entries from Cobb's personnel
file were produced , and for the reasons set forth above I do not
credit Harmon 's testimony on this point
20 Although it is undisputed that employee Foss had a serious medical
problem and was not working on the date she was denied reemployment,
she was able to return to.work 3 weeks later at a time when Med West
was still hiring In addition , while Med West claims to have based its
hiring decision on hospital records and other documents allegedly con-
tained in Foss' personnel file, it failed to present the evidence at the hear-
ing. As noted , Med West similarly did not produce file evidence in sup-
port of its alleged reason for not rehiring Cobb who controverted that
reason The failure to produce such relevant and readily available evi-
dence warrants an inference that the documents , if produced, would have
been unfavorable to Med West 's claims concerning these employees See
Auto Workers v. NLRB, 459 -F 2d 1329 (D C Cir 1972) See generally
Master Security Services, 270 NLRB 543, 552 (1984); United States Truck-
ing Corp, 219 NLRB 380, 381 (1975), enfd 532 F 2d 1020 (5th Cir 1976),
Interstate Circuit Y. US, 306 U S 208, 225-226 (1939)
affecting commerce within the meaning of Section
8(a)(3) and (1) of the Act."
REMEDY
Having found that Respondent Med West has
engaged in certain unfair labor practices, we shall
order it to cease and desist and to take certain af-
firmative action designed to effectuate the policies
of the Act.
We shall, inter alia, order Respondent Med West
to offer Shirley Bowden, Barbara Cobb, Sandra
Edeker, Mary Foss, and Jean Graham immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed, and to make them whole for any loss of
earnings they may have suffered as a result of the
discrimination practiced against them. Backpay
shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., -231 NLRB 651 (1977).
See generally Isis Plumbing, 138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, Med West Health Care Manage-
ment Corporation, d/b/a -Cedar Falls Health Care
Center, Cedar Falls, Iowa, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing to rehire or otherwise discriminating
against any employee for supporting International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW),
Local No. 838 or any other union.
(b) Refusing to bargain with the Union as the ex-
clusive bargaining representative of the employees
in the bargaining unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All full-time and regular part-time service and
maintenance employees of Med West Health
Care Management Corporation, d/b/a Cedar
Falls Health Care Center, Successor, at its
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cedar Falls, Iowa - facility, including nurses
aides, medical aides, activity aide, housekeep-
ing, laundry and dietary employees but exclud-
ing administrators, 'office clerical employees,
registered nurses, - licensed -practical nurses,
professional employees, guards and supervisors
as defined in the Act.
(b) Offer Shirley Bowden, Barbara Cobb, Sandra
Edeker, Mary Foss, and Jean Graham immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights or privileges previously en-
- joyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the
discrimination against them, in the manner set forth
in the remedy section of the decision.-
. (c) Remove from its files any- reference to the
unlawful failures -to rehire and notify the employees
in writing that this has been done and that the fail-
ure to rehire will not be used against them in any
way. -
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.
(e) Post at its facility in' Cedar -Falls, Iowa,
copies of the attached notice marked "Appen-
dix."21 Copies of the notice, on forms provided by
the Regional Director for Region 18, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained' for - 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.'
21 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTCIE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail to rehire or otherwise dis-
criminate against any employee for supporting
International Union,' United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), Local No. 838. or any other
union.
WE WILL NOT-refuse to bargain collectively with
Local No. 838 as the exclusive bargaining repre-
sentative of the employees in the bargaining unit.
We will not in any like or related manner inter-
fere with, restrain, or coerce you in the exercise of
the rights guaranteed you by Section 7 of the Act.
WE WILL offer Shirley Bowden, Barbara Cobb,
Sandra Edeker, Mary Foss, and Jean Graham im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make them whole for any loss of
earnings and other benefits resulting from their dis-
charge, less any net interim earnings , plus interest.
WE WILL remove from our files any reference to
the unlawful failures to rehire and notify the em-
ployees in writing that this has been.done and that
the failure to rehire will not be used against them
in any way. - -
WE WILL, on request, bargain collectively with
the Union as the exclusive representative of all em-
ployees in the following appropriate unit concern-
ing terms and conditions of employment and, if an
understanding is reached, embody the understand-
ing in a signed agreement: -
All full-time and regular part-time service and
maintenance employees of Med West Health
Care - Management Corporation, -d/b/a Cedar
Falls Health -Care Center, Successor, at. its
Cedar- Falls, Iowa facility, including nurses
aides, medical. aides, activity-'aide, housekeep-
ing, laundry and dietary employees but exclud-
ing administrators, office clerical employees,
registered nurses, licensed practical - nurses,
CEDAR FALLS HEALTH CARE 'CENTER 1305
professional employees , guards and supervisors
as defined in-the Act.
DIED WEST HEALTH CARE MANAGE-
MENT CORPORATION, D/B/A CEDAR
FALLS HEALTH CARE CENTER
Robert V. Johnson, Esq, of Minneapolis, Minnesota, for
the General Counsel.-
David S. Houghton, Esq. (Fitzgerald, Brown, Leehy, Strom,
Schour & Bernettler), of Omaha, Nebraska for the Re-
spondent.
Stanley Eisenstein, Esq., of Chicago, Illinois, for the
iCh P t U iararg ng y n on.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
issues in this matter are whether: (1) Respondent Med
West Health Care Management Corporation (Med West)
is the successor of Respondent Nationwide Management,
Inc. (Nationwide) in operating the Cedar Falls Health
Care Center (Center); (2) Med West failed to rehire some
of Nationwide's employees because of their protected ac-
tivities; (3) Nationwide directly and. Med West deriva-
tively or directly engaged in unfair labor- practices within
the meaning of the National Labor Relations Act (the
Act); and (4) Med West refused to negotiate with Local
838, UAW (the Union) in violation of the Act.
Charges were filed on October 11 and 13, 1983.1
Copies were mailed- to and received by Med West, the
Center, "Attention: Paul Huffman, Administrator" and to
others. On November 30 the same parties were sent and
received the consolidated complaint herein. Med West
served an answer about December 23. Hearing was held
before me at Cedar Falls, - Iowa, from February 13
through 15, 1984, and briefs were thereafter filed on
behalf of the General Counsel, Med West, and the
Union.
Upon consideration of the entire record herein, and
observing the demeanorof the witnesses, I make the fol-
lowing
1. FINDINGS OF FACT
A. Background and Jurisdiction -
The Center is a residential health care facility at Cedar
-Falls, Iowa. Until September 30 it was owned by the
seller corporation, not a party herein, the stockholders of
which were Tom Phillippe Sr., Tom Phillippe Jr.,
Rodney Benson , and Loreen Cheeseman and, with 'a 5=
percent interest, Paul-Huffman. Huffman also was seller's
second vice president. Huffman was the Center 's admin-
istrator, and the - Center was managed by Nationwide.-
Phillippe Sr., Phillippe' Jr., and Benson were all "affili-
ated" with Nationwide.
Since May 15,-1981, the Union was the certified bar-
gaining agent for all full and part-time service and main-
All dates, are in 1983 unless otherwise indicated.
tenance employees of the Center, "including nurses aides,
medical aides, activity aide, therapy aide, housekeeping,
laundry and dietary employees" but "excluding adminis-
trators, office clerical employees, Registered Nurses, Li-
censed Practical Nurses, Professional employees, guards
and supervisors as defined in the Act." A collective-bar-
gaining agreement between the Union and the Center
was in effect from December 1, 1981, through-the same
date in 1984. -
In early August, Med West began negotiations to pur-
chase the assets of the Seller. Med West owned or oper-
ated 43 nursing homes, and intended to transfer-owner-
ship of the Center to a preformed group of investors, for
whom .it would .provide management. As described, the
sale of assets to Med West was accomplished, effective 11
p.m. on September 30, and it thereafter anaged the
Center either for itself or as agent for its investor pur-
chasers. Med West admits and I find that at all material
times mentioned in the complaint it was an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and a health care institution within
-the meaning of Section 2(14) of the Act. I further find
the Union to be a labor organization -within the meaning
of Section 2(5) of the Act.
B. Successorship Issue
There is no question but that a successor employer is
bound to the same obligation to bargain as was his pred-
ecessor, and that the successor is' obligated to remedy
unfair. labor practices of,its predecessor of which it had
knowledge or which underlay unfair labor practice
charges pending at the time of successorship. z The first
issue is therefore whether a successorship situation exist-
ed. "The determination of successorship, turns on a
number of related inquiries . . . [which] include (1)
whether there is a continuity in the work force (the ma-
jority issue), (2) whether there is continuity in the em-
ploying industry, (3)' whether there is continuity in the
appropriateness of the bargaining unit, and (4) the impact
of a hiatus in operations."a -
Med West'retained Huffman as administrator, retained
Kathy Eslinger as director of nursing, retained 63 of the
total-72 employees,'and retained 36 of the total 43 mem-
bers of the bargaining unit. Even if the nine employees
not retained were replaced, and the -record does not
show if in fact they were, Med West obviously did not
change the majority of the work force. The "employing
industry" and the "appropr iateness of the bargaining
unit" were totally unchanged, and there was no hiatus in
operations. Though not an alter ego, Med West was and
is clearly a successor entity to Nationwide in operating
the Center, within the interpretations of the Act, and I
here so find.
Having determined that Med'West had the obligations
of a successor employer, it remains to determine whether
its 'predecessor engaged in unfair labor practices, wheth-
er its predecessor was involved in proceedings before
2 Golden State Bottling Co. v NLRB, 414 U S 168 (1973)
8 The Developing Labor Law, ABA Section of Labor and Employment
Law, Charles J Morns, 1983, at 713
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this Board, whether Med West knew of such practices or
proceedings, and whether Med West itself engaged in
unfair labor practices.
C. Unfair Labor Practices
1. Nationwide's actions .
The General Counsel alleged four acts by Nationwide
constituting unfair labor practices, -to wit: (a) in June Es-
linger threatened to watch employeesmore closely and to
give warnings in reprisal for filing grievances; (b) in July
Huffman and Eslinger threatened that employees filing
grievances would be given warnings and suffer other re-
prisals; (c) in August Eslinger warned an employee not
to associate with Union members ; (d) since June Eslinger
directed employees to issue written warnings to union
supporters filing grievances; and, (e) in April or May Es-
linger told an employee that Respondent had been reluc-
tant to hire her because she had been a union member at
a prior employer. Though no charges had been filed con-
cerning these allegations they were properly included in
the consolidated complaint.
Pam DeSerano was employed as a licensed practical
nurse (LPN), and thus excluded from the bargaining
unit. Her employment was not continued by Med West
as of -September, 30. She testified that in June, at the
monthly nurses ' meeting in Eslinger 's office, "Kathy said
that she felt the Union was filing all- thesegrievances to
irritate her, and she wanted-Kathy said that she would
like us to start writing more warnings, verbal warnings
or written warnings." Such warnings were to be directed
to "the Union employees" and specifically to -Barbara
Cobb, the first-shift steward who prepared most of the
grievances in written form. DeSerano stated that, in ad-
dition to Eslinger and her assistant LaCompte, other
nurses at the meeting were Hellman , Thompson, and
Grandon, and possibly Schilling, O'Niel, and Meister,
and-that she discussed Elsinger 's statements with Thomp-
son, among others. Hellman and Thompson, both of
whom were and still are LPNs employed at the Center,
testified and denied that Eslinger, or Huffman, ever gave
such directions. Thompson could not recall DeSerano
ever discussing such directions with her.
DeSerano also testified that in July Huffman spoke to
her alone in Eslinger 's office , that Huffman was upset
about one of the grievances filed by Barbara Cobb which
he felt was "picky,",and that he said ". . . we could be
picky too and we should start giving warnings in retalia-
tion" Cobb and allUnion employees. Cobb, testified that
DeSerano had told her that Huffman said "I have been
writing too many grievances and that she had been told
that they were to write as many warnings on me as pos-
sible so they could . get things in their hands to fire me."
DeSerano further testified that in August, .Eslmger
spoke to her about socializing with nurses aides and told
her not to socialize with those who were Union members
as they "would more than, likely just try to get informa-
tion from me and turn it over td the Union."
Huffman and Eslinger also testified , denying having di-
rected employees to prepare retaliatory or discriminatory
warnings for union personnel , and Eslinger . stated that
her only directions as to warnings.or socializing were of
a responsible management nature-that warnings were to
be written to permit administrative review, and socializ-
ing with those whom you supervise' was to be avoided
because it increased the difficulties of supervision.
I credit the denials of Huffman and Esltnger. Those
persons cited by DeSerano as being witness to statements
did not confirm DeSerano's testimony. Though these
persons were still employed by Respondent, their testi-
mony was forthright and believable, and I do not credit
DeSerano's contested testimony regarding statements of
both Huffman and Eslinger. I therefore find no unfair
labor practice-by Nationwide in this regard.
Jean Graham, a nurses aide and union member, was
hired on January 17. She testified that one evening in
April , while having coffee at Eslinger 's home , Eslinger
told her she "had been hesitant at first to hire me be-
cause of my affiliation with the Union." Graham had
been a member of the UAW during prior employment at
John Deere Company. Eslinger admitted that she knew
Graham had been a UAW member at Deere, but denied
having made the statement alleged. Having previously
found that Eslinger's disputed testimony was credible for
good cause, I credit her testimony here as well, and find
no unfair labor practice by Nationwide in this regard.
There were no matters involving the Center pending
before the Board at the time Nationwide's involvement
with the entity ended, and there have been proven no
preexisting unfair labor practices. Though I have found
Med West to be a successor employer within the inter-
pretations of the Act, I find that it succeeded to no obli-
gation to remedy unfair labor practices as of September
30. - - -
2. Med West's actions
a. Background -
The General Counsel alleges that Med West refused to
employ five former unit-member employees because of
their protected activity, and refused to employ DeSer-
ano, a nonunit employee, because she would not interfere
with the protected rights of other employees.
Efforts to sell the Center began some time prior to
August, and in that month Med West became sufficiently
interested to obtain some required state authorization as
a contingency. At that time there had recently been an
inspection of the Center by the Iowa State Department
of Health , Division of Health Facilities , instigated at
least in part by complaints of union members that insuffi-
cient nurses aides were-employed to properly care for
patients. The investigation resulted in imposition of a
$300 fine for that and other violations. Copy of the cita-
tion was sent to Med West. Eslinger testified that she
was unaware of the identity of the complainants, since
the State holds that information confidential.
Huffman was, phoned by, his manager at Nationwide
some time in September and was told that Med West
would probably be purchasing the Center. In the course
of another conversation, on September 27 or 28, he was
told that it appeared that the purchase would be final-
ized . In another call, on September 28,,he was told that
agreement had been reached , and that his manager at
CEDAR FALLS HEALTH CARE CENTER ' 1307
Nationwide would be there the following day. As re-
quested, Huffman arranged a meeting of all employees
for September 29 at 2 p.m.
About a week before September 27, Eslinger asked
Huffman to advertise for RNs, LPNs, and nurse aides,
which he did on that date. Eslinger's purpose was to
build up her file of applications, as the rate of turnover
ran two to three employees per month. During that third
week of September, Eslinger was told by Huffman that
Med West was taking over the Center, that it might not
rehire some employees, and that they had to be prepared,
in the event of a walkout'by personnel. Huffman repeat-
ed this advice on September 28, when he informed Es-
linger of the meeting scheduled for the following day.
On Thursday, September 29, after Huffman's supervi-
sor from Nationwide had arrived, Gene Harmon came in
about 11 a.m. to " represent Med West. After "exchanging
pleasantries," Harmon asked for and was given-the per-
sonnel files, which he -began reviewing , in alphabetical
order, until about 12:30 p.m. He then went to lunch, re-
turning about . 1 p.m. to sit in on discussions between
Med West's Director of acquisitions and Nationwide's
representatives, about real estate and other aspects of the
transaction. There was also a short discussion, with Huff-
man present about the structure of the staff meeting, and
about substitution for the existing employee health.insur-
ance plan made necessary by the purchase.
At 2:30 p.m. the staff meeting was begun by Huffman
who explained that Med West would he operating the
Center, that all employees were to submit new applica-
tions immediately on forms then provided, and that em-
ployees would be advised the following day whether or
not they were rehired. New employee health insurance
forms were also distributed. Harmon was also introduced
to the staff and spoke only shortly and generally.
Harmon, Huffman, and the other representatives of
Med West and Nationwide then continued discussion of
other aspects of the purchase, but testified that there was
no discussion of personnel, or of union activities or mem-
bership. Harmon left the Center about 5 p.m., taking
with him the reemployment applications and the notes he
had made while reviewing personnel files. In reviewing
these approximately 72 files in less than .90 minutes,
Harmon had followed his established practice of deter-
mining performance and attitudes from attendance
records, evaluations, and warnings.
The next morning, Friday, September 30, Harmon
phoned Huffman, informed him which employees would
not be rehired, and asked him to inform the employees.
As hereinafter discussed, there were nine empoyees not
rehired, five union members two nonunion unit members,
and two not members of the bargaining unit.
.
b. Individuals not rehired
(1) Mary Foss
Foss was employed at the Center as a nurses aide
shortly after the Center opened in 1978: From June until
September 1982, from October or November 1982 until
April 1983, and, after 6 days of work, from April until
October 1983, she:was unable to work because of illness,
hospitalization, ' and -medical problems. Foss was chair-
man of the Union's bargaining unit and, as such, held
monthly unit,meetings, attended grievance and arbitra-
tion meetings, and assisted stewards- in the writing of
grievances. With assistance, she was able to continue her
.union activities through the entire period though able to
work only about 2 months or less in a 30-month period
to October ,1984, and only 6 days in the 6 months be-
tween April 1983 and October 1984. - She presented a
medical certificate on October 21 declaring her "fit for
employment."4
Harmon's stated reason for failing- to rehire Foss was
that she was not at the time currently employed or
working at the Center, and that the hospital charges and
reports in her personnel folder indicated a severe medical
problem which, as a new owner, Med West did not wish
to and was not required to "inherit." Harmon denied any
knowledge of Foss' union office or activities.
(2) Barbara Cobb
Cobb was employed as a nurses aide at the Center
February 22, 1982, and worked continuously until the
Med West purchase. She was vice chairman of the bar-
gaining unit , replacing Foss in various meetings , and also
functioned as the steward for the first shift. She prepared.
45 of the 49 grievances presented,•the others having been
prepared during her vacation. She was once told by Es-
linger that she "caused dissension" among the staff,
which Cobb took to relate to her filing grievances.
Cobb testified that a notation of her causing dissension
was placed by Eslinger on an evaluation report. When
Cobb was told .she was not being rehired and she asked
the reason, Huffman told her it was because her file con-
tained a written warning for verbally abusing a patient.
Cobb denied such incident had taken place, and had no
knowledge of such warning. Harmon testified that
Cobb's file contained two or three instances in which she
had been abusive, and-also had difficulty in getting along
with peers and supervisor. Neither an evaluation report
nor • the warning were produced or entered into evi-
dence, and any notes Harmon may have made are also
not-in the record.
(3) Shirley Bowden
Bowden was employed by the Center in housekeeping
and laundry duties from March 19, 1981, until the Med
West purchase. She was recording secretary of the unit,
and posted notices and minutes of union meetings.
Bowden testified that she had never been warned or
criticized regarding absenteeism, but then later, on direct
examination, stated that on one review her supervisor
had told her she "had missed quite a bit, but I had better
watch it and it had-it was getting better."
Harmon testified that his reason for not rehiring
Bowden was absenteeism. Two of Bowden's employee
ratings were produced, dated August 29, 1982, and
March 25, 1983, respectively. Under the classification
"Dependability" each had marked the third, in decreas-
',Though the certificate was not entered into evidence, I am under the
impression it was more in the nature of'discharging Foss from medical
care rather than being physically fit to resume her prior employment
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing desirability, of five choices, to wit: Frequently
Absent-but for cause. In answering the question "What
do you consider (her) weakest points," the supervisor'
stated on the first rating that "Outside activities some-
times interferes -(sic) with job attendance" and on the
second "Attendance and Cooperation with fellow em- •
ployees."
(4) Sandra Edeker
Edeker was employed at the Center as a nurses aide
from February 1981 until the Med West purchase. She
was financial treasurer of the unit, giving a report of fi-
nancial - condition at meetings and also maintaining a
"flower fund." During her employment she had filed 11
or 12 grievances, and testified on behalf of the Union at
an arbitration. Huffman allegedly - once complained to
Edeker that she was harassing new employees'to loin the
Union. When she was not rehired Huffman told her that
the reason was a written warning for having failed to
take a patient's, vital signs. Edeker had, in fact, received
such a warning.
Harmon testified that the reason for not rehiring
Edeker was "a problem-attitudewise with dissension and
so forth I think is the way it was termed in her personnel
file." The file contained three documents placed, in the
record. A written warning, dated March 26, 1981, states:
"I had a discussion with Sandy re her continued spread-
ing of gossip. I emphatically told her I wanted it to stop.
We talked of other matters including the type of coop-
eration I expected from her. She immediately went to
the other [nurses] aides and told them exactly what I had
said but changed pertinent facts." The other two docu-
ments were rating sheets prepared by Eslinger, dated
February 19, 1982, and the same date in 1983 on both of
which, under the heading "Cooperation," the fourth of
five choices, entitled "Cooperates reluctantly and some-
times causes dissension" was checked . The comments re-
garding "What do you.consider [her] weakest points"
were, in 1982, "Tries to stir up gossip among employees"
and, in 1983, "Causes. dissension and breeds trouble
among staff. Minimal improvement since last evaluation."
(5) Jean Graham
Graham was employed by the Center as a nurses aide
from January 17 until the Med West purchase. She had
previously been employed at the John Deere Company,
and had there been a member of the UAW, which was
known to Eslinger, but did not participate in the union
functions of the bargaining unit at the Center. In July
she was out for 1 week due to, a work-related back
injury.
On August 11 Graham, together with nurses aides
Kolash, Pritchard, and Larson, were called to a meeting
with Eslinger , lectured regarding gossip and dissension,
and required to sign a statement reading "I was spoken
to and realize the possible consequence of gossiping and
causing dissension among staff. I am also aware [that] if
this type of behavior continues and I am [an] active par-
ticipant of such discord my job will be in jepordy [sic]."
Graham testified that she later discussed this interview
with the other nurses aides and told them that they
should have insisted on a union steward being present,
and that, later, Huffman told her he had heard a rumor
that the aides on Graham's shift, the second shift, were
going to join the union and that Graham would be -shift
steward. Huffman denies having heard such a rumor or
making such a statement. When she was not rehired,
Huffman told Graham that the reason, was her back
problem -
Harmon testified that the reason Graham was not re-
hired was that she "was the one with the back problem."
Graham's Employee Health Examination Record, in her
personnel file, dated April 27, indicated that she had ac-
knowledged having had, among other items, head injury,
back injury, and chronic back pains. Harmon also testi-
fied that a reason for not rehiring her was that Graham
"had had a difficult time with her peers in cooperating
with or getting along with some of her peers." Of the
other aides involved in the incident with Eslinger,
Kolash was not rehired and Pritchard and Larson were
rehired by Med West.
(6) Pam DeSerano
DeSerano was employed by the Center as a licensed
practical nurse (LPN) between February and August
1981, after which she voluntarily left for a better job, to
return in January 1982, remaining until the 'Med West
purchase. As a LPN, DeSerano was not a member of the
bargaining unit.
As previously described, DeSerano testified that Es-
linger instructed her, with other LPNs and RNs, to issue,
written warnings to union members , and that Huffman
told her to give union members warnings in retaliation
for their actions. When she was not rehired 'by Med
West, Huffman allegedly told her the reason related to
an instance when she had sent Eslinger a note regarding
a patient being permitted to get bed sores
Harmon testified that the reason for not rehiring De-
Serano was "an attitude problem" and that she did not
demonstrate "proper supervisory skills." The rating sheet
in DeSerano's file, apparently prepared by Eslinger, had
the following items checked:
Punctuality-Always on time (highest mark); De-
pendability-Rarely absent (second highest mark);
Notification-Always notifies in time (highest
mark); Ability to learn-Grasps instructions readily
(second highest mark); Appearance-Neat and in
good tastes (highest • mark); Personality-Makes
good impression, wears well (second highest mark);
Tact and courtesy-Tactful and considerate of
others (second highest grade); Interest (in -job)-
Shows interest (second highest grade); Initiative-
Always finds extra work to do (highest grade);
Judgment-Action generally based on good reason-
ing (second highest grade); Cooperation-Promotes
cooperation and good will (second highest grade);
Responsibility-Seeks additional - responsiblities
(highest grade); Accuracy-Above average (second
highest grade); Neatness-Takes pride in appear-
ance of work . Has "sense" of neatness (highest
CEDAR FALLS HEALTH CARE CENTER
grade), Quantity-Consistently turns out more than
average (second highest grade)
As to DeSerano 's "strongest points" the report states:
"I consider Pam an above average -LPN. Pam enjoys the
challenge of additional responsiblities . I_ praise Pam on
her summaries and ability to • do nursing assessment"
Concerning her "weakest points" the report states: "I
feel Pam needs to improve supervisory skills to be a di-
rective [sic ] leader [and ] give specific guidance. Make
clear to subordinates what is expected."
(7) Others
In addition to the above six employees , another LPN,
and two additional nurses aides, who were not union
members, were not rehired Failure to hire these employ-
ees was not charged as unfair labor practices . The rea-
sons given by Harmon for not rehiring the LPN were at-
titudenal problems, and lack of supervisory skills, and for
not rehiring the nurses aides were attitudenal. problems
and, for one, medical problems.
c. Discussion
It is well settled "that the burden of proof is on the
General Counsel, and he must present substantial evi-
dence that the discharge was the result of improper mo=
tives. . . * An unlawful purpose is not lightly to be -in-
ferred . Mere suspicions of unlawful motivation are not
sufficient to constitute substantial evidence " NLRB v.
Computed Time Corp., 587 F.2d 790, 795 (5th Cir. 1979).
The General Counsel has established that of this nine
employees not rehired a bare majority of five were in-
volved in union affairs. However, since two of the em-
ployees not rehired were not eligible for union member-
ship , a, greater majority of bargaining unit members not
rehired, five out of seven, were involved in the Union.
The fact that a "vast majority" of the total number of
employees discharged were union sympathizers has been
found to constitute sufficient evidence of antiunion
animus to support reinstatement and backpay orders
NLRB v. Nabors, 196 F 2d 272 (5th Cir. 1952), cert.
denied 344 U. S. 865 (1952).
A bare showing of the ratio of union sympathizers dis-
charged to total employees discharged is, however, pro-
bative rather than dispositive , NLRB v. Computed Time
Corp., supra , at 795, and additional "significant evidence"
is,required . It was established that all four of the union
officers, and one of its two stewards were not rehired.
The General Counsel and the Charging Party will rarely
be able to present direct evidence of that state of, mind of
the employer indicating the true motive dictating dis-
charge or failure to rehire. Only circumstantial evidence
may be capable of production, but the Board can infer
.from such circumstantial evidence that an improper
motive exists . Abilene Sheet Metal v. NLRB, 619 F.2d
.332, 339 (5th Cir. 1980) See also Seattle-First National
Bank v. NLRB, 638 F.2d 1221, 1225 (9th Cir. 1981). So
long as the inference drawn is reasonable , considering
the record as a whole, circumstantial rather than direct
evidence will support a finding of unfair labor practices.
Irwin County Electric Cooperative, 247 NLRB 1357, 1363
(1980).
1309
Here, Harmon , Huffman , and Eslinger testified, with-
out contradiction , that there was never any discussion
with the successor employer of who belonged to the
Union and who did not, of-who the union officers within
the bargaining unit might . be, or of who the administra-
tion.of the Center preferred to be rehired or not rehired.
Harmon , in particular testified, that his sole involvement
with the rehiring of personnel to staff the operation he
had just purchased for approximately $ 1 million consist-
ed of at most a 90-minute review of 72 personnel - files-
averaging . 85 seconds per employee at most
Self-serving statements of employer representatives are
not to be accepted merely .because they are uncontradict-
ed when the record as a whole casts reasonable doubt on
those statements. Teamsters Local 512 (Aero Corp.), 237
NLRB 455 (1978), fn. I -at 455, citing NLRB v. Walton,
396 -U.S. 404, 408 (1962), and NLRB v. Howell Chevrolet
Co., 204 F.2d 79, 86 (9th Cir. 1953), affd. 346 U.S. 482 I
do not believe that before reaching his personnel deci-
sion Harmon did not consult with the prior management.
He had insufficient time to review the files alone; he
would alone hardly have chosen all four union officers
and one of the two stewards; he would alone hardly
have selected the individual thought to be promoting fur-
ther union membership and about to be appointed stew-
ard. In short he would alone hardly have selected out of
the seven unit employees not rehired , four who were
plus one thought to be union leaders . On the record as a
whole, I find that Harmon based his decision not. to
rehire certain employees on their respective union office,
activities , or sympathy.
Harmon stated specific grounds , other than those pro-
scribed by the Act, on which he allegedly based his deci-
sion . As to Bowden , Harmon stated that she had a
record of absenteeism , which was supported by her per-
sonnel file. Asto Edeker, Harmon testified that her file
showed a record of gossiping and causing dissension
among employees, which indeed it did As to Graham,
Harmon stated she had a back problem , which was cor-
rect and which would adversely affect her ability to per-
form her work . Concerning Foss, Harmon stated that she
had had numerous and serious health and medical prob-
lems and was " not at the time even working for the
Center , all of which was true.
Though the General Counsel and Union have substan-
tiated a prima facie case of antiunion animus affecting a
decision not to rehire , the successor employer sucessfully
went forward and proved that concerning Bowden,
Edeker , Graham , and Foss it would have reached the
same decision absent their union activities and offices.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 ( 1982) The
General Counsel and the Union subpoenaed and exam-
ined personnel files, and were unable to prove any dis-
parate treatment' '
Concerning DeSerano , it has been previously found
there were no protected activities for which - a retributive
failure to rehire her would be unlawful . In view of the
laudatory supervisory review in her -personnel file, the
grounds given by Harmon for failing to rehire DeSerano
do not appear sound , but it has long been settled that an
- 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer may hire or discharge for good reasons or bad
reasons , or for no reason at all, as long as he does not
violate rights conferred by the Act.
In view of the above, I firid that Med West, as succes-
sor employer, did not act unlawfully in failing to rehire
Foss, Bowden, Edeker, Graham, or DeSarano.
Regarding Cobb, however, Harmon specified his'rea-
sons for not rehiring her to be warnings contained in her
personnel file for verbally abusing patients and not get-
ting along 'with her peers and supervisors. No such
warnings or other entries' from Cobb's personnel file
were produced and, for, the reasons set 'forth above,`-I do
not credit Harmon's testimony'on this point. Though cir-
cumstantial evidence must be more than mere conjecture,
surmise , and suspicion of discrimination, the Board may
base findings of violation solely on evidence which is cir-
cumstantial. Aero Corp., supra, and cases cited therein. I
therefore find that- Harmon's failure to rehire Cobb • was
based on her protected activity as a union official, in vio-
lation of Sections 8(a)(1) and (3) of the Act.
D. Failure to Bargain
1. Facts " '
The first attempt at contact between the Union and
Med West came shortly after the Center's sale : On Sep-
tember 27 the Union wrote to Nationwide that it was
aware of rumors of impending sale, requesting the identi-
ty of the new owner and an opportunity to meet them.
On September 30, Nationwide sent a letter to the Union
reporting the sale to "Med West Health Care Of Omaha,
Nebraska" as of that date,. and reporting that a meeting
between employees and Med West had taken place on
September 29, at which "employees desiring to be em-
ployed by Med West Health Care" submitted employ-
ment applications. - -
On October 3, in a letter addressed to Huffman "based
on our phone conversation that you will be retained as
Administrator and the fact that the only address I have
for Med West Health Care is Omaha, Nebraska," the
Union requested a meeting with the Center's new
owners, "for the purpose of bargaining, and to discuss
the reinstatement of the three Union members who were
released from their job." The letter further commented
that "We feel that it is very important that the meeting
be held immediately." On October 21 the Union again
wrote to Huffman, demanding recognition and request-
ing a meeting.
On November 14, David Houghton, as ' attorney for
Med West, wrote the Union, announcing his representa-
tion , advising that Med West had' requested the contact
"for the purpose of setting up a meeting to bargain with
respeci to a contract," and asking the Union to call "so
that we may set up such a-meeting and begin this process
as soon as possible." The'call`was made on November 21
and, as confirmed by Houghton's letter to the Union,-
they agreed-to meet at Cedar Falls on December 2.
At that meeting the Union proposed that the bargain-
ing contract with Med West's predecessor be continued
until expiration in December 1984 with some modifica-
tion of the provisions governing grievance procedure.
Med West stated that it'wanted to bargain more than a
1-year agreement, and wanted to consider some changes
in the existing contract, and it was agreed that another
bargaining session be held on December 12, that prior
thereto Med West would send the Union an executed
agreement about rules governing negotiation, a copy of
which the Union would execute and return if satisfac-
tory, and that Med West was to send the Union a coun-
terproposal as to the contract.
On December 7, Med West sent the Union the pro-
posed "Ground Rules" for the negotiation. A provision
of the proposed rules which the Union found strange
was that each side prepare and present a cost study of
each of its proposals, the Union believing that the cost
information being in the possession -of the employer it
was not the province of the Union to prepare any such
study. Together with the ground rules, Med West sent
the Union a typed form entitled "Date for Conclusion of
Negotiations," which conformed to the last proposed
ground rule-that "the two teams shall at the outset of
negotiations agree as to a date by which they desire to
conclude negotiations."
Shortly before the December 12 meeting, the office of
Med West's counsel advised the Union by phone that he
was not available that date, and the meeting was re-
scheduled to December 21. On the morning of Decem-
ber 21, Med West's counsel phoned the Union and ad=
vised that. because of adverse weather conditions he
would not be able to be there, but that he-would send
the Union Med West's counterproposals and he would
phone after the first of the year to schedule a meeting.
Having heard or received nothing from Med West by
January 6, 1984, the Union again wrote to Med West's
counsel on that date. Having no response, the Union sent
another letter on January 23, 1984. Until the hearing
opened, February 13, 1984, the Union, had received no
response to its letters of January 6' or 23, 1984, or other
contact from Med West or its counsel. Shortly before
this hearing began counsel for Med West told the Union
representative in the hallway to the hearing room that he
had been unable to "get back" to the Union because of
his schedule and-suggested that they should try to "set
some days" for meeting.
2. Discussion
Med West argues that it did not fail or refuse to bar-
gain with the Union because the Union never executed
and returned the ground rules for negotiation or the
form entitled"Date for Conclusion of Negotiations," and
that it has in 'fact met and bargained with the Union ' by
both recognizing the Union as the employee bargaining
unit exclusive representative, and,' presumably, meeting
with union 'representatives on December 2 and proposing
ground rules.
It has been most clearly stated that "Ascertaining com-
pliance with the duty to bargain in good faith generally
requires inquiry into an employer's motive or state of '
mind during the bargaining process. . 'Since it would
be extraordinary for a party directly, to admit a "bad
faith" intention, his motive must of necessity be ascer-
tained from circumstantial evidence.. . . Good faith
must be determined by a consideration of the totality of'
CEDAR FALLS HEALTH CARE CENTER 1311
circumstances. . . .' A state of mind such as good faith
is not determined by a consideration of events viewed
separately. The picture is credited by a consideration of
all the facts viewed as an integrated whole." Seattle-First
National 'Bank v. NLRB, 638 F 2d 1221, 1225-(9th Cir.
1981), remanding 214 NLRB 753 (1979).
- The totality of circumstances outlined above shows a
clear failure of Med West to bargain with the Union and
an intent to refuse to bargain. The initial delay of over a
month in responding to the Union's "requests" of Sep-
tember 27 and October 3 may be excused due to details
attendant upon a business takeover, though the record
discloses no such time consuming details. The cancella-
tion of the meeting on December 2 due to counsel's
"other commitments" can he understood, even though
the record discloses no such other commitments actually
existing. The cancellation of the meeting of December 21
can be excused in view of the "adverse weather condi-
tions," though the record does not disclose that adverse
weather conditions existed. But what was-in Med West's
mind when it did not, as promised, phone after the first
of the year to reschedule a meeting, when it failed to
produce, as promised, its counterproposals, when it failed
to respond to the Union's- letter of January 6, 1984, and
when it failed to respond to the Union's letter of January
23, 1984? Med West served its amended answer to the
complaint on December 23-it was well aware that it
had been charged with failing and refusing to bargain,
but it took no action to fulfill the obligations which it
recognized until at least the first day of hearing herein,
when its suggestion that a date for future meetings, as
specious as all of its prior "attempts" at scheduling, was
off-handedly made
Med West argues now that its failure to bargain must
be excused because the Union did not agree or respond
to the negotiating preconditions. It raised no such objec-
tion to that failure in its unfulfilled promise to respond to
the contract terms proposed on December 2; it raised no
such objection in scheduling the aborted December 12
and December 21 meetings; it raised no such objection in
stating it would call "after the first of the year"; and, it
raised no such objection in the hallway conferance the
first day of this hearing. Clearly the argument was devel-
oped for use in briefing, and was not an existing circum-
stance in Respondent's mind affecting the good faith of
its actions.
On the foregoing facts and upon the entire record
herein, I make the following
CONCLUSIONS OF LAW
1. Med West Health Care Management Corporation is
a successor employer to Nationwise Management, Inc.,
and is an employer engaged in commerce" within the
meaning of the Act.
2. United Automobile, Aerospace and Agricultural Im-
plements Workers of America (UAW) is a labor organi-
zation within the meaning of the Act.
3. All full-time and regular part-time service and main-
tenance employees employed at Cedar Falls Health Care
Center, including nurses aides, medical aides, activity
-aides, housekeeping, laundry, and dietary employees, ex-
cluding administrator, office clerical employees, regis-
tered nurses, licensed practical nurses , professional em-
ployees, guards and supervisors as defined in the Act,
constitute a unit appropriate for bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material the Union has been and contin-
ues to be the exclusive representative of the employees in
the aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section.9(a) of the
Act. -
5. By discriminatorily failing to rehire Barbara Cobb
on September 30, 1983, because of her activities on
behalf of the Union, Respondent Med West engaged in
an -unfair labor practice within the meaning of Section
8(a)(1) and (3) of the Act. -
6. By failing and refusing to bargain collectively and in
good faith with the Union, Med West has been engaging
in unfair labor practices within the meaning of Sections
8(a)(1) and (5) of the Act.
7. The unfair labor practices of Med West affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
8. The General Counsel and Charging Party have
failed to prove by a preponderance of the evidence that
Respondent Nationwide or Med West interfered with,
restrained or coerced employees in the exercise of rights
guaranteed by Section 7 of the Act by threats, warnings,
or other acts, or discriminatorily refused employment, in
violation of Section 8(a)(1) and (3) of the Act, other than
as previously found.
REMEDY
Having found that Respondent Med West has engaged
in certain unfair labor practices, I find it necessary to
take certain affirmative action designed to effectuate the
policies of.the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
Respondent Med West Health Care Management Cor-
poration, Omaha, Nebraska, its officers, agents, succes-
sors, and assigns,, shall -
1. Cease and desist from
(a) Failing to rehire or otherwise discriminating
against any employee for supporting International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), Local No. 838, or
any other union. -
(b) In any like. or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
• effectuate the policies of the Act.
5 If no'excepiions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
All full-time and regular part-time service and main-
tenance employees of Med West Health Care Man-
agement Corporation, d/b/a Cedar Falls Health
Care Center, Successor, at its Cedar Falls, Iowa fa-
cility, including nurses aides, medical aides , activity
aid, housekeeping, laundry and dietary employees
but excluding administrators, office clerical employ-
ees, Registered Nurses, Licensed Practical Nurses,
Professional employees, guards, and supervisors as
defined in the Act.
(b) Offer Barbara Cobb immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the decision.
(c) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against her in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Cedar Falls, Iowa, copies of
the attached notice marked "Appendix."s Copies of the
notice, on forms provided by the Regional Director for
Region 18, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the Complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
8 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."